author: SUSAN M. CHEHARDY, Chief Judge. LILJEBERG, J.,

text:
    PAF, INC. v. REGIONS BANK.
    No. 14-CA-195.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 24, 2014.

      Joel A. Levy, Attorney at Law, Marrero, Louisiana, for Appellant, PAF, Inc.
    E. Howell Crosby, Peter J. Rotolo, III, Philip B. Sherman, William P. Connick, Jr., Attorneys at Law, New Orleans, Louisiana, for Appellee, Regions Bank.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

^Plaintiff, PAF, Inc. (“PAF”), appeals a judgment of the 24th Judicial District Court finding a breach of contract by defendant, Regions Bank (“Regions”), and awarding PAF $13,297.44 in damages. In this appeal, PAF contends that it is entitled to further damages. For the reasons that follow, we reverse the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On May 9, 1991, PAF entered into a purchase agreement with Gulf South Bank and Trust Co. (“Gulf South”) to purchase property located at 905-07 Westbank Expressway in Gretna, Louisiana. The purchase agreement contained the provision that PAF’s “corporations presently banking at Gulf South Bank will permanently be relieved of service charges on all accounts with Gulf South Bank as a condition of the sale.”

On September 23, 1996, Regions Bank acquired Gulf South Bank pursuant to a merger agreement. As Gulf South’s successor, Regions became responsible for all liabilities and obligations of Gulf South, including the provisions of the 1991 purchase agreement, which became binding upon Regions.

| sIn 2007, Regions changed computer systems, at which point PAF’s accounts began to incur charges which PAF claimed should have been excluded pursuant to the 1991 purchase agreement. PAF notified Jennifer Boudreaux, the branch manager at Regions’ Gretna branch, who reimbursed PAF for the charges. Then, in January of 2009, Ms. Boudreaux moved to the Marrero branch, and the new manager of the Gretna branch refused to reimburse PAF for the charges. Following a series of complaints from PAF, Regions conducted an analysis of PAF’s accounts in September 2009 and determined that several charges had been mistakenly reimbursed. Judy Wilson, a Treasury Management officer with Regions, testified that the reimbursements disbursed by Ms. Boudreaux in 2008 mistakenly included “miscellaneous charges.” She explained that there is a distinction between “service charges” and “miscellaneous charges” in the banking industry. On account of Ms. Boudreaux’s failure to distinguish between the two, Regions’ analysis concluded that PAF had been reimbursed in excess of the amount owed, but Regions forgave this debt and confirmed that PAF would not incur “service charges” pursuant to the 1991 purchase agreement.

Indeed, from September 2009 onward, PAF did not incur “service charges,” but did continue to incur “miscellaneous charges.” Dissatisfied with this result, on November 25, 2009, PAF filed a “Petition for Specific Performance and Damages,” seeking reimbursement for charges withdrawn from its account in violation of the 1991 purchase agreement, in the amount of $8,982.44. PAF also sought any other damages to which it was entitled and specific performance. Then, in March 2010, PAF closed its six accounts with Regions and opened seven new accounts with Whitney Bank.

On April 4, 2012, PAF filed a motion for partial summary judgment, pursuant to which, on June 8, 2012, the parties entered into a consent judgment. |4This judgment held that the 1991 purchase agreement is binding upon Regions and that Regions is “liable for reimbursement for any and all service charges applied to its accounts by Regions, reserving to this court the determination of the amount of reimbursement due, and reserving to the plaintiff any claims for other damages, if any.”

The matter proceeded to a bench trial and on August 29, 2013, the trial court issued its judgment, finding:

Regions Bank breached its contractual obligations owed to PAF, Inc. Regions Bank failed to honor the terms of the agreement, which provided that PAF, Inc. was exempt from paying service charges on all accounts held with Gulf South Bank, Regions Bank’s predecessor. Regions Bank failed to honor the terms of the agreement by subsequently charging PAF, Inc. service fees on its bank accounts.

As a result, the court found Regions liable in the amount of $13,297.44 together with legal interest from the date of judicial demand and for all costs of the proceedings. On appeal, PAF raises three assignments of error: (1) the trial court erred by failing to award damages for service charges incurred at Whitney Bank; (2) the trial court erred by failing to award future damages; and (3) the trial court erred by failing to render judgment for specific performance. In Regions’ answer to PAF’s appeal, it argues that the trial court erred in finding a breach of contract and awarding damages and requests the judgment of the trial court be reversed.

DISCUSSION

The issue before us is one of contract interpretation, which is subject to de novo review on appeal. Subervielle v. State Farm, Mut. Auto. Ins. Co., 08-0491 (La.App. 4 Cir. 1/7/09), 32 So.3d 811, 812. In the interpretation of contracts, our starting point is the Louisiana Civil Code. See Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169, 175 (5 Cir. 1999). La. C.C. art.2045 defines the interpretation of a contract as “the determination of the common intent of the|Bparties.” The official 1984 Revision Comment states that such intent is “objective in nature,” i.e., “what the parties must have intended, given the manner in which they expressed themselves in their contract.” Thus, “[wjhen 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.” La. C.C. art. 2046. Indeed, “[t]he words of a contract must be given their generally prevailing meaning.” La. C.C. art. 2047. And, “[wjords of art and technical terms must be given their technical meaning when the contract involves a technical matter.” Id. Additionally, “when a dispute exists over the terms of a contract, the controversy must be resolved in light of the principle that informed and experienced parties do not ordinarily bind themselves to unreasonable obligations.” Spangenberg v. Yale Materials Handling-Louisiana, Inc., 407 So.2d 1270, 1274 (La.App. 4 Cir.1981), unit denied, 412 So.2d 1096 (La.1982).

With these precepts in mind, we turn to the pertinent provision of the 1991 purchase agreement between the parties, which stated that PAF’s “corporations presently banking at Gulf South Bank will permanently be relieved of service charges on all accounts with Gulf South Bank as a condition of the sale.”

Philip Fasullo, Jr., the owner of PAF, testified that at the time of the purchase agreement, there was no discussion as to what constituted “service charges.” Conversely, Larry Pieno, the attorney representing Gulf South Bank in the 1991 transaction, testified that at the time of the transaction there were “documents that identified what service charges were,” but they had not been attached to the purchase agreement. However, he explained that his understanding of “service charges,” as referenced in the purchase agreement, denoted charges designated as such in Gulf South’s schedule of fees.

[ rJudy Wilson, a Treasury Management officer with Regions Bank, testified that in the banking industry, there is a distinction between “service charges” and “miscellaneous charges.” Regions’ schedule of fees confirms this distinction, delineating separately “Service Charges” and “Miscellaneous Charges.” According to this schedule, service charges include fees for monthly account maintenance, checks, debits, credits, deposits, electronic debits, and electronic credits. Miscellaneous charges, on the other hand, include fees for overdrafts, returned checks, and stop payments.

This distinction is also employed by Whitney Bank. Whitney’s schedule of fees separately delineates service charges and miscellaneous charges, such that the service charges similarly include fees for monthly account maintenance, checks, debits, credits, deposits, electronic debits, and electronic credits, while miscellaneous charges include fees for overdrafts, returned checks, and stop payments.

This leads us to conclude that “service charges” and “miscellaneous charges” are terms of art in the banking industry. Consequently, under the circumstances of this case, where the two contracting parties were business entities, one of which was a bank, we find the parties intended the technical meaning of “service charges” as it is used in the banking industry. Therefore, only “service charges” in their technical sense are properly excluded from PAF’s accounts with Regions.

We now turn to the calculation of damages. The standard of review for a damage award for breach of contract is whether the trial court abused its. discretion. Hussain v. Khan, 14-65 (La.App. 5 Cir. 5/21/14), 142 So.3d 281, 283. The trial court awarded PAF $13,297.44 in damages. Although the court did not explain how it arrived at this figure, it is apparent that it is based upon the testimony of |7PAF’s expert witness, John Theriot, a CPA and certified forensic accountant. Mr. Theriot reviewed PAF’s monthly statements and determined that PAF’s operating account had incurred service charges in the amount of $12,958.36 from November 2007 through February 2010. Mr. Theriot also determined that PAF’s money order account had incurred $339.08 in service charges during this same span. The trial court’s damages award is the sum of these two figures. However, in making his calculations, Mr. Theriot admitted that he did not recognize the technical distinction between “service charges” and “miscellaneous charges.”

Ms. Wilson, who also reviewed PAF’s monthly statements, recognized this distinction and so reached a different conclusion regarding the service charges incurred by PAF. She concluded that PAF had incurred $1,000.98 in service charges on its operating account from November 2007 through February 2010. A review of each monthly statement makes clear that this figure represents the sum of those charges typically classified as “service charges” in the banking industry. For instance, Ms. Wilson’s calculation of service charges in June 2008 included “Electronic Debits” ($0.07), “Deposits-Credits” ($14.60), “Items Deposited Regional” ($0.10), and “Items Deposited Other Fed” ($2.81) for a total of $17.58. She excluded “Return Item” fee ($144.00) and “Quick-books Monthly Fee” ($20.00) as “miscellaneous charges.” Ms. Wilson further testified that PAF had been reimbursed for all wrongly-incurred service charges, which was acknowledged by Philip Fasullo, III, PAF’s account manager.

Because Mr. Theriot made his calculations without utilizing the technical meaning of “service charges” as called for in the contract, we find his calculation was in error. Consequently, we find that the trial court abused its discretion in adopting this faulty calculation and awarding damages pursuant thereto.

IsBased upon our review of the record, PAF has been reimbursed for all wrongly-incurred “service charges” from November 2007 through February 2010. Therefore, the trial court’s judgment finding a breach of contract and award of damages is reversed. On account of this finding, we pretermit discussion of plaintiffs assignments of error seeking further damages.

Regarding plaintiffs request for specific performance, La. C.C. art. 1986 provides:

Upon an obligor’s failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.

In Sizeler Prop. Investors, Inc. v. Gordon Jewelry Corp., 544 So.2d 53, 54 (La.App. 4 Cir.1989), writ granted, 548 So.2d 1215 (La.1989), order dissolved, 552 So.2d 372 (La.1989), the fourth circuit found specific performance was impracticable in part because it would require the reorganization of a no longer existing business.

In the present cáse, we find specific performance is impracticable because it would require the reestablishment of a contractual relationship between the parties. PAF terminated the 1991 purchase agreement when it voluntarily closed its accounts with Regions. With no contractual relationship, Regions no longer has an enforceable obligation to PAF. Therefore, while we cannot compel specific performance, we offer the remedy of specific performance in the event PAF chooses to reestablish its relationship with Regions. In such an event, we hold that the bank accounts previously subject to the agreement would again be subject to the agreement as interpreted herein.

REVERSED.

LILJEBERG, J.,

concurs with reasons.

LI agree with the opinion that Regions Bank (“Regions”) did not breach the 1991 agreement, and that no damages should have been awarded to PAF, Inc. (“PAF”). Although PAF was improperly assessed some service charges from 2007 to 2010, the record reveals that PAF was reimbursed for the service charges assessed in error to its accounts. Accordingly, I agree that the trial court’s judgment awarding damages to PAF should be reversed.

I cannot, however, agree with the language set forth in the final two sentences of the opinion. Although PAF requested specific performance in its petition, the opinion correctly notes that specific performance is impracticable because PAF terminated the 1991 purchase agreement when it closed its accounts with Regions and therefore, Regions no longer has an enforceable obligation to PAF. In my view, that should be the end of the decision. Nevertheless, the opinion goes on to “offer” the remedy of specific performance in the event PAF chooses to reestablish its relationship with Regions, and further states that the accounts previously subject to the 1991 agreement would again be subject to the agreement. In my opinion, such language is advisory.

In Balluff v. Riverside Indoor Soccer II, L.L.C., 07-780, p. 4 (La.App. 5 Cir. 3/11/08), 982 So.2d 199, 201,. this Court noted that it is well-settled that courts should not decide abstract, hypothetical, or moot controversies, or render ^advisory opinions with respect to such controversies. This Court further stated that it cannot engage in rendering advisory opinions or issue an opinion based on prediction. Id.

At the time of trial in the present case, PAF’s accounts with Regions had been closed by PAF, thus making specific performance impracticable. Even if PAF could reestablish its relationship with Regions, in my view, it is not the function of this Court to advise litigants on how to proceed or to address the legal- consequences of the reestablishment of such a business relationship.

In addition, I believe that if PAF were to reestablish a relationship with Regions, which is purely hypothetical, more information would be required before this Court could determine whether or not the accounts would be subject to the terms of the 1991 agreement.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION, Plaintiff-Appellant v. Rosa GILLIGAN and GEICO General Insurance Company, Defendants-Appellees.
    No. 49,357-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Johnson, Rahman & Thomas, by Musa Rahman, Baton Rouge, for Appellant.
    John Bradley Smitherman, for Appel-lees.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   LOLLEY, J.

|,The Louisiana Workers’ Compensation Corporation appeals the judgment of the First Judicial District Court, Caddo Parish, Louisiana, which granted a motion for summary judgment in favor of Rosa Gilligan and GEICO General Insurance Company. For the following reasons, we affirm the trial court’s judgment.

Facts

On November 7, 2011, while working for the Volunteers of America, North Louisiana, Scheresa Byrd was operating her personal vehicle in Shreveport, Louisiana. While stopped at an intersection, Byrd was rear-ended by Rosa Gilligan, who was insured by GEICO General Insurance Company (“GEICO”) at the time. On that date, Byrd did not have the minimum compulsory vehicle liability insurance required by La. R.S. 32:861.

Byrd ultimately sought and received workers’ compensation benefits from the Louisiana Workers’ Compensation Corporation (“LWCC”), which subsequently filed this lawsuit against Gilligan and GEICO pursuant to La. R.S. 23:1101.B in order to be reimbursed for workers’ compensation payments made to Byrd. In response, GEICO brought a motion for summary judgment under the premise that, La. R.S. 32:866 (Louisiana’s “no pay-no play” statute) barred recovery of the first $15,000 of damages in this matter, because Byrd failed to carry liability insurance. After considering the parties’ pleadings and oral argument, the trial court granted GEICO’s motion for summary judgment, and this appeal by LWCC ensued.

|2Summary Judgment

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. Samaha v. Rau, 2007-1726 (La.02/26/08), 977 So.2d 880; Amos v. Crouch, 46,456 (La.App.2d Cir.06/29/11), 71 So.3d 1053.

Appellate courts review summary judgments de novo, under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Med. Ctr., 43,254 (La.App.2d Cir.06/04/08), 986 So.2d 247, writ not cons.,. 2008-1507 (La.10/10/08), 993 So.2d 1273. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, supra.

Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Jenkins v. Willis Knighton Med. Ctr., supra. The moving party bears the burden of proof. However, when he will not bear the burden of proof at trial on the matter before the court on summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim; he need .only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then | Jails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2); Carter Enterprises, LLC v. Scott Equipment Co., LLC, 46,862 (La.App.2d Cir.04/11/12), 91 So.3d 1134. '

Discussion

Here, in granting GEICO’s motion for summary judgment, the trial court determined that LWCC, as subrogee of Byrd, was precluded -from recovering the first $15,000.00 of Byrd’s bodily injury claim, because she was in violation .of La. R.S. 32:866 (i.e., Byrd failed to own or maintain compulsory liability insurance at the time of the accident). On appeal, LWCC brings two assignments of error, both closely related to each other. First, LWCC maintains that the trial court erred in holding that it was the “subrogee” of Byrd, and thus precluded from recovering the first $15,000.00 of bodily injury claim for Byrd’s failure to have compulsory liability insurance required under La. R.S. 32:866. Second, LWCC argues that the trial court erred in applying the “no pay-no play” defense (i.e., La. R.S. 32:866) against it, because it was neither the owner nor the operator of the subject vehicle.

Pursuant to La. R.S. 23:1101, LWCC filed its petition for damages seeking reimbursement from GEICO for the workers’ compensation benefits paid to Byrd as a result of her accident. The statute provides in pertinent part:

B. Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring |4suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents. The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person, and where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage. The amount of any credit due the employer may be set in the judgment of the district court if agreed to by the parties; otherwise, it will be determined pursuant to the provisions of R.S. 23:1102(A). (Emphasis added.)

As noted by the parties and the trial court, this precise issue on appeal has previously been considered in Louisiana Workers’ Comp. Corp. v. Landry, 2011-1973 (La.App.1st Cir.05/02/12), 92 So.3d 1018. In granting summary judgment on behalf of the tortfeasor’s liability insurer, the Landry court noted Marquette Cas. Co. v. Brown, 235 La. 245, 103 So.2d 269, 271 (1958), wherein the court stated that the right of reimbursement by a workers’ compensation insurer is:

conditioned upon the basic right of the employee to recover damages and, according to R.S. 23:1103, if the damages awarded are for an amount less than the total compensation paid, the employer’s recovery is accordingly limited to that amount. Thus, though the compensation paying employer is given the preferential right to reimbursement out of the judgment, recovery is necessarily restricted to the amount for which the tortfeasor is liable to the injured em ployee for the consequences of his wrongful act. (Emphasis added.)

Here, Byrd’s right to recover damages from the tortfeasor was limited under La. R.S. 32:866.A(1), which provides that:

There should be no recovery for the first fifteen thousand dollars of bodily injury and no recovery for the first twenty-five thousand dollars of property damage based on any cause or right of action arising out of a motor vehicle accident, for such injury or damages occasioned by an owner or operator of a | ¡¡motor vehicle involved in such accident who fails to own or maintain compulsory motor vehicle liability security.

We agree with the holding in Landry that, considering the plain wording of La. R.S. 23:1101 and La. R.S. 32:866, the LWCC’s recovery is limited to the amount for which the alleged tortfeasor, Gilligan, and her insurer, GEICO, are liable to the injured employee, Byrd. Whereas LWCC argues its action is an independent cause of action allowed under La. R.S. 23:1101, and it is not seeking recovery as subrogee, the statute clearly allows only recovery identical to that of the employee. Unquestionably, LWCC has an independent action to recover its compensation benefits which have been or will be paid to Byrd under La. R.S. 23:1101, but the statute is clear that the extent of that recovery necessarily depends on the amount of damages awarded to Byrd — that recovery “shall be identical.”

Because Byrd failed to maintain compulsory motor vehicle liability insurance, she would receive no recovery for the first $15,000.00 of bodily injury pursuant to La. R.S. 32:866. The LWCC is only entitled to receive reimbursement from a third party for benefits paid to the injured employee “identical” to the amount recoverable by that employee. Reading La. R.S. 23:1101.B and La. R.S. 32:866 together, along with consideration of the applicable jurisprudence, we find that GEICO’s legal liability to pay damages for this accident is limited to the amount in excess of $15,000.00 for Byrd’s personal injuries. In other words, Byrd cannot recover the first $15,000.00 against GEICO, and resultantly LWCC is unable to recover the initial $15,000.00 either.

| (¡Furthermore, LWCC argues that the Louisiana Legislature did not foresee a scenario such as this where a workers’ compensation insurer might be denied recovery entitled to it under La. R.S. 23:1101.B. LWCC submits that La. R.S. 32:866 applies to an “owner and operator,” but does not intend to penalize innocent third parties such as itself. However, as LWCC has correctly argued, its cause of action against GEICO arises independently from La. R.S. 23:1101.B, which itself limits the amount of recovery allowed under the statute to the identical amount recovered by the employee. Had the Louisiana Legislature so intended, workers’ compensation insurers could have been exempt from the limitation of recovery provisions of La. R.S. 32:866 as were guest passengers. See La. R.S. 32:866.E. They were not. Moreover, La. R.S. 32:866.F(1) specifically limits the recovery of payments made by any insurer to amounts in excess of $15,000.00 of bodily injury.

Conclusion

Considering the foregoing, the summary judgment in favor of GEICO General Insurance Company is affirmed. All costs of this appeal are assessed to Louisiana Workers’ Compensation Corporation.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Damian O'QUINN, Plaintiff-Appellant v. TRINIDAD DRILLING, LP, Defendant-Appellee.
    No. 49,372-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Curtis Daniel Street, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, LLP, Shreveport, by Robert A. Dunkelman, for Appellee.
    Before BROWN, STEWART, and DREW, JJ.
   BROWN, Chief Judge.

_JjIn this workers’ compensation case, claimant appeals a judgment denying penalties and attorney fees; defendant answered the appeal claiming error in the denial of its exception of prescription. We affirm in part; and reverse and render in part.

Facts and Procedural Background

Claimant, Damian O’Quinn, suffered a work-related accident on September 1, 2009, while working as a motor man on an oil rig for defendant, Trinidad Drilling L.P., in Red River Parish, Louisiana. O’Quinn suffered a crush-type injury to his left hand and was taken to the emergency room at Willis Knighton-Pierremont in Shreveport. He was diagnosed with swelling and a contusion of his left wrist. An x-ray taken at that time did not show any breaks or fractures; however, he was told that the swelling could prevent an accurate picture. O’Quinn was scheduled by Willis Knighton Work Kare to follow up with Dr. Karl Bilderback, a board certified hand and upper extremity orthopedic specialist. One week later, on September 9, 2009, O’Quinn saw Dr. Bilderback. According to Dr. Bilderback’s deposition and the notes written up from that visit, claimant reported no pain or discomfort as of that date and Dr. Bilderback observed no swelling in his hand or wrist. No x-ray were taken. O’Quinn was released to return to work with no limitations.

The week following the accident, O’Quinn was assigned to a light duty position in Trinidad’s yard. He did no work during this week but was paid his normal wages. After seeing Dr. Bilderback, O’Quinn returned to work on the rig with no restrictions. As a motor man, O’Quinn’s duties |2included assisting floor hands on the drill floor making up connections, pulling pipe out of and putting pipe into the drill hole, and assisting with the pipe on the rig floor. He was also responsible for maintaining the three diesel generators on the rig.

Two months later, on November 4, 2009, on one of his off days and on his own, O’Quinn went to see Dr. Scott McClelland, an orthopedic surgeon, in Monroe. O’Quinn reported to Dr. McClelland the details of his work accident and related that he was experiencing pain and discomfort in his left wrist while trying to do his job on the rig. X-rays showed a non-displaced capitate fracture (a fracture of one of the carpal bones) in O’Quinn’s left wrist. Dr. McClelland recommended a CT scan for further evaluation and treatment. Dr. McClelland told O’Quinn that “if this has not healed,, [you] may need an open reduction internal fixation or casting.” He reported that O’Quinn “wants to consider his options and will let me know his decision.”

O’Quinn related Dr. McClelland’s findings to Trinidad’s safety supervisor. O’Quinn testified that he told the supervisor that Dr. McClelland “discovered a fracture and my hand is broke.” He testified that the safety supervisor “pretty much told me that you got to go see (Dr.) Bilder-back.” O’Quinn went to Dr. Bilderback on November 13, 2009. A CT scan done on November 20, 2009, showed a fracture through the neck of claimant’s left capitate bone. At that point, O’Quinn was assigned to the yard on “light duty” driving a fork lift and performing other tasks that did not require him to use his left hand or wrist for approximately three weeks. |sWhile working the three weeks of light duty, O’Quinn kept his regular schedule as if he were on the rig and was paid his regular wages. On the rig as a motor man, he would work 84 hours one week (during which time he would sleep at the location) and would be off the following week. Thus, at the yard, O’Quinn slept at the location on his “on week” and was paid as if he were working full duty.

O’Quinn returned to work as a motor man on the rig without restrictions on December 21, 2009. Thereafter, O’Quinn worked full duty on the rig from December 2009 until July 21, 2010, when he resigned to accept a job with Hydradyne Hydraulics in West Monroe, Louisiana.

In the spring of 2012, O’Quinn sought treatment from Dr. McClelland’s partner, Dr. Martin deGravelle, Jr., a hand and upper extremity surgeon. O’Quinn reported to Dr. deGravelle that he experienced pain in his left hand and wrist while using wrenches at work. After several appointments and an MRI, Dr. deGravelle opined that O’Quinn needed arthroscopic surgery on his left wrist to repair ligament damage that he attributed to claimant’s work injury in September 2009.

On August 24, 2012, O’Quinn filed a Disputed Claim for Compensation arising out of his September 1, 2009, work accident at Trinidad. One of his allegations was that he received wages in lieu of compensation until January 2010, which served to interrupt the applicable prescriptive period for Supplemental Earnings Benefits (“SEB”). He also | ¿sought an award of penalties and attorney fees for defendant’s “denial of medical and choice of physician.” Causation of this initially ligament damage was disputed by defendant.

Asserting that O’Quinn’s claim was prescribed on its face, Trinidad filed an exception of prescription and a motion for summary judgment. A hearing on the exception and motion was held. The WCJ found that the wages O’Quinn received for the period of November 13-December 21, 2009, were in lieu of compensation; therefore, his claim for supplemental earnings was within the three years period provided by La. R.S. 23:2309(A)(2) and timely. Both the exception and motion were denied.

Trial was held on July 17, 2013. At this time, Trinidad agreed to pay for the surgery recommended by Dr. deGravelle and to reimburse O’Quinn for his medical expenses associated with his treatment with Drs. McClelland and deGravelle, leaving as the remaining issues, O’Quinn’s entitlement to SEB and the propriety of an award of attorney fees and penalties. Judgment was rendered by the WCJ, who found that O’Quinn was not entitled to SEB or penalties and attorney fees. O’Quinn has appealed from that part of the WCJ’s judgment denying penalties and attorney fees. Trinidad has answered the appeal, urging that the WCJ erred in finding that O’Quinn’s SEB claim was not prescribed.

^Discussion

Penalties and Attorney Fees

According to claimant, the WCJ erred in failing to award penalties and attorney fees based upon the following: Trinidad required claimant to submit to treatment by its choice of orthopedic surgeons, Dr. Bilderback; and, Trinidad failed to comply with its statutory duty to inform him that he had the right to choose his own treating physician.

La. R.S. 23:1121 provides that an employee has the right to select one treating physician in any field or specialty. Aisola v. Beacon Hospital Management, Inc., LWCC, 13-1101 (La.App.4th Cir.04/02/14), 140 So.3d 71; Taylor v. Hanson North America, 12-0286 (La.App.lst Cir.01/09/13), 112 So.3d 272, writ denied, 13-0344 (La.04/01/13), 110 So.3d 586.

According to La. R.S. 23:1201(F), an employer or insurer may be assessed with penalties and attorney fees for failure to consent to an employee's request to select a treating physician or change physicians when such consent is required by La. R.S. 23:1121. Aisola, supra; Garcia v. HICO, Inc., 12-748 (La.App.5th Cir.03/13/13), 113 So.3d 281; Youngblood v. Covenant Sec. SVC, L.L.C., 11-2382 (La.App.lst Cir.12/21/12), 112 So.3d 233, writ denied, 13-0200 (La.03/08/13), 109 So.3d 363.

The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers’ compensation action is essentially a question of fact subject to the manifest error/clearly wrong standard of review. Authement v. Shappert Engineering, 02-1631 (La.j02/25/03)„; 840 So.2d 1181; Rainwater v. Tango Transport, 45,041 (La. App.2d Cir.03/10/10), 32 So.3d 1174; Garcia, supra.

In her oral reasons for judgment, the WCJ stated:

This Court is presented with a different set of facts and issues than those contemplated in Louisiana Revised Statute 23:1121 (B)(2)(b). In this case claimant was directed to Dr. Karl Bilderback. Later he chose treatment with Dr. Scott McClelland. The record is void of any evidence claimant ever advised defendants of his desire to select Dr. McClel-land as his choice of physician. The record is void of any evidence claimant ever requested treatment with his choice of physician, Dr. McClelland. And the record is void of evidence that defendants denied his choice of physician. Thus, claimant’s request for an award of penalties and attorney fees for defendant’s failure to approve his choice of physician is denied.

Having reviewed the record in its entirety, we find clear error in the WCJ’s determination that penalties and attorney fees were not proper in this case. It is undisputed that Trinidad did not inform O’Quinn of his right to choose his own treating physician; nonetheless, in November 2009, O’Quinn made his choice of Dr. McClelland as' his treating orthopedic doctor when he sought treatment from him, albeit on his own and without knowledge of the fact that he had the right to choose a treating physician. See, La. ' R.S. 23:1121(B)(2)(a), which provides that if an employee is treated by any physician to whom he is not specifically directed by the employer or insurer, that physician shall be regarded as his choice of treating physician. See also, Garcia, supra.

It is also undisputed that in November 2009, O’Quinn went to his employer and told the safety supervisor that he went to Dr. McClelland who “discovered a fracture and my hand is broke.” As noted above, Dr. McClelland at that point was to be regarded as O’Quinn’s choice of treating | yphysician. Contrary to the finding of the WCJ, the record is clear that O’Quinn advised his employer that he went to Dr. McClelland and that a specific treatment regimen was prescribed by this doctor. Implicitly, the employer was informed that Dr. McClelland was O’Quinn’s choice of physician. By insisting that O’Quinn instead return to Dr. Bilderback, the employer refused to accept Dr. McClelland as O’Quinn’s choice of physician. O’Quinn did not know he could choose a physician because the employer did not follow the law and inform him of that right.

Penalties and attorney fees were appropriate in this case. Again we note that Trinidad did not provide O’Quinn with notice of his right to choose a treating physician and when that choice became known to the employer, it ordered O’Quinn to return instead to the company’s physician. The redress currently provided by the Workers’ Compensation Act for an employee who is denied his right to an initial physician of his choice is set forth in La. R.S. 23:1121(B)(1).

Under LSA-R.S. 23:1201, we assess a penalty of $2,000. O’Quinn’s attorney had to file a complaint, try an exception and motion for summary judgment and try the case. However, the trial consisted of the evidence presented in those motions. Considering the record, including the appellate work, we award $5,000 in attorney fees.

Viability of SEB Claim-Wages In Lieu of Compensation

In its answer to claimant’s appeal, Trinidad seeks a reversal of the WCJ’s denial of its exception of prescription/MSJ, both of which were based upon defendant’s contention that O’Quinn’s claim for SEB had | ^prescribed and therefore was untimely. According to defendant, this ruling is relevant in the event that, after his wrist surgery, claimant is unable to earn at least 90% of his pre-accident wages and thus entitled to file a claim for SEB. In ruling that the claim was timely, although it was prescribed on its face, the WCJ found that the work performed by O’Quinn while assigned to the yard was not commensurate with the wages he was paid by Trinidad. Thus, they constituted “wages in lieu of compensation” and served to interrupt the applicable prescriptive period.

La. R.S. 23:2309(A)(2) provides:
Where such payments [under the Workers’ Compensation Act] have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of [supplemental earnings] benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (1), (3) or (4).

If the employee after his injury continues to receive wages or checks unspecified as to their purpose and he is not fully earning these wages, they will be treated as gratuitous payments in lieu of compensation and will interrupt prescription. Wex S. Malone and H. Alston Johnson, 14 Louisiana Civil Law Treatise, Workers’ ■ Compensation Law and Practice, § 384, pp. 371-2 (4th ed.2010). ‘Wages in lieu of compensation” are defined as unearned wages paid to an employee after an injury; if the employee actually earns the wages paid to him, they are not “wages in lieu of compensation” and do not interrupt prescription for workers’ compensation claims. City of Bossier City v. Colvin, 45,278 (La.App.2d Cir.05/19/10), 36 So.3d 1207; Armstrong v. Louisiana Federation of Teachers PEG/ FUSE 19Organizing Project, 45,125 (La.App.2d Cir.05/19/10), 36 So.3d 1134; Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065 (La.Ap.3d Cir.09/28/94), 645 So.2d 661, writ denied, 95-0152. (La.03/30/95), 651 So.2d 837.

The similarity or degree of difficulty of the duties performed by a claimant before and after the accident is relevant but not determinative of the issue of whether wages are earned or in lieu of compensation. Armstrong, supra; Heymann v. Dixie Leasing Corp., 250 So.2d 118 (La.App. 4th Cir.1971). Whether the wages were actually earned or in lieu of compensation depends upon the facts and circumstances of each case. Worley v. Town of Brusly, 07-0572 (La.App.1st Cir.12/21/07), 978 So.2d 406; Mauldin v. Town of Church Point, 05-1294 (La.App. 3d Cir.04/05/06), 925 So.2d 1269. As such, the WCJ’s determination that O’Quinn received “wages in lieu of compensation” after his accident is a factual determination subject to the manifest error/clearly wrong standard of review. Worley, supra; Ortis v. Ortco Contractors Inc., 00-1460 (La.App. 1st Cir.09/28/01), 809 So.2d 300.

At the hearing on the exception of prescription, O’Quinn testified that while he was working light duty in the yard (presumably during the period from November 13-December 21, 2009), because the days were shorter at that time of the year, he and the other guys worked daylight to dark. There were some days that they were allowed to leave work at 5:00 p.m. and go home. Claimant stated that while he was on light duty assignment, there was more than one week when he did not work the full 84 hours, although he was paid as if he had worked an 84-hour shift on the rig. O’Quinn | ^testified that there was a big difference between the work he did on the rig and the work he did while on light duty in the yard. The work on the rig was very physical; there was never any down time, but the work was non-stop, for 12 or more hours a day. In the yard, most of the time he and the other workers sat around until a truck came in. Then, he would drive the forklift or help unload it using only his right hand. He also sometimes swept when needed, again using only his right hand. In his affidavit, O’Quinn noted that there were several other men with varying degrees of injury who were also assigned to the yard and who, like him, performed very little work. While claimant could not say “for a fact” what the other workers in the yard made, he stated that he was told that one guy working there at the same time as him made around $15 per hour. O’Quinn testified that his own hourly rate was closer to $20.

In light of the above evidence, we cannot say that the WCJ committed manifest error in finding that O’Quinn’s services performed for the period of time that he was on light duty in the yard were not commensurate with the wages he was paid, i.e., that claimant did not actually earn all of his pay for the period that he was assigned to light duty. See, Mauldin, supra; Ortis, supra; Cheatham v. Morrison, Inc., 469 So.2d 1219 (La.App. 1st Cir.1985). Therefore, there is no error in the WCJ’s ruling that O’Quinn’s claim for SEB, filed on August 24, 2012, was timely.

Conclusion

For the reasons set forth above, the judgment of the WCJ is affirmed in part, reversed and rendered in part.

|„IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Damian O’Quinn and against defendant, Trinidad Drilling, LP, in the sum of $2,000 as penalties and $5,000 as attorney fees.

In all other respects the judgment of the trial court is affirmed. Costs are assessed to defendant, Trinidad Drilling, LP.

      . O'Quinn felt that the new job at Hydradyne was a better opportunity for him; it allowed him to be closer to his wife and two young children and presented a greater future earning potential.

      . As noted by the court in Desselle v. Dresser Industrial Valve, 96-374 (La.App. 3d Cir.02/05/97), 689 So.2d 549, an employee does not have a claim for SEB until such time as he becomes unable to earn at least 90% of his pre-accident wages. See also, Sensat v. Washington Group International, Inc., 12-654 (La.App. 3d Cir. 12/12/12), 106 So.3d 683.


author: GARRETT, J.

text:
    DRIVER PIPELINE COMPANY, INC., Plaintiff-Appellant v. CADEVILLE GAS STORAGE, LLC, Defendant-Appellee.
    No. 49,375-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Shotwell, Brown & Sperry, Monroe, By: George Wear, Jr., C.A. Martin, III, for Appellant.
    Jones, Walker LLP By: Joshua A. Norris, for Appellee. .
    Before LOLLEY, PITMAN and GARRETT, JJ.
   GARRETT, J.

liThe plaintiff, Driver Pipeline Company, Inc. (“Driver”), appeals from the grant of a partial summary judgment in favor of the defendant, Cadeville Gas Storage, LLC (“Cadeville”), dismissing several of Driver’s claims. For the following reasons, we reverse and remand to the trial court for further proceedings.

FACTS

On November 9, 2012, Driver and Cade-ville entered into a contract for Driver to construct natural gas pipelines and related facilities in connection with a natural gas storage facility owned by Cadeville in Oua-chita Parish. The contract price was $5,430,130. Cadeville’s obligations included furnishing the actual pipe and all necessary permits and licenses. The contract set forth the specific number of feet of pipeline to be installed and other materials included in the contract price to be furnished by Driver. The work was to be substantially completed by February 1, 2013, and the final completion date was February 28, 2013.

Driver was not able to complete the work by the scheduled deadlines. Driver contended that the delay was caused by Cadeville’s failures to timely furnish materials it was required to provide, to furnish suitable materials in some instances, and to timely acquire all necessary permits as required by the contract.

In April 2013, Driver submitted several change orders to Cadeville totaling more than $3 million. Some of the work represented by the change orders was done by Driver in January 2013. Cadeville refused to approve and pay the change orders.

|2On May 31, 2013, Driver filed the present suit against Cadeville. Driver alleged that Cadeville breached the contract by failing to provide timely, complete, and accurate engineering drawings and alignment sheets; failing to provide materials it was obligated to provide; failing to deliver pipe in accordance with the specifications of the contract; failing to notify Driver when Cadeville finally obtained the materials it was obligated to provide; making changes in the specifications of the surface facilities covered by the contract; requiring additional erosion control measures beyond the scope of the original contract; instructing Driver to prematurely demobilize for a federal inspection; failing to obtain permits to enter and exit public roads at the most convenient locations; failing to comply with the terms of the contract resulting in Driver and its subcontractors having to demobilize and re-mobilize during the course of the project; failing to compensate Driver for accelerations in the schedule necessitated by Cade-ville’s failure to provide materials required by the contract; failing to have subcontractors under Cadeville’s control perform their work properly; and refusing to execute change orders for extra work and materials required by Cadeville’s default in its obligations. Driver alleged that, according to the extra charges and change orders caused by Cadeville’s default in its obligations, Cadeville owed $4,042,536.95 and an unbilled retention of $3,037.10, for a total claim of $4,045,574.05. Driver sought to recover this amount, along with legal interest and attorney fees.

On July 11, 2013, Cadeville answered the petition and filed a reconventional demand, claiming that Driver breached the contract by not | ^reaching substantial completion on the date specified, failing to provide prompt notice of change orders, charging for items that should have been identified in the bid process, denying Cadeville the right to inspect and/or audit Driver’s books or records of subcontractors as provided in the contract, failing to employ only competent and skilled supervisors and forepersons, and failing to perform all work in a good and workmanlike manner. Cadeville claimed that it sustained additional costs and damages caused by Driver’s failures under the contract. On September 6, 2013, Cadeville filed a first amended and supplemental answer and re-conventional demand.

On September 16, 2013, Cadeville filed the motion for partial summary judgment. The motion sought to dismiss with prejudice Driver’s claims related to disputed change orders. Cadeville argued that the parties specified in their contract that change orders were highly discouraged and that prior written approval was necessary before changes could be implemented. Cadeville contended that Driver ignored the terms of the contract and on April 1, 2013, submitted seven change orders for which Cadeville’s prior written approval was not obtained:

Change Order 17 $ 16,341.00 2514’ Additional Silt Fence .
Change Order 18 $ 4,132.00 285 Hay Bales
Change Order 19 $ 33,300.00 Additional 24" River Weights
Change Order 20 $ 120,750.00 Pierce to Accelerate Schedule
Change Order 21 $ 188,926.18 Jones Brothers Trucking Extra Costs
Change Order 22 $ 131,600.00 376 Additional Mats
Change Order 23 $ 22,944.00 24 Additional 24" Welds

On April 12, 2013, Driver submitted four more change orders:

Change Order 24 $ 358,759.21 Blue Fin Charges
Change Order 25 $2,045,877.00 Driver Acceleration
LChange Order 26 $ 132,480.00 Pierce to accelerate schedule
Change Order 27 $ 120,689.60 Pierce to accelerate schedule

Cadeville contended the contract required that Driver provide a cost estimate and obtain written approval from Cadeville before doing any additional work or using additional materials. Because Driver did not comply with the requirements of the contract concerning change orders, Cade-ville argued it was entitled, as a matter of law, to a partial summary judgment dismissing with prejudice Driver’s claims regarding the 11 change orders.

The parties were also embroiled in unresolved discovery disputes. Driver filed a motion to compel discovery on November 12, 2013, and an opposition to the motion for partial summary judgment on November 25, 2013. Hearings on both motions were held on December 4, 2013. Driver’s motion to compel was argued first and was granted. The trial court then granted partial summary judgment in favor of Cadeville, dismissing Driver’s claims as to Change Orders 17-27. The trial court adopted Cadeville’s position that there could be no oral modification of the agreement. The judgment was certified as an appealable final judgment.

Driver appealed, urging two separate issues: (1) the trial court should not have considered the motion for partial summary judgment on the same lúdate that it granted the motion to compel discovery; and (2) the trial court erred in granting the motion for partial summary judgment. We will address the second argument first. Because we find that the trial court erred in granting the motion for partial summary judgment, we pretermit discussion of the first issue.

CHANGE ORDERS AND SUMMARY JUDGMENT

Driver argues that the trial court erred in granting the motion for partial summary judgment as to the “adder” and “extra work” change orders, as well as for the “extra cost” change orders, because there are genuine issues of material fact as to whether, under the various terms of the contract, Cadeville was required to pay for these items. These arguments have merit.

Legal Principles

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. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053; Carter Enterprises, LLC v. Scott Equipment Co., LLC, 46,862 (La.App.2d Cir.4/11/12), 91 So.3d 1134. Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Finley v. Racetrac Petroleum, Inc., 48,923 (La.App.2d Cir.4/9/14), 137 So.3d 193; Jenkins v. Willis Knighton Med. Ctr., 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247, writ not cons., 2008-1507 (La.10/10/08), 993 So.2d 1273. Appellate courts review summary judgments de novo, under the same criteria that govern a district ^court's consideration of whether summary judgment is appropriate. Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129; Finley v. Racetrac Petroleum, Inc., supra; Jenkins v. Willis Knighton Med. Ctr., supra. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for the purposes of the motion for summary judgment, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Finley v. Racetrac Petroleum, Inc., supra. A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, supra; Carter Enterprises, LLC v. Scott Equipment Co., LLC, supra.

The moving party bears the burden of proof. However, if the movant will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, the movant is not required to negate all essential elements of the adverse party’s claim, action, or defenses; he need only point out an absence of factual support for one or more essential elements of the adverse party’s claim, action or defenses. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2); Carter Enterprises, LLC v. Scott Equipment Co., LLC, supra; Hakim v. O’Donnell, 49,140 (La.App.2d Cir.6/25/14), 144 So.3d 1179.

|7A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. La. C.C.P. art. 966(E).

When a court renders a partial summary judgment as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in the original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(1).

A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. La. C.C. art. 1906. Contracts have the effect of law for the parties. La. C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties.. La. C.C. art. 2045. When 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. La. C.C. art. 2046. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. La. C.C. art. 2049. Each provision in a contract must be interpreted in light of the other provisions so, that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties | sbefore and after the formation of the contract, and of other contracts of a like nature between the same parties. La. C.C. art. 2053.

Although parol evidence is inadmissible to vary the terms of a written contract, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguity and to show the intention of the parties. Dixie Campers, Inc. v. Vesely Co., 398 So.2d 1087 (La.1981); ScenicLand Const. Co., LLC v. St. Francis Med. Ctr., Inc., 41,147 (La. App.2d Cir.7/26/06), 936 So.2d 247.

In this posture, determination of the intent of the parties becomes a question of fact and the granting of summary judgment is appropriate only if there are no genuine issues of material fact. First Bank & Trust v. Redman Gaming of Louisiana, Inc., 13-369 (La.App.5th Cir.12/12/13), 131 So.3d 224.

Discussion

As to the “adder” and “extra work” change orders (change orders 17-19, 22-23), Driver urges that the express language of the contract required Cadeville to pay for the additional scheduled items. Driver contends that the change orders were not necessary, but were a convenient method for invoicing the costs to Cadeville. The contract, in Exhibit C, General Terms and Conditions, addresses changes in the work. Section 9, dealing with changes in work, Paragraphs 9.1 and 9.2 of that section provide:

9.1 Company [Cadeville] may at any time omit, change, alter or add to Work to be performed hereunder by Contractor |9[Priver] and in connection therewith issue additional or revised Specifications, Drawings and written instructions. Contractor shall perform such Work in accordance with such revised Specifications, Drawings and written instruction and pursuant to written authorization executed by Company or Company’s Representative and otherwise in accordance with the provisions of this Contract.
9.2 If such additions, changes or alterations involve Work for which a price is set forth in the Contract Pricing Schedule, Contractor shall be paid for such Work at the price set forth therein. If such additions, changes, or alterations involve Work for which no price is set forth in the Contract Pricing Schedule, Contractor will provide Company with a cost estimate and additional time, if any, required to perform the Work in the form of a Change Order. Contractor shall before the fact obtain written approval from the Company for this work. Such Work shall be performed for a lump sum amount or unit price or, if agreed to by the Company, on a time and material basis, or on any other method agreed upon in writing by the Parties prior to the commencement of such Work. Any unavoidable delays incurred by Contractor in the Work Schedule while awaiting the negotiation and/or approval of any Change Order by Company shall result in additional compensation to Contractor for standby time in accordance with the rate schedules attached to Exhibit B and the completions dates extended a day for a day.

Driver asserts that change orders 17, 18, and 22 fall under the unit price schedule contained in Exhibit B of the contract, which provided the pricing for additional quantities of materials to be furnished by Driver, such as silt fence, hay bales, and mats in excess of those provided for in the basic contract. The basic contract included 20,000 linear feet of silt fence, 200 hay bales, and 500 16-foot mats. The price for additional silt fence in excess of that included in the contract was $6.50 per linear foot; additional hay bales cost $14 each; additional mats cost $350 each. Regarding the method for billing for these additional items, the contract contained the [ mfollowing provision in Exhibit B, Item C, dealing with the unit price schedule:

The items provided below are included in the base lay price at the quantities identified for each item, if any. Each item will be tracked within the .weekly report and will be paid on a unit price basis if quantities exceed the limits shown below. Installation will be tracked on a daily basis and paid in addition to base lay progress payments, defined in Item A above. Contractor and Company will work together to identify the need for additional quantities and execute an appropriate Change Order prior to the installation of any additional items below. However, should an event requiring a Change Order arise that could not have been reasonably foreseen by Contractor and which would cause a delay in the progress of the Work, Contractor shall immediately notify Company of such event, and Company shall have the right (but not the obligation) to give expedited approval of the change by any written document signed by a Company Representative, and such written document (which may include a written confirmation by electronic communication) shall be sufficient for Contractor to proceed, provided that the forgoing expedited procedures may not be used for a change exceeding $12,000 or series of changes related to one event exceeding $25,000 in value, in the aggregate, and if used, Contractor shall thereafter promptly submit a written Change Order, referencing and conforming to such written authorization, for Company’s signature.

Driver maintains that Cadeville was aware of the amount of these items used on a daily basis, due to notices given by Driver in the daily reports.

Driver contends that change orders 19 and 23 fall under the unit price schedule in the contract for extra work only. Change order 19 concerned the installation of additional river weights for 24-inch pipe. The contract provided that Driver would furnish labor, equipment, and materials to install saddlebag river weights as directed by Cadeville’s representative. Driver was to use 5,000-pound weights for 24-inch pipe. The cost of installation of each of these weights was $3,700. The pricing schedule for extra work also Inspecified that additional welds on 24-inch pipe would cost $956 each. Again, Driver argues that, under the terms of the contract, a change order was not required. Also, as to the river weights and additional welds, Driver maintains that persons employed by Cadeville, with authority to make decisions, approved those changes. Therefore, Cadeville was required to pay for these items.

Driver also claims that the trial court erred in granting the motion for partial summary judgment as to the “extra cost” change orders (change orders 20-21, 24-27). According to Driver, these extra costs were caused by Cadeville’s failure to meet its obligations under the contract. Again, under the terms of the contract, Driver maintains that change orders were not necessary. Driver cites the following portions of the contract in support of its argument:

Exhibit C, General Terms and Conditions, Section 4, dealing with materials furnished by the company, Paragraph 4.1, specifies:

Company shall pay for and furnish to Contractor at the Work Site all pipe, valves, fittings, and other materials listed in Exhibit F. Except as listed on Exhibit F, Company shall have no responsibility whatsoever to furnish any other materials or equipment. Contractor agrees to accept custody of materials furnished by Company and to bear all. costs of unloading all such Company furnished materials and all costs of further transportation of such materials except as otherwise specifically provided for in the Contract Pricing Schedule. Contractor and Company will develop a delivery schedule for Company provided materials. Any and all production schedule delays and additional costs incurred by Contractor due to delays associated with material availability or delivery shall be at the expense of Company.

|12Exhibit C, General Terms and Conditions, Section 5, dealing with rights-of-way, permits, and licenses, Paragraph 5.1, provides:

Company agrees to furnish to Contractor the necessary property and right-of-way (servitudes) to adequately and efficiently conduct operations required for the prosecution of the Work (referred to as “Work Site ”) at the location and of the size shown on the Construction Drawings which shall include sufficient temporary land needed as workspace during construction. Company also agrees to furnish permits or licenses where required for construction across railroads, highways, rivers and other such places, as delineated in Exhibit J.

Exhibit C, General Terms and Conditions, Section 10, dealing with prosecution of work, Paragraph 10.2,. states:

If, after commencement of the Work by Contractor, Contractor is delayed in the completion of the Work due to the acts or omissions of Company in failing to furnish equipment, material, Work Site, Change Orders, permits or licenses required by this Contract in order to perform the Work in an effective, contiguous and efficient manner, or due to Force Majeure, Contractor shall be compensated in accordance with Exhibit B and the time for completion shall be extended for a period equivalent to the duration of such delay(s), subject to the other terms of this Contract and the exhibits attached hereto.

According, to Driver, the charges represented by the extra cost change orders were- for work required to accelerate the completion schedule of the project. Driver contends that delays in the completion of the project were caused by Cadeville’s failure to provide pipe in the most efficient lengths and to obtain the necessary permits to work on and to provide access to the rights of way. At one point, Driver alleges that Cadeville did not have any pipe available when needed, almost causing the project to shut down. When Cadeville did acquire the pipe, it requested that Driver accelerate the work to get back on schedule. Driver said that Cadeville’s failure to timely fulfill |isits obligations impacted Driver’s subcontractors, Jones Brothers Trucking, Pierce Construction and Maintenance Co., Inc., and Blue Fin Services, LLC. Driver argues that, as to these change orders, there is &■ genuine issue of material fact as to Cadeville’s obligation to pay.

In addition, Driver submitted evidence in opposition to the motion for partial summary judgment which indicated that Cade-ville had in fact paid for additional work that had been performed without requiring any prior approval or signed change orders.

Needless to say, the contract in this case contains many complex provisions. Although Driver continues to frame the issue as being very straightforward, we disagree. We find that there are both legal issues and numerous genuine issues of material fact regarding Cadeville’s obligation to pay the disputed change orders. There are disputed issues of material fact as to whether change orders were necessary, whether Cadeville was required to execute change orders, and whether Cade-ville representatives gave approval for the additional charges. There are also genuine issues of material fact as to whether some of the charges were caused by Cade-ville’s breach of the contract, making it liable for the charges. Because legal issues and genuine issues of material fact exist, we cannot say that Cadeville is entitled to summary judgment as a matter of law. The trial court erred in granting partial summary judgment in favor of Cadeville.

MODIFICATION OF WRITTEN CONTRACT

Driver also claims that the trial court erred in granting the motion for partial summary judgment despite the existence of numerous issues of 114material fact as to whether the contract between the parties had been modified orally, or by silence, inaction, or implication, as provided for in the jurisprudence of Louisiana. This argument also has merit.

Legal Principles

Agreements entered into have the effect of law upon the parties thereto. La. C.C. art. 1983. Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent. La. C.C. art. 1927; Grosjean v. Grosjean, 45,529 (La.App.2d Cir.10/13/10), ,50 So.3d 233, writ denied, 2010-2623 (La.2/4/11), 57 So.3d 311, and writ denied, 2010-2619 (La.2/4/11), 56 So.3d 980.

An agreement may be modified or abrogated by the mutual consent of the parties. The law is clear that written contracts may be modified by oral contracts and the conduct of the parties. Grosjean v. Grosjean, supra; Smith v. Coffman, 46,793 (La. App.2d Cir.2/8/12), 87 So.3d 137.

La. C.C. art. 1848 provides:
Testimonial or other evidence may not be admitted to negate or vary the contents of an authentic act or an act under private signature. Nevertheless, in the interest of justice, that evidence may be admitted to prove such circumstances as a vice of consent or to prove that the written act was modified by a subsequent and valid oral agreement.

A written construction contract may be modified by oral agreement and by the conduct of the parties, even when the contract provides that change orders must be in writing. Wisinger v. Casten, 550 So.2d 685 (La.App. 2d Cir.1989); Rhodes Steel Bldgs., Inc. v. Walker Const. Co., 35,917 (La.App.2d Cir.4/3/02), 813 So.2d 1171. See also Pelican Elec. 11BContractors v. Neumeyer, 419 So.2d 1 (La.App. 4th Cir.1982), writ denied, 423 So.2d 1150 (La.1982); Newman Marchive P’ship, Inc. v. City of Shreveport, 41,460 (La.App.2d Cir.11/1/06), 944 So.2d 703, writ denied, 2007-0060 (La.3/9/07), 949 So.2d 448, and writ denied, 2007-0097 (La.3/9/07), 949 So.2d 452; Amitech U.S.A., Ltd. v. Nottingham Const. Co., 2009-2048 (La.App.lst Cir.10/29/10), 57 So.3d 1043, writ denied, 2011-0866 (La.6/17/11), 63 So.3d 1036, and writ denied, 2011-0953 (La.6/17/11), 63 So.3d 1043; Bonvillain Builders, LLC v. Gentile, 2008-1994 (La.App.lst Cir.10/30/09), 29 So.3d 625, writ denied, 2010-0059 (La.3/26/10), 29 So.3d 1264; Fleming v. JE Merit Constructors, Inc., 2007-0926 (La.App.lst Cir.3/19/08), 985 So.2d 141; Cajun Constructors, Inc. v. Fleming Const. Co., Inc., 2005-2003 (La.App.lst Cir.11/15/06), 951 So.2d 208, writ denied, 2007-0420 (La.4/5/07), 954 So.2d 146; Aqua Pool Renovations, Inc. v. Paradise Manor Cmty. Club, Inc., 04-119 (La.App.5th Cir.7/27/04), 880 So.2d 875.

Modification of a written agreement can be presumed by silence, inaction, or implication. Fleming v. JE Merit Constructors, Inc., supra; Amitech U.S.A., Ltd. v. Nottingham Const. Co., supra. Whether there is an oral agreement that modified the written contract is a question of fact. Wisinger v. Casten, supra; Pelican Elec. Contractors v. Neumeyer, supra. The party asserting modification of an obligation must prove by a preponderance of the evidence facts or acts giving rise to the modification. Cajun Constructors, Inc. v. Fleming Const. Co., Inc., supra.

|! (¿Discussion

Cadeville cites and relies upon two sections of the contract in support of its argument that the agreement could not be subsequently amended orally or by silence, action, or inaction. The first section, Article VI, of the main portion of the contract provides:

This Contract and the Exhibits hereto constitute the entire agreement between the Parties hereto with respect to the matters covered hereby. No statements, representations, warranties, or agreements with respect to such matters, written or oral, except those expressly set out in this Contract or expressly incorporated herein by reference, shall have any further force or effect between the Parties, or shall same be relied on by the Parties hereto, it being agreed that this Contract supersedes all prior negotiations and understandings. This Contract can be hereafter modified or amended only by a document duly executed by the authorized official of each of the Parties. This Contract shall be binding upon the Parties hereto, their heirs, executors, administrators, successors or permitted assigns.

This provision is similar to that discussed in Salley v. Louviere, 183 La. 92, 162 So. 811 (1935), in which the Louisiana Supreme Court considered a case involving a written lease contract in which the lessor denied that an oral agreement had been made to terminate the lease early. The lessor cited a provision in the lease that she was entitled to a 60-day written notice of the termination of the lease.. The lessee sought to show that the parties agreed orally to terminate the lease. In interpreting the lease agreement and the effect of any subsequent oral modification, the supreme court construed former La. C.C. art. 2276, which provided that parol evidence shall not be admitted against or beyond what is contained in a [17written contract, nor on what may have been said -before, or at the time of the making of the contract, or since. The court in Salley stated:

This article of the Code is not to be construed so as to forbid the proving by parol evidence of a subsequent agreement modifying or abrogating a written contract of a character which the law does not require to be in writing. It is true that the article says that parol evidence shall not be admitted to prove what may have been said by the parties to a written contract, before or at the time of making the contract, or since. But the meaning is that parol evidence as to what the parties to a written contract may have said at any time shall not be admitted for the purpose of proving that they had an antecedent or a contemporaneous agreement contrary to that which was reduced to writing. The words “or since” have reference to the phrase “what may have been said,” and not to what may have been agreed to, since the making of the written contract. It is well settled that this article of the Civil Code does not forbid the proving by parol evidence of a subsequent agreement to modify or to revoke a written agreement. [Emphasis supplied.]

The court concluded that the lessee proved a verbal agreement to terminate the lease. See also Shreveport Plaza Associates Ltd. P’ship v. L.R. Res. II, 557 So.2d 1067 (La.App. 2d Cir.1990); Walilder v. Tiger Stop, Inc., 391 So.2d 535 (La.App. 3d Cir. 1980), writ denied, 396 So.2d 1351 (La. 1981).

An integration clause, such as that found in Article VI of the contract in this case, precludes any prior or contemporaneous agreements which are not set forth in the contract. It does not prohibit subsequent agreements or modifications which may be made orally, or by silence, inaction, or implication.

In further support of its argument that the agreement between the parties could only be modified in writing, Cadeville cites Harnischfeger \KSale Corp. v. Sternberg Co., 179 La. 317, 154 So. 10 (1934), and Henning Const., Inc. v. First Eastern Bank and Trust Co., 92-0435 (La.App.4th Cir.3/15/94), 635 So.2d 273, ivrit denied, 94-1544 (La.9/30/94), 642 So.2d 870, which also deal with integration clauses. These cases are inapposite to the facts of the present matter. In Hamischfeger, a suit for the balance due on a promissory note, the defendant sought to show that it did not have the obligation to pay for a drag-line machine because, at the time of the purchase, the seller represented that the machine could do work which, in fact, it could not do. The supreme court found parol evidence of the alleged warranty language to be inadmissible because the contract provided that there were no “understandings, representations, or agreements between the parties not herein expressed.” The court would not allow evidence of pri- or or contemporaneous oral agreements. This holding was in accordance with former La. C.C. art. 2276, as interpreted in Salley v. Louviere, supra. The facts of Hamischfeger did not concern a subsequent oral agreement and, therefore, the case has no application in the matter before us.

In Henning, the fourth circuit considered a suit on promissory notes which specified that the notes constituted the entire agreement between the parties. On appeal, the plaintiff argued that the trial court erred in finding that the notes constituted the entire agreement between the parties. There was no indication in the case as to what other agreement the defendant claimed to exist. The fourth circuit concluded that the notes were the entire agreement between the parties. We observe that Henning is governed by the Uniform Commercial Code (“UCC”) on negotiable instruments, contained | l9in La. R.S. 10:3-101 et seq. The UCC establishes a very specific statutory scheme that applies to negotiable instruments, such as considered in Henning. La. R.S. 10:3-117 provides:

Subject to applicable law regarding exclusion of proof of contemporaneous or previous agreements, the obligation of a party to an instrument to pay the instrument may be modified, supplemented, or nullified only by a separate written agreement of the obligor and a person entitled to enforce the instrument, if the instrument is issued or the obligation is incurred in reliance on the agreement or as part of the same transaction giving rise to the agreement. To the extent an obligation is modified, supplemented, or nullified by an agreement under this Section, the agreement is a defense to the obligation.

This provision imposes a statutory .requirement for a separate written agreement to modify, supplement, or nullify a negotiable instrument. The UCC laws on negotiable instruments do not apply to construction contracts, which are at issue in the present case. Therefore, Henning is not applicable to this matter.

Cadeville also argues that Chrysler Fin. Corp. v. Zupanovic, 98-2142 (La.App.4th Cir.3/17/99), 735 So.2d 60, and Chrysler Fin. Corp. v. Thompson, 99-1931 (La. App.4th Cir.11/10/99), 746 So.2d 802, stand for the proposition that a subsequent oral modification of a written agreement is ineffective where the agreement states that no modification of the contract is valid unless made in writing. These cases do not cite any legal authority for the decisions. We observe that both cases concern motor vehicle credit transactions. These transactions are governed by the Louisiana Motor Vehicle Sales Finance Act (“LMVSFA”) found in La. R.S. 6:969.1 et seq. This very specific statutory scheme contemplates an original agreement in |20writing for enforceability. It provides that a consumer may not waive or agree to forgo the rights and benefits of the Act. La. R.S. 6:969.4. The present case does not concern the purchase of a motor vehicle and this statutory scheme has no application to the present matter.

Cadeville also cites another portion of the contract with Driver in support of its argument that the contract could not be subsequently amended except in writing. The contract contained the following provision regarding change orders in Exhibit B, Item (A)(5):

Contractor acknowledges that all of the documentation provided by Company has been reviewed, including the scope of the work, and understands the associated risks, difficulties, and responsibilities pursuant to the Work. Contractor also acknowledges that Change Orders are highly discouraged by the Company and that Company will not approve a Change Order for any change or addition that Contractor should have identified during the bidding process. Should Contractor determine during the performance of the Work that the Company-provided scope of work, drawings and specifications upon which Contrae-tor developed its pricing contain any previously unidentified error of a material nature then Contractor shall give Company prompt written notice of such error, in reasonable detail. Contractor shall be entitled to a Change Order for any additional costs to Contractor which are directly related to such previously undiscovered error, other than an error that should have been reasonably discovered or determined by Contractor during its due diligence review of such bid documentation.

As set forth above, the law and jurisprudence are clear that, even when a contract states that a change order must be in writing, a change can be made orally, by silence, inaction, or implication. While Cadeville |2i contends that the parties “opted out” of this jurisprudence, it has presented no authority for its position that a court would be absolutely precluded from finding that such a modification has in fact occurred. Cadeville’s contention that Rhodes Steel Bldgs., Inc. v. Walker Const. Co., supra, supports its position is an incorrect interpretation of the law. In Rhodes, the plaintiff contended it had a subsequent agreement with a general contractor to do additional work on a building project not included in the original contract between the parties. The trial court refused to allow evidence of oral modifications of the contract. This court reversed that decision, noting the extensive jurisprudence set forth above, that written construction contracts may be modified by oral contracts and the conduct of the parties even when the original contract contains a provision that change orders must be in writing. This court then made a casual observation that the contract in Rhodes did not prohibit oral modification of the written provisions. That statement does not serve as authority for the “opt out” argument and legal theory advanced by Cadeville. Although the contract in Rhodes did not prohibit oral modification, even if it had, as noted by the court in that case, oral modifications still could have been proven.

Cadeville further cites Lantech Const. Co., LLC v. Speed, 08-811 (La.App.5th Cir.5/26/09), 15 So.3d 289, in support of its argument. In Lantech, a contract apparently required written change orders. The plaintiff sought to recover additional charges based upon oral change orders. Citing the well-settled law that written contracts can be modified by oral contracts and the conduct of the parties, even when the written contract contains aj^provision that change orders must be in writing, the trial and appellate courts allowed recovery for change orders. In part, Cadeville bases its argument that it “opted out” of Louisiana legal principles on the following language'in Lantech:

The contract in question clearly requires written requests for modification. Nevertheless, the contract does not expressly prohibit oral modification.

This language is contradictory and we do not find that Lantech supports Cadeville’s position. As conceded by Cadeville in argument before the trial court and this court, if the law regarding oral amendments applies to this case, then there are genuine issues of material fact that have been raised as to whether there was an oral agreement to modify the original contract. In this case, the plaintiff submitted evidence in opposition to the motion for partial summary judgment that Cadeville had paid for work that had not been approved in writing and thus, the parties had deviated from the contract provisions that Cadeville now seeks to rely upon. We also note that the plaintiff produced some email communications between the parties. One email regarding crew delays concludes, “In short, foreseeable costs to Cadeville will be Cadeville’s responsibility, and foreseeable costs to Driver (and expediting costs) will be Driver’s responsibility. Please proceed accordingly.” At the very least, the evidence submitted by the plaintiff demonstrates that there is a genuine issue of material fact as to whether the parties had modified the terms of their written contract.

We find that the jurisprudence allowing a party to a construction contract to prove the modification of a written contract orally or by silence, | ^inaction, or implication, even where the contract provides that modifications must be in writing, applies here. The facts of the present case fit squarely with the extensive and well-settled law on this issue. The trial court erred in holding otherwise.

CONCLUSION

For the reasons stated above, we reverse the decision of the trial court granting partial summary judgment in favor of the defendant, Cadeville Gas Storage, LLC, dismissing the claims of the plaintiff, Driver Pipeline Company, Inc., regarding the change orders discussed herein. The matter is | ^remanded to the trial court for further proceedings. Costs in this court are assessed to Cadeville Gas Storage, LLC.

REVERSED; REMANDED FOR FURTHER PROCEEDINGS.

      . The record indicates that the parties were involved in a very contentious discovery dispute which began in June 2013, when Driver propounded interrogatories and requests for production of documents. Although some 12,000 pages of documents were produced, the parties had serious disagreements concerning the method by which additional documents would be produced. Cadeville suggested a web page and database created by its attorneys, to which Driver objected. Numerous letters and emails followed and the parties reached an impasse, which resulted in the motion to compel. After Driver prevailed on the motion to compel, it appears from arguments made to this court. that more than 38,000 additional documents were produced.

      . La. C.C. art. 1848, Revision Comments-1984, (a) state that this provision reproduces the substance of former La. C.C. art. 2276, and incorporates exceptions recognized by the Louisiana jurisprudence.

      . La. R.S. 6:969.6(10) defines a contract under the LMVSFA as:
      "Contract” means the consumer’s retail installment contract, note, agreement, or other evidence of indebtedness executed in connection with a motor vehicle credit transaction.

      . It appears that the trial court ruling in this case was influenced, in part, by Cadeville’s argument that it would be more expeditious, from an appellate review standpoint, for the trial court to grant the motion for partial summary judgment as opposed to denying the relief. The following colloquy occurred immediately before the trial court ruled from the bench that it would grant the motion for partial summary judgment:
      [Cadeville’s counsel]: Let's see what the Second Circuit says. Let’s see if the Second Circuit was serious when they decided Rhodes Steel. We can always come back if we’re wrong. We can always come back and try this case but our only chance now to save the court resources-my client, their client, the resources and get a read on whether this means anything is to grant the summary judgment, certify it as final, and let's go have it heard. In the meantime, we can do all the discovery they need to do on our reconventional demands and be ready to go when the, six or eight months from now, when the Second Circuit tells us the deal. But if we lose this moment, we're launching off.
      [The trial court]: You could take writs. [Cadeville’s counsel]: Certainly I can, Your Honor, but'—
      [The trial court]: You can take writs on it. [Cadeville's counsel]: But we know how hard it is for me to get the Second Circuit to pick up on a writ.
      [The trial court]: They may overrule my decision. They’ve done so in the past so— won’t hurt my feelings. I mean, that’s what they're there for.
      [Cadeville's counsel]: But, Your Honor, if you grant it then we get to get it decided in the short term.
      [The trial court]: I understand.


author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Bobby D. HIGGINBOTHAM, Appellant.
    No. 49,395-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 1, 2014.

      Bobby D. Higginbotham, In Proper Person, Appellant.
    James Edward Paxton, District Attorney, Molly F. McEacharn, Assistant District Attorney, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   DREW, J.

|,Bobby Higginbotham, the former May- ■or of the Town of Waterproof (“Waterproof’), was convicted in May of 2010 of malfeasance in office and felony theft. A partial mistrial was granted on a charge of public contract fraud, which allegedly occurred out of Higginbotham’s Place, a convenience store that was Higginbotham’s purported business. On rehearing, this court affirmed Higginbotham’s convictions and sentences. State v. Higginbotham, 46,975 (La.App.2d Cir.4/25/12), 122 So.3d 1, writ denied, 2012-1718 (La.5/24/13), 116 So.3d 658.

During the course of investigating Higginbotham and Miles Jenkins, the Town’s Chief of Police, search warrants were executed at Higginbotham Place, Waterproofs Town Hall, and the Waterproof Police Department.

A property receipt dated July 29, 2010, and cross-referenced with the search warrant returns, lists computer items seized in connection with State v. Bobby Higginbotham and Miles Jenkins:

• Dell Dimension 8200 computer seized from Higginbotham Place;

• Dell Dimension 4100 computer seized from Higginbotham Place;

• Cash Register Systems computer seized from Higginbotham Place;

• Compaq Prosigma computer seized from main computer desk at the Waterproof Town Hall;

• Dell computer seized from Higginbotham’s office at the Waterproof Town Hall;

• Lexmark printer seized from Higginbotham’s office at the Waterproof Town Hall;

• Compaq Presario computer presumably . seized from Jenkins’s office at the Waterproof Police Department;

12* E-Machines computer; and

• HP computer that is presumably the laptop found in a computer bag in Jenkins’s office at the Waterproof Police Department.

According to a release executed by the District Attorney’s office on July 29, 2010, all of the items on the property list except the laptop were returned to Waterproof as their owner.

On February 11, 2013, Higginbotham filed in the criminal proceeding a motion to release seized property. He asked that all property seized from the business operation of U.S. 65 South Partnership, including computers and passports, be returned. He contended that the seized property was not used in evidence at trial, and therefore, it should be disposed of according to La. C.Cr.P. art. 167. Nine days later, Higginbotham filed an amended motion to show cause why the seized property should not be returned to him.

On February 20, 2013, the district court denied Higginbotham’s motion for release on the grounds that release would be premature because he had a pending writ before the Louisiana Supreme Court. Higginbotham applied for a supervisory writ, which this court denied. While a writ to the supreme court was denied, the supreme court also stated that because the writ in his criminal proceeding was denied on May 24, 2013, and no longer pending, he was free to re-urge his motion to return seized property in the district court.

On July 1, 2013, Higginbotham filed a motion to show cause why seized property should not be returned to him. He asserted that his passport, |san HP computer, and two Dell computers were seized from him pursuant to a search warrant on August 28, 2008.

The State responded on July 11, 2013, that it had the passport but did not have sufficient information and proof of ownership of the computers to show they belonged to Higginbotham. The State contended that it would proceed with his request once he presented proof of purchase and ownership, together with specific identifying information, of the computers.

On July 12, 2013, the district court ordered the return of the passport, as well as the computers, within five days of being provided with satisfactory proof of ownership.

On July 16, 2013, Higginbotham filed a motion for reconsideration of the district court’s July 12 order. He contended that a certified public accountant and Waterproof were not required to provide ownership before their computers were returned. He further contended that records of his computer purchases were lost in Hurricane Katrina, and that the computers would identify their owner when they were turned on.

On July 19, 2013, the district court entered an order requesting that the State inform it within 15 days about where the computers were located, as well as the basis for any claim of ownership by any entity. The district court also asked if the parties would be satisfied with an order requiring receipt in the form of an affidavit signed by Higginbotham in which he Ragreed to hold harmless and indemnify the State against any competing claims of ownership.

On July 25, 2013, the State filed a response to the motion for reconsideration. The State noted that it had returned one Dell CPU and two other CPUs from Higginbotham Place and one Dell computer and one Compaq computer from Waterproofs Town Hall to Waterproof. The Hewlett Packard laptop computer was retained because of pending criminal charges against Jenkins and because Jenkins had made a claim for it. The State requested that Higginbotham’s claim be directed to Waterproof since it was in possession of the computers that had been returned. The State noted that while some of the computers had been seized from Higginbotham Place, Waterproofs business had been regularly handled there. In addition, other items belonging to Waterproof had been seized at Higginbotham Place, and both Higginbotham and Waterproof had claimed those items in March of 2009.

On August 5, 2013, Higginbotham filed a motion to compel the State to return the property seized from Higginbotham Place. He asserted that while Higginbotham Place was owned by U.S. 65 South Partnership, the computers that were seized there belonged to him. He sought return of the three computers or a total of $1,636 for their value and the value of the software.

On August 23, 2013, the district court ruled in response to Higginbotham’s latest motion. It denied the motion insofar as it sought the return of the laptop which was still being held by the State. It further | ¿ordered that if Higginbotham wanted to assert his ownership of the two Dell computers, then he was required to file a motion seeking a contradictory hearing with Waterproof pursuant to La. R.S. 15:41. On September 5, 2013, Higginbotham filed a motion to seek a supervisory writ from this order.

Following the court’s order, Higginbotham filed a second motion for reconsideration in which he wanted to obtain Waterproofs proof of ownership justifying the return of computers to the town. Also, on September 6, 2013, he filed a motion to show cause why seized property should not be returned to him. He prayed for an order directing the “State of Louisiana via James Paxton and the Town of Waterproof’ to show cause why the seized property should not be returned to him.

On September 27, 2013, the district court deferred taking action on either the second motion to reconsider or the September 6 motion to show cause on the grounds that both were related to issues pending before this court on Higginbotham’s writ application.

This court granted Higginbotham’s writ application from the August 23, 2013, ruling and converted it to an appeal. In its brief to this court, the State noted that the laptop it had retained was placed in the court registry after the State filed a petition for concursus proceeding on April 17, 2014, naming both Higginbotham and Jenkins as parties.

DISCUSSION

When property is seized pursuant to a search warrant, it shall be retained under the direction of the judge. If seized property is not to be used | (¡as evidence or is no longer needed as evidence, it shall be disposed of according to law, under the direction of the judge. La.C.Cr.P. art. 167.

Regarding the disposition of property seized in connection with a criminal proceeding, La. R.S. 15:41 provides in part:

A. If there is a specific statute concerning the disposition of the seized property, the property shall be disposed of in accordance with the provisions thereof.
B. If there is no such specific statute, the following governs the disposition of property seized in connection with a criminal proceeding, which is not to be used as evidence or is no longer needed as evidence:
(1) The seized property shall be returned to the owner, unless a statute declares the property to be contraband, in which event the court shall order the property destroyed if the court determines that its destruction is in the public interest; otherwise, Paragraph (2) of this Section shall apply.
C. Where the release of seized property is sought by a person claiming to be the owner, it shall be released only upon motion contradictorily with the clerk of court. In all other cases the court may either render an ex parte order for the disposition of the property as herein provided on motion of any interested person, or on its own motion, or the court may require a motion contradictorily with the apparent owner or the person in possession of the property at the time of the seizure.

Although the computers have long since been released, La.C.Cr.P. art. 167 and La. R.S. 15:41 still offer guidance. Higginbotham can establish ownership of the laptop in the concursus proceeding, and ownership of the three computers seized from Higginbotham Place in a contradictory hearing against Waterproof, which is in possession of the computers. Accordingly, the district court did not abuse its discretion in denying Higginbotham relief.

DECREE

At Higginbotham’s costs, we AFFIRM.

      . This was listed as item # 21 on the return.

      . This was listed as item # 20 on the return.

      . In an effort to provide identifying information about the computers, he asserted that one computer had Professional Temporaries payroll on it, a second computer had a pricing program for U.S. 65 South Partnership on it, and a third computer had general correspondence on it.