author: PICKETT, Judge.

text:
    In re JDH Applying for Intrafamily Adoption.
    No. 14-621.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      W. Thomas Barrett, III, Attorney at Law, Lake Charles, LA, for Appellee, HDD.
    Todd H. Melton, Todd H. Melton, L.L.C., Attorney at Law, Lake Charles, LA, for Appellants, JDH, TBH.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

|,TBH and JDH appeal the trial court’s determination that a provision in the Agreement for Posb-Adoption Continuing Contact (Agreement) they entered with HDD regarding his continuing contact with his daughter, ABH is “void as against public policy in this case.” They also appeal the trial court’s enforcement of the Agreement and modification of HDD’s visitation with ABH. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

TBH and HDD married in 2005, and ABH was born in June 2006. In August 2008, TBH and HDD divorced. TBH married JDH in September 2009, and JDH filed a Petition for Intrafamily Adoption to adopt ABH in July 2012. In his petition, JDH alleged that HDD’ consent to the adoption was not required because HDD had failed to maintain contact with ABH for a period exceeding twelve months and to pay child support as ordered by the trial court. HDD answered the Petition, and on January 24, 2011, a hearing was held on the adoption. At the hearing, HDD voluntarily consented to the adoption in exchange for visitation with ABH as set forth in the Agreement executed by the parties the day of the hearing. That same day, the trial court signed a Final Decree and Judgment of Adoption.

Pursuant to the Agreement, HDD was to have the following visitation with ABH:

[T]hree full twenty-four hour days of visitation with the minor child, ABH, per month, said visitation to commence at the time of the |2execution hereof. The particular days of visitation each month shall be discussed and determined by the parties hereto during the week prior to the beginning of each month, and due consideration shall be given to the schedules of all concerned particularly those of [HDD’s mother and sister].

The Agreement conditioned HDD’s visitation with ABH on his making payments toward the arrearages he owed TBH in child support. Specifically, the Agreement provided:

[HDD] shall make payments in the amount of FIVE HUNDRED AND NO/00 ($500) DOLLARS per month by cashier’s check or money order to the office of Attorney Allen McCall on or before the 12th day of each month, said payments representing arrearages owed for the support of the minor child, ABH. In the event of a default on any of these payments, JDH and TBH shall have the option to withhold future visitations from HDD.

As TBH and JDH noted in their brief, at the time the Agreement was entered, the parties were aware that HDD was going to serve jail time a on a DWI and agreed that during his incarceration, visitation and the $500 payments would be suspended. Four months after the parties entered the Agreement, TBH and JDH filed a rule to show cause why it should not be terminated and nullified. They alleged that HDD had violated the terms of the agreement by failing to make the $500 monthly payments toward the arrearages he owed, that he had been uncooperative in coordinating the visitation and exchanging ABH for visitation, and that he had threatened harm when he was uncooperative regarding -visitation. HDD asserts he was incarcerated during the time TBH and JDH alleged he failed to make the $500 payments, and there is no indication TBH and JDH disputed that HDD was incarcerated as he claimed.

A hearing on the rule was scheduled for August 8, 2011, at which time the trial court ordered the parties to mediation as provided in the Agreement. The | (¡mediation failed, and HDD filed a rule to enforce the Agreement, alleging that TBH and JDH were not allowing the visitation set out in the Agreement.

On February 8, 2012, a hearing was held on HDD’s rule. At the hearing, the parties entered another stipulation. A judgment on the stipulation was not presented to the trial court until March 8, 2013. The judgment contained one provision: if HDD missed one payment toward his arrearag-es, his visitation terminated. Other issues were addressed at the February 8, 2012 hearing but not included in the judgment.

On February 27, 2013, HDD filed a Rule for Contempt, alleging that TBH unilaterally terminated his visitation privileges with ABH. A trial was held December 9, 2013. The trial court took the matter under advisement and on December 27, 2013, issued Written Reasons for Ruling in which it made the following pertinent findings of fact: (1) “[cjonditioning HDD’s visitation with ABH upon his payment of arrears each month is contrary to the parties’ assertion that the agreement was in the best interest of the child”; and (2) TBH has failed to abide by the [Agreement] in that she did not allow HDD’s visitation with ABH in accordance with the agreement.” The trial court specified that it did “not find that a payment made three (3) days late is a ‘missed’ payment for the purposes of unilaterally terminating visitation.”

After making these findings of fact, the trial court concluded “that the provision conditioning HDD’s visitation with ABH on his not missing a payment toward the arrearages he owed is void as against public policy in this case.” The trial court then modified the Agreement by making the general visitation privileges | ¿contained in the Agreement specific. For example, the Agreement provided HDD had three

(3) full twenty-four hour days of visitation per month; the trial court modified that visitation to “the second weekend of each month from 5:00 p.m. on Friday until 5:00 p.m. on Sunday.”

TBH and JDH appealed the trial court’s judgment. On appeal, they assign two errors: (1) the trial court made a legal error in ruling that the visitation being conditioned on the payment of past due child support, by a non-parent, was against public policy, and (2) the trial court erred in enforcing and modifying the parties’ contract.

DISCUSSION

Before addressing the assignments of error, we note that TBH and JDH do not assign error with the trial court’s findings of fact. The trial court’s findings of fact are integral to our review of TBH and JBH’s assignments of error. After reviewing the record and finding the trial court’s findings of fact accurate, we adopt them as our own

The evidence is clear that TBH’s reason for entering into the Post-Adoption Continuing Contact Agreement was to obtain HDD’s voluntary consent to the Intrafamily Adoption of ABH by her husband, JDH. She testified that at that time, she felt it was in ABH’s best interest for JDH to be her father. It is also clear that HDD gave his consent to the adoption because he was fearful that if he went to trial and lost, then he would never be allowed to see his child again. By giving his consent to the adoption, he was guaranteed to have at least minimum contact with his daughter. However, TBH and JDH[ ] conditioned HDD continuing contact with ABH on the payment of arrearage of child support owed prior to the adoption. The arrear-age was to be paid at $500 per month on or before the 12th day of each month. There is nothing in the evidence which contains the exact total of the arrearage owed by HDD.
_1⅛ • • •
At the onset, the court recognizes that HDD’s parental rights have been terminated and his visitation rights are limited in accordance with the Post-Adoption Continuing Contact Agreement. According to the testimony of HDD, he was never allowed to exercise visitation according to the agreement — he never exercised three — 24 hour periods during the month. He testified that if ABH had plans such as a wedding, family event, or birthday party to attend, TBH and JDH would not allow him to have visitation and he was not given the opportunity to make up the missed visitation. TBH acknowledged that there were times when ABH had plans and she would not allow the visitation to take place. She also acknowledged that she has not allowed visitation to take place since June 2012. Based on this, the court finds that TBH has failed to abide by the continued contact agreement.
After the stipulation was entered into on February 8, 2012, HDD made the March and April payments on or before the 12[th] day of the month. The May payment was made on May 14, 2012, which was a Monday, making May 12, 2012, a Saturday. The June payment was made on June 15, 2012, and was promptly returned to HDD’s attorney stating that it was untimely. TBH and JDH have not allowed any visitation between ABH and HDD due to his late payment. Contained in Mr. H. Alan McCall’s records is a message from JDH dated June 12, 2012, at 2:24 p.m. The note indicates that JDH called Mr. McCall’s office and he was advised that no payment had been made. (See Joint Exhibit 1.) It is obvious to this court from the records and the testimony of the witnesses that TBH and JDH were using this provision to unilaterally terminate the visitation between HDD and ABH. At this point, TBH did not even communicate to HDD that she was terminating his visitation. In fact, for months, TBH led [HDD’s mother] to believe that there was a chance that they could continue to visit with ABH. (See [HDD] Exhibit 7.) [HDD’s mother] testified that she sent numerous text messages to TBH requesting and pleading to see or talk to ABH. Most were ignored by TBH. When questioned about this, TBH estimated that she only received two or three text messages from [HDD’s mother]. This is contradicted by [HDD’s mother’s] testimony and [HDD] Exhibit number 7.
The court must decide the effect to be given this provision making HDD’s continuing contact with ABH contingent upon his payment of the arrears owed. Mr. Barrett argues that it is against public policy to condition visitation upon the payment of child support, and, therefore the provision is null and void. The interest of a child is primary in any and all court considerations and visitation with a parent conditioned upon payments of support is not in the child’s best interest. Macaluso v. Macaluso, 509 So.2d 201 (La.App. 1 Cir.1987). The principle of law that visitation privileges shall not be | ^conditioned upon the payments of child support has been supported throughout the years. Fuge v. Uiterwyk, 613 So.2d 717 (La.App. 4 Cir. 1993); Crooks v. Crooks, 425 So.2d 385 (La.App. 3 Cir.1982). Mr. Pizzolatto argues that the arrears that HDD agreed to pay was [sic] owed whether the adoption was granted or not, and that it was simply a recognition of what was already owed on an obligation that was terminated by the adoption. This is correct, and if it was not tied to HDD’s visitation, there would be no issue. However, the payment of this obligation was a prerequisite to his continuing contact with ABH. The court recognizes the distinction between a current child support obligation and visitation between a noncustodial parent, and the payment of a ■ debt owed for past child support and the limited visitation contained in a Post-Adoption Continuing Contact Agreement. However, in this case, HDD’s only consideration for consenting to the adoption was that he would be allowed to have continued contact with ABH. TBH and JDH gained HDD’s consent to the adoption in exchange for allowing him continuing contact with ABH. However, when TBH and JDH received the added provision of payment of arrears, HDD gained nothing. Conditioning HDD’s visitation with ABH upon his payment of arrears each month, is contrary to the parties’ assertion that the agreement was in the best interest of the child. Further, the court does not find that a payment made three (3) days late is a “missed” payment for the purposes of unilaterally terminating visitation.
The court finds that TBH has failed to abide by the Agreement for Post-Adoption Continuing Contact in that she did not allow HDD visitation with ABH in accordance with the agreement. The court further finds that the provision contained in the Agreement for Post-Adoption Continuing Contact conditioning HDD’s visitation with ABH upon the timely payment of the arrearage each month is void as against public policy in this case.

Did the Trial Court Commit Legal Error?

In their first assignment of error, TBH and JDH urge that the trial court made a legal error in ruling that the visitation being conditioned on the payment of past due child support, by a non-parent, was. against public policy. When reviewing questions of law, appellate courts must discern whether the trial court’s interpretation of the law is legally correct. If the appellate court finds that the trial court committed error, its legal conclusions are subject to de novo review. Forum for Equality PAC v. McKeithen, 04-2477, 04-2523 (La.1/19/05), 893 So.2d 715.

|7TBH and JDH assert the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) provides guidance regarding the considerations we must make in this case. We do not disagree. At issue in Troxel was a Washington statute that allowed “any person” to petition for visitation rights with a child and further authorized courts to grant visitation whenever such “visitation may serve the best interest of the child.” The Supreme Court determined that the statute was unconstitutional because it interfered with the fundamental right of parents to rear their children. There is a vast difference between Troxel and this case. Here, TBH and JDH negotiated and consented to the terms of the Agreement. The state action at issue in Troxel is not present here to the extent that it is in Troxel. Here, the state action is only to enforce the Agreement negotiated and consented to by the parties.

TBH and JDH contend this case is “solely a matter of contract.” Accepting this contention as true for the sake of argument, we find no error in the trial court’s conclusion that conditioning HDD’s visitation with ABH on the payment of his child support “arrearage each month is void as against public policy in this case.” Pursuant to La.Civ.Code arts. 1759 and 1983, TBH and JDH and HDD were obligated to act in good faith. The trial court accepted HDD’s testimony that “he was never allowed to exercise visitation according to the agreement” because TBH | ¿‘would not allow the visitation to take place” and found that TBH did not act in good faith under the terms of the Agreement.

The correctness of the trial court’s conclusion is clear when one considers that the Agreement was not the only method for TBH and JDH to collect the arrearag-es owed by HDD; they could have sued him, obtained a judgment against him, and then enforced the judgment. To the contrary, the Agreement was HDD’s only method of continuing contact with ABH. As the trial court found, TBH’s failure to act in good faith and the unfairness that resulted to HDD show why the provision conditioning HDD’s visitation on his payment of arrearages is “void as against public policy under the facts of this case.”

TBH and JDH’s unilateral termination of HDD’s visitation with ABH compounded the unfairness of TBH’s failure to perform her obligations under the Agreement in good faith. As argued by HDD, Louisiana does not condone such self-help in the context of judgments for child support or alimony. Halcomb v. Halcomb, 352 So.2d 1013 (La.1977).

The policy reason behind this rule is obvious: the law does not want to encourage those owing alimony or child support to become involved in “self-help” by making their own determinations as to when they have satisfied their alimony or child support obligations by some method other than payment in accordance with the court order-.

Hunter v. Hunter, 44,703, p. 6 (La.App. 2 Cir. 9/30/09), 21 So.3d 1032, 1036. This reasoning is especially true in cases such as this one, where one party takes advantage of the other by not acting in good faith.

Furthermore, as required by La.Ch. Code art. 1269.3(F), the Agreement provides, in pertinent part: “we recognize that these minimum expectations must be preserved until such time as we modify them by mutual written agreement or the court modifies or terminates this Agreement in accordance with Louisiana J^Children’s Code Article 1269.8.” Accordingly, the Agreement itself does not condone self-help.

Did the Trial Court Err in Enforcing and Modifying the Terms of the Parties Contract?

TBH and JDH also contend that the trial court committed legal error in enforcing and modifying the provisions of the Agreement. Pursuant to La.Ch.Code art. 1269.8(A) and the specific terms of the Agreement, the trial court retained jurisdiction to enforce, modify, or terminate the Agreement.

The trial court did not impose visitation on the parties that the parties did not agree to in the Agreement. It simply took the loose framework of the visitation provisions and made them specific, thereby reducing the issues on which the parties could disagree and also reducing the opportunity for one party to take unfair advantage of the other. For these reasons, we find no error with the trial court’s enforcement and modification of the agreement.

DISPOSITION

The judgment of the trial court is affirmed. All costs are assessed to TBH and JBH.

AFFIRMED.

      . The parties and the minor child are referred to by their initials to preserve their anonymity in this confidential proceeding.

      . ABH's initials reflect that her name was changed in the Final Decree and Judgment of Adoption rendered by the trial court.

      . HDD’s attorney at the February 2012 hearing withdrew from representing HDD in December 2012. HDD’s new attorney enrolled in December 2012. TBH and JDH's attorney submitted the judgment for signature.

      . To maintain the confidentiality of the parties and minor child, pertinent changes have also been made to these portions of the trial court’s Reasons for Ruling.

      . Louisiana Civil Code Article 1759 provides: Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the obligation.

      . Louisiana Civil Code Article 1983 provides: Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Christy L. MOORE, et al. v. RICE-LAND LUMBER CO., et al.
    No. CA 14-500.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Daniel Elmo Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiffs/Appellants, Christy L. Moore, Patrick Cane Moore.

      R. Todd Musgrave, Brent J. Carbo, Musgrave, McLachlan & Penn, L.L.C., New Orleans, LA, for Defendants/Appel-lees, Certain Underwriters at Lloyd’s London, Larson & McGowin, Inc., H & H Hunting Club.
    Alison A. Spindler Mansfield, Irwin, Fritchie, Urquhart & Moore, LLC, R. Todd Musgrave, Brent J. Carbo, Mus-grave, McLachlan & Penn, L.L.C., New Orleans, LA, for Defendant/Appellee, Rice-Land Lumber Co.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

[]This case involves the application of Louisiana’s Recreational Use Immunity Statutes in dismissing Christy Moore’s claim for damages for the death of her husband who was shot while hunting. Christy argues that, even though Defendants fall within the protective provisions of the recreational use statutes, they agreed by the terms of a hunting license agreement to add certain safety obligations and requirements so that the immunity protection provided by the statutes was not applicable. She also claims that the immunity protection was not available in this case because Defendants’ actions were willful and they earned a profit from the hunting operations. The trial court disagreed and granted summary judgment dismissing all defendants from the case. For the reasons set forth below, we affirm the judgment of the trial court.

FACTS

Rice-Land Lumber Company owned approximately 50,000 acres in Louisiana in 2010 that it used for commercial timber operations. Rice-Land also leased this land for hunting purposes. During 2010, there were approximately forty to forty-one hunting leases on the land. Larson & McGowin, Inc. managed the timber properties of Rice-Land, including the hunting leases. H & H Hunting Club (H & H) leased 1,528 acres from Rice-Land. Patrick Kyle Moore, the decedent, was a member of H & H.

On the morning of December 4, 2010, Patrick brought his father to H & H as a guest to hunt with him. Patrick’s father hunted in a box stand which was at the intersection of two fire lanes and a logging road. According to the Louisiana Department of Wildlife and Fisheries report, Patrick left his stand to go meet with his father. As he walked toward the blind on the road, he carried a folding bag |2chair over his shoulder, with the legs in the air, and his rifle over the other shoulder. At the time, he was wearing a hunter orange hat and a hunter orange vest, but due to the lack of light, the hunter orange was not visible. Thinking he was a buck, Patrick’s father shot him, fatally wounding him.

Christy filed suit for wrongful death on both her behalf and her minor son’s behalf against Rice-Land, Larson, H & H, and their insurer. Defendants filed a motion for summary judgment claiming statutory immunity under Louisiana’s Recreational Use Immunity Statutes. A hearing on the motion was held on January 27, 2014. Agreeing with Defendants, the trial court granted their motion for summary judgment and entered judgment in their favor. Christy then filed the present appeal.

SUMMARY JUDGMENT

On appeal, Christy contends that the granting of the motion for summary judgment in favor of Defendants was in error because there is a question of fact as to whether they are entitled to the immunity granted by the recreational use statutes. Christy does not deny that Defendants would qualify for immunity under the recreational use statutes. Christy makes three different arguments as to why summary judgment was inappropriate arguing that there are questions of fact as to whether Defendants are entitled to the protection of the recreational use statutes. She first argues that immunity protection afforded by the recreational use statutes does not apply because Defendants assumed a duty by adding additional safety obligations and requirements in the lease. H & H also included these safety obligations in its club hunting rules. Secondly, Christy claims that H & H knowingly allowed its members to violate these rules and Rice-Land knew about [ sthe violations. Lastly, Christy claims that Rice-Land and/or Larson used the leased premises as a commercial recreational venture.

Louisiana Code of Civil Procedure Article 966, which governs summary judgment proceedings, was significantly amended in both the 2012 and 2013 legislative sessions. These amendments affect the burden of proof elements of the Article. At the time of this hearing, August 8, 2013, the 2013 version of Article 966 was in effect. After the amendment by 2013 La. Acts No. 391, § 1, Article 966(F)(l)(emphasis supplied) now provides that “A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time.” Furthermore, Article 966(B)(2) now provides that evidence considered by the trial court must be “admitted for purposes of the motion for summary judgment.” Article 966(F)(2) now provides that “[ejvidence cited in and attached' to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection.” Furthermore, “[o]nly evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.” La.Code Civ.P. art. 966(F)(2).

The amendments did not change the burden of proof applicable to a motion for summary judgment as set forth in Article 966(C)(2):

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

“The Recreational Use Statutes were enacted to induce private owners of large acreages to open expanses of undeveloped lands for public outdoor, open land recreational purposes.” Monteville v. Terrebonne Parish Consol. Gov’t, 567 So.2d 1097, 1098 (La.1990). “Louisiana Revised Statutes 9:2791 and 9:2795 address landowners’ liability for property that is used for recreational purposes. These statutes address the same subject matter and are to be read together.” Hayes v. Burlington Res. Oil & Gas Co., 09-1353, p. 3 (La.App. 3 Cir. 4/7/10), 34 So.3d 1009,1012.

Louisiana Revised Statutes 9:2795 provides “a limitation of liability for landowners, including the state and its political subdivisions, of property used for recreational purposes.” Souza v. St. Tammany Parish, 11-2198, p. 4 (La.App. 1 Cir. 6/8/12), 93 So.3d 745, 747. However, the statute retains liability for (1) willful or malicious failure to warn against a dangerous condition, use, structure, or activity; (2) playground equipment or stands which are defective; and (3) intentional or grossly negligent acts by an employee of the public entity. La.R.S. 9:2795(B)(1), (E)(c), and (E)(d). We are also mindful that the recreational use statutes “are in derogation of [a] common or natural right and, therefore, are to be strictly interpreted, and must not be extended beyond their obvious meaning.” Richard v. Hall, 03-1488, p. 22 (La.4/23/04), 874 So.2d 131, 148.

Assumption of Duty

The “HUNTING LICENSE AGREEMENT” entered into on July 1, 2010, on behalf of Rice-Land by Larson with H & H provides that “[t]here shall be no hunting or shooting within 200 yards of any roads or occupied building.” | .«¡Furthermore, the “H & H Hunt Club Rules” provide that “[m]embers must abide by all rules and regulations listed on Hunt Club lease contract.” Christy argues Defendants undertook a specific duty to ensure no hunting occurred near a road when they specifically included these provisions in the lease and rules. She claims that the recreational use statutes do not provide immunity when a party specifically assumes a duty. Christy claims that there was a clear violation of this duty by allowing the road in the instant case to be used as a shooting lane for a box stand.

In support of her position, Christy cites La.R.S. 9:2795(D) which provides:

Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Section to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

In Johnson v. Lloyd’s of London, 26,813 (La.App. 2 Cir. 4/5/95), 653 So.2d 226, writ denied, 95-1114 (La.6/23/95), 656 So.2d 1016, the plaintiff filed suit against a hunting club for injuries he sustained when he fell from his own deer stand. Like the present case, the plaintiff alleged that the club voluntarily assumed a duty of protection that it then failed to perform with due care, and that such a voluntary assumption of a duty takes the case out of the scope of the recreational use statutes.

In this case the three Defendants are the party with the fee interest, the manager who controlled the land, and the lessee of the land. All three parties are “owners” of the land pursuant to La.R.S. 9:2795(A) as opposed to “any person using the land of another” pursuant to Subsection (D). In addressing the application of La.R.S. 9:2795(D), the court in Johnson, 653 So.2d at 229, observed [ fithat “Subsection D was not intended as an additional exception to the immunity of an ‘owner.’ ” The court further observed that the purpose of the Subsection was recognition that a third party may still be held liable for their own negligence. Id. For example, “a person hunting on the land would not be relieved of liability for the negligent shooting of another hunter.” Id.

In further discussing whether an “owner” could assume a duty bringing it outside the protection of the recreational use statutes, the second circuit reviewed three decisions from other jurisdictions which interpreted very similar statutes: Palmer v. U.S., 945 F.2d 1134 (9th Cir.1991); Klepper v. City of Milford, 825 F.2d 1440 (10th Cir.1987); and Weaver v. United States, 809 F.Supp. 527 (E.D.Mich.1992). Agreeing with the holdings and rationales in those cases, the court in Johnson concluded that Louisiana’s Recreational Use Statutes are very similar in both their purpose and their provisions and that our law provides a landowner with immunity from simple negligence although immunity from grossly negligent acts is not available. ■ In reaching this conclusion, the court explained that “[t]o hold otherwise would encourage owners to take no steps whatsoever to make recreational facilities safer, and might encourage some landowners to withdraw their land from recreational use altogether, thereby undermining the very purpose of the legislation.” Johnson, 658 So.2d at 281.

We agree with the reasoning expressed by the second circuit. While the landowner and the hunting club had certain rules in place for the protection of the hunters, we cannot say that they are not afforded protection under the recreational use statutes. Furthermore, as discussed in the next section, the parties to the lease understood that hunting near a boundary road was forbidden as opposed to an inter-' nal road within the lease, which is where this accident took place.

17Willing Violation

Christy also claims that summary judgment was inappropriate because the hunting club officers knowingly placed the box stand facing the road in violation of its own rules, which she argues was a contributing factor in the death of the decedent. She also claims that the hunting club should have provided a copy of the lease to each of its members.

Pursuant to' La.R.S. 9:2791(B), immunity is not available “for deliberate and willful or malicious injury to persons or property.” Louisiana Revised Statutes 9:2795(B)(1) also provides that immunity is not available “for willful or malicious failure to warn against a dangerous condition, use, structure, or activity.”

A willful or malicious action is a conscious course of action which is knowingly taken or not taken, which would likely cause injury, with conscious indifference to the consequences thereof. DeLafosse v. Village of Pine Prairie, 08-693 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, writ denied, 09-74 (La.2/4/09), 999 So.2d 766.

Kurt Krueger, district manager for Larson, testified that Larson’s largest part of its responsibility was to prepare and sell timber from Rice-Land’s land. He did agree that it was Larson’s responsibility to ensure that the lessees were not violating the lease. He also agreed that the stand was within 200 yards of a logging road, which he did not consider to be a boundary road. Kurt explained that hunting stands on boundary roads was not acceptable because there is no communication between the different hunting'clubs.

Kurt supervised Brandon White who did most of the field work for Larson in December 2010. Mr. White testified that the placement of this stand on a logging road did not violate the terms of the lease. He explained that a stand was not fallowed near a boundary road between two leases because the people from two different leases did not communicate with one another.

Mark Hawes, who started H & H, explained that he gets to decide where stands are placed. This particular stand was his private stand, which had been at this location of two fire lanes and a logging road for two years. The logging road was intended a? a shooting lane for the stand. Mark explained that he had built some nice stands like this particular stand because it was more comfortable for older hunters, women, and children. Either Mark or his son Jason gave Patrick permission for his dad to use this stand.

Mark also explained that he did not consider the placement of this stand to be in violation of the lease because the prohibition against stands within 200 yards of roads meant the main roads, or boundary roads with other leases. He explained that boundary roads on H & H’s lease were the north road and east road because the rest of the lease is bounded by creeks.

Jason confirmed his father’s testimony that there was no prohibition of placing stands near logging roads to be used as shooting lanes. He agreed that stands could not be placed near roads that divided H & H’s lease from other leases.

While Mark testified that he originally gave a copy of the lease to all members, he stopped this practice. He does give a copy of H & H’s rules to each member with a map of the lease. Visitors do not get a copy of the rules because it is up to the members to give their guests a copy of the rules. Jason also explained that every year he sits down and goes over the rules with the members. They also talk about items that are in the lease and not included in the rules.

There is absolutely no evidence that anyone desired or thought that there was a risk that someone might get shot on this logging road. Furthermore, we do |flnot find that there was any conscious course of action by anyone which resulted in this tragic accident. It was simply that, a tragic accident.

Commercial Enterprise

Christy’s final argument is that there is a question of fact as to whether a profit was made by leasing the lands to hunting clubs. In support of her argument, Christy points to Kurt’s testimony that Rice-Land had 49,700 acres that it leased for hunting in Louisiana in December 2010 at a cost of $3.60 an acre for a total of $178,920.00.

Louisiana Revised Statutes 9:2791(B) provides that immunity is not available “when the premises are used principally for a commercial, recreational enterprise for profit.” Louisiana Revised Statutes 9:2795(B)(1) also provides that immunity is not available for “an owner of commercial recreational developments or facilities.” These provisions have been interpreted by the Louisiana Supreme Court to mean that “it is the ‘owner’s’ use of the premises and not the underlying classification of the premises as a commercial recreational enterprise for profit that determines the availability of the immunity provisions to a qualified owner.” Richard, 874 So.2d at 152.

In explaining the nature of the hunting leases, Kurt testified that it was not a commercial venture for Rice-Land. He further explained that the hunting leases were not a huge moneymaker and were only a very small portion of the income for the property which was an effort to offset property taxes. Rice-Land made its profit from timber sales on the property. Timber operations provided anywhere from $3,000.00 to $5,000.00 an acre.

H & H also did not operate as a commercial hunting club for profit. Mark Hawes testified that the amount of dues was set by the lease payment. As Jason | mHawes explained, they were not in it to make money, and the dues just covered expenses.

In Dear v. Crosby Chemicals, Inc., 95-1309 (La.App. 3 Cir. 3/6/96), 670 So.2d 775, writ denied, 96-1267 (La.6/21/96), 675 So.2d 1091, this court recognized that land used primarily to grow timber for profit and also leased to a hunting club was not used for a commercial recreational enterprise for profit. We also find in this case that the evidence clearly establishes that neither Rice-Land nor H & H used this land principally as a commercial, recreational enterprise for profit. Therefore, this exception to the immunity protection of the recreational use statutes does not apply.

For these reasons, we find the trial court was correct in granting summary judgment in favor of Defendants. Costs of this appeal are assessed to Christy Moore.

AFFIRMED.

      . "Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.” La.R.S. 9:2795(A)(2).


author: PETERS, J.

text:
    Leonard BLACKWELL v. WASTE MANAGEMENT OF LOUISIANA, LLC.
    No. 14-560.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Marcus A. Bryant, LLC., Lafayette, LA, for Plaintiff/Appellant, Leonard Blackwell.
    Mark R. Pharr, III Galloway, Johnson, Tompkins, Burr & Smith, PLC, Lafayette, LA, for Defendant/Appellee, Waste Management of Louisiana, LLC.
    Lindsay L. Meador, Galloway, Johnson, Tompkins, Burr & Smith, PLC, Lafayette, LA, for Defendant/Appellee, Waste Management of Louisiana, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PETERS, J.

h Leonard Blackwell brought suit against Waste Management of Louisiana, LLC to recover damages to the parking lot of his Lafayette, Louisiana apartment complex. He appeals the trial court grant of a summary judgment dismissing his suit. For the following reasons, we affirm the trial court’s judgment in all respects.

DISCUSSION OF THE RECORD

Mr. Blackwell is the owner of an apartment complex known as the Blaine Street Apartments and located at 120 Blaine Street in Lafayette, Louisiana. In 1998 he entered into a Commercial Service Agreement (“the Agreement”) with Waste Management of Louisiana, LLC (“Waste Management”) wherein Waste Management agreed to providé and service a large commercial waste dumpster container located at the apartment complex. The Agreement had an initial term of three years, and Mr. Blackwell and Waste Management have renewed the Agreement under the same terms and conditions every three years following the initial term. It is not disputed that the Agreement was still in force and effect at the time this litigation arose.

On March 27, 2013, Mr. Blackwell filed suit seeking to recover damages from Waste Management based' on assertions that its employees had destroyed portions of the apartment complex parking areas by driving the heavy dumpster trucks used in the collection process on the areas. In his petition, Mr. Blackwell asserted that this activity constituted both negligence and a breach of the Agreement by using an area of the apartment complex not designed to accommodate heavy equipment. The damage, according to Mr. Blackwell’s petition, was of such an extent that the parking area could no longer be used by .those residing in the apartment complex.

| ¡.Waste Management answered the petition denying liability for the damage. On November 5, 2013, Waste Management filed a motion for summary judgment wherein it asserted that there were no genuine issues of material fact in the litigation and that the terms of the Agreement precluded recovery of Mr. Blackwell’s claims for damages. The trial court set the motion for hearing on December 2, 2013. On November 25, 2013, Mr. Blackwell filed his own motion seeking summary judgment relief, asserting that the record supported his claim that he was entitled to recover damages. Mr. Blackwell’s motion is entitled “PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.” The filing was not of two different documents, but a single filing incorporating the memorandum in the summary judgment motion itself.

At the December 2, 2013 hearing, counsel for Waste Management orally requested that the trial court not allow Mr. Blackwell’s counsel to argue the motions based on his failure to submit his client’s opposition to its summary judgment at least eight calendar days before the hearing, in violation of the provisions of La.Dist.Ct.R. 9.9. Counsel for Waste Management also requested that the trial court not consider a repair estimate and certain photographs attached to Mr. Blackwell’s opposition to its summary judgment motion because the documents were not authenticated by affidavits as required by La.Code Civ.P. art. 966(B)(1).

The trial court refused to consider the repair estimate and photographs, denied Mr. Blackwell’s counsel the opportunity to argue, granted Waste Management’s motion for summary judgment, and dismissed Mr. Blackwell’s suit. On January 6, 2014, the trial court executed a judgment corresponding to its ruling. | ¡(Thereafter, Mr. Blackwell perfected this appeal, asserting that the trial court erred in granting the summary judgment, in denying oral argument to his counsel, and in striking the exhibits attached to his motion and memorandum.

OPINION

It is well-settled that “[ajppellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La.7/2/12), 94 So.3d 750, 755.

Louisiana Code of Civil Procedure Article 966, which governs summary judgment proceedings, was significantly amended in both the 2012 and 2013 legislative sessions. While the procedure is still favored, and while the goal set forth in La.Code Civ.P. art. 966(A)(2) remains the “just, speedy, and inexpensive determination of every action except those disallowed by Article 969,” the requirements of proof have significantly changed.

Prior to August 1, 2012, the trial court could consider “the pleadings, depositions, answers to interrogatories, and admissions on file,” together with any affidavits that might be offered by the parties to determine whether there existed a genuine issue of material fact and whether the mover was “entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B) (emphasis added). However, by 2012 La. Acts No. 257, § 1, the Louisiana Legislature significantly changed La.Code Civ.P. art. 966, and one of those changes included amending and restructuring La.Code Civ.P. art. 966(B). The language cited above was moved to a new subparagraph designated as La.Code Civ.P. art. 966(B)(2), but without the words “on file.” To emphasize the significance of the deletion of these two words, the legislature added a new subparagraph designated as La.Code Civ.P. art. 966(E)(2), which provided that “[o]nly evidence admitted for purposes of the |4motion for summary judgment shall be considered by the court in its ruling on the motion.” The next year, by 2013 La. Acts No. 391, § 1, the Louisiana Legislature again significantly changed La.Code Civ.P. art. 966 by, among other changes, changing the designation of La.Code Civ.P. art. 966(E)(2) to La.Code Civ.P. art. 966(F)(2) and amending it to read as follows:

Evidence cited in and attached to the • motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Subparagraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.

Additionally, La.Code Civ.P. art. 966(F)(3) was added by 2013 La. Acts No. 391, § 1, and provides that “[ojbjections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds thereof.”

The summary judgment now before us was heard by the trial court on December 2, 2013. Therefore, the summary judgment law applicable to this appeal is that in effect after the effective date of the amendments to La.Code Civ.P. art. 966 by 2013 La. Acts No. 391, § 1. Still, neither the 2012 amendments nor the 2013 amendments changed the burden of proof applicable to a motion for summary judgment.

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

La.Code Civ.P. art. 966(C)(2).

|fiIn support of its request for summary judgment relief, Waste Management attached the following exhibits to its motion and memorandum:

1. Copy of the Agreement.
2. Excerpts from the deposition of Mr. Blackwell taken August 12, 2013.
3. Copy of Mr. Blackwell’s original petition.
4. Statement of undisputed facts.

In addition to another copy of the Agreement and additional excerpts from his .deposition, Mr. Blackwell attached photographs of the area where the damage was sustained as well as a copy of a damage estimate to his motion and memorandum.

The filings by both parties establish that the parking lot at the apartment complex has sustained damage which occurred oyer a period of time and that the Agreement was in full force and effect during the time in question. Mr. Blackwell testified in his deposition that the area directly in front of the dumpster and the direct area surrounding the dumpster was the only area having concrete of sufficient strength to bear the weight of Waste Management’s dumpster truck, and that Waste Management caused damage to the other concrete parking areas by using the parking lot to turn its service vehicles around in order to exit the complex. At the same time, he acknowledged that the Agreement does not address ingress and egress to the apartment complex, and that he and the Waste Management officials never discussed a particular pathway for access to the dumpster. According to Mr. Blackwell, he told Waste Management where the dumpster was to be located and for them to service the dumpster and place it back in that location. While he did not direct Waste Management on how to exit and enter the premises, he acknowledged that Blaine Street is a dead end street and that the servicing vehicle would have to turn around somewhere in order to exit the premises. | ^Despite the Agreement being in effect since 1998, and the continuing nature of the damage to the parking lot, Mr. Blackwell did not connect the cause of the damage to Waste Management’s activities until September of 2012.

With regard to ownership and use of the equipment, and ingress and egress to the apartment complex, Paragraph 6 of the Agreement reads as follows:

EQUIPMENT, ACCESS. All equipment furnished by Company shall remain the property of Company; however, Customer shall have care, custody and control of the equipment and shall bear responsibility and liability for all loss or damage to the equipment and for its contents while at Customer’s location. Customer shall not overload, move or alter the equipment and shall use the equipment only for its intended purpose. At the termination of this Agreement, Customer shall return the equipment to Company in the condition in which it was provided, normal wear and tear excepted. Customer shall provide unobstructed access to the equipment on the scheduled collection day. Customer shall pay, if charged by Company, an additional fee for any service modifications caused by or resulting from Customer’s failure to provide access. Customer warrants that Customer’s property is sufficient to bear the weight of Company’s equipment and vehicles and that Company shall not be responsible for any damage to the Customer’s property resulting from the provision of services.

(Emphasis added.)

The trial court found that the underlying facts were not in dispute, and that the dispositive issue was whether the Agreement provided Waste Management a defense from Mr. Blackwell’s claims for damages. In its written reasons for judgment, the trial court found that the last sentence of Paragraph 6 was “clear and explicit,” and that it was unnecessary to look further to determine the intent of the parties. That being the case, the trial court found that Waste Management was not liable to Mr. Blackwell for the damages to the parking lot.

At the request of counsel for Waste Management, the trial court refused to allow Mr. Blackwell’s counsel to orally argue at the December 2, 2013 hearing based on its finding that his counsel failed to comply with the notice requirements of La.Dist.Ct.R. 9.9(b), which provides that:

17A party who opposes an exception or motion shall concurrently furnish the trial judge and serve on all other parties an opposition memorandum at least eight calendar days before the scheduled hearing. The opposition memorandum shall be served on all other parties so that it is received by the other parties at least eight calendar days before the hearing, unless the court sets a shorter time.

The penalty for failure to timely serve the opposition is found in La.Dist.Ct.R. 9.9(e), which provides that:

Parties who fail to comply with paragraphs (b) and (c) of this Rule may forfeit the privilege of oral argument. If a party fails to timely serve a memorandum, thus necessitating a continuance to give the opposing side a fair chance to respond, the court may order the late-filing party to pay the opposing side’s costs incurred on account of the untimeliness.

(Emphasis added.)

The trial court explained its ruling that Mr. Blackwell’s counsel had forfeited the privilege of oral argument in its reasons for judgment:

The record reflects that the plaintiffs opposition was filed on November 25, 2013 (7 days prior to the hearing), and defense counsel stated that she did not receive plaintiffs opposition until November 27, 2013, which was the day before Thanksgiving. The Court noted that the defendant’s Motion for Summary Judgment and Memorandum in Support were filed on November 5, 2012, and as such, plaintiffs counsel had ample opportunity to timely file his opposition. Defendant’s counsel stated that although she worked through the Thanksgiving holiday weekend, she was prejudiced by the fact that even had she reviewed the opposition on November 25, 2013, the courthouse closure due to the Thanksgiving holiday would have precluded her from filing a timely reply allowing defendant to have received it one full working day before the hearing, pursuant to Uniform District Court Rule 9.9(c).... Due to this, the Court found that the defendant would have been substantially prejudiced were plaintiffs counsel permitted to argue and granted the defendant’s motion and denied plaintiffs counsel the opportunity to argue orally.

Waste Management’s counsel also moved for the photographs and repair estimate exhibits attached to Mr. Blackwell’s opposition memorandum to be struck from the record. The trial court granted the motion and explained its ruling in its reasons for judgment by stating that “[pursuant to La.C.C.P. art. 966(B)(1) this | RCourt found that the photographs were not authenticated by affidavits, so no foundation was laid to authenticate them as competent evidence.”

Beginning with the issue of the exhibits, we first note that Waste Management did not object in its memorandum or in a written motion to strike as is now required by La.Code Civ.P. art. 966(F)(3). However, we still find no error in the trial court’s ruling with respect to the exhibits as neither the photographs nor the damage estimate can be considered as pleadings, depositions, answers to interrogatories, admissions, or affidavits, which might be considered by the trial court under the authority of La.Code Civ.P. art. 966(B)(2). Therefore, the trial court did not err in refusing to consider them.

We also find no abuse of discretion in the trial court’s refusal to allow Mr. Blackwell’s counsel to argue his position at the December 2, 2013 hearing. After Waste Management filed its November 5, 2013 motion, Mr.' Blackwell did not respond for twenty days, and when he did, his response was filed on the Wednesday before the beginning of the Thanksgiving holiday period, and less than the eight calendar day period required by La.Dist. Ct.R. 9.9(c). The purpose of requiring that an opposition memorandum be served on the mover at least eight days before the hearing on a motion for summary judg-. ment is to allow both the court and the mover sufficient time to narrow the issues in dispute and prepare for argument at the hearing. Mahoney v. East Carroll Parish Police Jury, 47,494 (La.App. 2 Cir. 9/26/12), 105 So.3d 144, writ denied, 12-2684 (La.2/8/13), 108 So.3d 88. Additionally, oral argument is a privilege, not a right, and a litigant may forfeit that privilege by failing to comply with filing guidelines. O’Connor v. Nelson, 10-250 (La.App. 5 Cir. 1/11/11), 60 So.3d 27.

| ¡/Turning to an analysis of the trial court’s ultimate judgment on Waste Management’s summary judgment motion, we first note that generally, legal agreements have the effect of the law upon the parties, and, as they bind themselves, they shall be held to a full performance of the obligations flowing therefrom. Belle Pass Terminal, Inc. v. Jolin, Inc., 92-1544, 92-1545, p. 16 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 479, writ denied, 94-906 (La.6/17/94), 638 So.2d 1094. Additionally, La.Civ.Code art.2046 provides that “[w]hen the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Furthermore, “[a] person who signs a written contract is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, that he did not understand it, or that the other party failed to explain its meaning.” Carter Logging, L.L.C. v. Flynn, 44,188, p. 4 (La.App. 2 Cir. 4/8/09), 7 So.3d 195, 198.

Paragraph 6 of the Agreement clearly states that Mr. Blackwell “warrants that [his] property is sufficient to bear the weight of [Waste Management’s] equipment and vehicles and that [Waste Management] shall not be responsible for any damage to [Mr. Blackwell’s] property resulting from the provision of services.” The Agreement does not designate an area where Waste Management’s vehicles were prohibited to traverse, and instead, Paragraph 6 provides that Waste Management was to have “unobstructed access to the equipment on the scheduled day.” We find that the words of the Agreement are clear, explicit, and lead to no absurd consequences. Thus, we find no error in the trial court’s grant of Waste Management’s summary judgment motion.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the motion for summary judgment in favor of Waste Management of Louisiana, LLC | ;nand dismissing the claims of Leonard Blackwell. We assess all costs of this appeal to Leonard Blackwell.

AFFIRMED.

      . While we note that the trial court did not mention the repair estimate in its reasons for judgment, we construe the reasoning therein to include that exhibit as well.


author: PAINTER, Judge. AMY, J.,

text:
    Tracy BOWIE v. WESTSIDE HABILITATION CENTER.
    No. 14-617.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Robert L. Beck, III, Law Offices of Robert L. Beck, Jr., LLC, Alexandria, LA, for Plaintiff-Relator, Tracy Bowie.
    Matthew R. Richards, Johnson, Rahman & Thomas, Baton Rouge, LA, for Defendants-Respondents, Westside Habilitation Center, Inc. and Louisiana Workers’ Compensation Corporation.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, JIMMIE C. PETERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hRelator, Tracy Bowie - (Bowie), seeks supervisory writs from the judgment of May 15, 2014, from the Office of Workers’ Compensation (OWC), which found that “Defendants carried their burden of proving that they complied with the requirements of La.Rev.Stat. 23:1201.1(A) and are therefore entitled to a Preliminary Determination hearing with respect to the contr-oversion of the compensability of the alleged left knee injury suffered by the Claimant as a result of the work accident of May 10, 2013, and with respect to the medical treatment that has been requested for the alleged left knee injury.” For the following reasons, we grant the writ and reverse the ruling of the Workers’ Compensation Judge (WCJ). The matter is remanded to the OWC for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

Bowie was employed by Westside Habil-itation Center, Inc. (Westside) and allegedly suffered a work-related accident on May 10, 2013, when she attempted to restrain a combative patient. Westside was insured by Louisiana Workers’ Compensation Corporation (LWCC).

Bowie allegedly suffered injuries to her knees and lower back, and she began receiving benefits on May 23, 2013. The weekly checks were mailed to 2120 Memorial Drive, Alexandria, Louisiana, until such time as Bowie became represented by counsel. Thereafter, the checks were sent to her attorney. LWCC initially paid for Bowie’s reasonable and necessary medical expenses, including treatment for her left knee. However, on February 3, 2014, in a letter to Bowie’s attorney, LWCC advised that they would no longer be paying for any expenses related to her left knee. LWCC advised Bowie that it considered the left knee problems to be a pre-existing medical condition that was not compensa-ble. A|2“Notice of Payment, Modification, Suspension, Termination of Medical Benefits” (the Notice) was sent to Bowie through her attorney on February 3, 2014. Bowie filed a Notice of Disagreement just four days later wherein she noted that she disagreed with the Notice because the work-related accident of May 10, 2013, aggravated her pre-existing left knee injury. Then, on February 14, 2014, Bowie filed a disputed claim for compensation, Form 1008.

Westside and LWCC (hereinafter collectively referred to as “Defendants”) filed an answer to the 1008 and requested a preliminary determination on the issue of suspension of benefits with respect to the left knee injury. Bowie then filed a rule to show cause to determine whether defendants were entitled to a preliminary determination pursuant to La.R.S. 23:1201.1. Following a hearing on the rule, the WCJ found that Defendants were entitled to a preliminary determination hearing. Bowie timely applied for a writ with this court, and proceedings in the court below were stayed.

In the writ application, Bowie argues that the WCJ committed legal error in concluding that LWCC did not have to prove its compliance with La.R.S. 23:1201.1(A)-(E) and that the WCJ committed legal and manifest error in concluding that LWCC was entitled to a preliminary determination under La.R.S. 23:1201.1 after LWCC failed to present competent evidence or elicit testimony that the Notice of Payment was sent to Bowie as required by La.R.S. 23:1201.1(A)(2). For the reasons that follow, we agree. The writ is granted based on our finding that Westside and LWCC are not entitled to a preliminary determination due to the failure to comply with the statutory provisions of La.R.S 23:1201.1. Thus, the WCJ’s ruling is hereby reversed, and the matter is remanded to the Office of Workers’ Compensation for further proceedings consistent with this opinion.

IsDISCUSSION

Louisiana Revised Statutes 23:1201.1 reads, in pertinent part:

A.Upon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason, including but not limited to issues of medical causation, compensability of the claim, or issues arising out of R.S. 23:1121, 1124, 1208, and 1226, the employer or payor who has been notified of the claim, shall do all of the following:
(1) Prepare a “Notice of Modification, Suspension, Termination, or Contr-oversion of Compensation and/or Medical Benefits”.
(2) Send the notice of the initial indemnity payment to the injured employee on the same day as the first payment of compensation is made by the payor after the payor has received notice of the claim from the employer.
(3) Send a copy of the notice of the initial payment of indemnity to the office within ten days from the date the original notice was sent to the injured employee or by facsimile to the injured employee’s representative.
(4) Send the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the injured employee by certified mail, to the address at which the employee is receiving payments of compensation, on or before the effective date of a modification, suspension, termination, or controversion.
(5) Send a copy of the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” to the office on the same business day as sent to the employee or to his representative.
B. The form of the “Notice of Payment, Modification, Suspension, Termination, or Controversion of Compensation and/or Medical Benefits” shall be promulgated by the office.
C. The director shall make the notice available upon request by the employee and the employee’s representative.
D. If the injured employee is represented by an attorney, the notice shall also be provided to the employee’s representative by facsimile. Proof that the notice was sent to the employee’s | representative by facsimile shall be pri-ma facie evidence of compliance with Subsection A of this Section.
É. The provisions of this Section shall not apply to questions of medical necessity as provided by R.S. 23:1203.1.
I. (1) An employer or payor who has not complied with the requirements set forth in Subsection A through E of this Section or has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination. An employer or payor who is not entitled to a preliminary determination or who is so entitled but fails to request a preliminary determination may be subject to penalties and attorney fees pursuant to R.S. 23:1201 at a trial on the merits or hearing held pursuant to Paragraph (K)(8) of this Section.
(2) If disputed by the parties, upon a rule to show cause held prior to the preliminary determination or any hearing held pursuant to this Section, the workers’ compensation judge shall determine whether the employer is in compliance.

This statute was enacted by 2013 La. Acts No. 337 , and said act specifically provided for its retroactive application.

Whether a party has carried his or her burden of proof is a question of fact to be determined by the trier of fact. All-man v. Washington Parish Police Jury, 04-600 (La.App. 1 Cir. 3/24/05), 907 So.2d 86. The standard of review is well settled:

A workers’ compensation judge’s findings of fact are reviewed under the manifest error/clearly wrong standard of review and the findings will not be set aside unless clearly wrong after reviewing the record in its entirety. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. When there is a conflict in testimony, reasonable evaluations of credibility and inferences of fact will not be disturbed upon review even though the appellate court may disagree. Id. Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the findings of the trier of fact, “for only the factfinder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989).

| ⅞David v. Vermilion Shell & Limestone Co., Inc., 13-863, p. 2 (La.App. 3 Cir. 2/12/14), — So.3d —, —.

There is a two-part test for the reversal of a fact finder’s determinations: (1) the record shows that a reasonable factual basis does not exist for the finding of the trial court, and (2) the record establishes that the finding is clearly wrong (manifestly erroneous). Cole v. Allstate Ins. Co., 07-1046 (La.App. 3 Cir. 6/05/08), 987 So.2d 310, unit denied, 08-1463 (La.10/31/08), 994 So.2d 535 (citing Earls v. McDowell, 07-17 (La.App. 5 Cir. 5/15/07), 960 So.2d 242).

Bowie alleges that the WCJ committed legal error in finding that it was irrelevant whether LWCC proved its compliance with La.R.S. 1201.1(A)-(E) at the hearing on Bowie’s rule. A question of law is reviewed' by determining if the WCJ’s ruling is legally correct or incorrect. Magbee v. Fed. Express, 12-77 (La. App. 3 Cir. 12/12/12), 105 So.3d 1048.

Ravena Budwine, the claims adjuster for LWCC who handled Bowie’s claim, testified that the initial weekly indemnity payments to Bowie began on May 23, 2013, that the payments were mailed to her at 2120 Memorial Drive in Alexandria, and that she believed this to be Bowie’s home address. She was unable to explain why the Notice of Payment dated May 23, 2013, was sent to a Cheneyville address. There was no proof that the initial Notice of Payment was sent to Bowie as required by La.R.S. 23:1201.1(A)(2). The WCJ, however, opined that “that’s all irrelevant, because the issue in dispute is a knee replacement. No dispute about her compensation, receipt of benefits, the amount of her benefits.” The WCJ further reasoned that:

[t]his disputed claim was filed on February 13th of 2014, and the issue in dispute is a left knee replacement recommended by Dr. Hope. The evidence reflecting the controversion of the medical entitlement to the left knee replacement was all timely. There may be instances on different issues where an employer cannot have the safe harbor |fibecause they didn’t follow, precisely, for that particular issue, and there may be other issues, which I believe is true of this case here, where they followed this Act, and they don’t have the safe harbor, yet. There’s no such thing as a safe harbor until we have the preliminary determination hearing, and the Court makes a preliminary determination. The Court may decide that this is cause [sic] related[,] and they should provide the surgery or the procedure. Then, they have to do that to get to the safe harbor. We’re not even close.

The WCJ ruled that, with respect to the knee replacement issue, Defendants complied with the statute.

We find that the WCJ’s interpretation of the statute is incorrect. Louisiana Revised Statutes 23:1201.1(A) specifically provides that “[u]pon the first payment of compensation or upon any modification, suspension, termination, or controversion of compensation or medical benefits for any reason,” the five enumerated things must be done by the employee or payor. (Emphasis added.) Thus, it would appear that Defendants may not be required to comply with the subsections both when the initial payment is made and when there is a modification, etc. It is an “either/or” provision. In this instance, the controversy is over the payment for treatment to Bowie’s left knee. However, Defendants must' still comply with the requirements of La.R.S. 23:1201.1(A)(2) and (3). These provisions deal with the notice of initial payment. The evidence and testimony clearly showed that Defendants could not prove that the notice of initial payment was properly sent to Bowie.

“It is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose.” City of New Orleans v. Louisiana Assessors’ Retirement and Relief Fund, 05-2548, p. 20 (La.10/1/07), 986 So.2d 1, 17 (citations omitted). “[CJourts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage if a construction giving force to, and preserving, all words can 17legitimately be found.” Id. In statutory interpretation, we are also mindful that “courts must endeavor to give an interpretation that will give them effectiveness and purpose, rather than one which makes them meaningless.” State v. Cunningham, 04-2200, pp. 8-9 (La.6/13/05), 903 So.2d 1110,1116.

The statute is clear that compliance with the five subsections to Section (A) is mandatory in that “shall” is used. The employer’s compliance therewith cannot be irrelevant, or that section of the statute would be meaningless. Thus, we find that the WCJ committed legal error in his interpretation of the statute and that it was manifest error for the trial court to find that Defendants had complied with the statute when the evidence and testimony clearly did not support such a finding..

The issue then becomes whether Defendants are entitled to a preliminary determination hearing when they have not complied with the requirements of the La. R.S. 23:1201.1(A). Subsection I of La.R.S. 23:1201.1 provides that an employer or payor who has not complied with the requirements of subsection A or has not accepted the claim as compensable “shall” not be entitled to a preliminary determination. To read this as an “either/or” provision would render subsection A useless. The statute cannot be interpreted to mean that an employer or payor can be non-compliant with the mandatory provisions of one subsection of the statute but not be subject to the consequence provided in a later subsection. Under the aforementioned rules of statutory interpretation, we are compelled to conclude that Defendants are not entitled to a preliminary determination hearing in this case. Accordingly, the ruling of the WCJ is reversed.

DECREE

Bowie’s writ application is hereby granted, and the ruling of the WCJ is reversed based upon our opinion that the record does not reflect a reasonable basis for the WCJ’s findings that Defendants carried their burden of proving compliance | ¿with La.R.S. 23:1201.1. Since Defendants did not strictly comply with the statute, the WCJ erred in finding that Defendants were entitled to a Preliminary Determination hearing. The matter is remanded to the OWC for further proceedings in accordance with this opinion.

WRIT GRANTED, REVERSED, AND REMANDED.

AMY, J., dissents and assigns written reasons.

AMY, J.,

dissenting.

1,1 agree that the employer did not comply with the notice requirements of La. R.S. 23:1201.1(A), as retroactively applied. However, I would deny the writ application as I find no error in the workers’ compensation judge’s determination that the employer was entitled to a preliminary determination.

Among other things, La.R.S. 23:1201.1 sets forth the procedure for the preliminary determination mechanism. Significantly, Subparagraph (I) indicates that an employer who has not complied with the requirements of Subsections (A) through (E) or who “has not initially accepted the claim as compensable, subject to further investigation and subsequent controversion shall not be entitled to a preliminary determination.” In my opinion, as Subsection (I) speaks in terms “entitlement” to a preliminary determination and by its use of “or,” the Subsection provides distinct circumstances that will disqualify an employer from use of that preliminary mechanism.

In this case, the employer did, in fact, accept the claim as compensable and only subsequently controverted that claim. While the majority opinion suggests that to interpret Subsection (I) in an either/or fashion renders Subsection A useless, I respectfully disagree. In my view, the interpretation urged by this writ application effectively requires that both conditions be present, turning “or” into “and.”

|2Notably, and although the claimant’s argument collapses the concept of the availability of the preliminary determination with the concept of the safe harbor from penalties and attorney fees, I conclude that Subsection L demonstrates otherwise.

Notwithstanding any provision in this Section to the contrary, the failure to comply with any provision of this Section shall not itself be considered a failure to reasonably controvert benefits; however, failure of the employer or pay- or to comply shall result in loss of penalty and attorney fee protections provided in this Section.”

La.R.S. 23:1201.l(L)(emphasis added). The statute, itself, does not indicate that the employer’s choice to use the expedited process of the preliminary determination otherwise relieves it from having to demonstrate the availability of any safe harbor provision.

For this reason, I respectfully dissent.

      . A previous statute with the same number, 23:1201.1, existed and related to mailing of payments at option of employee. It was added by 1956 La. Acts No. 332, § 1, and repealed by 2010 La. Acts No. 3, § 2.


text:
    Janet TROQUILLE v. STIRLING PROPERTIES, INC., et al.
    No. 14-561.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.
    Michael Thomas Johnson, Johnson & Siebeneicher, Alexandria, LA, for Defendant-Appellee, Liberty Mutual Insurance Co., Stirling Properties, Inc.
    Marvin Gros, Law Office of Marvin Gros, Donaldsonville, LA, for Plaintiff-Appellant, Janet Troquille.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. Gremillion, Judges.
   PICKETT, Judge.

[ ] Janet Troquille appeals the judgment of the trial court granting the motion for summary judgment filed by the defendants, Stirling Properties, Inc., and their insurer, Liberty Mutual Insurance Company.

STATEMENT OF THE CASE

While walking through a parking lot, Mrs. Troquille collided with a metal handicap sign atop a concrete pedestal. She suffered lacerations to her face. She sued Stirling Properties, the owner of the parking lot, and its insurer, Liberty Mutual (collectively “the defendants”). In her deposition, Troquille admitted that she was talking to her husband and not watching where she was going at the time of the accident. The defendants filed a motion for summary judgment.

In opposition to the motion for summary judgment, Troquille included an affidavit from an expert, Mitchell A. Wood. The defendants filed a motion to strike the affidavit of Mr. Wood, alleging that it did not meet the reliability requirements of expert testimony found in La.Code Evid. art. 702. Following a hearing, the trial court granted the motion to strike the affidavit of Mr. Wood and granted the defendants motion for summary judgment. Mrs. Troquille appeals.

ASSIGNMENTS OF ERROR

On appeal, Mrs. Troquille asserts one assignment of error:

The district court erred in excluding the expert affidavit given by plaintiffs expert and in granting summary judgment without considering that affidavit.

DISCUSSION

“Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p. |⅞25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C).

Kleinman v. Bennett, 11-947, pp. 3^1 (La.App. 3 Cir. 12/7/11), 80 So.3d 689, 691-92.

In Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, our supreme court concluded that affidavits from experts that are not based on personal knowledge are admissible to support or defénd against a motion for summary judgment. In reaching this conclusion, the court stated:

[Sjeveral important underlying principles must be reinforced. The first is that the trial judge cannot make credibility determinations on a motion for summary judgment. See Sportsman Store of Lake Charles, Inc. v. Sonitrol Security Systems of Calcasieu, Inc., 99-C-0201, p. 6 (La.10/19/99), 748 So.2d 417 (“[t]he rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony”); [Frank L. Maraist and Harry T. Lemmon, 1 Louisiana Civil Law Treatise, Civil Procedure, § 6.8, p. 145 (1999) ] (“[i]n deciding a motion for summary judgment, the court must assume that all of the affi-ants are credible ...”).... Third, the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion.” Maraist & Lemmon, supra, p. 145. Fourth, and most importantly, summary judgments deprive the litigants of the opportunity to present them evidence to a jury and should be granted only when the evidence presented at the motion for summary judgment establishes that there is no genuine issue of material fact in dispute. If a party submits expert opinion evidence in opposition to a motion for summary judgment that would be admissible under Dau-bert-Foret and the other applicable evi-dentiary rules, and is sufficient to allow a reasonable juror to conclude , that the expert’s opinion on a material fact more likely than not is true, the trial judge should deny the motion and let the issue be decided at trial.

Id. at 236 (footnote omitted).

|3The trial court found that because Mr. Wood, the expert retained by Mrs. Troq-uille, based his conclusions on photographs rather than personal knowledge, his affidavit was inadmissible. Mr. Wood’s affidavit stated that the base of the sign Mrs. Troq-uille ran into should have been more clearly marked. He based his opinion on a “code,” but did not specify which code. Mrs. Troquille introduced Mr. Wood’s qualifications and a list of cases in which he has testified as an expert. The trial court specifically stated that it found Mr. Wood qualified. We find the trial court erred in ruling the affidavit of Mr. Wood inadmissible.

We now turn to the question of whether summary judgment was appropriate if the affidavit of Mr. Wood is considered. We find the affidavit creates a genuine issue of material fact about the hazard the handicap sign posed to Mrs. Troquille and the duty of Stirling Properties to ensure that the sign was properly marked. We reverse the judgment of the trial court.

CONCLUSION

The expert affidavit of Mr. Wood is admitted. The judgment of the trial court granting summary judgment to the defendants is reversed. The case is remanded to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed to Stirling Properties and Liberty Mutual Insurance Company.

REVERSED, RENDERED, AND REMANDED.


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Kendrick ALEXANDER.
    No. 14-615.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 5, 2014.

      Nicole Burke, Assistant District Attorney, Sixteenth Judicial District Court, New Iberia, LA, for Appellee, State of Louisiana.
    La’Derical Wagner, Attorney at Law, Franklin, LA, for Defendant/Appellant, Kendrick Alexander.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and SHANNON J. Gremillion, Judges.
   GREMILLION, Judge.

I,The defendant, Kendrick Alexander, appeals the trial court’s judgment obligating him to pay $461.00 per month in child support. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2001, the State of Louisiana brought an action for criminal neglect of family, in violation of La.R.S. 14:74, for Alexander’s failure to pay child support for his minor child in necessitous circumstances. In August 2013, the State filed a motion to modify the previous order, seeking-to calculate and add child support to the existing medical support. In November 2013, .the hearing officer’s joint obligation worksheet indicated a child support obligation owed by Alexander of $461.00 with payments to begin in December 2013. Alexander appealed the hearing officer’s recommendation. Following a February 2014 hearing, the trial court “accepted, approved and confirmed” the hearing officer’s recommendation of $461.00 per month. Alexander now appeals and argues that the trial court “erred in allowing the Labor Guide to be used to determine [his] income without regard to self-employed expenses or his tax returns warranting a de novo review of his child support obligation.”

DISCUSSION

Louisiana Revised Statutes 9:315 et seq. set forth the child support guidelines. The trial court is granted great deference in fixing a child support award, and its determination of a parent’s gross monthly income and his/her credibility is subject to a manifest error review. Hagan v. Hagan, 10-1432 |2(La.App. 3 Cir. 7/27/11), 70 So.3d 1081; State, Dept of Soc. Servs. v. Swords, 08-580 (La.App. 3 Cir. 11/5/08), 996 So.2d 1267. The trial court has broad discretion in determining which figures are appropriate to use when calculating a parent’s monthly gross income. Hagan, 70 So.3d 1081.

Gross income is defined in La.R.S. 9:315(0(3) as:

(a) The income from any source, including but not limited to salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits, workers’ compensation benefits, basic and variable allowances for housing and subsistence from military pay and benefits, unemployment insurance benefits, disaster unemployment assistance received from the United States Department of labor, disability insurance benefits, and spousal support received from a preexisting spousal support obligation;
(b) Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if the reimbursements or payments are significant and reduce the parent’s personal living expenses. Such payment include but are not limited to a company care, free housing, or reimbursed meals; and
(c) Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or partnership or closely held corporation, “ordinary and necessary expenses” shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses of investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

Louisiana Revised Statute 9:315.1.1(3) pertains to evidence allowed to support the determination of income and allows for “[t]he standard of living and assets of the obligor both prior and subsequent to the establishment of a child support order, to establish the actual income if the amount claimed is inconsistent with his lifestyle.”

| -¡The State set Alexander’s monthly income at $3,077.00 based on the Department of Labor Guide for. mechanic, paint, and body work. Alexander, who was forty years old at the time of the hearing, testified that he is self-employed and owns Silverback Auto Body, a paint and body shop located in Baton Rouge, Louisiana. He said that he operates only one garage stall and only does painting. Although Alexander plans to become certified in body work, he stated that he currently subs out any dent repairs, collision repairs, and framework. Alexander reviewed tax returns for his business beginning in 2011, in which he reported an adjusted gross income of -$2,790.00. In 2012, he claimed an adjusted gross income of $9,980.00. For the year 2013, he claimed an adjusted gross income of $13,790.00. Alexander further stated that he has a dealership license and plans to purchase cars at auction and resell them for a fee.

On cross-examination, Alexander claimed to not have a car of his own, but he did have access to a Bentley via his girlfriend, La’Derieal Wagner. When questioned if he drives a Mercedes with a dealer’s license plate, Alexander said that he had a Mercedes, but it was for his friend. Alexander further testified that he has five children. He said that he gives the four children who were not subject to this proceeding money and “whatever they need, whenever they need it.” Alexander went on to testify regarding his various felony convictions and stated that he used to play poker and bet pretty high, but he quit.

Monica Francois, the mother of the child for whom the support order was issued, testified that she believed Alexander was hiding money from the State. She said that Alexander has picked up their daughter in a Masarati and a Mercedes. Francois said that the Mercedes is registered under his sister’s name, but it belongs to Alexander. She further testified that he has a Bentley. She said that Alexander |4has taken their daughter on trips every year to places such as Disney World, Las Vegas, and California. She further stated that Alexander bought their daughter expensive shoes, purses, watches, and belts. She said that he owns a condominium in Baton Rouge, Louisiana.

Francois testified regarding various photos submitted into evidence showing him pumping gas into the Bentley, his Mercedes S550 with a dealer plate, and their daughter in a Limo provided by Alexander. The identical dealer plates were noted on the Mercedes and Bentley.

The State testified that it used a compilation from the Louisiana Occupational Employment and Wages from the Louisiana Workforce Commission for 2012. The State arrived at a figure of $35,000 as an average yearly wage for automotive body and related repairs and automotive service technicians and mechanics.

At the conclusion of the hearing, the trial court noted that it did not find Alexander’s testimony to be believable and that his actual income could not be established by his tax returns. The trial court stated, pertaining to his 2012 tax return in particular:

I don’t believe that anybody that has a taxable income of $230.00 is driving any Bentley’s [sic] or Mercedes, or Maserati’s [sic] or anything of that nature.
I find the defendant’s testimony to not be believable in this case, and I believe that his actual income cannot be established by his tax returns, and I believe that the method used by the State is appropriate in this matter.

IsBased on our review of the record, we find no manifest error in the trial court’s finding. Alexander’s lifestyle is simply inconsistent with his claimed income. Accordingly, the judgment of the trial court affirming the hearing officer’s child support award of $461.00 per month is affirmed.

AFFIRMED.

      . We note that the original worksheet indicated an award of $461.06; however, subsequent paperwork refers to the payment of $461.00, which is the figure we will use.