author: McClendon, j.

text:
    Emile J. GROS, John Farrell Chustz, Kernie J. Gros, Sharon Adams Jarreau, Arthur J. Delapasse, Brenda Delapasse Leteff, Carl J. Anderson, Gertrude Maze Anderson, Oliver J. Jack, Sr., Hilda Sanchez Delapasse, Emile David, Jr., and Marilyn Adams David v. BOISVERT FARMS, LLC.
    No. 2013-CA-0016.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 27, 2014.

      James P. Dore, R. Benn Vincent, Jr., Lyn S. Savoie, Baton Rouge, Louisiana, for Plaintiffs/Appellees Emile J. Gros, John Farrell Chustz, Kernie J. Gros, Sharon Adams Jarreau, and Marilyn Adams David.
    S. Jess Sperry, Juston M. O’Brien, Brook L. Thibodeaux, Baton Rouge, Louisiana, for Defendant/Appellant Boisvert Farms, LLC.
    Before PETTIGREW, McDONALD, and McClendon, jj.
   McClendon, j.

| ¡The defendant appeals the trial court’s judgments that granted the plaintiffs’ motion for summary judgment, declaring the plaintiffs to be the rightful possessors and owners of their respective immovable properties, including the 100-foot-wide strip of property at issue herein. For the reasons that follow, we affirm the judgments of the trial court.

FACTUAL AND PROCEDURAL HISTORY

On April 8, 2011, Emile J. Gros, John Farrell Chustz, Kernie J. Gros, Sharon Adams Jarreau, Arthur J. Delapasse, Brenda Delapasse Leteff, Carl J. Anderson, Gertrude Maze Anderson, Oliver 3. Jack, Sr., Hilda Sanchez Delapasse, Emile David, Jr., and Marilyn Adams David filed a petition for declaratory judgment and other relief against Boisvert Farms, LLC. In their petition, plaintiffs asserted that, on September 2, 2010, Bois-vert Farms disturbed the peaceable possession of their adjacent properties by filing a quitclaim deed in the public records of West Baton Rouge Parish that purported to evidence Boisvert Farms’ ownership of a 100-foot-wide strip of property across the properties of plaintiffs. The quitclaim deed, dated August 31, 2010, between Union Pacific Railroad Company and Boisvert Farms, included the property at issue. Plaintiffs asserted that they had openly enjoyed peaceful, quiet, and uninterrupted possession of their properties for more than one year prior to the act of disturbance and that they were entitled to a declaratory judgment maintaining their possession, enjoyment, and ownership of the property, including the 100-foot-wide strip of property at issue.

13Boisvert Farms filed an answer, denying the allegations of the petition and asserting that plaintiffs were not possessors of the property. Thereafter, on January 4, 2012, plaintiffs filed their motion for summary judgment, requesting the trial court to grant their request for a declaration of possession and ownership of their respective properties, including the 100-foot-wide strip of property. The hearing on the motion was set for May 30, 2012, and on May 23, 2012, Boisvert Farms filed its opposition to the summary judgment motion.

In the meantime, Oliver J. Jack, Sr., Arthur J. Delapasse, Brenda Delapasse Leteff, Hilda Sanchez Delapasse, Carl J. Anderson, Gertrude Maze Anderson, and Kernie J. Gros (only as to Lot B — 1) entered into settlement agreements with Boisvert Farms, and on May 30, 2012, after filing a motion to dismiss, they were dismissed from the suit with prejudice. Additionally, the hearing was continued as to Emile David, Jr. and Marilyn Adams David, due to Mr. David’s health issues. Further, on May 29, 2012, the remaining plaintiffs, Emile J. Gros, John F. Chustz, Sharon Adams Jarreau, and Kernie J. Gros, filed their reply memorandum for summary judgment, which included arguments regarding acquisitive prescription.

At the conclusion of the hearing on May 30, 2012, the trial court granted the motion for summary judgment. On August 1, 2012, a judgment was signed by the trial court, granting the motion for summary judgment as to Emile J. Gros, John F. Chustz, Sharon Adams Jarreau, and Ker-nie J. Gros. Also on August 1, 2012, the trial court signed a judgment, granting summary judgment as to Marilyn David. In the judgments, Emile J. Gros, John F. Chustz, Sharon Adams Jarreau, Kernie J. Gros (only insofar as to Lot 4), and Marilyn David were declared to be the rightful possessors and owners of their respective properties, including the 100-foot-wide strip of property at issue.

|4Boisvert Farms appealed the judgments. In its appeal, Boisvert Farms assigns the following as error:

1. The trial court erred in granting summary judgment based on good faith acquisitive prescription when it was not pled or raised in the motion for summary judgment.
2. The trial court erred in granting summary judgment when the undisputed evidence before it established ownership, prior possession, and continued possession in Boisvert Farms.

SUMMARY JUDGMENT AND THE STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Granda v. State Farm Mutual Insurance Company, 04-2012 (La. App. 1 Cir. 2/10/06), 935 So.2d 698, 701. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Summary judgment is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.” LSA-C.C.P. art. 966(A)(2).

The burden of proof on a motion for summary judgment remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements ^determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Lewis v. Morgan, 93 So.3d 741, 744 (La.App. 1 Cir. 2012).

The mover bears the burden of proving that he is entitled to summary judgment LSA-C.C.P. art. 966C(2). When the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Hines v. Garrett, 876 So.2d 764, 766 (La.2004). Such an affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evi-dentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. Id. at 766-67. If the mover has put forth supporting proof through affidavits or otherwise,' the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967B; Mitchell v. Southern Scrap Recycling, L.L.C., 11-2201 (La.App. 1 Cir. 6/8/12), 93 So.3d 754, 757, writ denied, 12-1502 (La.10/12/12), 99 So.3d 47.

In summary, when the mover will bear the burden of proof at trial, the initial burden of proof on a motion for summary judgment remains with the mover to show that no genuine issue of material fact exists. Lewis v. Four Comers Volunteer Fire Dept., 08-0354 (La.App. 1 Cir. 9/26/08), 994 So.2d 696, 699. Once the mover makes a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Id.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines, 876 So.2d at 765. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in |filight of the substantive law applicable to the case, Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La.3/10/06), 923 So.2d 627, 632.

DISCUSSION

Chapter I of Title II of the Code of Civil Procedure, is entitled “Actions to Determine Ownership or Possession”, and provides for three different actions through which one can assert ownership or possession of real property. Louisiana Code of Civil Procedure Article 3651 provides for petitory actions, which are actions brought by a person who claims the ownership, but who is not in possession, of immovable property or of a real right therein, against another who is in possession or who claims the ownership thereof adversely, to obtain judgment recognizing the plaintiffs ownership. Secondly, LSA-C.C.P. art. 3654 provides that “the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment_” A plaintiff who is in possession of the property at issue can bring an action for declaratory judgment, thereby raising issues of possession and ownership in the same action. Lafourche Realty Co. v. Duard Eymard Co., Inc., 93-1278 (La.App. 1 Cir. 6/24/94), 688 So.2d 1138, 1139. Finally, LSA-C.C.P. art. 3655 provides for possessory actions.

In this matter, Boisvert Farms initially contends that summary judgment cannot be granted on an issue that was not presented in the motion for summary judgment. It asserts that acquisitive prescription was not pled in either the petition or the motion for summary judgment, and it was not until plaintiffs |7filed their reply memorandum that the issue of acquisitive prescription was raised. However, in their petition, plaintiffs requested that they be declared the rightful possessors and owners of the 100-foot-wide strip at issue. Further, in their motion for summary judgment, plaintiffs again sought a declaration of possession and ownership of the disputed property. Plaintiffs clearly put at issue the ownership of the 100-foot-wide strip by filing the declaratory judgment action pursuant to LSA-C.C.P. art. 3654, and we find Boisvert Farms’ argument to be without merit.

Boisvert Farms also argues that the trial court erred in its application of the law of possession. It asserts that the trial court erred in not beginning its analysis in 1910, when Boisvert Farms’ predecessor, the New Orleans, Texas & Mexico Railroad acquired the property at issue. Boisvert Farms claims that the railroad maintained possession of the property until it was transferred to Boisvert Farms. Thus, Boisvert Farms contends that the railroad was in possession of the disputed strip prior to the plaintiffs and that the railroad was never evicted and never lost civil possession.

Conversely, plaintiffs maintain that each plaintiff individually evicted the railroad of its possession and they began possessing as owners in their own right and, in fact, became owners of the disputed property long before the railroad ever transferred any purported interest it may have had in the property to Boisvert Farms.

As previously noted, Article 3654 provides that a person who is in possession of immovable property may institute an action for declaratory judgment for the recognition of his ownership against a person who claims ownership of the same property. Mt. Everett African Methodist Episcopal Church v. Carter, 96-2591 (La. App. 1 Cir. 12/29/97), 705 So.2d 1179, 1181. J^Thus, under the provisions of LSA-C.C.P. art. 3654, the first issue that must be determined is the question of current possession. Possession determines who has the burden of proof. When one party claims possession of one year to the exclusion of the other party and the court finds as a matter of fact that one party had possession for one year, the second party pleads his title. Then, the burden shifts to the one pleading title to make out his title good against the world. Id.

Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name. LSA-C.C. art. 3421. Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it. LSA-CC art. 3422. To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. LSA-C.C. art. 3424. The possessor must prove that: 1) he had possession during the disturbance; 2) he and his predecessors in title had possession without interruption and quietly for more than a year immediately prior to the disturbance, unless evicted by force or fraud; 3) the disturbance could be one in fact or in law; and 4) the possessory action was instituted within a year of the disturbance. LSA-C.C.P. art. 3658; Mai v. Floyd, 05-2301 (LaApp. 1 Cir. 12/6/06), 951 So.2d 244, 246, twit denied, 07-0581 (La.5/4/07), 956 So.2d 619.

| nPossession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation. LSA-C.C. art. 3433. Louisiana Code of Civil Procedure article 3659 provides:

Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law.
A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.
A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.

Plaintiffs maintain that any alleged possession by the railroad was disturbed in fact and disturbed in law by plaintiffs, and the railroad never took any steps to quiet their disturbances. Plaintiffs allege that the execution and recordation of each of their titles, none of which contain any reservation or mention that the railroad company owned any portion of the 100-foot-wide disputed strip of property, evidences a disturbance in law. Plaintiffs further allege disturbances in fact on their properties, including the growing of sugar cane; the grazing of cattle; constructing and maintaining roadways; building structures on the properties; mowing, grading, and maintaining the properties; leasing the properties for farming and mineral purposes; using the properties for recreational purposes; and paying taxes on the properties. Plaintiffs contend that once they recorded title to their properties and began possessing the 110properties as owners, the railroad had one year to file a claim to reclaim possession, but the railroad failed to do so.

One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. LSA-C.C. art. 3426. Plaintiffs assert that once they established possession, they constructively possessed their entire properties, which included the 100-fooh-wide strip at issue. Plaintiffs further contend that based on their just title, possession, and good faith, they each became owners of the 100-footr-wide strip long before the railroad purported to sell any interest it might have in the disputed property to Boisvert Farms, either through ten-year or thirty-year acquisitive prescription.

Boisvert Farms, however, argues that it has valid title to the 100-foot-wide strip. Therefore, according to Boisvert Farms, it was entitled to establish possession by tacking onto the railroad’s possession. Boisvert Farms maintains that plaintiffs have presented no evidence of eviction and that they are not possessors of the disputed property.

In support of their motion for summary judgment, each plaintiff presented evidence regarding his or her possession and ownership.

As to John F. Chustz, Mr. Chustz submitted his affidavit, with attachments, in which he attested that he purchased Lot 7, consisting of 28.62 acres, on March 20, 1972. He further attested that since acquiring the property, he had engaged in various acts of possession, including the building of a fence around the property and farming cattle across the property, including the disputed strip. Mr. Chustz further stated in his affidavit that from 1975 through 1982, he built barns and livestock pens on the property, including over the disputed property. He stated he has entered into various oil, gas, and mineral leases covering the entirety of the property, and that he has paid taxes on the property since he purchased it in 1972.

InSharon Adams Jarreau also filed an affidavit, with attachments, in which she stated that on February 1, 1991, her parents donated Lot 6-B, containing 11.53 acres, to her. She further attested that the property has had sugar cane on it since her father purchased it in 1947, and that the 100-foot-wide strip has been specifically farmed since April 1958, when her “father and brothers cleared it of the abandoned railroad line.” Ms. Jarreau stated that there are active sugar cane leases on the property and that, in addition to farming, she uses the property with her family for recreational purposes. She also attested that she has been paying the taxes on the lots since she became owner of the properties in 1991.

Emile J. Gros submitted his affidavit, with attachments, and attested that he and his wife are the owners of Lot 5-F, Lot 5-C-l, Lot 5-E-l, Lot 5-D-2, and Lot 5-D. He stated that they acquired an undivided one-quarter interest in Lot 5, containing 67.38 acres, on June 7, 1980. On January 26, 1994, by an act of partition, Mr. and Mrs. Gros acquired 16.24 acres, designated as Lot 5-F. On October 5, 1999, they acquired Lot 5-C-l, containing 5.08 acres, in an exchange of property. Mr. and Mrs. Gros also acquired Lot 5-E-l, containing 6.73 acres, on July 27, 2000; Lot 5-D-2, containing 5.23 acres, on May 16, 2001; and Lot 5-D on September 11, 2002. Mr. Gros further attested that since acquiring the property, he has engaged in various acts of possession and ownership, including the planting, growing, and harvesting of sugar cane on the property; grazing of cattle across the property; constructing and maintaining roadways across the property; using the property with his family for recreational purposes, including the use of four-wheelers and horseback riding; entering into oil, gas, and mineral leases; mowing, grading, and maintaining the entirety of the property; and paying taxes on the property.

Kernie Joseph Gros filed his affidavit, with attachments. He attested that he acquired Lot 4 on July 29, 1994, and that since acquiring the property, he has engaged in various acts of possession and ownership, including the planting, growing, and harvesting of sugar cane on the property; constructing and | ^maintaining roadways across the property; using the property with his family for recreational purposes, including the use of recreational vehicles; entering into oil, gas, and mineral leases; mowing, grading, and maintaining the entirety of the property; and paying taxes on the property.

Marilyn Adams David also submitted her affidavit, with attachments, in which she stated that on February 1, 1991, her parents donated Lot 6-A, containing 16.80 acres, to her. She further attested that the property has had sugar cane on it since her father purchased it in 1947, and that the 100-foot-wide strip has been specifically farmed since April 1958, when her “father and brothers cleared it of the abandoned railroad line.” Ms. David stated that there are active sugar cane leases on the property and that, in addition to farming, she uses the property with her family for recreational purposes. She also attested that she has been paying the taxes on the property since she became owner in 1991.

Each of the plaintiffs further attested that when they purchased their properties, at no point was it ever brought to their attention, nor depicted in any survey, that a railroad company might have an interest in any of the properties. Additionally, plaintiffs stated that they considered themselves to be the sole and exclusive owners and possessors of their properties, that their possession has been constant and without interruption since at least the time plaintiffs acquired their property, and that there had been no adverse claims of ownership against any plaintiffs property until September 2, 2010, when the quitclaim deed of Boisvert Farms was filed.

In opposition to the motion for summary judgment, Boisvert Farms submitted the affidavit of George Pierson, an attorney and title examiner, as well as excerpts from the depositions of Mr. Chustz, Kernie Gros, Ms. Jarreau, and Emile and Earline Gros. Boisvert Farms argues that Mr. Pierson, after examining the abstract of title and other documents, concluded that Boisvert Farms had title to the lOO-foot-wide strip.

11sIn his affidavit, Mr. Pierson stated that he has been an attorney and title examiner in Louisiana since 1976. His title examination and opinion of title was based on an abstract of title certified from August 2,1910 until April 25, 2012, various maps, and a review of the history of the Union Pacific Railroad Company. Mr. Pierson concluded that from August 2, 1910, when the New Orleans Texas & Mexico Railroad Company acquired the 100-foot-wide strip that traversed through Lots 1 through 12 of Tonawanda Plantation, through the merger of the railroads into the Union Pacific Railroad Company on October 20, 1997, and continuing up to the time of the quitclaim deed, the disputed strip of property was and continued at all times to be owned in full ownership by the railroad. Mr. Pierson therefore concluded that Boisvert Farms was the full owner in fee simple title of the 100-foot-wide strip of property conveyed in the quitclaim deed.

The trial court concluded that plaintiffs possessed the property with intent to own and, in fact, did so from the time the railroad left in the 1950s until Boisvert Farms filed its quitclaim deed. The court also found that each of the plaintiffs acquired the ownership of the 100-foot-wide strip by either ten-year or thirty-year acquisitive prescription. Finding no genuine issue of material fact, the trial court granted summary judgment, declaring the plaintiffs to be the owners of the 100-fooh-wide disputed strip of property.

Upon our own thorough de novo review of the record, we agree with the trial court that plaintiffs were in possession of the disputed strip. Therefore, Boisvert Farms had the burden of proving that its title was good against the world. See ML Everett African Methodist Episcopal Church, 705 So.2d at 1182. Boisvert Farms, however, did not, and could not, meet this burden of proof. At the time Boisvert Farms filed its quitclaim deed, its predecessor, the Union Pacific Railroad Company was not the owner of the 100-foot-wide strip of property. The railroad’s possession was interrupted by the possession of the disputed property by plaintiffs. Plaintiffs established corporeal and constructive 114possession of the disputed strip by their titles and acts of possession and the railroad’s lack of intent to own. Therefore, the burden shifted to Boisvert Farms to show the existence of a genuine issue for trial. Boisvert Farms failed to present evidence sufficient to prove that it “acquired ownership from a previous owner” in 2010, as the railroad was no longer the possessor or owner of the property. Accordingly, because we find no genuine issue of material fact, the trial court correctly determined that the plaintiffs are the possessors and owners of the 100-foot-wide strip of property, and their motion for summary judgment was properly granted.

CONCLUSION

For the above and foregoing reasons, we affirm the August 1, 2012 judgments of the trial court, granting summary judgment and declaring Emile J. Gros, John F. Chustz, Sharon Jarreau, Kernie Gros (only insofar as to Lot 4), and Marilyn David to be the rightful possessors and owners of their respective properties, including the 100-foot-wide strip of property at issue. Costs of this appeal are assessed against Boisvert Farms, LLC.

AFFIRMED.

      . The immovable property at issue, located in West Baton Rouge Parish, contains approximately 9.13 acres, with dimensions of approximately 100 feet wide by 3,979 feet long, and it intersects the properties of each of the plaintiffs.

      . Louisiana Civil Code Article 2502 provides, in pertinent part that "[a] person may transfer to another whatever rights to a thing he may then have, without warranting the existence of any such rights.” Comment (b) of the Revision Comments provides that ‘‘[t]his Article describes the effects of an act of the kind called a quitclaim deed at common law.” “At common law, the distinguishing factor of a quitclaim deed is that it is an instrument that purports to convey nothing more than the interest or estate of the grantor, if any he has, at the time of the conveyance, rather than the property itself.” Comment (c).

      . Kernie J. Gros expressly reserved all claims as to Boisvert Farms in connection with his remaining property, identified as Lot 4.

      . Subsequently, Mr. David passed away, and on June 21, 2012, Boisvert Farms filed its opposition to the motion for summary judgment with regard to Marilyn David. The parties agreed to submit the matter on briefs.

      . Because the judgments appeared to be partial summary judgments, this Court, on May 14, 2013, issued a show cause order regarding the finality of the judgments, instructed the parties to file briefs on the issue, and remanded the matter to the trial court to either advise this Court that the judgments did not warrant a designation under LSA-C.C.P. art. 191SB or sign amended judgments containing the designation and provide this Court with a per curiam containing reasons why there was no just reason for delay based on the factors expressed in R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, 1122-23. On June 10, 2013, the parties filed an unopposed motion to dismiss the remaining trespass claim and a motion to certify the judgments as final. On June 11, 2013, the trial court signed its order dismissing plaintiffs’ trespass claim with prejudice and, finding no just reason for delay, designated the August 1, 2012 judgments as final. Although a duty panel made a preliminary determination to maintain the appeal, the propriety of the trial court’s designation of finality was reserved to this panel in connection with our duty to review the merits of the appeal. Considering the criteria set forth by the Louisiana Supreme Court in R.J. Messing-er, Inc., we have reviewed the propriety of the trial court’s designation of finality and conclude that the trial court’s designation of its judgment as final was proper.

        . Louisiana Code of Civil Procedure Article 3654 provides:
      When the issue of ownership of immovable property or of a real right therein is presented in an action for a declaratory judgment, or in a concursus, expropriation, or similar proceeding, or the issue of the ownership of funds deposited in the registry of the court and which belong to the owner of the immovable property or of the real right therein is so presented, the court shall render judgment in favor of the party:
      (1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
      (2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

      . Boisvert Farms’ reliance on Hoover v. Hoover, 01-2200 (La.4/3/02), 813 So.2d 329, is misplaced, as the ownership of the 100-foot-wide strip of property is clearly at issue herein. Further, unlike the lack of notice in Hoover, Boisvert Farms unquestionably knew that plaintiffs moved for summary judgment on the issue of possession and ownership.

      . The New Orleans, Texas & Mexico Railroad Company was merged into the Missouri Pacific Railroad Company and then became part of the Union Pacific Railroad Company.

      .Possession is a preliminary matter which must first be resolved before the issue of ownership can be determined because, otherwise, the possessor's rights are infringed by forcing him to prove ownership. Chevron U.S.A., Inc. v. Landry, 546 So.2d 858, 861 (La.App. 1 Cir. 1989), aff’d, 558 So.2d 242 (La. 1990).

      .Louisiana Code of Civil Procedure Article 3658 provides:
      To maintain the possessory action the possessor must allege and prove that:
      (1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
      (2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
      (3) The disturbance was one in fact or in law, as defined in Article 3659; and
      (4) The possessory action was instituted within a year of the disturbance.

      . What constitutes eviction is a question of fact to be determined by the trier of facts. See Comment (d) to Article 3433.

      . John Chustz recorded title to Lot 7 on March 31, 1972. Sharon Jarreau recorded title to Lot 6-B on February 4, 1991. Emile Gros recorded title to an undivided interest in Lot 5 on June 11, 1980; Lot 5-F on January 27, 1994; Lot 5-C-l on October 13, 1999; Lot 5-E-l on August 2, 2000; and Lot 5-D-l on May 18, 2001. Kernie Gros recorded title to Lot 4 on July 29, 1994. Marilyn David recorded title to Lot 5-A on February 4, 1991.

      . Louisiana Civil Code article 3434 provides, in relevant part, that "[i]n the case of eviction, the right to possess is lost if the possessor does not recover possession within a year of the eviction.”

      . This is less and except 4.664 acres that were transferred by the Missouri Pacific Railroad Company that were located only on lots 1, 2, and 3 and the northern portion of Lot 4 of Tonawanda Plantation.


source: Caselaw Access Project

author: GUIDRY J-

license: Public Domain

text:
    STATE of Louisiana v. Derichard W. LAVY.
    No. 2013 KA 1025.
    Court of Appeal of Louisiana, First Circuit.
    March 11, 2014.

      Hillar C. Moore, III, District Attorney, Dale R. Lee, Assistant District Attorney, Baton Rouge, LA, for Plaintiff/Appellee State of Louisiana.
    Lance C. Unglesby, Baton Rouge, LA, for Defendant/Appellant Derichard W. Lavy.
    Before PARRO, GUIDRY, AND DRAKE, JJ.
   GUIDRY J-

|2The defendant, Derichard W. Lavy, was charged by grand jury indictment with one count of second degree murder, a violation of La. R.S. 14:80.1, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. He now appeals, contending: the evidence was insufficient to support the verdict; the trial court erred in denying full cross-examination of a witness; the trial court erred in curtailing the right to full and effective voir dire; the trial court erred in failing to rule on the defendant’s motion to allow the jury to view the crime scene; and the trial court erred in failing to recognize its ability to impose a sentence less than the sentence provided by the second degree murder statute. For the following reasons, we affirm the conviction and sentence.

FACTS

Rita Faye James testified she was the cousin of the victim, Donnie Williams, and had lived on Swan Street in Baton Rouge her entire life. She was familiar with the defendant because he and she had been “raised up around there together.”

On October 2, 2009, James approached the victim on Swan Street to ask for money for a Coke. He gave her $5, and she walked to a drink machine in front of Roger Parker’s house. After James purchased a drink, she gestured to her friend “Madison,” who was in his vehicle at the corner of Somerset and Swan Streets, to drive to her. Madison stopped before a mailbox near the Coke machine, and James told him to move up to let an “old lady” in a beige car pass. James testified that, before Madison moved, she heard approximately six shots. She looked in the direction of the victim and saw shots being fired at him from a blue Oldsmobile, with hands sticking out of the driver’s-side window. The blue car passed James, Land the defendant looked her “dead in [her] face.” She also recognized Hakeem Profit in the front of the car and someone she did not recognize in the back. It was daylight, but beginning to get dark, James had seen the defendant in the blue Oldsmobile many times and had jump-started the vehicle when it had a bad battery. The victim suffered a fatal gunshot wound to his shoulder and a “potentially life threatening” gunshot wound to his lower abdomen. On October 5, 2009, a blue Oldsmobile Cutlass, registered to the defendant’s brother, was recovered close to the scene of the incident.

James subsequently selected the defendant’s photograph from a six-person photographic array. She indicated she last saw him “when he was shooting [the victim].” She also identified the defendant in court as the person she saw shooting the victim. Additionally, James selected Profit’s photograph from a six-person photographic array. She indicated he was “in the car when they was (sic) shooting.” She testified the defendant and Profit did not look alike. On cross-examination, James indicated the Coke machine did not take $5 bills, so she had to go to Shonda Parker’s house for change before she could use the machine.

Shonda Parker testified she lived on Swan Street. She indicated the defendant and Profit were related to one of her children. She stated she was in her house on the day of the incident, when she heard shots fired. She went to the door to check on her children, who were outside, and saw the victim “hit the ground.” She testified “the car shot past so fast I couldn’t see what kind of car it was.” She “thought” the vehicle was gray. She claimed she did not recognize the car and did not see the defendant in the car. She indicated she did not want to come to court and testify. Baton Rouge Police Department Detective Bryan Ballard interviewed Parker at the scene of the incident. At that time, Parker indicated she had seen a blue Oldsmobile at the scene, driven by “Richard,” and in which “Hakeem” was a |4passenger. Subsequently, Parker refused to cooperate in the investigation.

Meldrekia Foster testified she was the defendant’s sister. She indicated she and her family, including the defendant, traveled to a Southern University Football game in Jackson, Mississippi, on October 2, 2009. She claimed the defendant arrived at her house on Prescott Road to travel to the game at approximately 4:30 p.m. and was in a car with her and her two nieces between 5:30 p.m. and approximately 9:00 p.m., when they arrived in Jackson.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, the defendant contends the evidence was insufficient to support the conviction, because James gave testimony that conflicted with itself and the testimony of other witnesses.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove,” in order to convict, every reasonable hypothesis of innocence must be excluded. State v. Wright, 98-0601, p. 2 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486, units denied, 99-0802 (La.10/29/99), 748 So.2d 1157 and 00-0895 (La.l1/17/00), 773 So.2d 732 (quoting La. R.S. 15:438).

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to | r,conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

Second degree murder is the killing of a human being when the offender has a specific intent to kill or to inflict great bodily harm. La. R.S. 14:30.1(A)(1). Specific criminal intent is that “state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the fact finder. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Henderson, 99-1945, p. 3 (La.App. 1st Cir.6/23/00), 762 So.2d 747, 751, writ denied, 00-2223 (La.6/15/01), 793 So.2d 1235.

Any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of second degree murder and the defendant’s identity as the perpetrator of that offense. The verdict rendered indicates the jury rejected the defense theory that the defendant was not the person who shot the victim from the blue Oldsmobile. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Moten, 510 So.2d 55, 61 (La.App. 1st Cir.), writ denied, 514 So.2d 126 (La.1987). No such hypothesis exists in the instant [ficase. The verdict also indicates the jury accepted the testimony of James, while rejecting the alibi testimony presented by the defense. This court will not assess the credibility of witnesses or reweigh the evidence to overturn a fact finder’s determination of guilt. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429, p. 5 (La.App. 1st Cir.3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La.10/17/97), 701 So.2d 1331. Further, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. See State v. Ordodi, 06-0207, p. 14 (La.11/29/06), 946 So.2d 654, 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the fact finder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Calloway, 07-2306, pp. 1-2 (La.1/21/09), 1 So.3d 417, 418 (per cu-riam).

This assignment of error is without merit.

LIMITATION OF CROSS-EXAMINATION

In assignment of error number two, the defendant argues the trial court erred in preventing full cross-examination of James concerning the sentence she received on her forgery conviction.

Louisiana Code of Evidence article 609.1, in pertinent part, provides:

A. General criminal rule. In a criminal case, every witness by testifying subjects himself to examination relative to his criminal convictions, subject to limitations set forth below.
B. Convictions. Generally, only offenses for which the witness has been convicted are admissible upon the issue of his credibility, and no inquiry is permitted into matters for which there has |7only been an arrest, the issuance of an arrest warrant, an indictment, a prosecution, or an acquittal.
C. Details of convictions. Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense....

On direct examination, James indicated she had been convicted of forgery in 2003. On cross-examination, the defense asked her if she had been placed on probation, and she replied affirmatively and further stated she was no longer on probation. The defense asked whether James had been “revoked.” The State objected that the question was beyond the permissible scope of questioning, and the trial court sustained the objection.

Thereafter, the defense asked James if she had completed her probation satisfactorily, and the State objected. The trial court sustained the objection. The defense argued it was entitled to know the sentence received by James. The trial court disagreed, noting the defense had made no allegation that James had received favorable treatment for her testimony. Initially, we note the defense failed to proffer evidence that James’s probation had been revoked. Only matters contained in the record can be reviewed on appeal. State v. Vampran, 491 So.2d 1356, 1364 (La.App. 1st Cir.), writ denied, 496 So.2d 347 (La.1986). To preserve the right to appeal a trial court ruling that excludes evidence, the defendant must make the substance of the evidence known to the trial court. La. C.E. art. 103(A)(2). Because the defendant failed to make a proffer, he is barred procedurally from advancing this assignment of error. See State v. Lynch, 94-0543, pp. 17-18 (La. App. 1st Cir.5/5/95), 655 So.2d 470, 480, writ denied, 95-1441 (La.11/13/95), 662 So.2d 466. Moreover, the trial court correctly found that whether or not James’s probation had been revoked was beyond the scope of La. C.E. art. 609.1.

This assignment of error is without merit.

| «LIMITATION OF VOIR DIRE

In assignment of error number three, the defendant argues the trial court curtailed his right to full and effective voir dire by refusing to allow questioning concerning actual cases of wrongful convictions based on eyewitness misidentification.

The accused has the right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. La. Const, art. I, § 17(A); see La. C. Cr. P. art. 786. The purpose of the voir dire examination is to test the competency and impartiality of prospective jurors. Wide latitude should be given the defendant during voir dire so that he may discover bases for challenges for cause and, within reasonable limits, secure information for the intelligent exercise of his peremptory challenges. Furthermore, the scope of the voir dire examination is within the sound discretion of the trial judge, and his rulings thereon will not be disturbed in the absence of a clear abuse of discretion. State v. Jackson, 450 So.2d 621, 628 (La. 1984); see also La. C. Cr. P. art. 786. Whether a particular question is essential to full voir dire is best governed by a liberal discretion on the part of the trial judge under the prevailing facts and circumstances, and the disallowance of a proper question will not automatically create reversible error, for, in reviewing the fairness of the ruling, the entire examination must be considered. Jackson, 450 So.2d at 628.

During voir dire, the defense asked prospective juror Watkins if he knew Henry James, and Watkins replied negatively. The defense asked prospective juror Bajón if she knew Michael Williams, and Bajón replied negatively. Thereafter, defense counsel stated, “[w]ell, let me tell you about those two individuals, if I may. Henry James was a man — it was in the paper last week and I’m going to show you the clip in a minute — spent 30 years in jail at Angola.” The State objected to the defense referencing facts from another case “that’s not even been brought up by the |fl[prospective] jurors.” The trial court ruled if the prospective jurors had indicated they knew Henry James or Michael Williams, it might allow the defense to continue with its line of questioning, but it would not allow the defense to tell the prospective jurors “what’s been in the newspaper or ask them to comment on it.” The court further stated:

What you want to do is you want to talk to [the prospective jurors] about prior cases where people have been exonerated when they were innocent, but convicted. That has nothing to do with this case. You can talk to them about the burden of proof and those kinds of things, but I can’t — but I’m not going to allow you to bring up other cases or other facts that they know nothing about and bombard them with facts.

The trial court stated the defense could talk to the prospective jurors, “generally speaking,” about people who are misidentified, about their experiences with misiden-tification, “their feelings or their belief about eyewitness identification,” and even use hypothetieals, as long as the hypotheti-cals were not “did you hear about this case, this guy had a [hundred] eye witnesses[,] and they were all wrong[,] and he went to jail for a [hundred] years?”

Subsequently, the defense questioned prospective juror Watkins concerning his opinion about eyewitness identification, and he indicated it “can be questionable at times.” The defense asked prospective juror Watkins if he thought the accuracy of eyewitness identification was “100 percent,” and he answered negatively. The defense asked prospective juror Dixon, if she had ever been in the mall, had seen someone in the distance that she thought she knew, approached them, but then realized she was mistaken. Dixon answered negatively. Thereafter, the defense asked the entire panel of prospective jurors if any of them had the experience it had referenced. Two prospective jurors answered affirmatively, and a third stated, “[tjhat’s a reasonable thing.”

Subsequently, the defense asked prospective juror O’Brien if someone gives a | mdescription of something, should they give as much description as possible for witness identification, and she answered, “[ejvery little detail helps.” In response to further questioning, she indicated the details would consist of “height, weight, coloring, clothing, any impairment, the way they move, just....” Defense counsel asked, “[w]hat if they can’t see the height, the weight of a person? Say they’re in an automobile or something.” Prospective juror Presedo answered the height would then be the height relative to the roof of the car.

The voir dire examination reviewed in its entirety indicates the trial court did not clearly abuse its discretion in refusing to allow questioning of prospective jurors concerning unrelated cases from the newspaper. The trial court did not prevent the defense from testing the competency and impartiality of the prospective jurors. The defense had no right to select only “friendly” jurors. See Jackson, 450 So.2d at 628 (“[w]hatever the practical desire of trial counsel, the recognized purpose of full voir dire is not to pack the jury with persons favorable to the defendant or to the [S]tate.”).

This assignment of error is without merit.

MOTION TO VIEW THE CRIME SCENE

In assignment of error number four, the defendant argues the trial court erred in failing to rule on, and thus, denying, the motion to allow the jury to view the scene of the crime.

It is well settled that the decision regarding whether to grant or deny a motion to have a jury view the scene of a crime is within the sound discretion of the trial court, and such a ruling will not be disturbed on appeal absent an abuse of that discretion. La. C. Cr. P. art. 762(2); State v. Duvall, 97-2178, p. 13 (La.App. 1st Cir.12/28/99), 747 So.2d 793, 801, writ denied, 00-1362 (La.2/16/01), 785 So.2d 838.

On October 20, 2011, the Thursday before trial was set to begin on Monday, the defense moved to allow the jury to view the crime scene. The defense argued it Inwas necessary for the jury to view the place where the crime was alleged to have occurred, because the incident occurred near sunset and the location of the witness at the scene was unknown.

On the day of trial, the defense advised the court it had moved to view the crime scene “late last week.” The court took the motion under advisement noting, it was unlikely to grant the motion, but would reconsider it if it was convinced it was necessary. Defense counsel replied, “Yeah. I understand. We have pictures and just didn’t know at that point whether — uh—how those pictures would turn out from the State and myself, so.... ” The court asked the defense if it had pictures, and the defense replied affirmatively. The court asked if the defense was satisfied with the pictures, and the defense stated it was “not sure,” but “may be.” The court proposed to hold the matter in abeyance until the trial progressed a little further, noting “[i]t may become obvious that that’s an important factor[,]” and the defense agreed.

During trial, James identified State exhibits 40 through 46 as photographs of Somerset and Swan. She indicated that the houses, trees, and drink machine depicted in the photographs were in the same places they had been at the time of the incident, but the photographs were “brighter” than at the time of the incident. The photographs were introduced into evidence without objection. Thereafter, the defense also introduced photographs of various portions of Swan Street into evidence. The defense did not reurge the motion to view the crime scene.

The motion to view the crime scene was abandoned. It is ordinarily incumbent upon the proponent of a motion to move for a hearing date on that motion. Otherwise, it may be considered that the motion has been abandoned. State v. Wagster, 361 So.2d 849, 856 (La.1978); State v. Carter, 96-0337, p. 7 (La.App. 1st Cir.11/8/96), 684 So.2d 432, 437.

This assignment of error is without merit.

JjgIMPROPER SENTENCING In assignment of error number five, the defendant argues the trial court erred in failing to recognize it had the authority to impose a sentence of less than life without parole, and thus, imposed a sentence that was excessive as to him.

Louisiana Code of Criminal Procedure article 881.1, in pertinent part, provides:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:30.1(B).

In State v. Dorthey, 628 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts , to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he is duty bound to reduce the sentence to one that would not be constitutionally excessive.

1 ^However, the holding in Dorthey was made only after, and in light of, express recognition by the court that, “the determination and definition of acts which are punishable as crimes is purely a legislative function. It is the Legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional.” Dor-they, 623 So.2d at 1278 (citations omitted).

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court re-examined the issue of when Dor-they permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. The court held that to rebut the presumption that the mandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Johnson, 97-1906 at p. 8, 709 So.2d at 676.

At the sentencing hearing in the instant case, after the trial court denied motions for a post verdict judgment of acquittal and for a new trial, the defense objected to the court’s rulings, waived delays, and asked for sentencing. Thereafter, the court stated, “[t]he court is mandated by law as to what sentence you are to receive. Therefore, it is the sentence of this court that you be confined to the Department of Corrections for life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.”

114Initially, we note the defendant failed to make or file a motion to reconsider sentence in this matter. Accordingly, review of this assignment of error is proeedurally barred. See La. C. Cr. P. art. 881.1(E); State v. Duncan, 94-1563, p. 2 (La.App. 1st Cir.12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). Moreover, the trial court’s statement that it was “mandated by law” as to the sentence to be imposed was a reference to the sentence set forth in La. R.S. 14:30.1(B), which is “mandatory,” unless the defendant rebuts the presumption that the sentence is constitutional and establishes he is “exceptional,” as set forth in Dorthey and Johnson. Further, no substantial rights of the accused were affected, because the defendant failed to clearly and convincingly show that, because of unusual circumstances, he was a victim of the legislature’s failure to assign sentences that were meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Accordingly, there was no reason for the trial court to deviate from the provisions of La. R.S. 14:30.1(B) in sentencing him. See La. C. Cr. P. art. 921.

This assignment of error is without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The sentencing review principles espoused in Dorthey were not restricted in application to the mandatory minimum penalties provided by La. R.S. 15:529.1. Henderson, 99-1945 at p. 19 n. 5, 762 So.2d at 760 n. 5.


author: SAUNDERS, Judge.

text:
    Wendy THIBODEAUX v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 13-893.
    Court of Appeal of Louisiana, Third Circuit.
    March 12, 2014.

      James D. “Buddy” Caldwell, Attorney General, Henry S. Provosty, Lena D. Giangrosso, Provosty & Gankendorff, L.L.C., Special Assistant Attorneys General, New Orleans, LA, for Defendant/Appellant: State of Louisiana, through the Department of Transportation and Development.
    John F. Blackwell, Attorney at Law, New Iberia, LA, for Defendant/Appellant: State of Louisiana, through the Department of Transportation and Development.
    W. Mark McKee, Attorney at Law, Columbia, LA for Plaintiff/Appellee: Wendy Thibodeaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, Judge.

| Jhis is a Jones Act case wherein the Plaintiff, Wendy Thibodeaux, sued Defendant, the State of Louisiana, Department of Transportation and Development, for damages arising from a personal injury she sustained while cleaning up oil on a state-owned ferry boat. The trial court denied Defendant’s motion for summary judgment and granted Plaintiffs motion for partial summary judgment. For the reasons discussed herein, we affirm as to the former and reverse as to the latter.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Wendy Thibodeaux (hereinafter “Ms. Thibodeaux”), was employed as a deckhand on the W.F. Cooper, a ferry boat (hereinafter “the vessel”) owned by Defendant, the State of Louisiana, Department of Transportation and Development (hereinafter “the State”). On August 1, 2007, she slipped and sustained injuries while cleaning the vessel’s engine room. She timely filed suit against the State, alleging that she was a seaman under the Jones Act and maritime law and that she sustained personal injuries while in the course and scope of her State employment.

The State filed a motion for summary judgment on the issue of causation, arguing that Ms. Thibodeaux’s own negligence was the sole cause of her injury. For the purpose of that motion, the State assumed that the vessel had a leakage resulting in oil on the engine room floor and walls and that Ms. Thibodeaux was instructed to clean up the oil. The State specified that it accepted those facts only for the purpose of its motion, and the facts were “not stipulated for use at trial or any other purpose.” The trial court denied the State’s motion for summary judgment.

Ms. Thibodeaux then filed a motion for partial summary judgment on the issue of liability, arguing that the vessel was unsea-worthy and the State was l2negligent in failing to repair it. The trial court granted Ms. Thibodeaux’s motion, finding in favor of Ms. Thibodeaux as to the State’s Jones Act negligence and as to the issue of unseaworthiness. The trial court stated in its reasons for judgment from the bench that its primary considerations were the deposition of the vessel’s captain, Captain Joe Brooks, the fact that the vessel was “an older vessel,” and the captain’s testimony that it leaked oil and was the only vessel of its kind in the state.

The State appeals as to both motions. For the reasons discussed herein, we affirm the trial court’s denial of the State’s motion for summary judgment, and we reverse the trial court’s grant of partial summary judgment on the issue of liability-

ASSIGNMENTS OF ERROR

On appeal, the State submits the following issues:

1. Whether the Trial Court was correct in denying the State’s Motion for Summary Judgment.
2. Whether any genuine issue of material fact remains as to the negligence of Wendy Thibodeaux.
3. Whether the Trial Court was correct in granting Ms. Thibodeaux’s Motion for Partial Summary Judgment.
4. Whether any genuine issue of material fact remains as to the alleged Jones Act negligence of the State.
5. Whether any genuine issue of material fact remains as to the alleged unseaworthiness of the MW W.F. Cooper.
6. Whether the Trial court applied the correct definition of seaworthiness in making a determination as to the status of the vessel.
7. Whether the Trial Court applied the correct standard of proof.
8. Whether the Trial Court correctly assigned costs to the State in this matter.

LAW AND ANALYSIS

This court reviews summary judgments de novo. Thibodeaux v. Lafayette Gen. Surgical Hosp., LLC, 09-1523 (La.App. 3 Cir. 5/5/10), 38 So.3d 544. A | smotion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

The burden of proof for a summary judgment motion lies on the movant. However, where the movant will not bear the burden of proof at trial, the movant’s burden on the motion is only to establish an absence of factual support for one or more elements essential to the adverse party’s claim. La.Code Civ.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to meet his evidentiary burden of proof at trial, no genuine issue of material fact exists. Id.

For purposes of summary judgment, “the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.” Luther v. IOM Co. LLC, 13-353, p. 5 (La.10/15/13), 130 So.3d 817, 821-22.

In addition, La.Code Civ.P. art. 966(E)(2), in effect at the time of the hearing on these motions, provided that:

Only evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.

Causation

The State seeks summary judgment on the grounds that Ms. Thibodeaux would be unable to prove causation because, while cleaning the oil with soap and water, she herself created the condition which caused her injury. Causation is a necessary element of a negligence claim under the Jones Act, in which:

The seaman bears the evidentiary burden of proving that a breach of the duty owed by the employer was a cause of his injuries. However, a |4seaman need only present “slight evidence” that his employer’s negligence caused his injuries in order to reach the jury or to be sustained upon appellate review. The employer can introduce evidence of the seaman’s own negligence to reduce damages through application of pure comparative fault principles.

Foster v. Destín Trading Corp., 96-803, pp. 4-5 (La.5/30/97), 700 So.2d 199, 208 (internal citation omitted).

Using this standard, we find that Ms. Thibodeaux has presented sufficient evidence to preclude summary judgment as to the causation element of her claim. In a transcript attached to her opposition to the State’s summary judgment motion, Ms. Thibodeaux testified that she had not yet mopped the portion of the floor on which she slipped. She further testified that she was cleaning according to operational instructions. In contrast, the State alleges she created the condition of soapy water mixed with oil through her own act of mopping. Therefore, there exists a genuine issue of material fact as to causation. Accordingly, we affirm the trial court’s denial of the State’s motion for summary judgment.

Liability

Ms. Thibodeaux argues that she is entitled to partial summary judgment on the issue of liability based on the State’s Jones Act negligence and the vessel’s unseaworthiness. As factual support, she submits that the vessel had an engine oil leakage, a water leakage from the propeller shaft, and poor flooring conditions. She asserts that the State’s acceptance in its own summary judgment motion that there was a leakage, constitutes an agreement on the facts that demonstrate Jones Act negligence and unseaworthiness — specifically that a leakage existed on the vessel.

Negligence under the Jones Act may include “the failure to use reasonable care to provide a seaman with a safe place to work, the existence of a dangerous condition on or about the vessel, or any other breach of the duty of care.” Id. at |s208. Unseaworthiness is a distinct concept from negligence. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). The State’s duty regarding seaworthiness is “only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness[.]” Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960).

In its own motion for summary judgment, as discussed above, the State argued a lack of causation. The State assumed there was a leakage for the purposes of that argument. The State specified that that factual assumption was “not stipulated for use at trial or any other purpose,” but solely for the purpose of the State’s own motion. In its memorandum in support of its motion for summary judgment, the State submitted:

Defendant, for purposes of this summary judgment only, has accepted the plaintiffs claims that the F.W. Cooper had experienced leakage around the packing in the engine room on the 31st of July, 2007; that this leakage caused water in the engine room to not rise up carrying oil with it which coated the surfaces that the oil touched including the walls and the floors of the engine room. Defendant also accepts for purposes of this motion only that on the 1st of August, 2007, the plaintiffs supervisor Joe Brooks instructed her to clean the oil from the walls and floors of the engine room of the F.W. Cooper and that around 10:30 p.m., the plaintiff began to wash down the walls and floors of the engine room with soap and that around 11:00 p.m. she slipped in the engine room and injured her back.

(Emphasis added.)

Ms. Thibodeaux argues that the State has failed to contest the existence of the leakage after admitting it to be true in the State’s motion. While the State acknowledged in its opposition to summary judgment that there was oil on the engine floor, the State disputed that it was negligent and that the vessel was in an unsea-worthy condition. In support of its opposition, the State attached an affidavit and report from Captain Tim Anselmi finding that the vessel was in serviceable condition and “in good order and clean without any slip/fall risks.” This evidence | fiis sufficient to create a dispute as to a genuine issue of material fact and, therefore, precludes summary judgment.

Whether the State is liable for Ms. Thi-bodeaux’s injury must depend on the fact-finder’s conclusions regarding the existence of a leakage and whether the vessel was seaworthy. Taken together, Ms. Thi-bodeaux’s motion and the State’s opposition clearly show that the parties dispute material facts tending to prove or disprove liability. Ms. Thibodeaux supports her motion and the State supports its opposition with permissible evidence under La. Code Civ.P. arts. 966 and 967.

It is clear that in granting partial summary judgment on the issue of liability in favor of Ms. Thibodeaux, the trial court either impermissibly weighed disputed factual evidence or considered the existence of the leakage to be an undisputed fact for the purposes of Ms. Thibodeaux’s motion. As noted above, La.Code Civ.P. art. 966(E)(2) provides that “[ojnly evidence admitted for purposes of the motion for summary judgment shall be considered by the court in its ruling on the motion.” Because the State accepted the fact that there was a leakage only for the purposes of its own separate motion for summary judgment, the trial court was permitted to consider this an undisputed fact solely in considering the State’s motion. The existence of a leakage does not qualify as an undisputed fact for the purposes of Ms. Thibodeaux’s motion. Accordingly, we find that the trial court erred in granting summary judgment in favor of Ms. Thibo-deaux on the issue of liability.

Ms. Thibodeaux argues in brief that “[t]he State acknowledged there was oil on the floor and even agreed to that position after Joe Brooks’ testimony was revisited. Captain Joe Brooks’ testimony of oil on the floor and the engine condition is enough for Liability alone on unseaworthiness.” We disagree. The presence of oil does not satisfy the legal standard for demonstrating Jones Act negligence as set forth above. The possibility that Ms. Thi-bodeaux caused the |7dangerous condition, as argued by the State, presents the issue of whether Ms. Thibodeaux was responsible, in whole or in part, for her injuries. Therefore, summary judgment is inappropriate.

CONCLUSION

Because the State assumed there was a leakage only for the purposes of their own motion for summary judgment, not for that of the Plaintiff, we reverse the trial court’s grant of partial summary judgment on the issue of liability. The costs of this appeal are assessed equally between Plaintiff/Appellee, Wendy Thibodeaux, and Defendant/Appellant, State of Louisiana, through the Department of Transportation and Development.

AFFIRMED IN PART AND REVERSED IN PART.

PETERS, J., concurs in the result.


author: PARRO, J.

text:
    Shelia LOWERY, v. DEPARTMENT OF HEALTH AND HOSPITALS, Central Louisiana State Hospital.
    No. 2013 CA 0811.
    Court of Appeal of Louisiana, First Circuit.
    March 12, 2014.

      Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, Alexandria, LA, for Plaintiff-Appellant Shelia Lowery.
    William F. Coco, Alexandria, LA, for Defendant-Appellee State of Louisiana, Department of Health & Hospitals, Central Louisiana State Hospital.
    Adrienne Bordelon, General Counsel, Department of State Civil Service, Baton Rouge, LA, for Shannon S. Templet, Director, Department of State Civil Service.
    Before PARRO, GUIDRY, AND DRAKE, JJ.
   PARRO, J.

12Shelia Lowery appeals a final decision of the Civil Service Commission (the Commission), denying her an Optional Pay Adjustment (OPA) that her appointing authority had approved in December 2011. For the following reasons, we reverse the Commission’s decision and remand this matter for further proceedings.

STIPULATED FACTS

The following facts were stipulated by both parties, along with ten exhibits that were offered in evidence before the Commission in connection with a hearing before a Civil Service Commission Referee (Referee) on September 19, 2012:

1.Ms. Shelia R. Lowery is employed as an Accountant 3 at Central Louisiana State Hospital (“CLSH”) in Pineville, Louisiana.
2. On December 7, 2010, Ms. Lowery requested an Optional Pay Adjustment (“OPA”) pursuant to Civil Service Rule 6.16.2. The OPA request was for an additional five (5%) percent pay increase ($1.25/hr.) for additional permanent duties assigned to Ms. Lowery. As shown by the attached Exhibits, these additional duties were a result of the downsizing and merger of units at CLSH. They consisted of the duties of the former Property Control Manager and the former Inventory Manager along with her Accounting 3 duties. She was also designated as a backup to an Accountant 4 and the Procurement Manager.
3. The OPA request was submitted by Ms. Lowery’s supervisor, Tina Dar-bonne, to the “Acting CEO” of CLSH at the time, Pat Gonzales, for her signature and approval. Ms. Gonzales suggested that until CLSH hired a permanent CEO, no action would be taken on the request. When Ms. Candy Collins was hired as COO of CLSH in February of 2011, she was approached by Ms. Darbonne. Ms. Collins suggested that she wait until Ms. Lowery’s PPR in April (outstanding) and until a permanent CEO was hired.
4. Joint Exhibit 1: Parties agree [that] a joint stipulation of Appointing Authority for Wayne Hallford dated May 12, 2012 be sufficient to represent Appointing Authority as of April 14, 2011.
5. Pursuant to a grievance filed by Ms. Lowery on November 15, 2011, Mr. Hallford signed the OPA request form (HR-22) in the affirmative. No further action was taken by Ms. Lowery on her grievance ... once Mr. Hallford had signed the OPA in the affirmative.
6. On January 12, 2012, her grievance went to the Third Step. Mr. Peter Calamari, Deputy Assistant Director and Mr. Anthony H. Speier, Ph.D., Assistant Secretary, disapproved the OPA request forwarded by Mr. Hallford.
7. On February 13, 2012, Ms. Kathy Kliebert, Deputy Secretary, notified Ms. Lowery in writing that the Agency would not approve |sthe OPA she requested, a copy of which is attached. Ms. Lowery received Ms. Kliebert’s letter on February 17, 2012.
8. The appeal of Ms. Lowery was timely filed and is properly before the Commission.

A hearing was held on Ms. Lowery’s appeal before a Referee on September 19, 2012. On November 16, 2012, the Referee concluded that Ms. Lowery had failed to prove that the Department of Health and Hospitals (DHH) violated Civil Service Rules by denying her OPA request. An application for review of this decision was filed on November 30, 2012, and was denied by the Commission on February 6, 2013. Ms. Lowery has timely appealed the final decision of the Commission to this court.

DISCUSSION

In this appeal, Ms. Lowery contends that the findings and conclusions of the Referee, which became those of the Commission, are manifestly erroneous and clearly wrong as a matter of law. She claims the Commission misinterpreted the applicable provisions of Civil Service Rule 6.16.2 (Rule 6.16.2) and erred in refusing to enforce its provisions. She further urges that the finding of fact that the provisions of DHH Policy No. 8140-00 were complied with is clearly wrong, manifestly erroneous, and not supported by the record.

Rule 6.16.2, which provides for OPAs, states, in pertinent part:

Subject to the provisions of Rule 6.29, an appointing authority may, at his own discretion, grant individual pay adjustments to permanent employees ... to compensate employees for performing additional duties.... Such increases shall not exceed 10% in a July 1 to June 30 period for an individual employee and shall not duplicate payment received pursuant to other pay rules. Such increases may be made as either a lump sum payment or a permanent addition to the employee’s base salary. Such optional pay adjustments shall be implemented in accordance with written policies and procedures established by each department. Such policies must receive advance approval from the Civil Service Commission and shall be posted in a manner that assures their availability to all employees.

The policies and procedures to implement Rule 6.16.2 are described in Civil Service Policy Number 8140-00, “DHH Policy on Optional Pay Adjustments (CS Rule 6.16.2).” In Paragraph V, “Responsibility,” it provides that:

It shall be the responsibility of the Secretary, Deputy Secretary, Undersecretary, Assistant Secretary, MVA Director, and/or their designees |4to:
A. Review and approve/disapprove optional pay adjustments or recommend for approval those requests requiring Civil Service Commission approval!).] (Emphasis added.)

In Paragraph VI, “Policy Provisions,” it states, in pertinent part:

A. The Secretary, Deputy Secretary, Undersecretary, Assistant Secretary, MVA Director, and/or their designees may grant either base pay or lump sum adjustments under the following circumstances. Compensation shall not exceed the maximum allowed under Civil Service Rule 6.16.2. Employees at the maximum of their pay range may only receive a lump sum payment.
4. To compensate an employee for the assignment of additional duties
Optional pay adjustments may be given to employees who are assigned additional duties that are equivalent to or above their current allocation. In order to be eligible for compensation, the additional duties should require that the employee possess new skills or competencies.
b. Permanent additional duties
Employees who are assigned additional duties (that are equivalent to or above their current allocation) on a permanent basis that do not result in the reallocation of the position may receive an optional pay adjustment. These duties must be documented on the employee’s official position description.
c. Adjustments of up to 5% may be granted for employees who are below the administrative level and may be a lump sum or a permanent, base pay adjustment.
d. All requests for adjustments above 5% must be approved by the Civil Service Commission before implementation. (Emphasis added.)
e.All requests for employees whose level of work on their Civil Service Job Specification is administrator or higher must be approved by the Civil Service Commission before implementation. (Emphasis added.)
B. Guidelines
1. All increases granted in accordance with this rule will be restricted to full-time permanent state classified employees with at least a satisfactory Performance, Planning, and Review (PPR) rating.
3. Optional pay adjustment requests must be submitted in writing on the most current HR22 form to the appropriate |fiHuman Resource Director.

The record shows that Ms. Lowery made her initial request for an OPA of 5% on December 7, 2010. Her request was postponed until a permanent CEO for CLSH had been chosen; this occurred when Wayne Hallford was appointed in April 2011. Ms. Lowery’s immediate supervisor, Tina Darbonne, brought the OPA request to his attention shortly after his appointment, but no further action was taken. Because her OPA request had still not been acted upon seven months later, Ms. Lowery filed a grievance on November 15, 2011, stating that “Almost twelve months to the date later, the Optional Pay Adjustment form still has not received the necessary approvals; although I continue, and will continue to perform all of the duties that I accepted] at the time.” Step 1 of the grievance was denied that same day by her immediate supervisor, Tina Darbonne, stating, “I do not have the authority to grant this request.” The grievance and the OPA request then went to Mr. Hallford, who approved her OPA request on December 5, 2011. He also signed the Step 2 grievance form, stating:

I have reviewed your request for an Optional Pay Adjustment (OPA) and based on the information you presented, I have signed your OPA Request Form (HR-22), in the affirmative. The request will now be processed through normal procedures required for an OPA. Our Human Resource Director will promptly inform you once a response is received from DHH-HQ.

Mr. Hallford testified at the hearing before the Referee that at this point, he believed Ms. Lowery’s grievance had been settled.

On December 20, 2011, Tom Crout, the Human Resource Director of CLSH, sent an email to Kathi Richardson, the Human Resource Director of DHH/Division of Human Resources, stating, “Just to clarify. The grievance is settled. It is not in play. Kathi, do not forward the grievance up the chain of command for any additional management consideration.... The only thing that is being presented to you for further management consideration is the OPA.” Despite this instruction, and despite the fact that Ms. Lowery had not taken any steps to move the grievance further, the grievance proceeded to the third step, at which point it was dismissed as untimely and because the OPA request had been disapproved by Peter Calamari, Deputy Assistant Secretary, and Anthony H. Speier, Ph.D., Assistant Secretary, on January 12, 2012. Ms. Lowery then did proceed listo Step 4 of the grievance procedure, which was to the Deputy Secretary of DHH. Ms. Kliebert responded that neither Civil Service rules and regulations nor the policies of DHH were violated in the disapproval of her OPA. At this point, Ms. Lowery filed a Civil Service appeal, and a Referee was assigned to conduct a hearing on the appeal.

At that hearing, Mr. Hallford stated that although he believed the grievance had been settled by his approval of the OPA request, he also believed that the OPA request had to “continue to go through the process to DHH” for final approval. However, when presented with a copy of Civil Service Policy No. 8140-00 and asked where that requirement was spelled out, he responded:

I’ve read this. It’s not in here. It is a procedure that is done that I was told about when I first started [to work] here, that all OPA’s had to be approved by DHH.
If there is [a written policy on that], I haven’t seen it. There may be some memos somewhere down the line that someone sent down saying, “This is the way we’re going to do it.”
I don’t know that I’ve seen one. I mean, I was told that was the procedure.

Tom Crout told me that it had to be sent up for final approval. At the bottom of the OPA Request Form is a signature line for “Human Resource Director (or designated HR staff).” Below that is an additional signature line for “DHH Secretary or Undersecretary or Deputy Secretary or MVA Director or Asst Secretary (or designee)” to approve the type and amount requested, approve a modified optional pay adjustment, or disapprove the request.

The Referee provided the following reasons for her decision:

Ms. Lowery is appealing the failure of DHH to grant her an OPA. She contends that DHH violated Civil Service Rule 6.16.2 and DHH Policy Number 8140-00 by failing to grant the OPA upon approval by Mr. Hallford, CLSH’s appointing authority. Civil Service Rule 6.16.2, Optional Pay Adjustments, provides that “an appointing authority may, at his own discretion, grant individual pay adjustments to permanent employees.” However, before an OPA can be granted under DHH policy, the OPA request must be approved by the Human Resources Director and a DHH executive officer. No such approval was forthcoming in this case; instead, the OPA request was reviewed and disapproved by two DHH executive officers in accordance with DHH policy.

Generally, decisions of Civil Service Commission Referees are subject to the same standard of review as decisions of the Commission itself. Decisions of the Commission 17are subject to the same standard of review as decisions of a district court. Usun v. LSU Health Sciences Ctr. Med. Ctr. of Louisiana at New Orleans, 02-0295 (La.App. 1st Cir.2/14/03), 845 So.2d 491, 494. Factual determinations should not be reversed or modified unless clearly wrong or manifestly erroneous. Bannister v. Department of Streets, 95-0404 (La.1/16/96), 666 So.2d 641, 647; Gorbaty v. Department of State Civil Serv., 99-1389 (La.App. 1st Cir.6/23/00), 762 So.2d 1159, 1162, writ denied, 00-2534 (La.11/13/00), 774 So.2d 147.

Rules adopted by the Commission have the force and effect of laws. LSA-Const. art. X, § 10(A)(4); Shortess v. Department of Pub. Safety & Corr., 06-2313 (La.App. 1st Cir.9/14/07), 971 So.2d 1051, 1055, writ denied, 07-2293 (La.1/25/08), 973 So.2d 761. It is well settled that Civil Service rules must be construed according to the rules of interpretation applicable to legislation. King v. LSU Health Sciences Ctr., 03-1138 (La.App. 1st Cir.4/2/04), 878 So.2d 544, 547. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; Shortess, 971 So.2d at 1055.

We have reviewed all the documents in the record and can find no requirement in the Civil Service rules or DHH policy documents stating that the Human Resource Director and a DHH executive officer must approve an OPA that has been granted by the appointing authority for up to 5% for a non-administrator employee. The Secretary, Deputy Secretary, Undersecretary, Assistant Secretary, MVA Director, and/or their designees do not need to approve OPA requests unless those requests require Civil Service Commission approval. The only OPAs requiring Civil Service Commission approval are those seeking pay adjustments above 5% or those for employees whose level of work on their Civil Service Job Specification is administrator or higher. Ms. Lowery’s request and position do not fall within either of those two categories. Accordingly, there was no requirement for Commission approval and no requirement that OPA requests be approved by anyone other than the appointing authority, who may, “at his own discretion,” grant such requests. The only further requirement in DHH ^Policy No. 8140-00 is that the completed OPA requests be submitted to the appropriate Human Resource Director. That requirement does not further state that the submission is done to obtain the approval of the Human Resource Director and/or a DHH executive officer. Therefore, the Referee’s contrary conclusion was clearly wrong.

It is possible that there is some written policy or authority for the Commission’s conclusion that every OPA request must be approved by the Human Resource Director and a DHH executive officer. However, there is no evidence of such a requirement in the record before us. Accordingly, we must reverse the Commission’s decision and remand this matter back to the Commission for further proceedings in accordance with this opinion.

CONCLUSION

For the above reasons, we reverse the February 6, 2013 final decision of the Commission and remand this matter to the Commission for further proceedings in accordance with this opinion. All costs of this appeal, in the amount of $1,061.50, are assessed to the Department of Health and Hospitals, Central Louisiana State Hospital.

REVERSED AND REMANDED.

      . See LSA-Const. art. X, § 12(A) and Civil Service Rule 13.36(g).


author: THERIOT, J.

text:
    Laura E. SIBLEY v. BLUE CROSS BLUE SHIELD OF LOUISIANA. Lane Memorial Hospital v. Laura E. Sibley.
    Nos. 2013 CA 0924, 2013 CA 0925.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 2014.

      Franklin J. Foil, Baton Rouge, LA, for Plaintiff/Appellant, Laura E. Sibley.
    Charles A. O’Brien, Allison N. Pham, Baton Rouge, LA, for Defendant/Appellee, Blue Cross and Blue Shield of Louisiana.
    Before KUHN, HIGGINBOTHAM, and THERIOT, JJ.
   THERIOT, J.

1 ¡>The plaintiff, Laura E. Sibley, appeals the dismissal of her suit for peremption. Finding that La. R.S. 9:5606 is not applicable to the facts of this case, we reverse.

FACTS AND PROCEDURAL HISTORY

Laura Sibley applied for a policy of health insurance with Blue Cross Blue Shield of Louisiana (BCBS) through agent Ray Arthur in June 2006. She obtained a health insurance policy from BCBS in July 2006 and began paying premiums and receiving medical services. On December 15, 2006, BCBS retroactively cancelled Ms. Sibley’s policy on the grounds that Ms. Sibley failed to disclose her pre-existing conditions in her application. Although Ms. Sibley contends that she verbally disclosed the pre-existing conditions via phone to Mr. Arthur when she applied for the policy, the conditions are not disclosed on the application for health insurance that Mr. Arthur prepared and submitted to BCBS.

Ms. Sibley filed a petition for breach of contract against BCBS on January 15, 2008, alleging that BCBS breached its contract with her by “wrongfully cancelling her insurance policy retroactively, since she had previously disclosed all information required to [BCBS’s] insurance agent in order to obtain this policy.” Ms. Sibley amended her petition on March 31, 2009 to add Mr. Arthur as a defendant, alleging that at the time of her application he was acting as an agent for BCBS, and as such, had a duty to provide all relevant information he received from Ms. Sibley to BCBS for her health insurance policy. Mr. Arthur filed an exception raising the objection of peremption alleging that Ms. Sib-ley’s claims were time barred under La. R.S. 9:5606, which provides that suits against an insurance agent 13must be filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect, but in all events must be filed within three years from the date of the alleged act, omission, or neglect. The trial court sustained the exception and dismissed Ms. Sibley’s claims against Mr. Arthur with prejudice. This ruling has not been appealed.

BCBS subsequently filed an exception raising the objection of peremption. BCBS alleged that Ms. Sibley’s claims against it were also time barred under La. R.S. 9:5606. Although La. R.S. 9:5606 states that it applies to claims against “any insurance agent, broker, solicitor, or other similar licensee,” BCBS argued that the one-year and three-year peremptive periods provided by La. R.S. 9:5606 applied to Ms. Sibley’s claims against them because those claims are derivative of the claims against Mr. Arthur. The trial court agreed with BCBS that La. R.S. 9:5606 applied to Ms. Sibley’s claims against BCBS, and sustained BCBS’s exception of peremption and dismissed Ms. Sibley’s claims against BCBS with prejudice. Ms. Sibley appealed.

DISCUSSION

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period. La. C.C. art. 3458.

An exception of peremption is considered a peremptory exception. Rando v. Anco Insulations, Inc., 08-1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082. The party who files the exception bears the burden of proof, unless the matter is facially barred. Id. In the event that per-emption is evident from. the face of the pleadings, the burden of proof shifts to the plaintiff. Id. If evidence is introduced, the trial court’s conclusions are |4reviewed under the manifest error/clearly wrong standard. Id. Further, “[p]eremptive statutes are strictly construed against peremption and in favor of the claim. Of the possible constructions, the one that maintains the enforcement of the claim or action, rather than the one that bars enforcement should be adopted.” Id. at p. 21,16 So.3d at 1083. Bijeaux v. Broyles, 2011-830, pp. 3-4 (La.App. 3 Cir. 2/8/12), 88 So.3d 523, 526-27, reh’g denied (3/28/12), writ denied, 2012-0970 (La.6/22/12), 91 So.3d 971.

The sole issue on appeal is whether the peremptive periods established by La. R.S. 9:5606 are applicable to Ms. Sibley’s claims against BCBS. Louisiana Revised Statutes 9:5606 states, in pertinent part:

A. No action for damages against any insurance agent, broker, solicitor, or other similar licensee under this state, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide insurance services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered. However, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

By its terms, La. R.S. 9:5606 applies only to actions for damages against an “insurance agent, broker, solicitor, or other similar licensee[.]” Louisiana Revised Statutes 9:5606 does not extend to claims against an insurer merely because those claims rely on imputing the conduct of an agent to the insurer. The language of the statute itself supports this interpretation. It is undisputed that an insurance company is neither an insurance agent, broker, solicitor, nor other similar licensee. The Louisiana Insurance Code makes a clear distinction between insurance agents and insurance companies (insurers). See Bernhard Mech. Contractors, Inc.v. St. Paul Companies, — Fed.Appx. — —, 2008 WL 3244145, at *5 (5th Cir.La.2008). Given this | sdistinction, if it was the Louisiana Legislature’s intent for the per-emptive periods established by La. R.S. 9:5606 to apply to insurance companies, the legislature could have easily included them in the statute.

Louisiana Revised Statutes 9:5606’s peremptive periods can arguably be extended to insurers in cases where the insurer’s liability arises solely from the wrongful act of their agent toward an insured. See Klein v. American Life & Cas. Co., 01-2336 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, 531, writs denied, 03-2073 and 03-2101 (La.11/07/03), 857 So.2d 497, 499, and Halmekangas v. ANPAC Louisiana Ins. Co., 11-1293 (La.App. 4 Cir. 6/8/12), 95 So.3d 1192, 1196-97, writ denied, 12-1542 (La.10/12/12), 98 So.3d 873. To find otherwise would suggest that a plaintiff can avoid the peremptory bar of La. R.S. 9:5606 by declining to sue the insurer’s agent and simply sue the insurer. However, the case before us is distinguishable from Klein and Halmekangas in one significant aspect. In this case, the alleged wrongful act committed by the insurance agent, Mr. Arthur, was not a wrongful act committed against the insured, Ms. Sibley. Mr. Arthur’s alleged failure to include the health information disclosed to him by Ms. Sibley on the application for insurance was a wrong committed against the insurer, BCBS. In Klein, plaintiff/insured’s claims were predicated on the investment advice and representations made to plaintiff/insured by the insurance agent. In Halmek-angas, the plaintiffs claims were predicated on the insurance agent’s failure to properly inspect plaintiff/insured’s premises, resulting in plaintiff being underin-sured at the time his property was damaged.

The wrongful acts of the agents in Klein and Halmekangas were to the respective plaintiff/insured’s detriment. In the case at hand, the alleged wrongful act of the agent was to the insurer’s detriment. It was BOBS, and |f;not Ms. Sibley, who detrimentally relied on the insurance agent’s alleged misrepresentations. Louisiana Revised Statutes 9:5606 does not bar claims by an insured against an insurer where the wrongful act committed by the insurance agent was against the insurer and not the insured. Louisiana Revised Statutes 9:5606 may bar claims against an insurer where the wrongful act committed by an insurance agent was against the insured. See Klein and Halmekcmgas. Since Mr. Arthur’s alleged wrongful act was to the detriment of the insurer and not the insured, we find that the peremptive periods of La. R.S. 9:5606 do not apply to BCBS.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining BCBS’s exception raising the objection of peremption is reversed. The case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to defendant-appellee, Blue Cross and Blue Shield of Louisiana.

REVERSED AND REMANDED.

KUHN, J., concurs and assigns reasons.

HIGGINBOTHAM, J. concurs in the result for reasons assigned by KUHN, J.

KUHN, J., concurs with the result.

|, Although I agree with the result reached in this appeal, I disagree with the majority’s position that the peremptive periods provided in La. R.S. 9:5606 can arguably be extended to apply to insurers. This statute by its specific terms does not provide that claims against an insurer are derivative through the insurer’s agents. It’s peremption provisions are explicit and clear, therefore, not subject to expansion of its well stated terms. Suggestion that the statutes terms could arguably be expanded lacks both statutory and/or jurisprudential support. Cases suggesting otherwise propose judicial expansion of the legislative pronouncement contained in La. R.S. 9:5606 and should be rejected (See Klein v. American Life & Cas. Co., 01-2336 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, and Halmekangas v. ANPAC Louisiana Ins. Co., 11-1293 (La.App. 4 Cir. 6/8/12), 95 So.3d 1192.)

By its express terms, the application of La. R.S. 9:5606 is limited to actions against insurance agents, brokers, solicitors, or other similar licensees only. When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute should be applied as written, and no further interpretation ^should be made in search of the intent of the legislature. La. C.C. art 9; La. R.S. 1:4; Dejoie v. Medley, 08-2223 (La.5/5/09), 9 So.3d 826, 829. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. See Snowton v. Sewerage and Water Board, 08-399 (La.3/17/09), 6 So.3d 164, 168. Therefore, under the plain terms of La. R.S. 9:5606, insurers are not entitled to assert the peremptive periods set forth in that provision.

For these reasons, I concur in the result reached.

      . We note that BCBS disputes that Mr. Arthur is their agent.