author: AMY, Judge.

text:
    Matthew Alan HILLMAN v. Timothy Wayne GRIFFIN.
    No. 13-648.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Kenneth St. Pe’, Guilliot & St. Pe’, LLC, Lafayette, LA, for Defendant/Appellee: Timothy Wayne Griffin.
    Adam G. Young, Laura N. Buck, Young & Cotter, LLC, Lafayette, LA, for Plain-tiflyAppellant: Matthew Alan Hillman.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

| jThis suit concerns allegedly defamatory statements concerning the plaintiffs abilities as a pilot sent by the defendant to the Federal Aviation Administration. After the plaintiff filed suit, the defendant filed an exception of lack of personal jurisdiction. The trial court granted the exception and the plaintiff appeals. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

The plaintiff, Matthew Alan Hillman, was involved in the potential sale of an aircraft to Jetstream Aviation, Inc. Jet-stream is an Idaho corporation and the defendant, Timothy Wayne Griffin, is the president of Jetstream. According to the record, Mr. Griffin flew to Lafayette in order to meet Mr. Hillman and inspect the aircraft. Mr. Hillman flew the aircraft to Houston, Texas, and Mr. Griffin accompanied him as a passenger. The record indicates that, after the sale fell through, Mr. Hillman and Mr. Griffin had a dispute about who was to bear the costs of the flight.

Mr. Hillman asserts that, after he refused to pay the costs of the flight, Mr. Griffin threatened him. Thereafter, Mr. Griffin sent a letter to the Flight Standards Office of the FAA in Boise, Idaho. According to the record, the letter expresses concern about several issues with Mr. Hillman’s conduct during the flight from Lafayette to Houston and with the maintenance of the aircraft. The record indicates that a subsequent investigation by the Flight Standards Office in Baton Rouge concluded that the majority of the accusations could not be substantiated. However, the investigation also concluded that the aircraft’s registration and inspection were out of date, and the inspector issued a warning concerning those violations.

| ¡.Thereafter, Mr. Hillman filed suit, alleging that Mr. Griffin’s letter contained defamatory statements and that his reputation was damaged as a result. Mr. Griffin filed an exception of lack of personal jurisdiction. After a hearing, the trial court granted the exception and dismissed Mr. Hillman’s claims. Mr. Hillman appeals, asserting as error that:

1. The Trial Court erred by granting Defendant/Appellee’s Exception of Lack of Jurisdiction Ratione Personae because it failed to recognize that constitutional due process requirements are met.
2. The Trial Court improperly granted Defendant/Appellee’s Exception of Lack of Jurisdiction Ratione Personae because it erroneously relied on Defendant/Appellee’s misinterpretation of the holding in Dumachest v. Allen.

Discussion

Personal Jurisdiction

Both of the plaintiffs assignments of error concern the trial court’s grant of the defendant’s exception of lack of personal jurisdiction.

Lack of jurisdiction over the person is a declinatory exception addressed in La. Code Civ.P. art. 925. Jurisdiction over non-residents is governed by La.R.S. 13:3201, which states:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other | ¡¡persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
(6) Non-support of a child, parent, or spouse or a former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state.
(7) Parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.
(8) Manufacturing of a product or component thereof which caused damage or injury in this state, if at the time of placing the product into the stream of commerce, the manufacturer could have foreseen, realized, expected, or anticipated that the product may eventually be found in this state by reason of its nature and the manufacturer’s marketing practices.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

“The limits of the Louisiana long-arm statute and of constitutional due process are coextensive; the sole inquiry into jurisdiction over a nonresident is whether it comports with constitutional due process requirements.” Peters v. Al-pharetta Spa, L.L.C., 04-979, p. 4 (La.App. 1 Cir. 5/6/05), 915 So.2d 908, 910-11. Personal jurisdiction may be either general or specific. Id. General jurisdiction exists where the defendant “has engaged in ‘continuous and systematic contacts’ with the forum, but the contacts are not necessarily related to the lawsuit.” Id. at 911. Specific jurisdiction exists where “the alleged cause of action arises out of, or is related to the defendant’s purposeful contacts with the forum state.” Id. Under either theory, the determination of whether constitutional due process standards have been satisfied requires a two-part analysis of 1) whether the defendant has minimum contacts with the forum state and 2) whether the extension 14of jurisdiction is consistent with traditional notions of fair play and substantial justice. Hensgens v. Pelican Beach Resort, 12-268 (La.App. 3 Cir. 10/10/12), 100 So.3d 371 (citing de Reyes v. Marine Mgmt. & Consulting, Ltd., 586 So.2d 103 (La.1991)). See also Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

In determining whether minimum contacts exist, the court should focus on the relationship between the defendant, the forum, and the litigation. Colder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984). Thus, the defendant must have “purposefully availed [him]self of the privilege of conducting activities within the forum state such that it can be said [he] should have reasonably anticipated being haled into court there.” Woodard v. Univ. of Utah, 00-789, p. 4 (La.App. 3 Cir. 11/2/00), 776 So.2d 528, 531 (quoting Aetna Cas. & Surety Co. v. Cont’l W. Ins. Co., 97-206 (La.App. 3 Cir. 12/10/97), 704 So.2d 900, writ denied, 98-77 (La.3/13/98), 712 So.2d 884), writ denied, 00-3199 (La.1/26/01), 781 So.2d 1265. The purpose of this requirement is to protect the defendant from having to defend itself from suit in a foreign jurisdiction solely because of a “random, fortuitous, or attenuated conduct, or by the unilateral activity of another party or a third person.” Id. (citing de Reyes, 586 So.2d 103). However, if sufficiently purposeful and egregious in its effects, a single contact may be sufficient to satisfy constitutional due process requirements. First American First, Inc. v. Nat’lAss’n of Bank Women, 802 F.2d 1511 (4 Cir.1986).

In Colder, 465 U.S. 783, 104 S.Ct. 1482, the Supreme Court addressed whether personal jurisdiction exists over nonresident defendants where the alleged harm results from the publication of an allegedly defamatory newspaper article. In that case, the plaintiff, a California resident and entertainer, filed suit against a Florida 1 .¡newspaper publisher and its editor and reporter who were involved in the publication of an allegedly defamatory story. The Supreme Court found that the defendants’ intentional and allegedly tortious actions were expressly aimed at California and that the brunt of any injury would be felt in California. Id. In determining that personal jurisdiction existed over all three defendants, the Supreme Court stated that:

The allegedly libelous story concerned the California activities of a California resident. It impugned the professionalism of an entertainer whose television career was centered in California. The article was drawn from California sources, and the brunt of the harm, in terms of both respondent’s emotional distress and the injury to her professional reputation, was suffered in California. In sum, California is the focal point of both the story and of the harm suffered. Jurisdiction over petitioners is therefore proper in California based on the “effects” of their Florida conduct in California.

Id. at 788-89, 104 S.Ct. 1482 (footnote omitted).

Applying the Supreme Court’s reasoning from Calder, the United States Fourth Circuit Court of Appeals determined in First American First, 802 F.2d 1511, that personal jurisdiction existed where an Illinois non-profit professional association mailed allegedly defamatory letters concerning a Virginia travel agent to members of the association. The letters were mailed to members both in and out of Virginia. The Fourth Circuit found that “[tjhough the allegedly libelous letters were not directed only at the plaintiffs’ actions- in Virginia, there can be no doubt that the primary and most devastating effects of the letters would be felt in Virginia where [the plaintiff] lives and his business is principally located.” Id. at 1517.

In contrast, in Schnapp v. McBride, 64 F.Supp.2d 608 (E.D.La.1998), claiming that a Wisconsin newspaper published an allegedly defamatory story about him, a Louisiana resident filed suit against the newspaper, its reporter, and its insurance company. Analyzing the plaintiffs claims under the reasoning | fienunciated in Colder, 465 U.S. 783, 104 S.Ct. 1482, the federal district coui’t judge noted that the plaintiff was not the focus of the article and that it was not purposefully targeted at either the plaintiff or Louisiana residents. Schnapp, 64 F.Supp.2d 608. Thus, finding that the article was not “calculated to cause injury” to the Louisiana plaintiff, the federal district court judge found that the plaintiff had not met his burden with regard to proving minimum contacts. Id. at 611.

The burden of proof with regard to minimal contacts lies on the party claiming jurisdiction to be proper. Hensgens, 100 So.3d 371. However, once such minimal contacts have been established, there is a presumption that jurisdiction is reasonable and the burden shifts to the party opposing jurisdiction to show that jurisdiction would offend traditional notions of fair play and substantial justice. Id. Appellate review of the trial court’s determination in an exception of personal jurisdiction is de novo. Dumachest v. Allen, 06-1614 (La. App. 3 Cir. 5/23/07), 957 So.2d 374, unit denied,, 07-1306 (La.10/5/07), 964 So.2d 939. However, the trial court’s factual findings which underlie that decision are reviewed under the manifest error standard of review. Id.

Mr. Hillman concedes that general jurisdiction is not appropriate here. However, Mr. Hillman argues that because the effects of Mr. Griffin’s defamatory statements were felt primarily in Louisiana, specific jurisdiction is appropriate. He | contends that Mr. Griffin “should have foreseen that a defamatory letter about a Louisiana pilot would cause injury to that pilot’s reputation in Louisiana.” Applying the Supreme Court’s “effects” test as enunciated in Colder, 465 U.S. 783, 104 S.Ct. 1482, to the circumstances of this case, we conclude that Mr. Griffin’s contacts with Louisiana are sufficient to establish specific jurisdiction.

The petition indicates that Mr. Griffin’s contacts with Louisiana are limited to his flight from Idaho to Lafayette to meet with Mr. Hillman and that he flew from Lafayette to Houston with Mr. Hillman to inspect the aircraft. However, a single contact may be sufficient to establish personal jurisdiction. First American First, 802 F.2d 1511. The allegations contained in the record indicate that although Mr. Griffin authored the letter in Idaho and sent it to an Idaho office of the FAA, the allegedly defamatory statements were focused on and were allegedly calculated to cause injury primarily to Mr. Hillman. Compare with Schnapp, 64 F.Supp.2d 608. Additionally, the brunt of any damages and the primary effects of any such defamatory statements would be in Louisiana where Mr. Hillman lives and his business is principally located. First American First, 802 F.2d 1511. Further, the fact that the investigation which allegedly damaged Mr. Hillman’s reputation was carried out by federal officials does not insulate Mr. Griffin from responsibility for acts which resulted directly from any of his allegedly defamatory statements. See Simon v. U.S., 644 F.2d 490 (1981) (finding personal jurisdiction in Louisiana over an attorney who made negligent or misleading statements to a federal judge in Georgia which ultimately resulted in a Louisiana resident being arrested on a bench warrant for failure to appear).

Finally, with regard to whether jurisdiction would offend traditional notions of fair play and substantial justice, because Mr. Hillman has established that | sminimum contacts exist, there is a presumption that jurisdiction is reasonable and the burden of proof shifts to Mr. Griffin. Hensgens, 100 So.3d 371. We note that Louisiana has a strong interest in providing effective means of redress for its residents. See Burger King Corp. v. Rud-zewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). Further, modern conveniences have reduced the burden on a party who has to defend himself outside of his state of residence. Id. Additionally, based on the limited information available in the record, Louisiana would be at least equally efficient as a forum for this litigation as would Idaho. After reviewing the record, we note only general statements by Mr. Griffin that jurisdiction would offend traditional notions of fair play and substantial justice. We conclude that these statements do not meet his burden of proving that the Louisiana courts’ exercise of personal jurisdiction is fundamentally unfair.

Accordingly, having found merit in Mr. Hillmans’ arguments, we reverse the judgment of the trial court granting the exception of lack of personal jurisdiction and remand for further proceedings.

DECREE

For the foregoing reasons, we reverse the trial court’s judgment concerning the exception of lack of personal jurisdiction and remand for further proceedings. Costs of this appeal are assessed to the defendant, Timothy Wayne Griffin.

REVERSED AND REMANDED.

      . Similarly, in Woodard, 776 So.2d 528, the plaintiff, a Louisiana resident, alleged that the defendants, a university in Utah and one of its employees, sent defamatory letters concerning his medical residency. The plaintiff's assertion of specific jurisdiction was based on an alleged "contract” negotiated between the parties which addressed the content of letters concerning the plaintiff's residency. Observing that the allegedly defamatory letters were not sent to any entity in Louisiana, that the university only conducted recruitment and alumni activities in Louisiana, and that the "contract” did not contemplate any activities in Louisiana, a panel of this court found that the plaintiff failed to establish minimum contacts with Louisiana. Id. Further, the court noted that "it is merely fortuitous that the Plaintiff ... has relocated to Louisiana.” Id. at 532. However, we note that the court in Woodard focused on the contractual allegations and did not address the "effects” test enunciated in Calder, 465 U.S. 783, 104 S.Ct. 1482.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    The COTTONPORT BANK v. KELLER PROPERTY MANAGEMENT, LLC.
    No. 13-649.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Kelvin G. Sanders, Alexandria, LA, for Defendant-Appellant, Keller Property Management, LLC.
    Anthony J. Roy, III, Marksville, LA, for Plaintiff-Appellee, The Cottonport Bank.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|,Keller Property Management, LLC (Keller) appeals the award of attorney’s fees made by the trial court in connection with The Cottonport Bank’s (the Bank’s) suit on a note. For the following reasons, we affirm the award.

FACTS

The Bank filed suit against Keller for its failure to pay as required by the terms of two promissory notes. During the pen-dency of the suit, Defendants paid the principal and interest due on the note. The Bank then filed a motion for summary judgment seeking payment of attorney’s fees in the amount of $10,878.97, which represented 25% of one of the promissory notes. The trial court granted the motion and awarded fees in the amount of $10,000.00. Keller appeals this fee as excessive.

DISCUSSION

Keller argues that the fee is out of proportion to the services rendered by the attorneys in connection with the suit. The trial court gave extensive reasons for its award as follows:

This most unusual litigation was before the Court on March 13, 2013[,] pursuant to a Motion for Summary Judgment filed by plaintiff, The Cottonport Bank. Formal Judgment was signed March 13, 2013[,] granting the Motion for Summary Judgment filed by The Cottonport Bank as it relates to the issue of attorney’s fees insofar as acknowledging that The Cottonport Bank is entitled to attorney’s fees, however, denying the Motion for Summary Judgment as to the amount of attorney’s fees. A stipulation was entered that the attorneys were allowed a period of time within which to submit memorandum of authority. The amount of attorney’s fees [is] decided by this Court based on the record and memorandum.
In preparation for this opinion, the Court has reviewed the entire record of this proceeding and related proceedings, all evidence adduced at various Hearings, argument of counsel, |2and this Court has performed an independent review of applicable law and jurisprudence.
In order to issue an adequate ruling in this case, it is most important that this Court review the various matters of litigation involving the identical parties to the proceeding in the case at bar. The following summary of the various items of litigation all revolve around activities conducted by Francis Keller, as confirmed by evidence adduced in this proceeding and related proceedings. These actions, in summary, are as follows:
1) Francis Keller enters into an agreement with Williams Scotsman for the purchase of a building.
2) Francis Keller enters into a loan agreement with The Cottonport Bank to obtain the funds to purchase the building.
3) The Cottonport Bank issues [an] $18,000.00 check made payable to Williams Scotsman for the purchase of the building and delivers the check to Keller to be delivered to Williams Scotsman.
4) The building is delivered to Keller based on the representations from The Cottonport Bank that the loan has been executed.
5) Keller endorses the check with the notation “not for purpose intended” and same is negotiated at Capital One Bank with Keller receiving the sum of $18,000.00.
6) Scotsman contends that they did not receive any sales proceeds whereas Keller contends that he did pay Scotsman for the building.
(As a result of the above actions, Williams Scotsman, Inc. instituted litigation against Francis Keller on April 17, 2012[,] as reflected in Civil Suit Number 2012-7905-B of the Twelfth Judicial District Court. The Cottonport Bank is named a defendant in this litigation along with Francis G. Keller, Keller Companies, Inc., and Keller Property Management, LLC. The Sales Agreement was signed by Keller as owner of Keller Companies, Inc. with Williams Scotsman on December 2, 2011. On February 3, 2012[,] Keller allegedly forwarded to Scotsman a copy of the check payable to Scotsman in the sum of $18,666.29, and as a result, the building was delivered to Keller on February 13, 2012).
7) On May 15, 2012[,] The Cottonport Bank filed an Answer and Reconven-tional Demand in the Scotsman litigation.
138) On May 11, 2012[,] The Cottonport Bank instituted the litigation in the case at bar naming Keller Property Management, LLC and Francis G. Keller as defendants. This loan is obviously the loan which included the proceeds for the purchase of the building acquired by Keller from Scotsman based on the fact that the security for said loan (which includes 2 promissory notes), is the mobile office building; five certificates of deposit totaling $40,000.00; and a real estate mortgage. The petition alleges balance is due on the two notes and the sum of $53,031.96 and $49,366.35. The bank requests attorney’s fees in the sum of $10,606.39 and $9,873.27.
9) The Cottonport Bank files a separate lawsuit naming Keller as a defendant on October 31, 2012[,] bearing Civil Suit Number 2012-8635-B. In this litigation, the bank alleges that a promissory note was executed June 30, 2009[,] secured by a real estate mortgage on property which appears to the lot upon which the Scotsman building is situated. A Sheriffs Sale has been scheduled for June 12, 2013.
It is also most interesting to note that during the pendency of these various proceedings, Keller has been represented by multiple attorneys, at least four in number. Keller has also filed pleadings in proper person. All of the litigation involving Keller and The Cottonport Bank result from the alleged actions of Keller in the purchase of the building from Williams Scotsman and the banks related decision thereafter to no longer do business with Keller. One of Keller’s attorneys remarkably argued to this Court that a bank has a duty to renew loans when they mature.
Another remarkable aspect of the litigation in the case at bar is that the entirety of the principal and default interest due on the promissory notes at issue have been paid, leaving only the issue of attorney’s fees. It is undisputed that the promissory notes executed by Keller include provisions that “if lender refers this note to an attorney for collection, or files suit against borrower to collect this note, or if borrower files for bankruptcy or other relief from creditors, borrower agrees to pay lenders reasonable attorney’s fees.”
Additionally, the promissory notes at issue include provisions allowing the bank to “insist upon immediate payment in full of ... reasonable attorney’s fees, costs, expenses, and other fees and charges as provided herein.”
This clause reminds this Court that the evidence also indicates that at some point during this litigation, Keller | instituted a bankruptcy proceeding a day or so before a scheduled Sheriffs Sale, which bankruptcy proceeding was thereafter dismissed. Another strange and unusual occurrence.
Had Keller delivered the $18,000.00 check payable to Scotsman and issued by The Cottonport Bank directly to Scotsman, the Scotsman litigation would not have occurred and the bank in all likelihood would not have placed Keller in default. Keller caused the problem and he must pay according to law.
With the above discussion in mind, this Court must now address the amount of attorney’s fees to be awarded to The Cottonport Bank. However, this Court must note that the above discussion is extremely important in reaching a decision as to a reasonable amount of attorney’s fees. This Court is firmly and absolutely convinced that the amount of attorney’s fees to be awarded to the bank have become necessary due to the actions of Keller; in support of their request for attorney’s fees, the bank has submitted a detailed billing statement dated March 8, 2013[,] which is attached as an exhibit to the Motion for Summary Judgment. In his memorandum, Keller remarkably alleges that the bank has not provided adequate documentation supporting the time expended in the Keller litigation and alleges that the case at bar does not involve complex issues nor unusual amount of preparation time. A simple review of the record reveals otherwise. Keller would have one believe after reading his memorandum that this is a simple suit on promissory note where payment was received immediately thereafter. However, this belies the fact that this litigation has been anything but a simple “suit on note — payment—dismissal.” Keller has been represented by no less than two attorneys in this litigation alone. Keller has filed a request for notice; motions to enroll; motions to withdraw by attorneys; an answer; an emergency motion for a status conference; a status conference in chambers was conducted, which conference was attended by other counsel who was not enrolled; an Exception of Insufficiency of Service of Process filed by current counsel for Keller and a record that is anything but a simple ordinary “suit on promissory note.” It must be recalled that part of Keller’s defense to the requested status conference was a remarkable claim that the bank had a duty to re-finance the promissory notes at issue. This status conference was held in chambers on November 20, 2012. The principle and interest were paid November 29, 2012.
Also, as part of the record herein, there is a Judgment which was rendered by this Court on February 4, 2013[,] and signed February 26, 2013[,] denying Keller’s request for a preliminary injunction to enjoin the bank from proceeding with a Sheriffs Sale, which apparently was in companion litigation. | ^However, the Judgment is filed in the instant proceeding and under this heading, which appears to be an obvious error. This only further substantiates this Court’s finding of the related nature of all of the litigation involving Keller and The Cot-tonport Bank.
It is easy for this Court to understand Keller’s dispute with the amount of attorney’s fees being claimed by the bank based on simple facts that the notes at issue have been paid in full, principle and interest, without trial. However, it is clear from a reading of the detailed attorney’s fees statement issued by the bank that this litigation has been anything but routine. In fact, in reviewing the statement in detail, this Court notes that there are several items which the bank may have omitted in this and companion litigation.
Keller remarkably asserts to this Court that an award of 7.5 hours of work, inclusive of Court Hearings, would be the proper amount of attorney’s fees to be awarded. Considering a simple review of this record, much less the record of the companion proceedings, this claim is absurd.
After a consideration of all factors and after a review of the various cases cited by counsel for Keller and this Court’s independent review of applicable law and jurisprudence [sic].
Accordingly, this Court awards attorney’s fees in the sum of $10,000.00.

The Louisiana Supreme Court in Rivet v. State, Dept, of Tramp, and Dev., 96-0145, pp. 11-12 (La.9/5/96), 680 So.2d 1154, 1161, set out factors for determination of a reasonable attorney’s fee.

Regardless of the language of the statutory authorization for an award of attorney fees or the method employed by a trial court in making an award of attorney fees, courts may inquire as to the reasonableness of attorney fees as part of their prevailing, inherent authority to regulate the practice of law. State, DOTD v. Williamson, 597 So.2d 439, 441-42 (La.1992) and cases cited therein. This court has previously noted that factors to be taken into consideration in determining the reasonableness of attorney fees include: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Id. at 442.

| ^However, “a trial court’s determination of attorneys’ fees will not be disturbed unless it is manifestly erroneous.” St. Blanc v. Stabile, 12-677, p. 6 (La.App.

5 Cir. 4/24/13), 114 So.3d 1158, 1161, writ denied, 131185 (La.8/30/13), 120 So.3d 270.

After reviewing the record and the trial court’s reasons for ruling in light of the Rivet factors, we find no error in the award made by the trial court.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Defendant-Appellants, Keller Property Management, LLC.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Clint ASHWORTH v. BIG EASY FOODS OF LOUISIANA, LLC, et al.
    No. 13-650.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Gregory Paul Allen Marceaux, Mar-céame Law Firm, Lake Charles, LA, for PlaintiffAppellee — Clint Ashworth.
    Azelie Ziegler Shelby, Shelby Law Firm, Baton Rouge, LA, for Defendants/Appellants — LUBA Casualty Insurance Company, Inc. and Big Easy Foods of Louisiana, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| ¶ Clint Ashworth filed a workers’ compensation claim against his employer, Big Easy Foods of Louisiana, LLC, and its insurer, LUBA Casualty Insurance Company (collectively, “Big Easy”), after he severed the tip of his finger while cleaning a meat grinder. Though Big Easy initially paid for and approved benefits for Mr. Ashworth, the company later terminated benefits and alleged that Mr. Ashworth had intentionally injured himself. Following a trial, the workers’ compensation judge (WCJ) entered judgment in favor of Mr. Ashworth, awarding past medical expenses, indemnity benefits, penalties, and attorney fees.

Big Easy appeals. For the following reasons, we affirm the judgment.

I.

ISSUES

We must determine whether the trial court:

(1) applied a higher evidentiary standard on Big Easy’s burden of proving an intentional injury;
(2) erred in finding that Big Easy did not prove that Mr. Ashworth committed an intentional injury;
(3) erred in finding that Big Easy was arbitrary and capricious in terminating Mr. Ashworth’s benefits; and
(4) erred in the amount of penalties and attorney fees awarded.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Ashworth was employed at Big Easy — a sausage making company. His duties included grinding meat and cleaning the equipment after each |2use. At the start of his employment, Mr. Ashworth received two days of on-the-job training. As part of the training, Mr. Ashworth was taught how to clear the end plate of the grinder of excess meat and place that meat into a container. Big Easy instructed Mr. Ashworth to wipe off the excess meat with his bare hands.

Approximately one week after beginning work with Big Easy, Mr. Ashworth was injured at work. After completing the grinding process with a section of meat, Mr. Ashworth allegedly turned off the meat grinder. 'He then attempted to clean the end plate of the grinder of excess meat. During the cleaning process, the blades of the meat grinder severed the tip of Mr. Ashworth’s left index finger.

Following the incident, Mr. Ashworth’s co-worker transported him to the hospital where a surgeon performed a partial amputation of Mr. Ashworth’s index finger. Doctors deemed Mr. Ashworth temporarily and totally disabled from February 9, 2012 to April 30, 2012. His indemnity benefits began on February 17, 2012. Additionally, Big Easy initially paid for and approved medical benefits for him. On March 15, 2012, however, Big Easy terminated payment of all medical and indemnity benefits. Big Easy informed Mr. Ashworth that it believed he intentionally injured himself. Mr. Ashworth denied Big Easy’s accusations and filed suit.

Following a trial, the WCJ entered judgment in favor of Mr. Ashworth, finding that he did not intentionally injure himself. The WCJ awarded past medical benefits, penalties in the amount of $8,000.00 for arbitrary termination of benefits and penalties in the amount of $2,000.00 for Big Easy’s failure to pay the first week of indemnity benefits. He also awarded $17,768.25 in attorney fees.

J£ll.

LAW AND DISCUSSION

Standard of Review

The standard of review by the appellate court of findings of fact by the WCJ is to determine whether the WCJ committed manifest error or was clearly wrong. Metoyer v. Roy O. Martin, Inc., 03-1540 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, writ denied, 05-1027 (La.6/3/05), 903 So.2d 467; Wiley v. Grand Casino Avo-yelles, 98-1468 (La.App. 3 Cir. 4/21/99), 731 So.2d 518, writ denied, 99-2032 (La.l 1/5/99), 750 So.2d 180. As long as the record supports the findings of fact of the WCJ, and these findings of fact are reasonable, then an appellate court cannot overturn those findings of fact. Metoyer, 895 So.2d 552.

Standard of Proof of an Intentional Injury

Big Easy contends that the WCJ committed legal error and placed a higher burden of proof on it than the law requires. Specifically, Big Easy asserts that the Louisiana Workers’ Compensation Act requires defendants to prove the affirmative defense of intentional injury by a preponderance of the evidence but that the WCJ committed legal error by requiring it to introduce direct and medical evidence to prove its claim. While we agree with Big Easy as to the appropriate standard of review, we disagree with its assertion that the WCJ legally erred and held it to a higher standard.

Indeed, Big Easy is correct in stating that the burden of proving an intentional injury in a workers’ compensation case is the normal burden of proof in civil cases a preponderance of the evidence. Brunet v. State of Louisiana, 442 So.2d 638 (La.App. 1 Cir.1983). Big Easy is incorrect, however, in its assertion |4that the WCJ held it to a higher standard than the law requires. In his oral reasons, the WCJ correctly set forth the burden of proof placed on Big Easy for the affirmative defense that Mr. Ashworth intentionally injured himself. As stated by the WCJ: “So, the basic question to be answered in this litigation is whether the defense can prove by a preponderance of the evidence that Mr. Ashworth formulated the willful intent to mutilate himself.” He then proceeded to exhaustively discuss the circumstantial evidence presented by Big Easy. The one phrase uttered by the WCJ that Big Easy embraces in support of its argument is the WCJ’s statement that the employer’s decision was “based purely on speculation and suspicion and had no medical foundation whatsoever.”

Big Easy urges us to ignore the totality of the WCJ’s reasons and instead find that his utterance of the words “medical foundation” indicates that the WCJ applied the wrong legal standard. Thus, a de novo review is required. We decline to do so. It is clear that the WCJ possessed a firm grasp of the legal standard and of the evidence. The WCJ’s reference to the lack of a “medical foundation” was only one of the factors that the WCJ considered in its overall judgment in the case. Thus, we find no merit in Big Easy’s argument that the WCJ applied the wrong legal standard to the case.

Defendants’ Lack of Proof of an Intentional Injury

Big Easy also contends that the WCJ erred in finding that it did not meet its burden of proving that Mr. Ashworth intentionally severed his finger. We find no merit in its argument and find that the WCJ was not manifestly erroneous in awarding judgment to Mr. Ashworth.

1 .^Louisiana law provides that no compensation is owed to an employee who intentionally injures himself. La.R.S. 23:1081(l)(a). An employer bears the burden of proving that the employee had a willful and wanton intent to injure himself. King v. Grand Cove Nursing Home, 93-779 (La.App. 3 Cir. 3/9/94), 640 So.2d 348, writ denied, 94-865 (La.5/13/94), 641 So.2d 204.

Before reaching judgment in favor of Mr. Ashworth, the WCJ heard extensive testimony from several witnesses. Big Easy and its witnesses alleged that Mr. Ashworth was motivated to intentionally injure himself because he was stressed financially. Moreover, they alleged that Mr. Ashworth was aware that another employee received a settlement when the employee injured himself while cleaning a meat grinder, and this knowledge motivated Mr. Ashworth to injure himself.

Mr. Ashworth testified at trial and specifically denied inserting his finger into the end plate with the intent of cutting off the end of his finger. Instead, Mr. Ashworth states that he was merely cleaning excess meat from the end plate as he was instructed to do. He testified that he was unaware that the grinder was spinning and that it was dangerous to insert his finger into it. The testimony of Mr. Ashworth’s supervisor gave credence to Mr. Ash-worth’s case. He testified that Big Easy’s employees were required to clear excess meat from the end plate of the grinder with their bare hands.

To support its contention that Mr. Ash-worth intentionally injured himself, Big Easy offered the testimony of the three coworkers who were present at the time of Mr. Ashworth’s injury. Those individuals testified that Mr. Ashworth was acting suspicious on the day of the injury and that he admitted that he “did it.”

| r,The WCJ weighed the testimony presented and clearly believed the testimony of Mr. Ashworth. In his oral reasons, the WCJ called Big Easy’s evidence “pretty thin,” and he doubted that Mr. Ashworth’s utterance of “I did it” was a confession of a crime. Moreover, the WCJ opined that any reasonable person would be interested to hear about a former employee who injured himself with a meat grinder the very piece of equipment being used at the time of the discussion. We find no error in the WCJ’s judgment that Big Easy failed to prove by a preponderance of the evidence that Mr. Ashworth intentionally injured himself in the workplace.

Unlawful Termination of Mr. Ashworth’s Benefits

Big Easy argues that the WCJ: (1) erred by requiring it to prove Mr. Ash-worth intentionally injured himself before terminating his benefits and (2) erred in finding that they were arbitrary and capricious in terminating Mr. Ashworth’s benefits. We find no merit in either of Big Easy’s arguments.

Big Easy’s assertion that the WCJ required it to prove that Mr. Ashworth intentionally injured himself before it terminated benefits has no support in the record. Big Easy once again takes the WCJ’s words out of context to fit its argument. Specifically, Big Easy points to the WCJ’s statement: “The termination of benefits was not sufficiently supported by the record, even with using the preponderance of the evidence standard.” Nothing in the WCJ’s reasons for judgment, however, indicate that he applied the wrong legal standard. Instead, he clearly found that Mr. Ashworth proved that the termination of benefits was arbitrary and capricious. See La.R.S. 23:1201(1).

17Moreover, we find that the WCJ did not manifestly err when he found that Big Easy arbitrarily and capriciously terminated Mr. Ashworth’s benefits. As discussed previously, the WCJ considered the testimony of Mr. Ashworth as well as the other employees who were present at the time of Mr. Ashworth’s injury. This testimony also formed the basis of Big Easy’s investigation. We find no need to repeat the facts here. It is evident that the WCJ placed more weight on Mr. Ashworth’s version of the events, and we find no error in his conclusion.

Penalties and Attorney Fees

Big Easy argues that the penalties and attorney fees imposed in this matter were inordinately high. It argues that the WCJ erred by imposing a penalty for Big Easy’s failure to pay the first week of benefits.

The amount of penalties and attorney fees awarded by the trial court is entitled to great discretion and will not be disturbed absent an abuse of discretion. Williams v. Tioga Manor Nursing Home, 09-417 (La.App. 3 Cir. 11/18/09), 24 So.3d 970, writ denied, 10-298 (La.4/9/10), 31 So.3d 389. Here, we find no abuse of discretion in the trial court’s award.

Turning first to the alleged erroneous $2,000.00 penalty, the WCJ properly awarded this penalty under La.R.S. 23:1201(F). Section 1201(F) awards penalties of up to $8,000.00 for failure to timely pay benefits when a defendant fails to reasonably controvert a claim. At trial, Big Easy stipulated that it failed to pay indemnity benefits for the first week following Mr. Ashworth’s injury. Since Big Easy failed to reasonably controvert Mr. Ash-worth’s claim, he is entitled to a $2,000.00 penalty for its failure to pay the first week of benefits. Thus, we find noj^merit in Big Easy’s argument that the WCJ erred by imposing that penalty. Moreover, we find no error in the amount awarded in attorney fees, and we award an additional $4,500.00 in attorney fees to Mr. Ash-worth’s attorney for work done on this appeal.

IV.

CONCLUSION

We affirm the judgment of the trial court. Costs of this appeal are assessed against Defendants.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Louie GANDY, et ux. v. KEY REALTY, L.L.C.
    No. 13-712.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.
    Thomas D. Davenport, Jr., The Davenport Firm, APLC, Alexandria, LA, for Plaintiffs/Appellants, Louie Gandy and Marion Gandy.
    Randall B. Keiser, D. Heath Trahan, Keiser Law Firm, P.L.C., Alexandria, LA, for Defendant/Appellee, Key Realty, LLC.
    Ricky L. Sooter, Jeremy C. Cedars, Provosty, Sadler, DeLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendants/Ap-pellees, Liz Merryman, Inc. and Liz Mer-ryman.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 Plaintiffs, Louie and Marion Gandy, appeal the city court’s grant of the exceptions of lack of subject matter jurisdiction filed on behalf of Defendant, Key Realty, L.L.C., and Defendants, Liz Merryman, Inc. and Liz Merryman. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Louie and Marion Gandy (collectively referred to as Mr. Gandy) are the owners of a house and lot located in Pineville, Louisiana, upon which two trees were located near its boundary line. When the trees were cut and removed without his consent, Mr. Gandy instituted this litigation in Alexandria City Court (City Court) naming as Defendants, Key Realty, L.L.C. (Key Realty), and Liz Merryman, Inc. and Liz Merryman (Merryman), asserting that the Defendants lacked the “legal authority to have these trees killed, destroyed and/or removed.”

Although Mr. Gandy asserted that the trees were located upon his property, Key Realty and Merryman contended that the trees were located upon the boundary line of Mr. Gandy’s property and that of the adjacent landowner; thus, they were in fact owned in common pursuant to La.Civ. Code art. 687. In claiming that the trees were deemed immovable property, Key Realty and Merryman each excepted to Mr. Gandy’s petition on the grounds that City Court, a court of limited jurisdiction, lacked subject matter jurisdiction over this suit “involving title to 12immovable property” pursuant to La.Code Civ.P. art. 4847. Following a hearing, the City Court issued written reasons granting the exceptions and signed a judgment in accordance therewith. Mr. Gandy appeals.

ASSIGNMENT OF ERROR

On appeal, Mr. Gandy asserts that the City Court erred in granting the exceptions of lack of subject matter jurisdiction filed on behalf of Key Realty and Merry-man.

LAW AND DISCUSSION

Mr. Gandy asserts that the City Court erred in granting the exceptions of lack of subject matter jurisdiction since this “case does not present a question of ownership or title to immovable property stemming from a party trespassing upon the other parties’ land, where a theft of timber occurred[.]” We disagree.

An issue of subject matter jurisdiction raises a question of law which is reviewed de novo to determine whether the lower court was legally correct. Chavers v. Bright Truck Leasing, 06-1011 (La.App. 3 Cir. 12/06/06), 945 So.2d 838, writ denied, 07-304 (La.4/5/07), 954 So.2d 141. Therefore, in this case, we must decide whether the City Court’s determination that it lacked subject matter jurisdiction over Mr. Gandy’s claims was legally correct.

Louisiana Code of Civil Procedure Article 2 defines subject matter jurisdiction as “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.” The subject matter jurisdiction of a city court is limited, and its jurisdiction to adjudicate matters | ./‘involving title to immovable property” is expressly prohibited by La.Code Civ.P. art. 4847(A)(1).

Pursuant to La.Civ.Code art. 462, “Tracts of land, with their component parts, are immovables.” Additionally, La. Civ.Code art. 463 provides: “Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.”

In this case, when considering the exceptions of lack of subject matter jurisdiction, the City Court reasoned as follows:

The defendants in this litigation have filed this exception on the basis that the court lacks subject matter jurisdiction pursuant to LSA-C.C.P. Article 4847(A)(1) that provides that city courts do not have jurisdiction over cases involving title to immovable property. This case involves a claim by the plaintiff to recover damages for removal of trees owned by the plaintiff.
At first blush[,] it appears that Louisiana Code of Civil Procedure Article 4847(A)(1) is an attempt to divest city and parish courts of the authority to determine title to real estate between parties when that is the issue before the court. However, the Louisiana Third Circuit Court of Appeals determined in a similar situation that a small claims court had no jurisdiction to determine ownership or title to a tree since a tree was a component part of immovable property. [King v. Young Properties, 04-680 (La.App. 3 Cir. 10/27/04), 893 So.2d 895, writ denied, 05-662 (La.4/29/05), 901 So.2d 1076]. The court must determine if the plaintiffs are owners of the trees in question to decide this case. Accordingly, the [King ] case mandates that the court grant this [e]x-ception.

King, 893 So.2d 895, involved a dispute over the responsibility for a tree located on the boundary of property owned by the plaintiff and the defendant, an adjacent landowner. Mr. King brought suit in Crowley City Court, Small Claims Division, alleging that the tree belonged to the defendant and that its branches caused damage to his garage. However, the defendant responded, asserting that the tree was actually located on the property line. Following a trial in Crowley City Court, the court determined that the tree was located on the boundary line between [4the parties; thus, La.Civ.Code art. 687 applied. This court, in considering an exception of res judicata raised in subsequent proceedings, first had to determine whether Crowley City Court had subject matter jurisdiction to adjudicate the initial claim.

On appeal, after quoting the provisions of La.Civ.Code arts. 462 and 463, we stated in King: “Under these provisions^] the tree is a component part of the land and is, therefore, considered an immovable. The primary issue in this case is who owns the tree, an immovable, and the rights and obligations of the landowners.” Id. at 899. Accordingly, this court held that the Crowley City Court “had no jurisdiction to determine the legal responsibility of parties in a dispute involving ownership (title) to immovable property. The judgment of the Small Claims Court is invalid and cannot be used as a basis to assert an exception of res judicata.” Id.

In the case at bar, Mr. Gandy argues that the City Court erred in reaching its conclusion and attempts to distinguish King on the grounds that the present litigation is not between landowners. He argues that “[i]n this case, the [c]ourt is not called upon to determine who owns the tree and/or the rights and obligations of landowners.” Because neither Key Realty nor Merryman claim ownership of the trees, Mr. Gandy concludes that the City Court would not be required to rule upon “the legal responsibility of the parties involving ownership (title) to the immovable property.” We disagree.

We agree with the City Court that an essential element of Mr. Gandy’s claim is establishing his ownership of the trees at issue which, by definition, are a component part of immovable property. Therefore, a determination of the ownership of the trees necessarily requires a determination of who owns the property upon which the trees are located; hence, an adjudication as to title of immovable property is required.

|-The fact that Key Realty and Merry-man are not landowners and/or not asserting claims of ownership of the trees does not negate the requirements of the law. The fact that the adjacent landowner was not made a party to these proceedings, likewise, does not negate the requirements of the law. Additionally, the fact that a determination of the ownership of the immovable property was not the impetus of the litigation does not negate the requirements of the law. As argued by Key Realty, “[a] case ‘involves’ title to immovable property even if the city court is not asked to confer title to one of the parties.” Regardless of the foregoing, this litigation would require a judicial determination of whether Mr. Gandy owns the land upon which the trees are located. The City Court lacks subject matter jurisdiction over “ease[s] involving title to immovable property.” La.Code Civ.P. art. 4847(A)(1). Therefore, we find that the City Court’s determination that it lacked subject matter jurisdiction over Mr. Gandy’s claims was legally correct.

DECREE

For the reasons set forth above, we affirm the judgment of the Alexandria City Court granting the exceptions of lack of subject matter jurisdiction on behalf of Defendant, Key Realty, L.L.C., and Defendants, Liz Merryman, Inc. and Liz Merry-man, and dismissing the claims of Louie and Marion Gandy, with prejudice. The costs of this appeal are assessed to Louie and Marion Gandy.

AFFIRMED.

      . Louisiana Civil Code Article 687 provides as follows:
      Trees, bushes, and plants on the boundary are presumed to be common unless there be proof to the contrary.
      An adjoining owner has the right to demand the removal of trees, bushes, or plants on the boundary that interfere with the enjoyment of his estate, but he must bear the expense of removal.

      . Louisiana Code of Civil Procedure Article 4847(A)(1) provides for the limited civil jurisdiction of parish and city courts and excludes from said jurisdiction "[a] case involving title to immovable property.”


author: CONERY, Judge.

text:
    George JAGNEAUX v. LAFAYETTE CITY-PARISH CONSOL. GOV’T PARKS & RECREATION.
    No. 13-768.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      D.C. Panagiotis, George J. Armbruster, III, Panagiotis & Armbruster, APLC, Lafayette, Louisiana, for Defendant/Appellee: Lafayette City-Parish Consolidated Government.
    Joseph F. Garr, Jr., Jason M. Welborn, Willard P. Schieffler, Lucas S. Colligan, Attorneys at Law, Lafayette, Louisiana, for Plaintiff/Appellant: George Jagneaux.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and JOHN E. CONERY, Judges.
   CONERY, Judge.

11 Plaintiff, George Jagneaux (“Mr. Jag-neaux”), filed suit on April 10, 2010, against Lafayette City-Parish Consolidated Government Parks and Recreation Department (“LCG”). He claims that he was watching a baseball game and, as he was walking across the stands, he fell due to an allegedly loose bleacher seat at the ball park. Mr. Jagneaux filed suit claiming injury to his lower back.

Arceneaux Park is under the operational control of LCG through the Parks and Recreation Department (“Department”). Mr. Jagneaux argues that LCG, through the Department, should have had notice of the allegedly loose bleacher that caused his fall. Mr. Jagneaux further argues LCG had a duty to find the problem with the bleacher prior to the incident. The trial court granted LCG’s motion for summary judgment and Mr. Jagneaux appeals the dismissal of his petition. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 15, 2009, Mr. Jagneaux was attending his grandson’s baseball game at Arceneaux Park in Broussard, Louisiana. He claims in his lawsuit and in his answers to interrogatories that he fell when the “bleachers gave way” as he was walking on the bleachers provided for spectators, and “he landed on top of the bleachers,” sustaining an injury to his lower back.

According to the depositions introduced in evidence by LCG in support of its motion for summary judgment, it is the policy of the Department to perform a yearly physical inspection of each park in March or April before the beginning of youth baseball season in May. In this case, the Maintenance Supervisor of LCG, REddie Landry, personally conducted the inspection of the bleachers at each park owned and operated by LCG, including Arcen-eaux Park, Field Two, the location where Mr. Jagneaux claims he fell.

Mr. Landry testified in his deposition that he found no problems with the bleachers on Field Two at Arceneaux Park that required any type of maintenance, and that he conducted the 2009 inspection of the bleachers on Field Two in the following manner:

Pull the four seats, you’ll go by each edge, there’s eighteen (18) touches where you pick up on it and shake it and see if it’s loose. Get on it, see if it rattles, and that would be one side. And then you walk across the back looking underneath because the bleachers are such you can see underneath, do the other side coming down. And then go across the front and you look under there on the metal ones, they’re usually all okay. Occasionally, we’ll have a crack in a weld on the aluminum one, and so you do that with each of the bleachers.

According to the deposition testimony of Earl Joseph Leger, Arceneaux Park Maintenance Supervisor, during the remainder of the year the Department employees conducted the usual maintenance of each park, which involved mowing the grass and maintaining the grounds. If an employee was informed of any problems by a park visitor or saw anything out of place with the bleachers during their usual routine, they would repair the problem or report the problem to a supervisor, who would then send an employee with the necessary skills to make the repairs.

|sThe depositions of two volunteers with the Broussard/Youngsville Youth Association (“Association”) were also taken by Mr. Jagneaux. One, Mr. Gary Goodwin, responded to Mr. Jagneaux after his fall and testified in his deposition that he only saw one bolt on the side of the bleacher at issue. Normally, there would be two bolts on each side. The Association sponsors the games at Arceneaux Park and is a separate legal entity from LCG.

Mr. Jagneaux also submitted in opposition to LCG’s motion for summary judgment a document entitled, “LAFAYETTE YOUTH ASSOCIATION RECREATION AND PARKS — INJURY REPORT.” Describing the incident, the report states, “He stepped on bleacher to get across. The seat was not bolted and caused him to fall across the bleachers. Has back, arm, shoulder & leg pain.” The document was presumably written and signed by an individual who is identified as a Board Member of the Association, but his signature is unreadable.

Counsel for LCG argues that none of the depositions submitted into the record, as well as the deposition of the other unnamed volunteer mentioned, but not submitted into the record, contain any testimony that any of these individuals were aware of any problem with the bleacher at issue until after Mr. Jagneaux’s fall. In addition, no evidence was presented to the trial court by Mr. Jagneaux that LCG had any notice of a problem with the bleachers until after his May 15, 2009 fall.

Mr. Jagneaux filed suit on April 5, 2010. LCG filed their motion for summary judgment on February 28, 2013, almost three years later, allowing adequate time for discovery. LCG argued that Mr. Jagneaux will be unable to meet the burden of proving at trial that LCG had actual or constructive notice of a defect |4in the bleachers required under the applicable state law, La.R.S. 9:2800. A hearing was held on March 25, 2013, after which the trial court ruled on the record, “The court finds that there is no evidence that the plaintiff has established either actual or constructive notice and will grant the motion for summary judgment.” The trial court also signed a “JUDGMENT of DISMISSAL, WITH PREJUDICE,” on March 25, 2013, from which Mr. Jagneaux now appeals.

ASSIGNMENTS OF ERROR

All three of Mr. Jagneaux’s assignments of error argue the trial court committed legal error in failing to find that LCG satisfied its “duty or legal obligation” to Mr. Jagneaux to “conduct reasonable inspections of the premises” in order to discover and remediate the defect in the bleachers. As will be addressed below these assignments of error are without merit.

LAW AND DISCUSSION

Summary judgments are reviewed de novo, applying the same standard to the matter as that applied by the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. Summary judgment is favored by the law and provides a vehicle by which the just, speedy, and inexpensive determination of an action may be achieved. La.Code Civ.P. art. 966(A)(2). The trial court is required to render summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

In 1997 the legislature enacted La.Code Civ.P. art. 966(C)(2), which clarified the burden of proof in summary judgment proceedings. The initial burden of proof remains with the mover to show that no genuine issue of material fact |Bexists. If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. “[T]he failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, p. 6 (La.2/20/04), 866 So.2d 228, 233 (citing Hardy v. Bowie, 98-2821, (La.9/8/99), 744 So.2d 606).

When a motion for summary judgment is made and supported, the adverse party may not rest on the allegations or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial. La.Code Civ.P. art. 967(B). A fact is material when its existence or nonexistence may be essential to a plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Smith, 639 So.2d at 751 (citations omitted) (alteration in original). In other words, a “material” fact is one that would matter on the trial on the merits. “Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits.” Id.

In determining whether a fact is material, we must consider the substantive law governing the litigation. Davenport v. Albertson’s, Inc., 00-685 (La.App. 3 Cir. 12/6/00), 774 So.2d 340, writ denied, 01-73 (La.3/23/01), 788 So.2d 427.

Louisiana Civil Code Articles 2317 & 2317.1 require that in order to prevail on his claim against LCG, Mr. Jagneaux is required to prove, (1) LCG had custody of the bleachers in question; (2) That the bleachers at issue contained a defect that created an unreasonable risk of harm; (3) That the defect in the bleachers was the | fiCause of the harm; and (4) The custodian of the bleachers knew or should have known of the defect. Ardoin v. Lewisburg Water System, 07-180 (La.App. 3 Cir. 7/18/07), 963 So.2d 1049.

In addition, a case against a public entity, such as LCG, requires Mr. Jagneaux to prove that LCG had either actual or constructive notice of the alleged vice or defect in the bleachers, had a reasonable opportunity to repair the defect, and failed to do so pursuant to La.R.S. 9:2800(C) & (D) which state:

C. [N]o person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
D. Constructive notice shall mean the existence of facts which infer actual knowledge.

“A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care ... the municipal authority must have known of its existence, and ... had reasonable opportunity to guard the public from injury by remedy of the defect.” Ambrose v. City of New Iberia, 08-1197, p. 2 (La.App. 3 Cir. 4/1/09), 11 So.3d 34, 37.

In LCG’s memorandum in support of its motion for summary judgment, LCG asked the trial court to assume, for the sake of the summary judgment motion only, that LCG was the custodian of the bleachers at Arceneaux Park and that there was a defect in the bleachers that caused Mr. Jag-neaux’s injury. LCG argues to this court, as they did to the trial court, that although Mr. Jagneaux’s fall and the resulting injury occurred almost four years ago and suit was filed almost three years ago, that Mr. Jagneaux has failed to come forth with any evidence 17demonstrating that LCG knew or should have known of the alleged defect, had an opportunity to repair the defect, and failed to do so.

LCG argues that the facts of this case mirror the facts in the recent case of Scott v. Lafayette Consol. Gov’t-Risk Mgmt. Div., 10-716 (La.App. 3 Cir. 12/8/10), 52 So.3d 1068. We agree. Ms. Scott was injured while riding a bus owned and operated by LCG when the chime pull cord came loose and hit her face near her eye. A panel of this court affirmed the trial court’s summary judgment in favor of LCG, finding LCG had no actual or constructive notice of the pull cord’s defect.

In Scott, each bus owned and operated by LCG was subject to a periodic check every 12,000 miles. The pull cords were subject to daily use by the passengers and a daily check was made by LCG to make sure the chime operated properly. In this case, the bleachers involved in Mr. Jag-neaux’s injury were subject to a yearly inspection in March or April, prior to the beginning of the youth baseball season in May. In addition, the bleachers were used on a regular basis by patrons of Arceneaux Park. LCG employees were present in the park for regular maintenance, and if any problems with the bleachers were found or reported, the necessary repairs were made.

The court in Scott also reiterated this circuit’s position on the issue of the relationship between the lack of a policy or plan for periodic inspections by a public entity and constructive knowledge, stating that “[l]ack of plan for periodic inspections does not impute constructive knowledge.” Scott, 52 So.3d at 1071 (quoting Laird, v. City of Oakdale, 04-767, p. 7 (La.App. 3 Cir. 11/10/04), 886 So.2d 1262,1267).

The Louisiana Supreme Court opinion in Jones v. Hawkins, 98-1259, 98-1288 (La.3/19/99), 731 So.2d 216, 220, is also cited in Scott and clearly defined |sboth actual and constructive knowledge and stated:

[W]e find we cannot agree with the second circuit’s position that lack of a plan constitutes constructive knowledge of the defect. The definitions of actual and constructive knowledge are facially incompatible with the implication of knowledge from a lack of a plan to inspect. Actual knowledge has been defined as “knowledge of dangerous defects or conditions by a corporate officer or employee of the public entity having a duty either to keep the property involved in good repair or to report defects and dangerous conditions to the proper authorities.” Constructive knowledge is defined by La. R.S. 9:2800 as the existence of facts that infer actual knowledge. The absence of a plan of inspection in no way shows or implies that an employee of the appropriate public entity has actual knowledge of a dangerous defect or condition. Indeed, quite the opposite is true; in the absence of other facts, such as recorded complaints about a defect, lack of a plan implies that employees of the public entity have no actual knowledge of dangerous defects or conditions. Thus, a holding that lack of a plan infers knowledge effectively eviscerates the notice requirement of La. R.S. 9:2800.

Jones, 731 So.2d at 220 (citations omitted).

During the discovery process, both Mr. Landry, the Maintenance Supervisor for LCG and the individual who conducted the 2009 physical periodic inspection of the bleachers on Field Two at Arceneaux Park, and Mr. Leger, Arceneaux Park Maintenance Supervisor, were deposed. The plaintiff also deposed two volunteers with the Association, one of whom, Mr. Goodwin, responded to Mr. Jagneaux after his fall. Counsel for LCG argues that the testimony of each individual deposed confirmed that they were unaware of any problems with the bleachers until after Mr. Jagneaux’s fall on May 15, 2009, and there is nothing in the record to dispute this assertion.

The facts of this case are analogous to those in Scott. The Jones case affirmed that the absence of a plan of inspection in no way shows or implies actual knowledge of a defect as required by statute. The deposition testimony submitted by LCG clearly supports the trial court’s ruling that LCG did not have either the 1 ^required actual or constructive notice of a defect in the bleacher plank prior to Mr. Jagneaux’s May 15, 2009 fall.

Once LCG made a prima facie showing that its motion should be granted, the burden then shifted to Mr. Jagneaux, pursuant to La.Code Civ.P. art. 966(C)(2), to present evidence demonstrating that a material factual issue remains. “[T]he failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Hutchinson, 866 So.2d at 233.

Louisiana Code of Civil Procedure Article 967(B) states:

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

Mr. Jagneaux argues that Mr. Goodwin’s one page deposition testimony, submitted into the record, reflects that he looked under the opposite end of the bleacher plank after Mr. Jagneaux’s fall and noted only one bolt instead of two. He also argues that Mr. Goodwin’s testimony proves LCG had notice of the defect in the bleacher plank.

A picture of the metal bleacher plank showing only one bolt was attached as an exhibit to both Mr. Goodwin’s and Mr. Landry’s deposition testimony. Mr. Landry testified that he observed one bolt and nut still in place. Mr. Landry further testified that instead of replacing a bolt, it was the practice of LCG to weld the bleacher plank to the frame. Thus, the absence of a single nut and bolt discovered after Mr. Jagneaux’s fall would not prove that LCG had notice of a defect, just as the loosening over time of the clamp that held the pull cord in Scott failed to prove notice necessary to defeat summary judgment in that case.

1 inBased on our de novo review of the record, we conclude LCG did not have the requisite actual or constructive notice required by La.R.S. 9:2800(0 & (D), prior to Mr. Jagneaux’s fall on May 15, 2009. Thus, Mr. Jagneaux will be unable to sustain his evidentiary burden at trial. The trial court’s ruling granting summary judgment in favor of LCG was correct and adequately supported by the evidence submitted in support thereof.

DISPOSITION

For the forgoing reasons, we affirm the trial court’s judgment granting Lafayette City-Parish Government Parks and Recreation’s motion for summary judgment, dismissing George Jagneaux’s petition with prejudice. All costs of this appeal are assessed to Appellant George Jagneaux.

AFFIRMED.

      . The portion of the deposition transcript of Eddie Landry submitted into the record, erroneously identifies him as Kenny Albert Landry, Sr.

      . Mr. Leger also testified that the Department began inspecting the bleachers once a month in approximately January 2012.

      . However, of the two depositions taken by Mr. Jagneaux of the volunteers, only page 38 of Mr. Gary Goodwin's deposition was submitted into the record in opposition to LCG’s motion for summary judgment.


author: PAINTER, Judge. THIBODEAUX,

text:
    Troy MOTT v. CITY OF EUNICE, Louisiana Through Its Mayor, Robert “Bob” MORRIS; Chief Gary “Goose” Fontenot In His Capacity As Chief Of Police Of Eunice, Louisiana; Micah Arceneaux, Individually and In His Capacity As A Eunice Police Officer; Jeremy Ivory, Individually and In His Capacity As A Eunice Police Officer; Billy McCauley, Jr., Individually and In His Capacity As A Eunice Police Officer.
    Nos. 13-921, 13-655.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2013.

      Michael L. Barras, New Iberia, LA, for Plaintiff-Appellant, Troy Mott.
    John F. Wilkes, III, Joy C. Rabelais, Lafayette, LA, for Defendants-Appellees, The City of Eunice; Chief James Gary Fontenot, in his official capacity as Chief of Police of the City of Eunice; Officer Johannes Heinen, individually and in his capacity as a police officer for the City of Eunice; and Officer Allorate Frank, individually and in his capacity as a police officer for the City of Eunice; and Officer Ramone Sonnier, individually and in his capacity as a police officer for the City of Eunice.
    Joseph Stamey, Natchitoches, LA, for Defendant-Appellee, Michael Perry, individually and in his capacity as a police officer for the City of Eunice.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

1 plaintiff, Troy Mott, appeals the trial court’s dismissal of his claims against Officers Michael Perry, Johannes Heinen, Ra-mone Sonnier, and Allorate Frank pursuant to an exception of prescription. For the following reasons, we affirm.

FACTS

On January 8, 2010, Plaintiff filed suit naming as defendants the City of Eunice (Eunice); Gary Fontenot, individually and in his capacity as Chief of Police for Eunice (the Chief); Micah Arceneaux, individually and in his capacity as a police officer for the City of Eunice; Jeremy Ivory, individually and in his capacity as a police officer for the City of Eunice; and Billy McCauley, Jr., individually and in his capacity as a police officer for the City of Eunice. He alleged injuries inflicted while the named officers were arresting him. Answers were filed by the various named defendants

On July 8, 2011, Plaintiff amended and supplemented the original petition, without leave of court, to add as additional defendants Detective Michael Perry and Officers Johannes Heinen, Ramone Sonnier, and Aflórate Frank. No service of process was requested in connection with this amendment. Claims concerning an alleged shooting made against Eunice, the Chief, and Officers McCauley and Ivory were dismissed pursuant to summary judgment on August 8, 2011. All the claims against McCauley were dismissed pursuant to a motion for summary judgment.

Over a year later, on November 8, 2012, Plaintiff amended his original petition, with leave of court, restating the allegations of the original petition and stating claims against Perry, Heinen, Sonnier, and Frank. Service was requested for this amendment. On January 14, 2013, Areen-eaux was granted Impartial summary judgment dismissing him from liability associated with the shooting. Heinen, Sonnier, Frank, Areeneaux, Ivory, and McCauley filed exceptions of insufficiency of citation and service. McCauley filed an exception of res judicata, and Heinen, Sonnier and Frank filed an exception of prescription. Perry also filed exceptions of insufficiency of citation and service and prescription.

The trial court, on January 14, 2013, heard the Exceptions of Prescription filed by Heinen, Sonnier, and Frank. At that hearing, Plaintiff stated that he would voluntarily dismiss the first amended petition and was ordered to do so within three business days of the hearing. The court found, in written reasons for judgment, that La.R.S. 13:5107(D) was applicable, that there was not a timely request for service, and that good cause was not shown for the failure to request service. As a result, the trial court found that the claims against Heinen, Sonnier, and Frank had prescribed. On February, 14, 2013, the trial court granted Perry’s exception of prescription as well.

Mott appealed, and Eunice, Fontenot, Heinen, Frank, and Sonnier answered the appeal requesting damages for frivolous appeal.

Prescription

Mott asserts that prescription was interrupted by the timely filing of the original petition against joint tortfeasors and that the trial court erred in finding that La.R.S. 13:5107 and La.Civ.Code art. 2324 conflict as applied to the facts of this case.

Louisiana Revised Statutes 13:5107(D) provides that:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the |sstate, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

Defendants assert that, because the allegations of the second amended petition are identical to those of the first amended petition, and because the failure to serve the first amended petition within the time limit set by La.R.S. 13:5107 was grounds for dismissal of the first amended petition, pursuant to the provisions of La.R.S. 13:5107(D)(3), the claims against the added defendants are prescribed. Plaintiff asserts that the court’s reasoning in Cali v. Cory, 04-1227 (La.App. 4 Cir. 11/3/04), 886 So.2d 648, writ denied, 04-3155 (La.2/25/05), 894 So.2d 1153. should apply here and that the statutes should be interpreted in pari materia to allow the second amended petition to relate back to the filing of the original petition.

After reviewing the record, the provisions of La.R.S. 13:5107 and La.Civ.Code art. 2324, and the jurisprudence, we agree with the trial court that the statutory provisions are in conflict as applied to the particular facts of this case.

The two statutes conflict in that the application of either would bring a completely different result from the other under the circumstances of the Lease currently before the court. We note that La.R.S. 13:5107 is the “more specific statute addressing the more narrow issue of the interruption of prescription when governmental defendants are involved in the litigation.” Johnson v. Shqfor, 08-2145, p. 0 (La.App. 1 Cir. 7/29/09),' 22 So.3d 935, 940, writ denied, 09-1921 (La.11/20/09), 25 So.3d 812. “Where there is a conflict between two statutory provisions, the statute that is more specifically directed to the matter at issue must prevail over the statute that is more general in character.” Id. We agree with the Johnson court that the language of La.R.S. 13:5107 “carves out an exception to the general rules of prescription in favor of the state or its political subdivisions.” Id. (quoting Kimball v. Wausau Ins. Companies, 04-626, P. 7 (La. App. 5 Cir. 1/25/05), 892 So.2d 690, 693, writ denied, 05-755 (La.5/6/05), 901 So.2d 1104) Because the first amended petition was dismissed, prescription was never interrupted as to the additional defendants, notwithstanding them possible status as joint or solidary tortfeasors.

Accordingly, we find no error in the decision of the trial court to dismiss the claims against the additional defendants. Frivolous Appeal

Defendants answered the appeal requesting damages for frivolous appeal. However, inasmuch as our examination of the matter reveals a split among the appellate courts of this state in the treatment of the issues involved herein, we find that the appeal concerns real and substantial issues. Therefore, we decline to award damages for frivolous appeal.

| .CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff-Appellant, Troy Mott.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX,

Chief Judge, dissenting.

I,The majority fails to recognize that prescription was already interrupted against the police officers because of their status as joint tortfeasors. Louisiana Revised Statutes 13:5107 does not change the status of the officers who were added as joint tortfeasors. Prescription was interrupted before the first amended petition was filed and certainly before the second amended petition which was served. Louisiana Revised Statutes 13:5107 is silent on circumstances where prescription has already, as here, been interrupted by means other than the filing of an amending petition.

Contrary to the majority’s assertion, there is no conflict between La.R.S. 13:5107 and La.Civ.Code art. 2324. The statute does not speak to joint liability; Civil Code Article 2324 specifically does. Thus, the trial court and the majority create a conflict where none exists. Because there is no conflict, Johnson v. Shafor, OS-2145 (La.App. 1 Cir. 7/29/09), 22 So.3d 935, writ denied, 09-1921 (La.11/20/09), 25 So.3d 812, is not applicable. In my view, Civil Code Article | a2324 controls and prescription was interrupted. I would reverse and remand for further proceedings.

For the foregoing reasons, I respectfully dissent.