author: STEWART, J.

text:
    Lakhesia LEWIS, Plaintiff-Respondent v. PINE BELT MULTIPURPOSE COMMUNITY ACTION ACQUISITION AGENCY, INC., et al., Defendants-Applicants.
    No. 48,827-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 9, 2014.

      James Ryan, III & Associates, by James Ryan, III, Timothy T. Roniger, New Orleans, Jeffrey A. dayman, Craig R. Webb, for Defendant-Applicant Moser Rides, S.r.l.
    Kelly & Townsend, Natchitoches, by T. Taylor Townsend, for Plaintiffs-Respondents Lakhesia Lewis and Sheldon Hall-mon.
    Mayer, Smith & Roberts, Shreveport, by Steven E. Soileau, for Defendant-Respondent State Fair of Louisiana.
    Musgrave, McLachlan & Penn, New Orleans, by Lisa A. McLachlan, for Defendant-Respondent Pine Belt Multipurpose Community Action Acquisition Agency.
    Thomas Reginald Hightower, Jr., Thomas R. Hightower, III, Lafayette, for Defendant-Respondent Lowery Carnival Co., Inc.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART, J.

IsMoser Rides, S.r.l. (“Moser”), an Italian company that manufactures and sells amusement rides and a defendant in this matter, seeks review of the denial of its declinatory exception of lack of personal jurisdiction. At issue is whether the Due Process Clause of the Fourteenth Amendment denies Louisiana courts personal jurisdiction over this foreign defendant whose only contacts with the state include a single sale of an amusement ride in 2007 to a Baton Rouge business and the actions of third parties who brought Moser-manu-factured rides to Louisiana for use at various fairs. Finding that the requirements for the assertion of personal jurisdiction are not met, we reverse the trial court’s judgment denying Moser’s declinatory exception.

FACTS

Sheldon Lewis, a minor child, was injured on November 2, 2011, on a Twin Ring Demolition Derby amusement ride (“the ride”) at the State Fair of Louisiana. Moser manufactured the ride. On November 4, 2011, Lakhesia Lewis and Sheldon Hallmon, individually and on behalf of Sheldon, filed suit for damages against Pine Belt Multipurpose Community Action Acquisition Agency, Inc. (“Pine Belt”), the group that took Sheldon to the fair; Lowery Carnival Company, Inc. (“Lowery”), an Alabama corporation and the owner and operator of the ride; Bryan Pelligrin, Lowery’s employee; and the State Fair of Louisiana. Lowery filed a third party demand against Moser, and on October 8, 2012, the plaintiffs filed a fourth amended petition naming Moser as a defendant.

As to the demands of Lowery and the plaintiffs, Moser filed the declinatory exception of lack of personal jurisdiction. On June 19, 2013, the |atrial court heard arguments on Moser’s exception and accepted into the record all memoranda and exhibits introduced by the parties.

In support of its exception, Moser offered the affidavit of its managing director, Alfeo Moser (“Mr. Moser"), a citizen of Italy. The affidavit states that Helm & Sons Amusements (“Helm”) of Colton, California, ordered the ride in February 2007. Rides 4U of Somerville, New Jersey, acted as broker for the transaction. The ride was manufactured in Ostiglia, Italy, and shipped from Genoa, Italy, in May 2007 for delivery to Helm via the port of Long Beach, California. Around the time of the sale, Moser mailed to Helm in California the maintenance and operation manual, the calculation and technical drawing, the electrical manual, and the setup manual for the ride. Following the sale to Helm, Moser had no further involvement with the ride.

With regard to any contacts with Louisiana, Mr. Moser’s affidavit states that Moser sold an amusement ride to a Louisiana customer on one occasion. In December 2007, Moser sold a “Sidewinder” ride directly from Italy to Dixie Landing, LLC, in Baton Rouge. Otherwise, the affidavit states that Moser is not and has never been registered to do business in Louisiana, has never had a registered agent here, has never owned or leased property here, has never had offices, officers or employees here, and has never had a Louisiana address or telephone number. Furthermore, Moser has never had bank accounts, applied for loans, made any business purchases, or paid taxes in Louisiana. Lastly, Moser has never manufactured anything here, nor has it ever directed marketing activities to Louisiana. Exhibits verifying the sale to Helm and the shipment of the ride to California were attached to the affidavit.

|4Moser also offered excerpts from the deposition of Tony Lowery (“Mr. Lowery”), whose family owns and runs Lowery. Mr. Lowery testified that Lowery acquired the ride the first week of August 2011 from Charter Finance of Greer, South Carolina. He explained that Charter Finance brokers carnival rides and that he had bought several rides from it. He stated that Charter Finance told him about the ride and that he did call Dave Helm before purchasing it. Mr. Helm told him it was a good ride but that Helm had to give it up due to a bad season and financial problems. Lowery purchased the ride from Charter for about $100,000. The ride was shippied to Lowery by truck from South Carolina to a fairgrounds in Washington, Missouri. Lowery obtained the manuals pertaining to the ride from Helm. After obtaining the ride, Lowery used it weekly until the occurrence of the accident in Louisiana.

Opposing Moser’s exception, the plaintiffs offered excerpts from the deposition of Daniel Andrus, a mechanical inspector of amusement rides for the Louisiana State Fire Marshal’s Office. Andrus inspected the ride prior to the accident and spoke with Tony Lowery about how it works. Andrus stated that he previously inspected other Moser rides, such as his yearly inspection of the Moser ride at Dixie Landing in Baton Rouge. He indicated that inspectors for the fire marshal’s office see Moser rides regularly throughout the state and have inspected such rides “multiple times.” He also testified as to his understanding that Moser rides are operated nationwide and are not uncommon. Andrus stated that a person identified as Donnie Lesage contacted Moser after the accident as part of the fire marshal’s investigation. Andrus explained that the inspectors call ride manufacturers Irregularly, but he could not say for a fact that Moser had ever been contacted before this incident.

While Moser argued that its evidence established a lack of minimum contacts with Louisiana, the plaintiffs argued that Moser purposefully directed activities in Louisiana as evidenced by the sale of a ride to Dixie Landing in 2007 and the presence of other Moser rides in the state. Plaintiffs further argued that the Louisiana long-arm statute allows for the assertion of personal jurisdiction where Moser placed the ride into the stream of commerce. After hearing the arguments, the trial court opined that the facts do not support specific jurisdiction and that the assertion of personal jurisdiction over Moser would have to be based on general jurisdiction. The trial court’s denial of Moser’s exception suggests that it found sufficient minimum contacts for the exercise of general jurisdiction.

After the trial court’s judgment denying its exception, Moser sought supervisory review before this court. On October 10, 2013, this court granted Moser’s writ, ordering that the matter be briefed and submitted for a decision on the next available appellate calendar.

DISCUSSION

Arguments of the Parties

Moser argues that it does not have sufficient minimum contacts with Louisiana to support the exercise of personal jurisdiction over it. Moser asserts that the facts, including the one-time sale of a ride to Dixie Landing, do not establish that it has had continuous and systematic contacts with | r,Louisiana. Moser also asserts that specific jurisdiction is not applicable because the plaintiffs’ suit does not arise out of and is not related to its limited contact with Louisiana. Moser argues that the presence of the ride in Louisiana through the unilateral act of a third person was a random, fortuitous, and unforeseeable event that does not support the exercise of personal jurisdiction over it.

The plaintiffs and Lowery, who both oppose Moser’s exception, assert that personal jurisdiction may be exercised under Louisiana’s long-arm statute, La. R.S. 13:3201, because Moser manufactured the ride, placed it into the stream of commerce, and could have foreseen, realized, or expected that the ride would end up in Louisiana. They note that numerous Mos-er rides have made their way to Louisiana and that Moser has been contacted on numerous occasions by the fire marshal’s office about its rides. They also assert that the continuing presence of the Moser-manufactured ride at Dixie Landing and Moser’s marketing practice of placing its rides in the stream of commerce show that it purposefully engaged in commerce in Louisiana and availed itself of the protection of Louisiana law, thus submitting itself to the jurisdiction of Louisiana courts.

Applicable Law

An appellate court conducts a de novo review of a trial court’s legal ruling on an exception of lack of personal jurisdiction, but any factual findings underlying the decision are reviewed under the manifest error standard. Maguire Plastic Surgery Center, LLC v. Booker, 47,929 (La. App.2d Cir.5/22/13), 117 So.3d 239; SteriFx, Inc. v. Roden, 41,383 (La.App.2d Cir.8/25/06), 939 So.2d 533. With regard to the burden of proof, |7the Louisiana Supreme Court has explained that when there is a contradictory evidentiary hearing on the exception, the plaintiffs burden is to prove facts supporting jurisdiction by a preponderance of the evidence, de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d 103 (La.1991). However, where the exception is decided on the pleadings, memoranda, and depositions, the plaintiff, as the nonmoving party, bears a relatively slight burden and all reasonable inferences from the record and the allegations of the complaint are to be drawn in the nonmoving party’s favor. Id.

The Louisiana long-arm statute provides for the exercise of personal jurisdiction over a nonresident, who acts directly or through an agent, as to a cause of action arising from specific enumerated activities performed by the nonresident, including for purposes of this matter La. R.S. 13:3201(A)(8):

(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.

Additionally, La. R.S. 13:3201(B) states:

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.

Interpreting these two sections of the long-arm statute, the supreme court has explained that the relevant inquiry is not the stream of commerce language of La. R.S. 13:3201(A)(8), but rather the broader jurisdictional provision of subsection (B), which allows Louisiana courts to exercise personal | ¿jurisdiction over nonresidents to the fullest extent of the U.S. Constitution. Ruckstuhl v. Owens Coming Fiberglas Corp., 98-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999). Now, the limits of the long-arm statute and constitutional due process are coextensive, and the sole jurisdictional inquiry is an analysis of constitutional due process requirements. Id.; Petroleum Helicopters, Inc. v. Avco Corp., 513 So .2d 1188 (La.1987).

Before a nonresident defendant may be subjected to judgment, due process requires that the defendant have sufficient minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. J. McIntyre Machinery, Ltd. v. Nicastro, — U.S. —, 131 S.Ct. 2780, 180 L.Ed.2d 765 (2011); International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The due process inquiry involves a two-pronged test which examines whether there are the sufficient “minimum contacts” and, if so, the fairness of exercising personal jurisdiction over the defendant. A & L Energy, Inc. v. Pegasus Group, 2000-3255 (La.6/29/01), 791 So.2d 1266, cert. denied, 534 U.S. 1022, 122 S.Ct. 550,151 L.Ed.2d 426 (2001).

The minimum contacts prong is satisfied by a single act or actions by which the defendant “purposely avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Ruckstuhl, supra. By its actions, l^the nonresident defendant should reasonably anticipate being haled into court in the forum state. Ruckstuhl, supra. This requirement ensures that a nonresident defendant “will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person.” SteriFx, 41,383, p. 5-6, 939 So.2d at 537; de Reyes, supra.

The fairness prong arises once the plaintiff meets the burden of proving minimum contacts, at which point jurisdiction is presumed reasonable and the burden shifts to the defendant to prove that the “assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” SteriFx, 41,383, p. 6, 939 So.2d at 537; de Reyes, supra.

In applying the “minimum contacts” prong, the United States Supreme Court has differentiated between “general” and “specific” jurisdiction. Goodyear Dunlop Tires Operations, S.A. v. Brown, — U.S.—, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011); A & L Energy, supra. Stated simply, general jurisdiction is exercised when a defendant’s contacts with the state are not related to the plaintiffs suit, whereas specific jurisdiction is exercised when the suit arises out of or is related to the defendant’s contacts with the forum state. Greenway Leasing, L.P. v. Star Buffet Management, Inc., 45,753 (La. App.2d Cir.1/26/11), 57 So.3d 397, citing Frederic v. Zodiac Development, 2002-1178 (La.App. 1st Cir.2/14/03), 839 So.2d 448.

| ipFor specific jurisdiction, the defendant must have purposefully directed activities at the forum and / or its residents, and the litigation must result from alleged injuries that arise from or relate to those activities. Burger King Corp., 471 U.S. at 472, 105 S.Ct. at 2182; Greenway Leasing, supra. When the cause of action does not arise out of the defendant’s purposeful contacts with the forum state, the defendant’s contacts with the forum must be “continuous and systematic” to support the exercise of general jurisdiction. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); de Reyes, supra; Greenway, supra.

In Goodyear, supra, the U.S. Supreme Court found that the “stream of commerce” theory was an inadequate basis for the exercise of general jurisdiction and limited its application to specific jurisdiction. The Supreme Court stated that the “[f]low of a manufacturer’s products into the forum ... may bolster an affiliation germane to specific jurisdiction ... [b]ut ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant.” Id., 131 S.Ct. at 2855.

The stream of commerce concept provides that a forum state may assert personal jurisdiction over a business that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the foreign state and cause injury there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); American Valve Mfg. Co. v. Valvo Industria Ing Rizzio, 28,942 (La.App.2d Cir.12/11/96), 685 So.2d 1156, writ denied, 97-0120 (La.3/7/97), 689 So.2d 1378. The Supreme Court explained that the “foreseeability” required by due process is not “the mere likelihood that a product will find its way to the forum state ... it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567.

The stream of commerce requirements remain unsettled. In Asahi Metal Industry Co., Ltd. v. Superior Court of California, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Supreme Court split on whether more purposeful activity directed at the forum state, other than the mere placement of a product in to the stream of commerce, is required. This is referred to as the “stream of commerce plus” theory.

In another split opinion in J. McIntyre Machinery, supra, five justices agreed that the exercise of jurisdiction over a defendant requires more than that the defendant might have predicted that its goods would reach the forum state; rather, they would require some action by which the defendant targeted the forum. In that case, the plaintiff was injured in New Jersey while using a machine manufactured in England by the defendant. The defendant had sold the machine to a U.S. distributor, which then sold and | ^shipped it to New Jersey where the injury occurred. The New Jersey Supreme Court found that its state courts could exercise jurisdiction over the defendant, but the Supreme Court reversed. It was not persuaded by the facts that the distributor sold the defendant’s machines in the U.S., that the defendant-manufacturer’s representatives had attended trade shows in several states, and that four of its machines had ended up in New Jersey. The opinion noted that J. McIntyre had no New Jersey office or employees, paid no taxes there, owned no property, and did not advertise there. While the manufacturer may have intended to serve the U.S. market, the facts did not show that it purposefully availed itself of the New Jersey market. Id., 131 S.Ct. at 2790. Justices Breyer and Alito concurred in the judgment, stressing that the issue could be resolved by adhering to the Court’s precedents, none of which support the assertion that a single isolated sale is sufficient for the exercise of personal jurisdiction. They found that the facts showed no regular flow or course of sales in New Jersey nor “special state-related design, advertising, advice, marketing, or anything else.” Id., 131 S.Ct. at 2792.

Analysis:

The trial court did not make any factual findings in ruling on Moser’s exception. Therefore, the trial court’s ruling is subject to a de novo review on appeal. Prior to its denial of Moser’s exception, the trial court indicated that it would have to find general jurisdiction because it did not view this as a specific jurisdiction case. However, our review of the record does not show that Moser had minimum contacts with the state necessary to support the exercise of either general or specific jurisdiction. In reaching this Indecision, we find this matter to be analogous to Broussard v. Diamond Aircraft Industries, Inc., 2010-1611 (La.App. 1st Cir.5/3/11), 65 So.3d 187, which affirmed the trial court’s judgment in favor of the defendant on an exception of lack of personal jurisdiction upon finding that evidence did not show that Diamond had sufficient minimum contacts to satisfy the requirements of either general or specific jurisdiction.

In Broussard, supra, Diamond Aircraft Industries, Inc. (“Diamond”), a Canadian corporation based in London, Ontario, manufactured and sold the aircraft to Premier Aircraft Sales, Inc. (“Premier”), a broker incorporated in Florida. The plaintiff purchased the aircraft from Premier. Premier flew the plane from Alabama, where it had been stored, to the plaintiff in Louisiana. Premier then flew the plaintiff to Texas for training. Within months, Broussard noticed cracking on the aft passenger door and sued Diamond and Premier, both of whom excepted to the court’s jurisdiction over them. Because Brous-sard dismissed his claims against Premier, only Diamond’s exception was heard. Diamond supported its exception with the affidavit of its president, who attested that the Canadian corporation was never registered to do business in Louisiana, had never owned or leased property here, never had employees or paid taxes here, never applied for loans or made significant business purchases here, and never directed marketing activities here. In affirming the trial court’s ruling in favor of Diamond, the first circuit found that Diamond did not have contacts with this state other than “a minimum number of its manufactured planes ending up in the state.” Id., 2010-1611, p. 6, 65 So.3d at 191. The court noted that Diamond sold the plane in Canada to a Florida corporation and that delivery I ^was in Canada. Broussard then purchased the plane from Premier in Florida. The court concluded that the record did not show that Diamond had minimum contacts with Louisiana such that it purposely availed itself of the privilege of conducting activities here and invoking the benefits and protections of Louisiana law.

Like Diamond, the aircraft manufacturer in Broussard, supra, Moser is a foreign business. It is an Italian company with its principal place of business in Ostiglia, Italy. The affidavit of Moser’s managing director stated that Moser has never been registered to do business in Louisiana, has never had an agent here, has never owned or leased property here, has never had a Louisiana address or telephone number, has never had officers or employees here, has never had bank accounts here, made business purchases, or paid Louisiana taxes. It also states that Moser never directed marketing to Louisiana. Moser did make a onetime sale of an amusement ride to a Louisiana customer, Dixie Landing, in December 2007. Nothing in the record indicates how this sale came about or that it was the result of Moser’s marketing activities or efforts to target Louisiana customers. It is undisputed that the incident at issue does not arise out of and is not related to the sale of the ride to Dixie Landing. Moreover, the Moser affidavit shows that it had no continuous and systematic contacts with Louisiana.

Nothing in the deposition of the inspector for the fire marshal’s office establishes sufficient minimum contacts with the state necessary for the exercise of personal jurisdiction over Moser. Andrus’s deposition merely establishes that the fire marshal’s office inspects amusement rides in the state and some of these have been Moser rides. Andrus testified that | ^inspectors call manufacturers regularly, but he could not say that Moser had ever been contacted prior to the accident at issue. Andrus’s deposition, which describes unilateral activities conducted by the fire marshal’s office in the performance of its duties, does not establish continuous and systematic contacts by Moser with this state. As in the Broussard case, the record here shows that only an unspecified number of Moser rides have ended up in this state, with one ride having been sold to a Louisiana customer and others apparently having been brought to the state by third parties for use at various events on a temporary basis.

In Broussard, supra, the plane manufactured by Diamond was sold through a broker to a Louisiana customer, though the transaction did not occur in this state. Here, the record shows that contacts between Moser and the ride’s ultimate presence in Louisiana are even more attenuated than the connections described in the Broussard case. The ride at issue was sold by Moser through a New Jersey broker to Helm, a California business. The ride was shipped from Italy to Helm in California. Nothing in the record indicates that Moser could have foreseen, realized, expected, or anticipated that a ride sold to a California business would be found in Louisiana. The ride ended up in Louisiana only after Helm lost it to Charter, a North Carolina finance company, which then sold it to Lowery, an Alabama company, and shipped the ride to Lowery in Missouri. Lowery then brought the ride to Shreveport for use during the state fair. It was the random, fortuitous, and unilateral activities of third parties that resulted in the ride ending up in Louisiana where the accident occurred, not purposeful availment by Moser of the privilege of conducting activities in Louisiana.

hfiWe note that the record is silent as to the scope of Moser’s sales in this country. In McBead Drilling Co. v. Kremco, Ltd, 509 So.2d 429, 432 (La.1987), the supreme court noted the “significant differences” in product liability cases “between the exercise of jurisdiction over a retailer who simply sold the product locally and the exercise of jurisdiction over a manufacturer whose products were sold over a large area.” In that case, the defendant-manufacturer excepting to in personam jurisdiction sold oil field equipment in 12 states. The rig that caused injury in Louisiana was sold to an Arkansas company located in the Ark-La-Tex drilling area and had been serviced in Louisiana by a representative of the manufacturer a week before the rig collapsed. Based on the way the defendant conducted its business and the nature of its product, the supreme court concluded that “it should have reasonably anticipated being haled into court in Louisiana if the product caused damages here [.]” Id. at 433. Here, the record does not indicate that Moser, by the conduct of its business or the nature of its product, should have reasonably anticipated being haled into court because of injury caused by the ride sold to a California business with no apparent connection to Louisiana.

Even considering the slight burden on the nonmoving party in the absence of a contradictory hearing, we find that the plaintiffs and Lowery have not met the burden of proving the minimum contacts necessary for the exercise of personal jurisdiction over Moser. Therefore, we need not address the fairness prong of the due process inquiry for exercising personal jurisdiction over a foreign defendant.

CONCLUSION

117For the foregoing reasons, we reverse the trial court’s judgment and render judgment in favor of Moser, granting its decli-natory exception of lack of personal jurisdiction and dismissing the claims against it. Costs are assessed equally between the plaintiffs and Lowery.

REVERSED.

      . As discussed in Jacobsen v. Asbestos Corp., Ltd.., 12-655, p. 15 (La.App. 5th Cir.5/30/13), 119 So.3d 770, 780, a number of Louisiana courts have adopted the "stream of commerce plus” theory in defective product cases, to-wit: Langley v. Oxford Chemicals, Inc., 25,596 (La.App.2d Cir.3/30/94), 634 So.2d 950; Cadawas v. Skibsaksjeselskapet Storli, Bergen, 630 So.2d 289 (La.App. 5th Cir. 1993); J. Wilton Jones Co. v. Touche Ross & Co., 556 So.2d 67 (La.App. 4th Cir. 1989).


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    GALLOWAY JEFCOAT, LLP v. D. Patrick (“Rick”) KEATING.
    No. 13-1069.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2014.
    Rehearing Denied June 11, 2014.

      Leslie J. Schiff, Schiff, Scheckman & White LLP, Opelousas, LA, for Defendant Appellant: D. Patrick (“Rick”) Keating.
    Lamont Paul Domingue, Hoai T. Hoang, Voorhies & Labbé Lafayette, LA, for Plaintiff Appellant: Galloway Jefcoat, LLP.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

[ ,This ease involves a dispute over the division of attorney’s fees between a bankruptcy attorney and a firm. The bankruptcy attorney, with a practice established prior to his employment with the firm, was later terminated by the firm for what it deemed improper retention of fees collected by the attorney.

The firm filed suit against the attorney for recovery of the fees and its damages suffered as a result of having to reallocate the time of salaried employees to investigate the activities of the attorney in representing its clients. The attorney reconvened against the firm for fees or for the monthly bonus that he contended entitlement to under his employment agreement.

The trial court’s judgment awarded the firm fees that it deemed were improperly retained by the attorney, but involuntarily dismissed the firm’s claim for damages suffered for reallocation of the time of its salaried employees. Both the attorney and the firm appeal. We amend the trial court’s judgment to reflect the attorney’s entitlement to his percentage of the fees from one particular client as mandated by the employment agreement. We affirm the trial court’s judgment as amended.

FACTS AND PROCEDURAL HISTORY:

This matter arises from the employment of D. Patrick “Rick” Keating (Keating) with Galloway Jefcoat, LLP as an associate bankruptcy attorney from October 1, 2007, through October 10, 2010. The relationship between Keating and Galloway Jefcoat and how Keating was to be paid was governed by an employment agreement.

After terminating Keating, Galloway Jefcoat filed suit against him contending that he improperly converted attorney’s fees. In addition to the return of those fees, Galloway Jefcoat sought damages from Keating for the time its ^salaried employees spent investigating this matter in lieu of performing their typical job duties. Keating did admit to retaining the fees acquired from some of the clients, but asserted that he did so either due to mistake or a belief that those clients were part of his book of business that existed prior to his employment at Galloway Jefcoat.

Prior to the trial pertinent to this appeal, a hearing was conducted by the federal bankruptcy court in Lafayette, Louisiana. The purpose of that hearing was to determine which fees held by the bankruptcy court would be disbursed to either Galloway Jefcoat or Keating. The bankruptcy court divided a portion of the fees based on the date of the confirmation order because it found that neither party provided it with enough evidence to divide the fees using a quantum meruit basis. Further, the bankruptcy court asserted that its division should have no weight in the matter before the trial court.

During the pertinent trial, at the close of Galloway Jefcoat’s presentation of evidence, Keating moved for an involuntary dismissal of, inter alia, Galloway Jefcoat’s claims related to the damages sought for the time its salaried employees spent investigating the matter. The trial court granted Keating’s motion.

After hearing the remainder of the case, the trial court took the matter under advisement. Thereafter, it rendered a judgment in favor of Galloway Jefcoat for $58,147.68 on its main demand and in favor of Keating for $5,391.65 on his reconven-tional demand. Keating filed a motion for a new trial. After hearing the motion, the trial court modified its original judgment to increase the award to Keating to $6,295.90. Both parties appealed, alleging the following assignments of error, respectively.

KEATING’S ASSIGNMENTS OF ERROR:

I.
IsThe Trial Court erred in ordering Keating to compensate Galloway Jef-coat, LLP for amounts received from Leonard Gachassin ($500.00) and OIS ($1,925.00). These amounts are accounts receivable by Keating for work which he did before he joined the firm as an employee. Therefore, there was no entitlement or any indication of entitlement of Galloway Jefcoat to these fees.
II.
The Trial Court erred in failing to recognize the interest of Keating in Bankruptcy funds held by the Chapter 13 Trustee, Keith Rodriguez. As of the time of Keating’s termination numerous Chapter 13 bankruptcy cases had been completed. Under Chapter 13 rules, the Chapter 13 trustee continues to collect funds paid by the Chapter 13 debtors included in which are fees due for the debtor’s attorney. Trustee Rodriguez held funds which were ordered by the Bankruptcy Judge to be paid to Keating and to the firm. These funds were ordered by Bankruptcy Judge Summer-hays to be distributed $47,777.50 to Galloway Jefcoat and $22,476.81 to Keating. The division was made by Judge Sum-merhays on a case by case basis. The Trial Court adopted the division made by Judge Summerhays. Judge Sum-merhays clearly ruled that the division was not intended to bind the State Court determination on entitlement of fees from these Chapter 13 matters. Judge Trahan erred in accepting the division of Judge Summerhays as his division without analyzing the issues relating to entitlement as urged by Keating.
III.
In Construction Resources Link (CRL), a Chapter 11 proceeding and a GJ file, the work was completed before termination of DPK. After termination, GJ received fees totaling $7,255.15. The Trial Court erred in refusing to recognize DPK’s entitlement to 75% or $5,441.36 of the CRL fee.
IV.
The Trial Court erred in awarding fees claimed by Keating derived from cases in his book of business to Galloway Jefcoat. The cases in Keating’s book of business were never acquired by Galloway Jefcoat. There was no entitlement legally, ethically or otherwise to those fees when the work was completed and the fees were paid to Keating. Keating contends that he is solely entitled to those fees. Judge Trahan erred in his ruling and judgment ordering Keating to disgorge his book of business fees to Galloway Jefcoat. As an alternative assignment of error, if the fees are to be disgorged, then clearly a recalculation should be done because under the terms of employment, even if these fees are determined by the Court to be Galloway Jefcoat fees, Keating would be entitled to 50% of the fees |4under his employment agreement on Chapter 7 and Chapter 13 matters and 75% of the fees derived from Chapter 11 matters.

GALLOWAY JEFCOAT’S ASSIGNMENT OF ERROR:

The trial court erred in granting Involuntary Dismissal of Galloway Jefcoat, LLP’s investigative costs, particularly the time and labor expense incurred by its employees in identifying, documenting and establishing the wrongful acts of its former employee, D. Patrick “Rick” Keating.

KEATING’S ASSIGNMENT OF ERROR NUMBER ONE:

Keating asserts that the trial court erred in ordering him to compensate Galloway Jefcoat for amounts received from Leonard Gachassin and OIS. We disagree.

The applicable standard of review for this assignment of error was not addressed by Keating. He simply argued that the trial court erred because it was his uncon-tradicted testimony that the payments from Gachassin and OIS were to compensate him for work he performed prior to joining Galloway Jefcoat.

The standard of review was addressed by Galloway Jefcoat. It asserted that the manifest error standard of review was applicable to this assignment of error because the trial court ruled as it did based on a finding that Keating lacked credibility.

In Ardoin v. Firestone Polymers, L.L.C., 10-245, pp. 6-7 (La.1/19/11), 56 So.3d 215, 219, the supreme court stated:

[T]he fact-finder “should accept as true a witness’s uneontradieted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of this testimony.’ ” [Bruno v. Harbert Int’l, Inc., 593 So.2d 357,] at 361 [ (La.1992) ] (quoting [West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979) ], and citing Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La. 1987)). The fact-finder’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are, most certainly, factual determinations that should not be disturbed on appellate review unless clearly wrong or manifestly erroneous. Id. (citing Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988)).

Ijn the assignment of error before us, Keating’s testimony that Gachassin and OIS were his clients and the checks received from them were solely for work he performed prior to his employment at Galloway Jefcoat is uncontroverted. However, the trial court found Keating to lack credibility on whether a client was a Galloway Jefcoat client or his own. In its reasons for ruling, the trial court stated:

If Keating had treated all former clients and cases in a consistent manner, the Court would be more inclined to accept Keating’s explanation.... There was, however, little consistency. There are some clients that he had been working with over a long period of time for whom he opened a G & J file and others for whom he did not open files. If he kept fees, he would say that the case was in his book of business. If confronted with a similar situation where he did open a G & J file, he would say he made a mistake; the file should have been a Keating file.

We find ample evidence in the record to support the trial court’s finding that Keat-ing was not credible when asserting which clients were from his self-described book of business prior to his employment with Galloway Jefcoat. The record contains eleven clients where Keating filed Chapter 7 bankruptcies prior to his employment with Galloway Jefcoat and later converted those Chapter 7 bankruptcies into Chapter 13 bankruptcies after he began his employment with Galloway Jefcoat. Keating kept all the fees paid to him and did not open a Galloway Jefcoat file for three of those eleven clients. His explanation was that the three clients were in his book of business. At trial, Keating was asked why the other eight clients had a file opened at Galloway Jefcoat and why the fee arrangement between he and Galloway Jefcoat was applied to the fees paid by those eight clients. Keating responded that a mistake was made in all eight of those situations and none of those eight clients should have had a file opened at Galloway Jefcoat.

lfiWe, like the trial court, find Keating’s explanation lacking. At various times throughout his employment, those eight clients were listed by name on the monthly report used to calculate whether Keating was entitled to his incentive bonus. Had any of their files been opened mistakenly as Keating contends, he almost certainly would have noticed the mistakes and requested that they be corrected.

As such, despite Keating’s uncontrovert-ed testimony that Leonard Gachassin and OIS were clients in his book of business, the trial court was not manifestly erroneous in finding that Keating’s testimony lacked credibility in this regard. Given the reasonableness of this finding, we will look to the record to review whether it supports the trial court ordering Keating to compensate Galloway Jefcoat for amounts received directly from Gachassin and OIS.

The check at issue from Gachassin was dated November 8, 2007, five weeks after Keating began his employment with Galloway Jefcoat. Likewise, the check from OIS was dated December 10, 2008, more than fourteen months after Keating’s employment with Galloway Jefcoat ensued. We acknowledge that the work performed to acquire either of these checks may have occurred prior to Keating commencing employment at Galloway Jefcoat, especially those from Gachassin. However, we cannot say the trial court’s order requiring Keating to compensate Galloway Jefcoat for the amounts received directly from Ga-chassin and OIS was unreasonable. Both checks were dated after Keating began working for Galloway Jefcoat. The trial court found that Keating presented no credible evidence that the work performed for Gachassin and/or OIS entitled him solely to the fees. Likewise, Keating has pointed to no evidence in the record on this appeal, other than his testimony, in furtherance of carrying his burden to prove that the trial court was manifestly erroneous in ordering him to compensate Galloway 17Jefcoat for the fees he collected from Gachassin and OIS. Accordingly, we find that this assignment of error is without merit.

KEATING’S ASSIGNMENT OF ERROR NUMBER TWO:

Next, Keating contends that the trial court erred in failing to recognize his interest in bankruptcy funds held by the Chapter 13 bankruptcy trustee. We disagree.

Neither party addresses the proper standard of review applicable to this assignment of error. In Tran v. Williams, 10-1030 (La.App. 3 Cir. 2/9/11), 56 So.3d 1224, this court conducted a de novo review to address an argument made by the appellant that the trial court failed to properly use the quantum meruit approach as directed by the supreme court on rehearing in Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1979), and by the supreme court in O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697, to properly divide fees between successive attorneys representing a client.

Here, like in Tran, some clients were represented by Keating while he was employed by Galloway Jefcoat, and, thereafter, became the clients of Keating, individually. Also, akin to Tran, Keating’s argument is that the trial court erred by using an improper method. However, unlike the appellant in Tran, Keating cites no alternative method reasonably possible given the evidence in the record that was mandated for the trial court to have used. Rather, he argues that the trial court improperly relied upon the bankruptcy court’s division of the fees held by the Chapter 13 bankruptcy trustee because the bankruptcy court’s division was never intended to have any weight with the trial court. Thus, Keating’s argument is that the trial court erred in failing to disturb the fee division made by the bankruptcy court. As such, in determining if this assignment of error has merit, we must analyze the method used by bankruptcy court and whether the trial court gave | improper weight to that method in determining that it would not disturb the division of fees made by the bankruptcy court.

Prior to the proceedings in the bankruptcy court, the clients whose fees were held by the Chapter 13 bankruptcy trustee were asked to select either Galloway Jef-coat or Keating as a continuing counsel of record. The bankruptcy court ordered the trustee to disburse any fees to Galloway Jefcoat where the client selected Galloway Jefcoat as the continuing counsel of record. The bankruptcy court stated that it did so based on its interpretation of Paragraph 2 of the employment agreement. Paragraph 2 of the employment agreement is comprised of the following language: “[a]ll cases garnered are to be considered cases of Galloway & Jefcoat LLP and/or Bankruptcy Clinic of Acadiana.” The bankruptcy interpreted this paragraph to extinguish any question whether there was a joint venture between Keating and Galloway Jefcoat that gave Keating any rights over and above whatever rights were in the employment agreement. After ruling on these selection of eases, the bankruptcy court stated, “[t]o the extent that Mr. Keating is entitled to any compensation under the employment agreement, based on any of these fees that are generated on these cases; I believe that is a matter of state law.”

Thereafter, the bankruptcy court addressed the cases where the clients selected Keating as the continuing counsel of record. Like the bankruptcy court, we observe that this situation is analogous to when a client is represented by multiple, successive attorneys throughout the client’s case and the fees earned from the case must be divided. Here, we have a situation where the client has an attorney who is obligated to share the fees earned with a firm, the attorney then leaves the firm, and continues to represent the client and continues to earn fees, individually.

lflFor clients situated as such, the bankruptcy court discussed various methods to use when one lawyer takes over for another lawyer, including a quantum meruit basis. The bankruptcy judge acknowledged that a basis of quantum meruit should apply, but neither Keating nor Galloway Jefcoat provided evidence sufficient for it to divide the fees using that method. Therefore, the bankruptcy court chose a method where the date of the confirmation order was used to determine whether the fees earned from a particular client were distributed fully to Keating or Galloway Jefcoat. If the date of the confirmation order for a particular client was while Keating was employed at Galloway Jef-coat, the entire fee earned from representing that client was disbursed to Galloway Jefcoat. If the date of the confirmation order was dated after Keating’s employment with Galloway Jefcoat, the entire fee was disbursed to Keating.

The bankruptcy court used the date of the confirmation order for two specified reasons. First, according to the bankruptcy court, the overwhelming majority of a bankruptcy attorney’s fees have already been earned once a confirmation order exists. Second, as stated above, the bankruptcy court found insufficient evidence to divide the fees using a quantum meruit basis.

In analyzing the method using by the bankruptcy judge, we acknowledge that it potentially fails to compensate Keating for the percentage of the fees that he rightfully earned under his employment agreement while he was employed at Galloway Jefcoat. However, the employment agreement specified that Keating’s guaranteed monthly salary and the expenses associated with Keating’s practice at Galloway Jef-coat, including any salary of Keating’s office staff, had to be offset prior to his ever receiving the funds acquired from a particular client.

Moreover, the bankruptcy court’s division of the fees can also be to the benefit of Keating depending of the date of the confirmation order. While the |10method used can fail to compensate Keating for the percentage of the fees that he rightfully earned under his employment agreement, it fails to compensate Galloway Jef-coat its percentage of the fees that it rightfully was entitled to under the employment agreement for any work that Keating did on a client’s case while he was employed at Galloway Jefcoat.

Next, we consider whether the trial court gave improper weight to the bankruptcy court’s division of the fees. Contrary to Keating’s assertions, our review of the record indicates that the trial court’s decision to adhere to the division was not based on it finding that the bankruptcy court’s division was legally correct. Rather, the trial court found that the bankruptcy court’s method was necessitated by the failure of both parties to submit evidence of the quantum meruit basis each had in the disputed fees.

Thereafter, like the bankruptcy court, the trial court found insufficient evidence submitted by either party to conduct a distribution of the fees using a quantum meruit basis. As such, the trial court, based on its finding that Keating’s testimony lacked credibility regarding which client was his as opposed to Galloway Jef-coat’s, chose to divide the fees based strictly on its interpretation of the employment agreement. Once this choice was made, the trial court then deferred to the bankruptcy court’s knowledge regarding when the overwhelming majority of a bankruptcy attorney’s fees have already been earned, i.e., once a confirmation order exists.

Keating’s first argument in this assignment of error likens the trial court’s failure to disturb the bankruptcy court’s division of fees to an endorsement of the method used by the bankruptcy court, but the record indicates otherwise. We find that the trial court chose to not disturb the bankruptcy court’s division of fees based more on Keating’s failure to submit any evidence outside of his testimony to |nsupport his claim for most of those fees. In fact, the trial court even acknowledged that the division of fees by the bankruptcy judge was not intended to be given any weight at trial.

Accordingly, we find that the trial court did not disturb the bankruptcy court’s division of the fees because Keating failed to provide any credible evidence of the quantum meruit basis he had in the fees or any other evidence that the fees should be disbursed differently than according to the language in the employment agreement. As such, it is clear that the trial court did not improperly give weight to the bankruptcy court’s division of fees as Keating contends.

Keating’s second argument that the trial court erred in adhering to the bankruptcy court’s division is that the result of the method used places a burden on him to work an extra period of time in order to collect his earned, contractual bonuses in violation of La.R.S. 23:634(A). We do not agree.

Louisiana Revised Statutes 23:634(A) states:

No person, acting either for himself or as agent or otherwise, shall require any of his employees to sign contracts by which the employees shall forfeit their wages if discharged before the contract is completed or if the employees resign their employment before the contract is completed; but in all such cases the employees shall be entitled to the wages actually earned up to the time of their discharge or resignation.

The trial court found that Keating’s employment agreement defined his compensation earned in calculating whether he was entitled to his monthly bonus based on when fees were actually collected and not on when services were provided entitling him to those fees. According to the trial court, basing a bonus on when fees are collected as opposed to when the services are performed to entitle one to those fees does not violate La.R.S. 23:634(A). In support of its finding, the trial court cited Becht v. Morgan Buildings & Spas, Inc., 01-1091 (La.App. 1 Cir. 6/21/02), 822 So.2d 56, affirmed, 02-2047 (La.4/23/03), 843 So.2d 1109, cert. ] denied, 540 U.S. 878, 124 S.Ct. 289, 157 L.Ed.2d 142 (2003). Keating contends that the trial court’s reliance on Becht is improper because his case is distinguishable from Becht.

Keating points out that there were many factors tied to when the commission was earned in Becht while there were no such factors tied to when his bonus is earned in the language of his employment agreement with Galloway Jefcoat. It is true that the employment agreement in Becht spelled out what factors were tied to when a commission was earned while the employment agreement here does not. However, we do not find that this distinction is dispositive.

Keating then asserts that a more appropriate case to consider is that of Patterson v. Alexander & Hamilton, Inc., 02-1230 (LaApp. 1 Cir. 4/2/03), 844 So.2d 412. According to Keating, Patterson stands for the proposition that when the collection of a fee is outstanding and beyond the employee’s control, the employee has earned that fee and any commission tied to it. The context of that proposition in Patterson that is cited by Keating is telling.

Just prior to the statement highlighted by Keating, the Patterson court quotes the following language from Becht: “[w]hen commission sales are at issue, the inquiry of whether a wage was actually earned focuses on what work associated with the sale remained at the time of [termination].” Patterson, 844 So.2d at 416 (quoting Becht, 822 So.2d at 59) (second alteration in original). The Patterson court went on to find that “[f]rom the evidence in the record, it appears that collection of the contract amounts was the only outstanding work remaining to complete the sales_” Patterson, 844 So.2d at 417. Contrarily, here, for nearly all the clients, there is no evidence in the record, other than Keating’s testimony, pertaining to what outstanding work, if any, remained in order to earn the attorney’s fees. The trial court reasonably found that Keating’s testimony lacked | ^credibility. Thus, here, unlike in Patterson, the evidence in the record does not indicate what work was outstanding.

Further, we are not moved by Keating’s criticism of the trial court’s application of Becht. Keating testified that the calculation of whether he was entitled to the bonus was based on when the fees were collected, not when the work was done to collect those fees, irrespective of the lack of specific factors listed in his employment agreement that are tied to his entitlement to his monthly bonus.

Accordingly, we find that Keating’s assignment of error number two is without merit. The trial court decision to leave the bankruptcy court’s division of the Chapter 18 bankruptcy fees undisturbed was not in error. Its decision was based on finding that Keating failed to produced credible evidence that a different division of those fees was necessitated. Further, the trial court’s application of that division does not violate La.R.S. 23:634(A).

KEATING’S ASSIGNMENT OF ERROR NUMBER THREE:

Keating, in his third assignment of error, contends that the Trial Court erred in refusing to recognize his entitlement to 75% or $5,441.36 of the Construction Resources Link fee for work that was completed prior to his termination. We agree.

Unlike the situation in assignment of error number two, in this assignment of error, there is evidence in the record other than Keating’s testimony that supports his position. Included in the record is an order granting the application for compensation and reimbursement of expenses by attorney for the debtor. These orders are dated during the period in which Keating was working for Galloway Jefcoat and list Keating as the counsel of record for Construction Resources |14Link, Inc. Also included in the record are copies of checks from Construction Resources Link, Inc. that are dated after Keating’s employment with Galloway Jefcoat. The case number on those checks matches the case number referenced in the order granting attorney’s fees and reimbursement of expenses.

Further, it is clear from the date of these checks that when they were received by Galloway Jefcoat, Keating did not have the burden of offsetting his salary and expenses at Galloway Jefcoat as was required by the employment agreement pri- or to his actually receiving these funds. The work to acquire the fees was clearly done by Keating, and both the terms of the employment agreement and the practice between Keating and Galloway Jefcoat was that those fees were not deemed to have been earned until collected. This occurred after Galloway Jefcoat ceased to incur any expenses in funding Keating’s practice. Accordingly, we find that Keat-ing is entitled to his agreed upon percentage of those fees, and amend the trial court’s judgment to recognize that Keating is entitled to 75% or $5,441.36 of the Construction Resources Link, Inc. fees.

KEATING’S ASSIGNMENT OF ERROR NUMBER FOUR:

Keating’s final assignment of error is quite lengthy, but, in summary, argues that the trial court erred in awarding fees to Galloway Jefcoat that Keating contended were derived from cases in his preexisting book of business. Alternatively, Keat-ing argues that if these fees are to be disgorged, then the fees should have been divided using the applicable percentages under the terms of his employment agreement rather than fully awarded to Galloway Jefcoat. We disagree with both the assigned error and the alternative argument asserted by Keating.

Like assignment of error numbers one and two, Keating’s testimony is his entire basis for this assignment. Other than his testimony, Keating points to no evidence in the record corroborating his assertions that many of the clients whose | ififees were in dispute were contained in his book of business. In his alternative argument, Keating points to no evidence in the record as to which month these fees were earned and whether he would have actually received those fees by offsetting the costs of his salary and the expenses of funding his practice. Accordingly, like in assignments of error numbers one and two, our upholding of the trial court’s finding that Keat-ing’s testimony lacked credibility renders this assignment of error to be without merit.

GALLOWAY JEFCOAT’S ASSIGNMENT OF ERROR:

Galloway Jefcoat, in its sole assignment of error, asserts that the trial court erred by involuntarily dismissing its claim for its investigative costs, particularly the time and labor expense incurred by its employees in identifying, documenting an establishing Keating’s wrongful acts. We find no merit to this assertion.

Louisiana Code of Civil Procedure Article 1672 dictates that the trial court may dismiss the claim if, after considering and weighing the plaintiffs evidence, it determines that the plaintiff has not met its burden of proof. Kite v. Carter, 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271. Therefore, the grant of an involuntary dismissal by a lower court is subject to a manifest error standard of review. Gauthier v. City of New Iberia, 06-341 (La. App. 3 Cir. 9/27/06), 940 So.2d 915. Louisiana Code of Civil Procedure Article 1672(B) states:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

Here, Galloway Jefcoat brought a claim to recover its expenses for the time its employees worked to find what evidence it had against Keating that he had | ^improperly handled funds. The majority of the claim was an amount that Galloway Jefcoat calculated using the hourly rate for the time spent researching the matter by John M. Jefcoat, a managing partner of Galloway Jefcoat. The trial court dismissed this claim upon Keating’s motion after Galloway Jefcoat’s presentation of its evidence in support of its claim.

It is well established that costs incurred in anticipation of litigation are not recoverable as damages. New Zion Baptist Church v. Mecco, Inc., 478 So.2d 1364 (La.App. 4 Cir.1985); Holden v. Clearview Dodge Sales, Inc., 416 So.2d 335 (La.App. 4 Cir.), writs denied, 421 So.2d 248-49 (La.1982); Martin v. AAA Brick Co., Inc., 386 So.2d 987 (La.App. 3 Cir.1980); Liberto v. Villard, 386 So.2d 930 (La.App. 3 Cir.1980); and Acme Steel Co. v. A.J. Warehouse, Inc., 212 So.2d 271 (La.App. 4 Cir.1968). However, Galloway Jefcoat cites the case of Smith v. Burden Construction Co., 379 So.2d 1135 (La.App. 4 Cir.1980), for the proposition that an employer can recover damages from its former employee for its costs associated with paying its salaried employees for repairing the damages caused to it by that former employee. See also Louisiana Power & Light Co. v. Smith, 343 So.2d 367 (La.App. 1977), and Rader v. Harper Aviation, Inc., 246 So.2d 362 (La.App. 4 Cir.1971).

However, the Smith case cited by Galloway Jefcoat involved an employee who had been found by the trial court to have embezzled from the employer, an intentional tort. Additionally, the appellate court in Smith was upholding the judgment of a lower court that was based on the lower court’s finding that the damages suffered by the employer were clearly established. Here, while Galloway Jefcoat may contend that Keating behaved similarly, there is not a finding by the trial court that Keat-ing was intentionally tortious. In addition, we cannot say that the trial court is manifestly erroneous in finding that the dismissed items in|ijGalloway Jefcoat’s claim were undertaken for litigation preparation purposes. These are not recoverable as damages. Accordingly, we do not find any merit to Galloway Jefcoat’s assignment of error.

CONCLUSION:

D. Patrick “Rick” Keating raised four assignments of error. We find substance in his assertion that the trial court erred in failing to recognize his entitlement the contracted share of the fees earned in representing Construction Resources Link, Inc. for work that was completed prior to his termination. Therefore, we amend the trial court’s judgment to reflect this finding. We find that Keating’s remaining assignments of error are without merit.

Galloway Jefcoat, LLP raised a single assignment of error. We find a reasonable basis for the trial court to involuntarily dismiss the items that it did from Galloway Jefcoat’s claim. We assess the costs of these proceedings one half to each Keating and Galloway Jefcoat.

AFFIRMED, AS AMENDED.


author: SAUNDERS, Judge. AMY, J.,

text:
    John Walter BOUDREAUX v. Paul Christopher CUMMINGS.
    No. 13-1291.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2014.
    Rehearing Denied June 11, 2014.

      Bernard Francis Duhon, Attorney at Law, Abbeville, LA, for Plaintiff Appellee, John Walter Boudreaux.
    Kenneth O’Neil Privat, Attorney at Law, Crowley, LA, for Defendant Appellant, Paul Christopher Cummings.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

| tThis is an adverse possession case in which Plaintiff seeks recognition of a right to use a right of way crossing his neighbor’s land, and an injunction prohibiting his neighbor from disturbing his use of the right of way. The trial court found Plaintiff had acquired a predial servitude over the right of way through acquisitive prescription and entered judgment in favor of Plaintiff. Defendant appeals. For the reasons discussed herein, we affirm.

FACTS AND PROCEDURAL HISTORY

It is uncontested that the Boudreaux family, the ancestors in title of Plaintiff, John Walter Boudreaux (hereinafter “Bou-dreaux”), began using a right of way to cross the neighboring property in 1948. In 1969, the ancestor in title of Defendant Paul Christopher Cummings (hereinafter “Cummings”) asked Boudreaux to move the right of way. Boudreaux complied and continued using the right of way until 2012, when Cummings locked it. Bou-dreaux sued, claiming a right to continued use of the right of way. Cummings moved for summary judgment, which the trial court denied on June 26, 2013, finding issues of material fact remained.

A trial on the merits was held on July 8, 2013, where the trial court entered judgment in favor of Boudreaux, recognizing a fifty-foot-wide predial servitude and granting a permanent injunction prohibiting Cummings from obstructing the right of way. The trial court assigned reasons for judgment orally from the bench, noting that Boudreaux had maintained uninterrupted possession for more than 30 years, and that the servitude was apparent, given “varying testimony that there was a road there, that the grass was mowed,” and the fact that the right of way was consistently clear for passage.

Cummings now appeals the trial court’s judgment.

ASSIGNMENTS OF ERROR

⅛,1. The Trial Court committed reversible error in finding that a precarious possessor was entitled to a predial servitude based on 10 and 30 years’ prescription period.
2. The Trial Court committed reversible error in granting a predial servitude to one estate over another estate when the estate was not land locked.

LAW AND ANALYSIS

A trial court’s factual determinations are subject to the manifest error standard of review, meaning they may not be overturned unless they are found on appeal to be “manifestly erroneous” or “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989).

Louisiana Civil Code Article 742 states as follows:

The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.

Furthermore,- La.Civ.Code art. 722 states: “Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.”

Precarious possession is defined in La. Civ.Code art. 3437, which states, “The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious possession.”

On appeal, Cummings urges us to apply Delacroix Corp. v. Perez, 98-2447, p. 5 (La.App. 4 Cir. 11/8/00), 794 So.2d 862, 886 writ denied, 00-3245 (La.1/26/01), 782 So.2d 635, in which the fourth circuit explained, “Acquisitive prescription does not run in favor of a precarious possessor or his universal successor, who is presumed to possess for another although he may intend to |spossess for himself. La. C.C. arts. 3477, 3438; Nugent v. Franks, 471 So.2d 816 (La.App. 2 Cir.1985); Feazel v. Howard, 511 So.2d 1306 (La.App. 2 Cir.), writ denied, 514 So.2d 456 (La.1987).” The fourth circuit found in that case that whether the possessor possessed the property with the consent of or on behalf of its owner was a necessary consideration to determine whether the possessor had acquired a right through acquisitive prescription. The court noted:

The intent to possess as owner cannot be covert and must be express. Although it may be implied if there is open, notorious, public, continuous and uninterrupted possession, which has to be to the exclusion of the owners, there must be strong evidence that gives the owner some notice that his property is in jeopardy. Armstrong v. Armstrong, 493 So.2d 253 (La.App. 3 Cir.), writ denied, 496 So.2d 353 (La.1986).

Jd. at 869.

On appeal, Cummings argues that Boudreaux was a precarious possessor, and as such was unable to acquire a right of use to the right of way through acquisitive prescription. Whether Bou-dreaux possessed the right of way as a precarious possessor is an issue of fact to which the manifest-error standard applies. See Bossier v. Shell Oil Co., 430 So.2d 771 (La.App. 5 Cir.1983). In the instant case, we find there was adequate evidence for the trial court to conclude that Boudreaux was using the right of way on his own behalf rather than as a precarious possessor, under the manifest-error standard. Furthermore, we find the trial court did not commit manifest error in finding the servitude to be apparent and to meet the elements of acquisitive prescription as set forth above. The record contains sufficient evidence to show Boudreaux acquired a servitude. Boudreaux testified that for more than thirty years he and his family have “passed through [the right of way] with farm equipment, hay wagons, personal trips across there to go vote and go to the store and visit people.” Boudreaux testified that he and his ancestors in title used the right of way “throughout the year” each year. Jesse Duhon, who cut LBoudreaux’s crops along with his family in a longstanding relationship that predated 1969, testified that he and his family used the right of way to get to the Bou-dreaux property. Freddie Duhon also testified that the Duhon family used the right of way to get to and from Boudreaux’s property in order to cut crops on Bou-dreaux’s land. He also testified that, to his knowledge, Cummings’s ancestors in title knew of the Duhons’ use of the right of way to get to and from the Boudreaux property. Joseph Schexnaider, a land surveyor, testified that he believed Cummings’s ancestors in title were aware that the Boudreauxs were using the right of way. Given the trial court’s discretion in assessing the credibility of witnesses’ testimony, we find this evidence is sufficient to show the elements of acquisitive prescription have been met.

Cummings further asserts that, because Boudreaux’s estate is not an enclosed estate, Boudreaux is not entitled to a predial servitude. We do not agree. While it is true that if Boudreaux’s estate were enclosed, La.Civ.Code art. 689 would apply to grant him a right of passage, the trial court did not find that Boudreaux had acquired a predial servitude on the grounds that his estate was an enclosed estate under Article 689. The trial court found that Boudreaux had acquired the servitude on the grounds of acquisitive prescription under Article 742. Therefore, we need only limit our discussion to this ground.

CONCLUSION

For the foregoing reasons we affirm the trial court’s judgment. All costs of this appeal are assessed to Defendant, Paul C. Cummings.

AFFIRMED.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

|,I respectfully dissent from the majority opinion as I conclude that the judgment establishing the predial servitude must be reversed.

This case pointedly inquires whether the Louisiana Civil Code articles regarding precarious possession are applicable to a party attempting to acquire a predial servitude via acquisitive prescription. In my opinion, those articles are applicable.

As pointed out by the plaintiff, La.Civ. Code art. 722 (emphasis added) provides that:

Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.

However, as I appreciate this case, the plaintiff is only now attempting to establish that right by acquisitive prescription. Notably, the plaintiff has not otherwise established the right either by authentic act or by act under private signature. See La.Civ.Code art. 1839 (providing that “a transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.”). See also La.Civ.Code art. 740 (providing that “[a]p-parent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription.”).

IgOtherwise, La.Civ.Code art. 742 broadly provides that: “The laws governing acquisitive prescription of immovable property apply to apparent servitudes.” I find nothing in the Civil Code that removes the requirement of adverse possession from those seeking to establish a predial servitude by acquisitive prescription, as in this case. Instead, La.Civ.Code art. 3437 provides that: “The exercise of possession of a thing with the permission of or on behalf of the owner or possessor is precarious possession.” In turn, La.Civ.Code art. 3477 provides: “Acquisitive prescription does not run in favor of a precarious possessor or his universal successor.”

While the plaintiff argues that La.Civ. Code art. 3437 is inapplicable to acquisitive prescription of a predial servitude as the Article relates to “possession of a thing” and the plaintiff is attempting to establish possession of a “right,” I do not find this distinction helpful in light of La.Civ.Code art. 742’s provision that the laws of acquisitive prescription are applicable to apparent servitudes. See also La.Civ.Code art. 470 (classifying a predial servitude as an incorporeal immovable); La.Civ.Code art. 448 (referencing an immovable as a type of “thing”).

Jurisprudence offers little guidance in support of either interpretation. But see La.Civ.Code art. 3437, comment (b) (stating that: “According to civilian tradition and modern civil codes, there is a clear distinction between possession and detention. Possession is the exercise of physical acts of use, enjoyment, or detention over a thing with the intent to own it; detention or precarious possession is the exercise of factual authority over a thing with the permission of or on behalf of the owner or possession. The precarious possessor ... does not intend to own the thing he detains.”) See also 4 A.N. Yiannopoulas, La. Civ. L. Treatise, Predial Servitudes § 6.35 (4th ed.)(wherein Chapter 6, entitled “Conventional Servitudes: Creation by Title, Acquisitive Prescription and Destination[,]” explains that the requisite possession for acquisitive prescription “must be an unauthorized use that 1¡¡infringes on the ownership of the servient estate. One who merely exercises a right has nothing to prescribe.”). See also Id. at § 6.36 (discussing precarious possession within the creation of servitudes context and stating that: “Thus, one who uses a servitude of passage by virtue of a lease granted to him by the owner of the dominant estate may not acquire by prescription the servitude of passage for himself, and one who uses an aqueduct with the express or tact permission of the owner of the estate on which the aqueduct is located may not, by prescription, acquire a servitude of aqueduct.”).

For these reasons, I find that the concept of precarious possession is applicable to this situation involving acquisitive prescription of a predial servitude. Further, based on the facts in this record, I think it is clear that the plaintiff had permissive use of the passage. Trial testimony established, not only the defendant’s ancestor-in-title’s seeming acceptance of that passage, but the ancestor-in-title’s own use thereof. At one point, the ancestor-in-title requested that the gate be moved to another point on the property. The plaintiff moved the gate as requested and notably did so using materials provided by the ancestor-in-title. Additionally, third parties accessed both parties’ property through the gate, doing so for their own purposes. Given this evidence of what I consider to be permissive possession, I find that the plaintiff did not satisfy his burden of proving existence of the servitude by acquisitive prescription.

For these reasons, I would reverse the trial court’s ruling.


author: GENOVESE, Judge.

text:
    Robert CHASTANT, Michele Chastant Stark and Megan Duval-Chastant Qualls v. Laurie Futral CHASTANT.
    No. 13-1402.
    Court of Appeal of Louisiana, Third Circuit.
    April 23, 2014.
    Rehearing Denied June 11, 2014.

      James L. Daniels, Lafayette, LA, for Plaintiffs/Appellants, Robert Chastant, Michele Chastant Stark, and Megan Duval-Chastant Qualls.
    Steven G. Durio, Daniel J. Phillips, Du-rio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee, Laurie Futral Chastant.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

| plaintiffs, Robert Chastant, Michele Chastant Stark, and Megan Duval-Chas-tant Qualls, filed a survival and wrongful death suit against Defendant, Laurie Fu-tral Chastant (Laurie). Laurie filed a Motion for Summary Judgment. The trial court granted Laurie’s Motion for Summary Judgment and dismissed Plaintiffs’ claims with prejudice. Plaintiffs have appealed. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On December 13, 2010, Robert Brown Chastant, M.D. (Dr. Chastant) was murdered by Ismael Viera-Tovar. Plaintiffs are three of Dr. Chastant’s children from prior marriages. Laurie was married to Dr. Chastant at the time of his death and was the primary death beneficiary under his retirement plans and life insurance policies.

Initially, litigation was filed in March 2011, wherein Laurie sued the companies who administered Dr. Chastant’s retirement plans and life insurance policies to obtain the proceeds. Due to the existence of diversity jurisdiction, Laurie’s lawsuit was removed to the United States District Court for the Western District of Louisiana. In July 2011, Laurie filed a Second Amended and Restated Complaint naming Dr. Chastant’s brother, Paul T. Chastant, II (Paul), as a defendant in his capacity as Trustee of the Robert Brown Chastant Testamentary Trust. The companies who administered Dr. Chastant’s retirement plans and life insurance policies, joined by Paul, challenged Laurie’s worthiness to receive the ^proceeds under his policies based upon allegations that Laurie was a co-conspirator in Dr. Chastant’s murder.

Laurie’s federal lawsuit concluded with a jury trial in May 2012, wherein the jury ruled in her favor. Specifically, the jury answered “NO” to the jury verdict question: “Do you find, from a preponderance of the evidence, that Laurie Ann Futral Chastant participated in the intentional, unjustified killing of her husband, Robert Brown Chastant[?]”

The present matter was filed by Plaintiffs on September 6, 2011, asserting survival and wrongful death claims against Laurie. Plaintiffs’ Petition for | ¡¡Damages alleged that Laurie “enticed Ismael Viera to commit the said act of murder by offering Ismael Viera a sum of money to kill her husband and, thereafter, upon information and belief, the defendant [Laurie] participated with Ismael Viera in attempting to cover up the crime.” Plaintiffs urged that the cause of Dr. Chastant’s death “and the resulting damages was a[sic] gross and wanton negligence, carelessness and/or intentional acts of the defendant [Laurie] and Ismael Viera in conspiring to and carrying out the murder[.]” Plaintiffs sought damages, claiming that Laurie was “liable for the acts of Ismael Viera inasmuch as she conspired with him for the purpose of murdering her husband, Robert Brown Chastant, and/or, alternatively, under the doctrine of respondent [sic] superior.” Finally, Plaintiffs argued that Laurie’s actions made her “unfit to receive bequests made to her by the decedent, Robert Brown Chastant, in his Last Will and Testament, and in addition, she is unfit to receive the proceeds of any life insurance, defined benefit and/or profit sharing plan to which she may have been named a beneficiary.”

In January 2013, Laurie filed a Motion for Summary Judgment, asserting that Plaintiffs are barred by the doctrine of collateral estoppel from relitigating the issue of whether she participated in the murder of Dr. Chastant. Laurie averred that in order for Plaintiffs to maintain their survival and wrongful death claims, they must demonstrate her participation in Dr. Chastant’s murder. Laurie further claimed that Plaintiffs, through Paul’s defense in the federal court action, have already litigated the issue of whether Laurie participated in Dr. Chastant’s murder. Laurie argued that because she was found by the jury in her federal court action of Lnot having participated in the murder of Dr. Chastant, the doctrine of collateral estoppel bars any relitigation of this issue via Plaintiffs’ survival and wrongful death claims in state court.

Plaintiffs opposed Laurie’s motion denying that Paul represented their interests in Laurie’s federal court action. Plaintiffs submitted Paul’s affidavit corroborating their contention. Plaintiffs further argued that only they can institute survival and wrongful death actions against Laurie and that the issues relative to these causes of action, including the issue of comparative negligence, were not litigated. Finally, Plaintiffs asserted that there was no diversity jurisdiction in federal court over their claims because Louisiana is the domicile of Laurie and Plaintiff, Michele Chastant Stark.

A hearing on Laurie’s Motion for Summary Judgment was held on May 29, 2013, after which the trial court took the matter under advisement. On July 23, 2013, the trial court issued Reasons for Judgment wherein it ruled in favor of Laurie declaring that, “because Laurie has already been found by a court of competent jurisdiction not to have participated in the murder of her husband, the doctrine of collateral es-toppel precludes the re-litigation of this issue.” The trial court granted summary judgment and dismissed, with prejudice, the claims of Plaintiffs. Judgment to this effect was signed on August 14, 2013, and Plaintiffs have appealed.

On appeal, Plaintiffs contend that the trial court erred in ruling that collateral estoppel applies in granting Laurie’s Motion for Summary Judgment and in dismissing their survival and wrongful death claims. Plaintiffs assert that the necessary element of privity did not exist between them and Paul during his defense of Laurie’s federal lawsuit. Plaintiffs argue that only they, not Paul, |shave the right to institute survival and wrongful death claims and, further, without diversity, the federal court could not have exercised jurisdiction over their claims.

Laurie maintains that Paul represented Plaintiffs’ interests in the federal court action; therefore, privity existed between Paul and Plaintiffs. Laurie asserts that the federal court action addressed the issue of whether she participated in Dr. Chastant’s murder, that the federal jury considered the same issue, and that a judgment in her favor occurred as a result thereby. Therefore, Laurie argues that collateral estoppel applies and that the trial court properly granted her Motion for Summary Judgment.

LAW AND DISCUSSION

We are called upon to determine if the trial court erred in granting Laurie’s Motion for Summary Judgment. In the case of Jagneaux v. Frohn, 11-461, pp. 2-3 (La.App. 3 Cir. 10/5/11), 74 So.3d 309, 310-11, this court discussed the standard of review and the law applicable to motions for summary judgment as follows:

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:
A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06) ], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 105⅜]; King v. Parish National Bank, [04-337 (La.10/19/04) ], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]
Samaha v. Rau, 07-1726, pp. 3 — 4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966(C)(2) provides:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
Gabriel v. Louisiana Organ Procurement Agency, 10-251, p. 5 (La.App. 3 Cir. 10/6/10), 48 So.3d 1192, 1195, writ denied, 10-2515 (La.1/7/11), 52 So.3d 887.
Our supreme court has further instructed us as follows:
A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708, 710 (La.App. 4 Cir.1965) ]). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983). In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3d Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988); Pace v. Zilka, 484 So.2d 771 (La.App. 1st Cir.), writ denied, 488 So.2d 691 (La.1986); Mecom v. Mobil Oil Corp., 299 So.2d 380, 386 (La.App. 3d Cir.), writ denied, 302 So.2d 308 (La.1974). “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.” Brown, 172 So.2d at 710; Sally Beauty Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir.1983).
|7A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), units denied 596 So.2d 211 (La.1992). Simply put, 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. Sassone v. Elder, 626 So.2d 345, 352 (La. 1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied 457 So.2d 1194 (La. 1984) (noting that “[s]ummary judgment may not be used as a substitute for trial”).

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

The jurisprudence pertinent to our treatment of the judgment rendered in federal court was set forth by this court in Barnett v. Nichols, 01-1626, p. 4 (La.App. 3 Cir. 7/3/02), 824 So.2d 485, 488, writ denied 02-2143 (La.l1/15/02), 829 So.2d 426, as follows:

When a state court is required to determine the preclusive effects of a judgment rendered by a federal court exercising federal question jurisdiction, the state court must apply the federal law of res judicata. McDonald v. Cason, 01-0932 (La.App. 3 Cir. 12/12/01); 801 So.2d 1255 citing Reeder v. Succession of Palmer, 623 So.2d 1268 (La. 1993); McCollough v. Dauzat, 98-1293 (La.App. 3 Cir. 3/3/99); 736 So.2d 914. The doctrine of res judicata is to be interpreted strict juris; thus, any doubt concerning application of the principal of res judicata must be resolved against its application. Beaucoudray v. Brumfield, 93-1142 (La.2/25/94); 633 So.2d 1210.

This court in McCollough, 736 So.2d at 916, further explained the operation of collateral estoppel, a subset of res judicata, as follows:

The federal common law on res judi-cata, issue preclusion or collateral estop-pel operates to bar one convicted in a criminal [ 8proceeding from re-litigating “questions distinctly put in issue and directly determined” in the criminal prosecution. Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 569, 71 S.Ct. 408, 414, 95 L.Ed. 534 (1951). For some time the effect of this preclusion was mitigated by allowing the concept of “mutuality” to limit the effect to situations where the parties were the same or in privity to one of the original parties. However, mutuality of estoppel is no longer required in cases in which collateral estoppel is sought based on a prior civil judgment. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Blonder-Tongue v. University of Illinois Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). Likewise, the requirement has been eliminated where collateral estop-pel is sought based on a prior criminal conviction. Emich Motors Corp., 340 U.S. 558, 71 S.Ct. 408, 95 L.Ed. 534; See also U.S. v. Frank 494 F.2d 145 (2d Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 48, 42 L.Ed.2d 52 (1974); Cardillo v. Zyla, 486 F.2d 473 (1st Cir.1973). What is required is that the party against whom the plea of estoppel is asserted must have been a party or in privity to a party to the prior adjudication. Blonder-Tongue, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788; Cardillo, 486 F.2d 473.

In the present case, whether the prerequisite that Plaintiffs were “a party or in privity to a party to the prior adjudication” is a material fact that must be determined.

While complete identity of all parties is not required, the party against whom the collateral estoppel would be applied generally must either have been a party, or privy to a party, in the prior litigation. See Terrell v. DeConna., 877 F.2d 1267,1270 (5th Cir.1989).
... Privity is a “legal conclusion that the relationship between the one who is a party on the record and the non-party is sufficiently close to afford application of the principle of preclusion.” Southwest Airlines Co. v. Tex. Int’l Airlines, 546 F.2d 84, 95 (5th Cir.1977). Federal courts have consistently held that a non-party to an action is still bound by and entitled to the benefits of a judgment as though it were a party if it was represented in the original action. See Meza v. Gen. Battery Corp., 908 F.2d 1262, 1266-67 (5th Cir.1990).

Vines v. Univ. of La. at Monroe, 398 F.3d 700, 705-06 (5th Cir.2005), cert. denied, 546 U.S. 1089, 126 S.Ct. 1019, 163 L.Ed.2d 852 (2006).

| ¡[Plaintiffs’ contentions that: (1) they were not privy to Paul, (2) they had no control over Paul’s defense, and, (3) Paul told Plaintiffs that he did not and could not represent them in Laurie’s federal lawsuit is corroborated by Paul. Plaintiffs offered Paul’s affidavit in opposition to Laurie’s Motion for Summary Judgment. Laurie refutes Plaintiffs’ evidence with mere argument. Pertinent hereto is the fact that the matter before us is a motion for summary judgment and not a trial on the merits. Therefore, based upon our review of the record, we find a genuine issue of material fact exists relative to the collateral estoppel requirement of privity, i.e., whether Paul’s relationship to Plaintiffs was sufficient to establish privity, and that the trial court erred in granting summary judgment in favor of Laurie.

DECREE

For the foregoing reasons, the August 14, 2013 judgment of the trial court granting summary judgment in favor of Laurie Futral Chastant is reversed, and we remand this matter for further proceedings. Costs of this appeal are assessed against Defendant/Appellee, Laurie Futral Chas-tant.

REVERSED AND REMANDED.

      . Ismael Viera-Tovar pled guilty as charged to second degree murder on June 14, 2011.

      . The record also contains Paul’s Answer to Counterclaim and Third Party Demand filed by Lincoln National Life Insurance Company wherein Paul appears in his capacity as Independent Executor of the Estate of Robert B. Chastant.

      . Judgment Upon Juiy Verdict was signed on June 19, 2012.

      . A survival action is authorized by La.Civ. Code art. 2315.1, which provides, in pertinent part:
      A.If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      B.In addition, the right to recover all damages for injury to the deceased, his property or otherwise, caused by the offense or quasi offense, may be urged by the deceased’s succession representative in the absence of any class of beneficiary set out in Paragraph A.

      .An action for wrongful death is authorized by La.Civ.Code art. 2315.2, which provides, in pertinent part:
      A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
      (1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

      B. The right of action granted by this Article prescribes one year from the death of the deceased.
      C. The right of action granted under this Article is heritable, but the inheritance of it neither interrupts nor prolongs the prescriptive period defined in this Article.