author: MARC E. JOHNSON JUDGE

text:
    Charles Emile BRUNEAU, Jr. v. CRESCENT CITY CLEANING SERVICES CORPORATION and Gus R. Hurst
    NO. 16-CA-17
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, CHARLES EMILE BRUNEAU, JR., Donald F. deBoisblanc, Sr., Donald F. deBoisblanc, Jr.
    COUNSEL FOR DEFENDANT/APPELLANT, CRESCENT CITY CLEANING SERVICES CORPORATION AND GUS R. HURST, Robert T. Garrity, Jr.
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Robert A. Chaisson
   MARC E. JOHNSON JUDGE

| í Defendants/Appellants, Crescent City Cleaning Services, Inc., Elaine Hurst and Bridget Faucheux (hereinafter collectively referred to as “Crescent City”) appeal the judgment rendered in favor of Plaintiff/Ap-pellee, Charles Emile Bruneau, Jr., awarding damages for a breach of contract in First Parish Court for the Parish of Jefferson, Section “A”. For the following reasons, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

In 2007, Mr. Bruneau hired Crescent City to provide private housekeeping services for his home located in New Orleans, Louisiana. During its employment, Crescent City was provided a key to Mr. Bru-neau’s home and the code to his home alarm system in furtherance of the verbal employment agreement between the parties. The key also unlocked the door to an interior closet room, which contained a safe where Mr. Bruneau kept money and other valuables. Crescent City remained employed with Mr. Bruneau for the following three years.

On April 29, 2010, Elaine Hurst and Bridget Faucheux, the owners of Crescent City, were cleaning Mr. Bruneau’s home. On that particular day, Gus Hurst, Ms. Hurst’s son, assisted with the service. While assisting with the housekeeping services, Gus attempted to open an interior closet door, where Mr. Bruneau’s safe was located, but was informed by Ms. Fau-cheux that the company did not clean that area. At that time, Mr. Bruneau kept the combination to the safe in a metal eyeglasses case in a bedroom dresser drawer.

On May 2, 2010, three days after Crescent City’s housekeeping services were performed, Mr. Bruneau’s home was burglarized at approximately 3:27p.m. |aThe back door to Mr. Bruneau’s home was kicked in, and an envelope containing $8,500 in cash, a safe deposit key, a Certificate of Deposit and a testamentary will were stolen from the safe located in the interior closet. Following the burglary, Detective Michael Sam of the New Orleans Police Department investigated the burglary and discovered that Gus had been in the home only a few days prior to the burglary. Det. Sam applied for a search warrant in Orleans Parish for Gus; however, it was denied for lack of probable cause. Gus was never arrested for the burglary of Mr. Bruneau’s home, and no other suspect was investigated by the New Orleans Police Department for the burglary.

Subsequently, Mr. Bruneau filed a “Petition for Damages and Breach of Contract” against Crescent City, Ms. Hurst, Ms. Faucheux and Gus, mainly alleging that Crescent City breached its contract with him by allowing a person with an extensive criminal record, Gus, to enter his home without prior approval. Mr. Bruneau also alleged, among other allegations, that Ms. Hurst, Ms. Faucheux and Gus were individually liable for the damages he incurred as a result of the burglary. Crescent City answered Mr. Bruneau’s petition and filed a reconventional demand, alleging that Mr. Bruneau took certain actions that constituted slander, defamation and libel.

The matter proceeded to trial on March 9, 2015, and the case was taken under advisement by the trial court. On April 16, 2015, the trial court rendered a judgment that found Mr. Bruneau established by a preponderance of the evidence that the defendants breached their contractual agreement to provide cleaning services by allowing an individual with a criminal history access to Mr. Bruneau’s home, and the evidence supported the claim that it was more likely than not that Gus facilitated the unauthorized access to the home. Mr. Bruneau was awarded | ¡¡$8,300 for loss of property; however, his claim for an upgraded alarm system was found to be unrecoverable. The trial court further found there was insufficient evidence to support Crescent City’s reconventional demand and dismissed its claims. The judgment was amended on June 23, 2015 to reflect that ■ the judgment was against Crescent City, Ms. Hurst and Ms. Fau-cheux. The instant appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Crescent City alleges the trial court abused its discretion by: 1) finding the company breached its contract to provide cleaning services to Mr. Bru-neau; 2) finding Ms. Hurst and Ms. Fau-cheux were personally liable for the burglary and piercing the corporate veil; and 3) failing to require Mr. Bruneau to offer any proof of damages.

LAW AND ANALYSIS

Breach of Contract

Crescent City alleges the trial court abused its discretion in finding that it breached its contract with Mr. Bruneau. It argues that Mr. Bruneau failed to present any corroborating evidence that the contract for housekeeping services excluded anyone with a criminal record from entering his home. Crescent City contends that Mr. Bruneau’s testimony that only “one type” of person was prohibited from entering his home was not sufficient evidence to prove that it breached a clause in then-oral contract. Crescent City further contends that Mr. Bruneau failed to prove that Gus burglarized his home or gained unauthorized access. Crescent City also argues that, assuming arguendo that Gus committed the burglary, it is not vicariously liable for his intentional act.

Conversely, Mr. Bruneau avers the trial court properly concluded that Crescent City breached its contract to provide cleaning services by allowing an individual with a criminal history to access his home. He asserts that he hired UCrescent City partly based upon its pamphlet, which stated the company was comprised of honest, hardworking people. By not disclosing that Gus had a criminal background, Mr. Bruneau contends that Crescent City breached its contract because he was denied the opportunity to determine if he was comfortable with allowing a person previously convicted of burglary into his home to clean. He further asserts that sufficient evidence was presented to establish by a preponderance of the evidence that Gus facilitated unauthorized access to his home, and that Crescent City breached its contract.

Before addressing Mr. Bruneau’s breach of contract claim, we first note that, according to the language in the judgment, Mr. Bruneau was awarded damages against Crescent City for breach of contract. Although Crescent City argues in its brief that the trial court found it to be vicariously hable, it is clear that the judgment did not award damages under the theory of vicarious liability. Thus, we will not address vicarious liability against Crescent City.

In his petition, Mr. Bruneau alleged Crescent City’s action constituted a breach of its contract with him by: allowing an unauthorized person to enter his dwelling without his knowledge or consent; aiding and abetting a person with a record of arrest for the crime of burglary to enter his home in violation of its published policy to employ “honest” people; failing to properly supervise its employee; failing to obtain permission for a person, other than one of the two directors, be allowed to enter his dwelling; failing to notify him of the presence of Gus on his premises on April 29, 2010; acting in concert with Gus to deceive him and failing to disclose Gus’s criminal record; and condoning a trespass and/or unauthorized entry upon his premises. In its judgment, the trial court found that Mr. Bruneau established by a preponderance of the evidence that Crescent City breached its contractual agreement to pi-o-vide cleaning services by allowing an individual with a criminal history access to Mr. Bruneau’s home. The trial court | sfurther found that the evidence supported Mr. Bruneau’s claim that Gus more likely than not facilitated the unauthorized access to the home and awarded $8,300 in damages for loss of property.

The essential elements of a breach of contract are threefold. Sanga v. Perdomo, 14-609 (La.App. 5 Cir. 12/30/14); 167 So.3d 818, 822, writ denied, 15-222 (La. 6/19/15); 172 So.3d 650, citing Favrot v. Favrot, 10-986 (La. App. 4 Cir. 2/9/11); 68 So.3d 1099, 1108-09. First, a plaintiff in a breach of contract claim must prove the obligor undertook an obligation to perform. Id. Next, the plaintiff must prove that the obligor failed to perform the obli gation, resulting in a breach. Id. Finally, the failure to perform must result in damages to the obligee. Id. As the aggrieved party, the plaintiff bears the burden of proving these elements by a preponderance of the evidence. See, Hayes Fund for the First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mt., LLC, 14-2592 (La. 12/8/15); 193 So.3d 1110, 1115. Whether a defendant’s actions caused the plaintiffs damages is a question of fact, which should not be reversed on appeal absent manifest error. Id.

In an action to recover damages for breach of contract, a plaintiff must prove his case by a preponderance of the evidence, either direct or circumstantial. Sullivan v. City of Baton Rouge, 14-964 (La. App. 1 Cir. 1/27/15); 170 So.3d 186, 202. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Id. A fact established by direct evidence is one which has been testified to by witnesses as having come under the cognizance of their senses. Id, Circumstantial evidence, on the other hand, is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred. Id.

|ñThe parties in this matter did not have a written contract for services. La. C.C. art. 1846 provides that an oral contract in excess of $500 must be proven by, at least, one credible witness and other corroborating evidence. Only general corroboration is required, and it is not necessary for the plaintiff to offer independent proof of every detail. DBR Assocs., L.L.C. v. Burnell, 15-629 (La.App. 5 Cir. 2/24/16); 186 So.3d 1225, 1230. The existence or nonexistence of a contract is a finding of fact that will not be disturbed unless it is clearly wrong. Id. The manifest error or clearly wrong standard of review applies when factual findings are relevant to the interpretation of a contract. Id.

At trial, the testimonies of Mr. Bruneau, Ms. Hurst and Ms. Faucheux established that there was an oral contract between Mr. Bruneau and Crescent City for housekeeping services, and that Mr. Bruneau had given Crescent City a restriction on who was allowed in his home. Mr. Bruneau testified that, prior to engaging in business with Crescent City, Ms. Fau-cheux provided him with a pamphlet for the company stating that the employees were honest, hard-working people, and he had no reason at that time to believe the statement was false. To corroborate his claim, a pamphlet for Crescent City was admitted into evidence that specifically stated, “Crescent City Cleaning is a reliable maid service comprised of honest, hard-working individuals. Our reputation for doing an excellent job coincides with our reputation for honesty, integrity and reliability.” (Emphasis in original). The pamphlet also stated that its clients could “leave many valuables in their homes and know that each and every item will be there when they arrive home.” Mr. Bru-neau further testified that he never met Gus, was not informed of Gus’s criminal history, and did not consent to Gus being in his home. Ms. Hurst testified that Mr. Bruneau told them not to bring “one type of person” into his home. Ms. Hurst and Ms. Faucheux both testified that they did not relay to Mr. Bruneau that Gus had a criminal history prior to having him assist with the ^housekeeping services on April 29th. Considering this evidence, we find that Mr. Bruneau proved by a preponderance of the evidence that: 1) Crescent City contracted with Mr. Bruneau to perform its housekeeping services without allowing criminals in his home, and 2) Crescent City failed to uphold its obligation by allowing Gus into the home on April 29, 2010, while the housekeeping services were being performed.

At the lower court, Mr, Bruneau claimed that Crescent City’s breach of contract caused him mental distress and monetary losses, and he presented evidence through testimony and documentation in support of his claims. All of Mr. Bruneau’s damages originate from the May 2, 2010 burglary. The trial court awarded $8,300 to Mr. Bruneau for loss of property but did not compensate him for mental distress. While Mr. Bruneau successfully proved that Crescent City failed to uphold its obligation on April 29, 2010, in order for him to prove by a preponderance of the evidence that Crescent City’s actions caused his loss of $8,500 in damages, he also had to present evidence that it was more likely than not that Gus entered his home on May 2, 2010 and was involved in the commission of the burglary.

During trial, Det. Sam testified that upon his entrance into the residence, he found that the back door was damaged, seemingly kicked in during the burglary. Once inside of the residence, he noticed there was an opened hallway closet door that contained a safe. The safe was also opened and appeared to have some contents removed, while other items remained undisturbed. One thing that stood out to Det. Sam was that Mr. Bruneau’s firearm and ammunition were not taken, as it was his opinion that “normal” burglars always take firearms. Det. Sam stated that Mr¡ Bruneau’s combination to his safe was located in an eyeglasses case inside of ;a | ^bedroom drawer. The remainder of the home had not been disturbed and appeared to be in pristine condition.

The crime lab dusted for prints and found footprints on the exterior of- the back door and fingerprints on the outside of the closet door to where the safe was located. There were no other prints found anywhere in the house. Det. Sam testified that Gus’s fingerprints were found on the closet door, and those were the only prints identified in the investigation.,

At the conclusion of Det. Sam’s investigation, he surmised that Gus was a suspect because he had a criminal history. Det. Sam applied for a criminal arrest warrant, but the warrant was not granted because it was found to lack sufficient probable cause. Although Det. Sam also was unable to obtain a search warrant for Gus’s residence, he was able to perform a search of the residence with the assistance of Gus’s parole officer. The search of the residence failed to yield any evidence against Gus in the commission of the burglary of Mr. Bruneau’s home.

Ms. Faucheux testified that, on the day in question, Gus accompanied her and Ms. Hurst to Mr. Bruneau’s home to perform housekeeping services. She stated that she personally cleaned Mr. Bruneau’s bedroom. Ms. Faucheux attested that Gus was not allowed to enter the bedroom and was supervised the entire time he was there. Ms. Hurst also testified that' Gus was supervised while he was in Mr. Bruneau’s residence. She stated that, although Gus had a criminal history, he had been through the rehabilitation process, and she thought Gus was a person of integrity and honesty at the time he assisted with the housekeeping services. Ms. [aHurst further testified that Gus did not have access to any of the keys for the homes Orescent City serviced.

While Gus’s criminal history casts an eye of suspicion upon him, the evidence does not support the trial court’s determination that he more likely than not facilitated the unauthorized access to Mr. Bruneau’s home. The facts that Gus is a convicted felon and had been in Mr. Bru-neau’s home on April 29th are not sufficient to prove that Gus more likely than not was involved in the commission of the burglary on May 2nd. Thus, Mr. Bruneau failed to prove by a preponderance of the evidence that Crescent City’s actions caused him any damages, which is the last element required to prove a breach of contract claim. See, Sanga, supra.

Therefore, we find the trial court was manifestly erroneous in finding that Mr. Bruneau proved by a preponderance of the evidence that Crescent City breached its contract, Gus more likely than not facilitated the unauthorized access to Mr. Bru-neau’s home, and Mr. Bruneau was entitled to damages. Because we find that Mr. Bruneau failed to prove his breach of contract claim by a preponderance of the evidence, we also find the trial court was manifestly erroneous in finding that Elaine Hurst and Bridget Faucheux were personally liable for Crescent City’s alleged breach.

DECREE

For the foregoing reasons, we reverse the June 23, 2015 judgment of the trial court that found Crescent City Cleaning Services, Inc., Elaine Hurst and Bridget Faucheux liable for an alleged breach of contract with Charles Emile Bruneau, Jr.

REYERSED

      . Although "Crescent City Cleaning Services Corporation” is used in the caption of this case, the judgment at issue lists the company as "Crescent City Cleaning Services, Inc.”

      . The evidence regarding Gus’s criminal history showed that Gus has been convicted of several offenses, including simple criminal damage to property under $500 and simple burglary of a vehicle.

      .Valuable jewelry, an antique pistol, and a set of flatware for twelve were also contained in the safe at the time of the burglary; however, those items were not stolen.

      . Gus was not served with the lawsuit; thus, he was not involved in the proceedings.

      . Mr. Bruneau did not appeal the trial court’s denial of his mental distress claim.

      . Det. Sam'mentioned that there was silverware, jewelry, and "plenty of other valuables inside of that safe.”

      . Det. Sam also testified that the drawer containing the safe combination and the eyeglasses case were undisturbed, which indicated the combination was not used in the incident because the crime had to have been committed in a hasty manner.

      . Specifically, there were no prints found on any of the door handles, the locking devices for the doors, the safe or the envelopes in the safe that contained the stolen cash.

      . Det. Sam was unable to match the footprints found at the scene ,to Gus.

      . When questioned about Gus’s fingerprints on the hallway door, Mr. Bruneau stated, "That was from a different time. That’s when he was there to clean — allegedly clean the house.,..”


source: Caselaw Access Project

author: MURPHY, J.

license: Public Domain

text:
    Don GIORLANDO v. LOWE’S HOME CENTERS, LLC
    NO. 16-CA-262
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, DON GIORLANDO, Joseph G. Albe, Jr.
    COUNSEL FOR DEFENDANT/AP-PELLEE, LOWE’S HOME CENTERS, LLC, B. Scott Cowart, Deanne B. McCau-ley
    Panel composed of Susan M. Chehardy, Robert M. Murphy, and Stephen J. Windhorst
   MURPHY, J.

hln this worker’s compensation case, plaintiff/appellant appeals the Office of Workers’ Compensation judge’s ruling that granted defendant/appellee’s exception of prescription. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant, Don Giorlando (“Giorlando”), alleges that he was injured on or about April 11, 2006, while working in the course and scope of his employment with appellee, Lowe’s Home Centers, LLC (“Lowe’s”). In the six years that followed, Giorlando received $98,746.78 in indemnity benefits and $127,904.26 in medical benefits. On August 18, 2012, the parties submitted a “Joint Petition For Partial Approval Of Worker’s Compensation Settlement,” wherein it was agreed that Lowe’s would pay Giorlando the sum of $48,500.00 in “settlement of all past, present and future claims for indemnity benefits and all past reimbursable medical expenses” related to Giorlando’s alleged accident. In the settlement, Lowe’s disputed “the nature, extent and causal relationship between [Giorlando’s] injury and the accident in question as well as the need for ongoing medical care.” The settlement document further contained the specific stipulation that the parties were “not settling [Giorlando’s] medical care” and that “all parties reserve all rights as it relates to receipt of [Giorlando’s] future medical benefits.” Lowe’s agreed to “continue to pay for reasonable and necessary documented medical benefits” while the approval of a Medicare Set A Side (“MSA”) by the Centers for Medicare and Medicaid Services (“CMS”) was pending. The Office of Worker’s Compensation (“OWC”) judge for District 7 approved the settlement in an order dated August 13, 2012.

On September 18,2015, Giorlando filed a Disputed Claim For Compensation and a Motion To Compel Authorization/Payment For Examination By Physician Of Choice. Lowe’s filed an Answer to the disputed claim and further | ¿filed a peremptory exception of prescription, which was granted on January 5, 2016, following a hearing on November 20, 2015. This timely appeal follows.

ASSIGNMENT OF ERROR

Giorlando’s sole assignment of error on appeal is that the OWC judge erred in holding that the doctrine of contra non valentum was not applicable to the facts of this case and, accordingly, granting Lowe’s exception of prescription.

LAW AND ANALYSIS

In its exception of prescription to Gior-lando’s disputed claim for compensation, Lowe’s asserted that Giorlando had not made any requests for authorization of medical treatment or for the processing of medical bills for over three years prior to when the disputed claim for compensation was filed. Lowe’s also stated that Giorlan-do had not requested that its counsel reimburse him for any medical bills or to authorize any medical treatment subsequent to the August 13, 2012 settlement agreement between the parties. Lowe’s argued that Giorlando’s most recent claim for compensation was therefore prescribed under La. R.S. 23:1209(C), which provides:

All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

At the November 20, 2015 hearing on Lowe’s exception of prescription, Lowe’s introduced several exhibits into evidence, including: a copy of Giorlando’s disputed claim for compensation, which showed an alleged accident date of April 11, 2006; the joint petition for partial approval of the settlement and order of approval, dated August 13, 2012; the affidavit of claims adjuster for Lowe’s, Michelle Luna, which stated that the last payment for Giorlan-do’s medical treatment was March 1, 2012, and; the affidavit of Justin Emerson, from Sedgwick |sClaims Management, which stated that he had not authorized any settlement of Giorlando’s medical claim, or communicated any settlement offers or acceptances of settlement on behalf of Lowe’s, since August 18, 2012. As will be discussed below, Giorlando introduced into evidence correspondence between Lowe’s counsel and counsel for Giorlando.

Prescription

The standard controlling review of a peremptory exception of prescription requires that the appellate court strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Noble v. Estate of Melius, 10-549 (La.App. 5 Cir. 8/9/11), 62 So.3d 222. Ordinarily, the movant bears the burden of proof at the trial of an exception of prescription. In re Manus, 10-82 (La.App. 5 Cir. 5/25/10), 40 So.3d 1128, writ denied, 10-1460 (La. 10/1/10), 45 So.3d 1099. If evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Lee v. Prof'l Const. Services, Inc., 07-865 (La.App. 5 Cir. 3/11/08), 982 So.2d 837, 840, writ denied, 08-0782 (La. 6/6/08), 983 So.2d 919. “If .the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

In the incorporated reasons for judgment, the OWC judge indicated her findings that Giorlando had not made a request for medical treatment since March 1, 2012, which was before the parties had agreed on a partial settlement. The court also noted that the settlement between Giorlando and Lowe’s reserved all claims and defenses related to Giorlando’s future medical treatment. The court observed that none of the correspondence submitted by Giorlando “memorialized a settlement of the medical claim,” but rather showed that Lowe’s was waiting for approval of a MSA allocation by CMS “to determine if they would settle the Rmedical portion of the claim.” Giorlando was advised of Lowe’s decision not to settle the medical portion of the claim on February 13, 2015. The court concluded that at the time Gior-lando filed the current disputed claim for compensation on September 18, 2015, his claim for medical benefits had prescribed.

After considering the entire récord, we find the OWC judge’s findings were reasonable. The date of the alleged accident at issue was April 11, 2006. The parties entered into a partial settlement on August 13, 2012, which specifically and unequivocally excluded any claims for Gior-lando’s future medical benefits. It is not contested that there was no medical claim filed by Giorlando from the time of the partial settlement until September 18, 2015. Because over three years had passed from the time that Lowe’s made the last payment of medical benefits, on March 1, 2012, Giorlando’s claim was prescribed on its face under La. R.S. 23:1209(C).

Contra non valentum

When a workers’ compensation claim is prescribed on its face, the claimant bears the burden of showing the running of prescription was suspended or interrupted in some manner. Jonise v. Bologna Bros., 01-3230 (La. 6/21/02), 820 So.2d 460. On appeal, as he did in opposition to Lowe’s exception of prescription, Giorlan-do argues that after the parties had reached a settlement on indemnity, there was an ongoing discussion between his attorney and counsel for Lowe’s regarding the settlement of his future medical claim. Giorlando asserts that the medical claim settlement was contingent upon Lowe’s receiving approval of a MSA allocation by CMS. Giorlando states that Lowe’s used the pending approval of the MSA to “lull” him into inaction, while Lowe’s assured him that the two parties had an agreement to settle his medical claim. The record shows that CMS mailed a copy of its MSA approval to Giorlando on December 26, 2014. Giorlando’s counsel was informed on February 13, 2015, that Lowes had received the MSA decision, but | Bthat it had opted not to settle the medical portion of his claim. Giorlando concludes that his disputed claim for compensation was filed within one year of Lowe’s refusal to settle, and further that the judicial doctrine of contra non valentum interrupted prescription. In its January 5, 2016 judgment, the OWC judge found that “the doctrine of contra non valentum is not applicable to the facts of this case.”

The doctrine of contra non va-lentum was created as an exception to the general rules of prescription. Watters v. Dep’t of Soc. Servs., 11-1174 (La.App. 4 Cir. 3/14/12), 102 So.3d 118, writ denied, 12-1146 (La. 9/14/12), 99 So.3d 32. There are four situations in which the doctrine of contra non valentum can be applied to suspend the running of prescription:

(1) where there was some legal cause which prevented courts or their officers from taking cognizance of or acting on plaintiffs action;
(2) where there was some condition coupled with' contract or connected with proceedings which prevented creditor from suing or acting;
(3) where defendant himself has done some act effectually to prevent plaintiff from availing himself of his cause of action; and
(4) where some cause of action is not known or reasonably knowable by plaintiff, even though his ignorance is not induced by defendant.

Standard Fire Ins. Co. v. Safeguard Storage Properties, L.L.C., 04-794 (La.App. 5 Cir. 1/25/05), 894 So.2d 502. However,, contra non valentum only applies in “exceptional circumstances,” and must be strictly construed. Id.

In the instant case, Giorlando argued in opposition to Lowe’s motion that its exceptions to prescription fell under categories two and three, noted above. This Court considered a similar argument in Roussell v. V.J. Rollo Sec. Serv., 10-245 (La.App. 5 Cir. 10/12/10), 50 So.3d 900. In that case, in 2002, the claimant, Ms. Roussell, was injured in the course and scope of her employment and was provided with medical and indemnity benefits from LWCC on behalf of the employer. However, no indemnity or medical payments were made on Ms. Roussell’s behalf after approximately one year, in 2003. In 2009, Ms. Roussell filed a Disputed | flCIaim for Compensation, and the employer filed a'filed an exception of prescription, arguing that Ms. Roussell’s claim for worker’s compensation benefits had prescribed and should be dismissed. In opposition to that exception, Ms. Roussell argued that, pursuant to contra non valentum, prescription was suspended because her employer “lulled her into a false sense of security by promising to take care of her.” The OWC judge granted the employer’s exception. In affirming the ruling of the OWC court, this Court noted that in order, for a claimant to prove that her tardiness in filing a worker’s compensation claim was due to being lulled into a false sense of security by the employer, a worker’s compensation claimant must show that words, actions, or inac-tions on the part of the employer caused her forbearance. Id. at 903. We concluded that Ms. Roussell presented no evidence to demonstrate that her employer promised to pay for any medical expenses or other benefits after 2003.

In Ehrhardt v. Jefferson Parish Fire Dep’t, 12-319 (La.App. 5 Cir. 1/30/13), 108 So.3d 1223, this Court considered the issue in a worker’s compensation case of whether a proposed settlement agreement, which had not yet been judicially approved, was a sufficient cause to serve as an interruption to prescription. In that case, claimant counsel’s subjective belief was that there was an agreement between the parties, while settlement discussions were underway, to allow the pending claim to be refiled without objection following a voluntary dismissal. However, when the claim was re-filed, the employer filed an exception of prescription that was granted by the OWC judge. In upholding the ruling of the worker’s compensation court, we noted, in the context of interruption of prescription by acknowledgment, that:

[t]here is jurisprudence which holds that “[i]n a workers’ compensation case, a compromise settlement is not binding and enforceable until it has been judicially approved.” In re Succession of Tilley, 99-64 (La.App. 3 Cir. 6/2/99), 742 So.2d 9, 12. Thus, although 17a proposed settlement agreement was reached in the instant case, that agreement was never judicially approved by the OWC.

Id. at 1230.

In the instant case, after a review of the record and, specifically, the correspondence between the parties, we cannot say that the OWC judge was clearly wrong in finding that contra non valentum is not applicable to the facts. As discussed above, approximately six years elapsed from the date of the alleged accident until the parties entered into a partial settlement, which excluded any claims for Giorlando’s future medical benefits. Prior to that time, although an email exchange between Gior-lando’s counsel and Lowe’s attorney Leah Rhodes on August 2 and 3, 2012, discusses a MSA, it does not resolve the issue, as evidenced by only a partial settlement of Giorlando’s claims. While emails between Giorlando’s counsel and Lowe’s attorney Deanne McCauley in 2014 referred to a MSA and a “possible full and final medical settlement,” and “an attempt to settle the medical portion of the claim,” there is no evidence that such an agreement ever took place.

There is also no evidence in the record to explain why, in spite of the fact that Lowe’s had agreed to continue making medical payments through the time that a MSA was approved, Giorlando did not make any request for authorization of medical treatment nor payment of any medical bills after March 1, 2012, prior to the time that his claim for medical benefits prescribed three years later.

Similar to Ehrhardt, supra, even if an agreement to settle Giorlando’s future medical claims had been discussed between the parties, the record does not show it was commemorated in writing and, more importantly, it was not approved by the IsOWC judge. As in Roussell, supra, we find that Giorlando did not present evidence that Lowe’s lulled him into inaction with a promise to pay his future medical expenses. Thus, there is no basis to find contra non valentum applicable. Accordingly, in the absence of a written agreement between the parties that was approved by an OWC judge, Giorlando’s disputed claim, which was filed over three years from Lowe’s last payment of medical benefits, was prescribed under La. R.S. 23:1209(C).

DECREE

Accordingly, for the reasons stated herein, the judgment granting Lowe’s exception of prescription is affirmed. All parties are to bear their own costs of this appeal.

AFFIRMED

      . At the hearing on Lowe's exception, counsel for the claimant suggested that Giorlando had "stood down in trying to actively treat” in order to keep the pending MSA amount lower. However, the arguments of counsel are not considered evidence. Roberts v. Owens-Corning Fiberglas Corp., 03-0248 (La.App. 1 Cir. 04/02/04), 878 So.2d 631, writ denied, 04-1834 (La. 12/17/04), 888 So.2d 863.

      . Lowe's put plaintiff on notice of its refusal to settle the medical portion of the claim in its February 13, 2015 letter, dated approximately two weeks before prescription.


author: CHAISSON, J.

text:
    Helen J. AUDLER v. Latrice MORRIS
    NO. 16-CA-392
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016
    COUNSEL FOR PLAINTIFF/APPEL-LEE, HELEN J. AUDLER, Thomas E. Loehn
    COUNSEL FOR DEFENDANT/APPELLANT, NURSES REGISTRY HOME HEALTH, INC., David M. McDonald, Michael W. Robertson
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy
   CHAISSON, J.

Iiln this personal injury case, Nurses Registry Home Health, Inc. (“Nurses Registry”) appeals a judgment by default in favor of Helen J. Audler. For the following reasons, we vacate the judgment and remand this matter to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On May 15, 2014, Ms. Audler filed suit against Latrice Morris alleging that she sustained injuries as the result of an automobile accident for which Ms. Morris was at fault. On January 30, 2015,' Ms. Audler filed a Second Supplemental and Amended Petition adding Ms. Morris’ employer, Nurses Registry, as a defendant, and -alleging that Ms. Morris was in the course and scope of her employment at the time of the accident. Ms. Audler requested that Nurses Registry be served with the original petition and the first and second supplemental petitions through their registered agent for service of process, Raymond C. Breaux, at his address in Jefferson, Parish.

On February 24, 2015, the Jefferson Parish Sheriffs Office filed their return with the St. John Parish Clerk of Court indicating that they had been unable to serve Mr. Breaux after making five attempts at service. Consequently, on March 27, 2015, Ms. Audler filed a Motion for Appointment of Process Server in which she requested that the court appoint Mike Donegan as a special serving officer to affect service upon Nurses Registry. The district court granted that motion on March 30, 2015.

On June 4, 2015, Ms. Audler filed an Affidavit of Service executed by an unidentified Susan Fontana, who stated that the petitions were “,.. served by the Appointed Process Server, Mark Donegan, upon Nurses Registry Home Health, Inc., at 900 North Corporate Drive, Suite 302, Harahan, LA 70123 through Lydia.” Attached to Ms. Fontana’s affidavit was a return of the citation, purportedly signed |aby Mark Donegan, indicating that on April 13, 2015, he had served Nurses Registry by “domiciliary service” through “... Lydia, a person apparently over the age of seventeen years, living and resided in said domicile

On June 18, 2015, upon motion of Ms. Audler, the district court entered a preliminary default against Nurses Registry. On August 27, 2015, Ms. Audler appeared before the district court and confirmed a default judgment against Nurses Registry in the amount of $65,205, together with legal interest thereon from date of judicial demand and all costs of the proceedings. It is from this judgment, signed by the district court on November 3, 2015, that Nurses Registry now appeals.

ASSIGNMENTS OF ERROR

In this appeal, Nurses Registry assigns the following four errors:

1) The trial court erred in granting a , Default Judgment without adequate proof of service upon Nurses Regis-' try Home Health, Inc.;
2) The trial court erred in granting a Default Judgment without Plaintiff meeting her burden of proof;
3) The trial court erred in granting a Default Judgment that failed to credit Nurses Registry Home Health, Inc. for compromise between Plaintiff and a solidary obli-gor; and
4) The trial court erred in awarding general damages to the Plaintiff which were unreasonable, excessive and not based upon the Plaintiffs proven injuries.

DISCUSSION

In its first assignment of erroi-, Nurses registry contends that the record is devoid of any evidence that service was properly perfected on Nurses Registry prior to the trial court’s granting of the default judgment. Specifically, Nurses Registry argues that the affidavit of service of Ms. Fontana is deficient for a number of reasons: 1) that Ms. Fontana is not the person who perfected service hand she does not indicate that her affidavit is made upon personal knowledge; 2) that the affidavit indicates that Mark Donegan, not Mike Donegan, perfected service, and that he was not authorized by the court to do so; 3) that the address stated in the affidavit is not an address at which Nurses Registry regularly conducts business; 4) that the affidavit states that service was made upon Nurses Registry “through Lydia,” but there is no evidence in the record that Lydia was an employee of suitable age and discretion of Nurses Registry; and 5) that the affidavit does not certify that the process server was unable, after due diligence, to serve Nurses Registry through its designated agent before employing other means to make service.

Although Nurses Registry argues the fact that Ms. Fontana’s affidavit states that Mark Donegan, rather than Mike Do-negan, made service upon Nurses Registry is an issue of adequate proof of service, it does not argue that service by Mark Done-gan, who was not appointed by the district court to make service, is invalid service. Ms. Audler acknowledges that service was made by Mark Donegan, rather than by Mike Donegan, but argues that a court-appointed special process server, as an agent of the court, is authorized to delegate his duty of service to another individual. We disagree.

“Citation and service thereof are essential in all civil actions ... Without them all proceedings are absolutely null.” La. C.C.P. art. 1201. La. C.C.P. art. 2002 provides that “[a] final judgment shall be annulled if it is rendered ... [algainst a defendant who has not been served with process as required by law ...”

La. C.C.P. art. 1293(A), which governs service by private persons authorized by the court to make service, provides, in pertinent part:

When the sheriff has not made service within ten days after receipt of the process or when a return has been made certifying that the sheriff has been unable to make service, whichever is earlier, on motion of a party the court shall appoint a person over the age of Lmajority, not a party and residing within the state whom the court deems qualified to perform the duties required, to make service of process in the same manner as is required of sheriffs.

La. C.C.P. art. 1293 does not authorize a court-appointed special process server to delegate his service duties to another individual. Furthermore, it imposes an obligation upon the appointing court to determine that the proposed process server is deemed qualified. Any attempt by the appointing court to give either express or implied authority to a private person, who it has appointed as process server, to delegate his duties to another individual, would be an abrogation of the court’s own responsibilities. An individual appointed by the court as a private process server cannot delegate his duties to make service to another person. Guaranty Energy Corp. v. Carr, 86-27 c/w 86-28 (La. App. 5th Cir. 6/2/86), 490 So.2d 1117, 1120. See also, Strain v. Premier Video, Inc., 99-0181 (La.App. 1 Cir. 3/31/00), 764 So.2d 983, 986.

Additionally, the Louisiana Legislature clearly contemplated the limited situation in which an appointed process server is able to delegate the duty of service. La. C.C.P. art. 1293(C) provides:

In addition to those natural persons who the court may appoint to make service of process pursuant to Paragraph A or B of this Article, the court may also appoint a juridical person which may then select an employee or agent of that juridical person to make service of process, provided the employee or agent perfecting service of process is a natural person who qualifies as an agent for service of process pursuant to Paragraph A or B of this Article.

The Legislature chose not to authorize a private person who is appointed as process server pursuant to La. C.C.P. art. 1293(A) to delegate his duty of service to another individual, although the Legislature could have so provided if that was its intent.

Ms. Audler attached an affidavit of Mark Donegan to her opposition to a motion for new trial filed by Nurses Registry. Mark Donegan’s affidavit indicates that Mike Donegan is his brother and that they are the co-owners of D & D | ^Investigative Services, Inc. However, Ms. Audler’s motion to appoint process server did not request that D & D Investigative Services, Inc. be appointed as process server; it requested that Mike Donegan be appointed, and that is who the district court appointed. Therefore, Mark Donegan had no authority from the district court to perfect service upon Nurses Registry, and any service that he made upon Nurses Registry is not valid service. As such, the default judgment rendered against Nurses Registry is an absolute nullity and must be set aside.

Having found the default judgment to be an absolute nullity, we pretermit any discussion of Nurses Registry’s other arguments and assignments of error.

CONCLUSION

The delivery of the citation and petitions to Nurses Registry’s employee by Mark Donegan, who was not appointed by the district court to make service, was not valid service, and the default judgment is therefore an absolute nullity and must be set aside. This matter is remanded to the district court for further proceedings consistent with this opinion.

JUDGMENT VACATED; MATTER REMANDED

      . Nurses Registry has at various times filed conflicting pleadings as to whether or not it acknowledges that "Lydia'' actually physically received the citation and petitions from Mark Donegan. For purposes of this appeal, we accept that Mark Donegan physically delivered the citation and petitions to “Lydia,” who was an employee of Nurses Registry suitable to receive service,

      . La. C.C.P. art. 1201 provides limited exceptions to this rule, none of which are applicable to the matter before us.


author: GRAVOIS, J.

text:
    Ricky L. OUBRE v. ST. CHARLES PARISH SHERIFF’S OFFICE & Sheriff Greg Champagne (In His Official Capacity)
    NO. 16-CA-409
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, RICKY L. OUBRE, Donald L. Hyatt, II
    COUNSEL FOR DEFENDANT/AP-PELLEE, ST. CHARLES PARISH SHERIFF’S OFFICE & SHERIFF GREG CHAMPAGNE (IN HIS OFFICIAL CAPACITY), I. Harold Koretzky, Russell L. Foster
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Hans J. Liljeberg
   GRAVOIS, J.

| plaintiff/appellant, Ricky L. Oubre, appeals a summary judgment granted in favor of defendants, the St. Charles Parish Sheriffs Office (“the Sheriffs Office”) and Sheriff Greg Champagne, in his official capacity, dismissing Mr. Oubre’s suit which sought a writ of mandamus and a determination that he was eligible for certain health and life insurance benefits to be paid for by the Sheriffs Office. For the following reasons, we affirm the trial court’s grant of summary judgment in favor of defendants.

FACTS AND PROCEDURAL HISTORY

On January 6, 2015, Mr. Oubre filed suit against the Sheriffs Office and Sheriff Champagne, alleging that as a retiree of the Sheriffs Office, he was entitled to certain health and life insurance benefits to be paid for by the Sheriffs Office for himself and his wife under La. R.S. 13:5554.

The record reflects that Mr. Oubre was employed by the Sheriffs Office almost continuously from October 1, 1982 until he was terminated from the Sheriffs Office on February 8, 2013. Prior to his termination, in late 2012 and early 2013, Mr. Oubre and the Sheriffs Office were engaged in an employment dispute which was ultimately settled in January 2013. The settlement, which was consummated in a January 21, 2013 letter from the Sheriffs Office’s attorney to Mr. Oubre’s former counsel (and which was approved and signed by Mr. Oubre’s former counsel on January 22, 2013) provided that Mr. Oubre would the next day submit in writing his notification and paperwork to the Sheriffs Office confirming that he would be “retiring” approximately four weeks later, on February 17, 2013, and would use his accumulated vacation leave for the final four weeks of his employment with the Sheriffs Office. However, prior to the end of said four-week period, Mr. Oubre was terminated from employment with the Sheriffs Office on February 8, 2013, for alleged misconduct which occurred during said four-week [ aperiod, as detailed in a February 8, 2013 termination letter from the Sheriffs Office to Mr. Oubre.

Mr. Oubre did not reach retirement eligibility age under state law until February 16, 2014 and began receiving pension benefits thereafter once he applied for such benefits and his eligibility status was confirmed by the Louisiana Sheriffs Pension and Relief Fund. However, Mr. Oubre’s application to the Sheriffs Office to receive health and life insurance benefits from the Sheriffs Office, pursuant to La. R.S. 13:5554, was denied by the Sheriffs Office, based upon its determination that under La. R.S. 13:5554(O) and La. R.S. 13:5554(T), an applicant must have retired directly from the Sheriffs Office in order to be eligible for such insurance benefits. The Sheriffs Office took the position that Mr. Oubre had been terminated from the Sheriffs Office, rather than having retired therefrom, and thus was not eligible under La. R.S. 13:5554(O) and La. R.S. 13:5554(T) for said insurance benefits.

In his suit, Mr. Oubre sought a writ of mandamus against Sheriff Champagne ordering him to comply with La. R.S. 13:5554. He also asserted in his petition that he “dispute[d] the reasons given in the papers contained in his records for [his] termination, and [did] not waive any right to dispute the reasons given, but view[ed] those reasons as irrelevant for the present dispute.”

After discovery, defendants filed a motion for summary judgment, asserting their position that under La. R.S. 13:5554(O) and La. R.S. 13:5554(T), an applicant must have retired directly from the Sheriffs Office in order to be eligible for said insurance benefits. Defendants framed the issue as a straight-forward question of statutory interpretation: Does La. R.S. 13:5554(O) and La. R.S. 13:5554(T) require the Sheriffs Office to pay health and life insurance premiums for all former employees entitled to pension benefits, regardless of how the former employee’s |s*employment came to an end, or does it only provide coverage to those employees who retire directly from the Sheriff’s Office?

Mr. Oubre filed an opposition to the motion for summary judgment, arguing that he had a “contract for employment of limited duration” with the Sheriffs Office and that the Sheriffs Office breached the contract by terminating him without “good cause.” He also argued that since he was entitled to receive pension benefits pursuant to La. R.S. 11:2171, et seq., he was also entitled to receive insurance benefits under La. R.S. 13:5554.

In a reply memorandum, the Sheriffs Office argued that the issue of whether Mr. Oubre’s termination from the Sheriffs Office was wrongful was not before the Court in the motion for summary judgment, as Mr. Oubre’s petition asserted that the reasons for his termination were “irrelevant for the present dispute.”

The trial court conducted a hearing on the motion for summary judgment on October 13, 2015, and after taking the matter under advisement, rendered judgment on February 23, 2016 granting the motion for summary judgment, dismissing Mr. Ou-bre’s claims with prejudice. In extensive reasons for judgment issued on January 22, 2016, the trial court found that La. R.S. 13:5554(O) and La. R.S. 13:5554(T) indicate that Mr. Oubre “must be both retired from [the Sheriffs Office] and [be] entitled to receive pension benefits to be entitled to insurance coverage.” The trial court further found that in his petition, Mr. Oubre based his claims on the interpretation of La. R.S. 13:5554, and had “belatedly” attempted to challenge the reasons for his termination in his opposition to the motion for summary judgment, despite initially alleging that those reasons were irrelevant to the suit. The trial court accordingly denied Mr. Oubre’s claims “as a matter of law,” finding that he had not demonstrated that defendants’ denial of the insurance benefits in question was done in bad faith; rather, the denial was based on a correct I.treading of the statutes controlling entitlement to such benefits. This timely appeal followed.

On appeal, in his sole assignment of error, Mr. Oubre argues that the trial court erred in granting defendants’ motion for summary judgment because the parties’ settlement of their employment dispute created a “contract of limited duration employment” from which Sheriff Champagne terminated Mr. Oubre without “good cause,” thus causing him to lose the contested insurance benefits.

ANALYSIS

Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id.

On appeal, our review of summary judgments is de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086, 1087. A de novo review or an appeal de novo is an appeal in | swhich the appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings. Wooley v. Lucksinger, 06-1140 (La.App. 1 Cir. 12/30/08), 14 So.3d 311, 352, affirmed in part, reversed in part and remanded in part, 09-0571 (La. 4/1/11), 61 So.3d 507.

La. R.S. 13:5554(O) provides, in pertinent part:

Notwithstanding the provisions of Subsection D of this Section, the sheriff of St. Charles Parish shall pay out of the sheriffs general fund the premium cost of group insurance for any sheriff or full-time deputy sheriff who has retired from the St. Charles Parish Sheriff’s Office and who is entitled to receive monthly benefits from the Sheriffs Pension and Relief Fund as follows: .... (Emphasis added.)

La. R.S. 13:5554(T) provides:

Effective August 15, 2006, in order for any sheriff, deputy sheriff, or other employee to be eligible to qualify for payment by the sheriff, Sheriffs’ Pension and Relief Fund, or the Louisiana Sheriffs’ Association of premium costs of health benefits upon retirement, each shall have completed the years of service required and have retired directly from either the sheriffs office, the Sheriffs’ Pension and Relief Fund, or the Louisiana Sheriffs’ Association. (Emphasis added.)

Defendants argued in their motion for summary judgment that in order to qualify for the claimed insurance benefits, under La. R.S. 13:5554(O), Mr. Oubre must have both “retired” from the Sheriffs Office and be entitled to receive monthly benefits from the Sheriffs’ Pension and Relief Fund. Mr. Oubre, they argue, did not meet the “retirement” condition because he was terminated from the Sheriffs Office prior to retiring.

Likewise, defendants pointed to La. R.S. 13:5554(T), which requires a recipient of premium costs to have both completed the years of service required and have “retired directly from” the Sheriffs Office. Mr. Oubre does not meet those requirements, they argue, because he did not retire directly from the Sheriffs Office. Instead, he was terminated from the Sheriffs Office.

| flThis Court could find no jurisprudence interpreting La. R.S. 13:5554. Accordingly, we must interpret the statute according to the guidelines discussed previously by this Court, to-wit:

Legislation is the solemn expression of legislative will and, therefore, the interpretation of legislation is primarily the search for the legislative intent. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written and no further interpretation may be made in search of legislative intent. La. Civ. Code art. 9. However, if a statute is ambiguous or susceptible of more than one reasonable interpretation, statutory construction is necessary.
The function of statutory interpretation and the construction to be given legislative acts rests with the judicial branch of government. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. Civ. Code art. 10. Louisiana Rev. Stat. § 1:3 also provides that, when interpreting the revised statutes, courts shall read and construe statutory words and phrases in their context and in accordance with the common and approved usage of the language. See also La. Code Civ. Proc. art. 5053.
Accordingly, the starting point for the interpretation of any statute is the language of the statute itself, while being mindful that the paramount consideration for statutory interpretation is always the ascertainment of the legislative intent and the reason or reasons which prompted the legislature to enact the law. Therefore, when the apparent meaning of the statute appears doubtful or the language can reasonably be interpreted in more than one manner, courts must search deeper to discover the legislative intent.
(Internal citations omitted.)

BellSouth Telcoms., Inc. v. Bennett Motor Express, L.L.C., 13-438 (La.App. 5 Cir. 12/12/13), 131 So.3d 236, 242-243, quoting Burnette v. Stalder, 00-2167 (La. 6/29/01), 789 So.2d 573, 577.

Upon review, we find that La. R.S. 13:5554(O) and La. R.S. 13:5554(T) are clear and unambiguous as written. La. R.S. 13:5554(O) contains two requirements that are conjunctive (“and”), which means both requirements must be met: a beneficiary must “ha[ve] retired from the St. Charles Parish Sheriffs Office and [be] entitled to receive monthly benefits from the Sheriffs Pension and Relief Fund ....” La. R.S. 13:5554(T), likewise, uses the word “and” when it requires 17that a beneficiary “shall have completed the years of service required and have retired directly from either the sheriffs office, the Sheriffs’ Pension and Relief Fund, or the Louisiana Sheriffs’ Association.” Mr. Oubre’s employment with the Sheriffs Office ended when he was terminated from the Sheriffs Office. He did not retire from the Sheriffs Office. Therefore, he does not qualify for the insurance benefits in question under either La. R.S. 13:5554(O) or La. R.S. 13:5554(T).

As noted above, in his opposition to the motion for summary judgment, Mr. Oubre attempted to place the validity of his termination at issue. However, raising this issue in an opposition memorandum to a motion for summary judgment is procedurally unavailing, especially in light of the assertion made in Mr. Oubre’s petition, that the reasons for his termination are “irrelevant for the present dispute.” The petition itself thus clearly does not raise the issue of wrongful termination.

The thrust of Mr. Oubre’s arguments on appeal is that the settlement agreement he reached with the Sheriffs Office created a “contract of limited duration employment,” which defendants breached when defendants terminated him from employment without “good cause.” However, upon review, we find that Mr. Oubre’s petition did not allege that he had a “contract of limited duration employment” with the Sheriffs Office, nor that his “settlement” with the Sheriffs Office created such an employment contract. Rather, in his petition, Mr. Oubre only asserted, alternatively, that “there is an actual or implied contract for the health and life insurance benefits provided for by La. R.S. 13:5554.” (Emphasis added.) Accordingly, the only issue before the trial court on the motion for summary judgment was whether Mr. Oubre was entitled to post-retirement insurance benefits under La. R.S. 13:5554. As such, we find that the trial court properly refused ⅜0 consider the alleged breach of “contract of limited duration | semployment” claim asserted by Mr. Oubre in his opposition to the motion for summary judgment.

In his opposition to the motion for summary judgment, Mr. Oubre also cited La. R.S. 11:2178, claiming that because he is eligible and entitled thereunder to collect retirement benefits from the Sheriff’s Pension and Relief Fund even though he was terminated from the Sheriffs Office, he is therefore entitled to the full payment of his insurance premiums under La. R.S. 13:5554. This argument also fails. La. R.S. 11:2171, et seq. address only the conditions precedent to a Sheriffs Office employee collecting retirement benefits from the Sheriffs Pension and Relief Fund. La. R.S. 11:2178(C)(2) recognizes explicitly that retirement benefits, though deferred, are available to a deputy who has “separated” from service, rather than “retired” from service.

Further, a provision concerning eligibility for payment of insurance premiums is conspicuously absent from this statute. Eligibility for payment of health and life insurance premiums is addressed, instead, specifically in La. R.S. 13:5554, which clearly and unambiguously has additional requirements, not found in La. R.S. 11:2178, for a previously employed sheriffs employee to receive the insurance benefits in question. Thereunder, Mr. Oubre has met only one of the requirements,'that he is eligible and entitled to receive retirement benefits from the Sheriffs Pension and Relief Fund. He has not met the requirement that he must have “retired” from the Sheriffs Office. Although Mr. Oubre did not “retire” from the Sheriffs Office, but rather was “terminated” from the Sheriffs Office, such fact did not prohibit him from receiving retirement benefits from the Sheriffs Pension and Relief Fund.

- [ ^Accordingly, upon de novo review, we find that- defendants have shown that “there is no genuine issue as to material fact, and that [they are] entitled to judgment as a matter of law.” La. C.C.P. art. 966(B)(2). We thus find that the trial court did not err in granting summary judgment in favor of the Sheriffs Office and Sheriff Champagne.

CONCLUSION

For the foregoing reasons, the trial court’s grant of summary judgment in favor of defendants is affirmed.

AFFIRMED

      . In his appellate brief, Mr. Oubre admits that he "no longer disputes that he had to retire from active service in order to receive the medical insurance portion of his retirement.” He thus does not argue for a different interpretation of La. R.S. 13:5554(O) and La. R.S. 13:5554(T) than that found by the trial court. Our de novo review of the trial court’s granting of defendants' motion for summary judgment requires us, however, to review the correctness of the trial court's interpretation of La. R.S. 13:5554(O) and La. R.S. 13:5554(T) in its granting of defendants’ motion for summary judgment which resulted in the dismissal of Mr. Oubre's suit.

      . In his petition, Mr. Oubre also asserted claims of "tire torts of conversion by continued possession [of the funds which were to be paid to Mr. Oubre and to others for his benefit] and/or unjust enrichment," and for general and emotional distress damages. In response to the motion for summary judgment, Mr. Oubre presented no evidence or argument in support of these claims. Further, in his opposition to the motion for summary judgment, Mr. Oubre "accede[d] to defen-dantsf] arguments concerning the conversion cause of action and the general or emotional distress damages.” Those claims were thus properly dismissed by the trial court on summary judgment.


author: CHEHARDY, C.J.

text:
    Carl PERRY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Melissa St. Blanc-Champagne
    NO. 16-CA-418
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, CARL PERRY, Glenn C. McGovern
    COUNSEL FOR DEFENDANT/AP-PELLEE, OCHSNER MEDICAL CENTER-WESTBANK AND MARK LABAT, M.D., Peter E. Sperling, Nairda T. Colon, Brittany K. Sloan
    Panel composed of Susan M. Chehardy, Stephen J. Windhorst, and Hans J. Liljeberg
   CHEHARDY, C.J.

| plaintiff, Carl Perry, appeals the 24th Judicial District Court’s March 29, 2016 judgment sustaining the dilatory exception of prematurity and dismissing without prejudice Mr. Perry’s claims against defendants, Dr. Marc Labat, M.D. and Ochs-ner Medical Center-Westbank. For the reasons that follow, we reverse this judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 23, 2012, Carl Perry was injured in a motor vehicle accident. Mr. Perry was on his motorcycle when he was struck by a vehicle driven by Melissa St. Blanc-Champagne. Mr. Perry filed suit on May 23, 2013 naming Ms. St. Blanc-Cham-pagne and her insurer as defendants.

After further discovery, Mr. Perry amended his petition on November 24, 2015, adding as defendants Dr. Marc La-bat, M.D. and Ochsner Medical Center-Westbank. Mr. Perry alleges that Dr. La-bat treated Ms. St. Blanc-Champagne in the Ochsner emergency room on the day of the accident, administered several intravenous drugs to her, and prematurely discharged her while she was still under the influence of the drugs. Ms. St. Blanc-Champagne’s intoxicated state, along with the negligence of Dr. Labat and the hospital in permitting her to drive, Mr. Perry claims, were the proximate causes of his injuries.

On February 17, 2016, defendants pleaded the dilatory exception of prematurity as well as the peremptory exceptions of no cause of action and no right of action. On March 29, 2016, following a hearing on the exceptions, the court issued its judgment, overruling the peremptory exceptions, but sustaining the exception of prematurity. Mr. Perry sought supervisory review from this Court, 1 Rbut we declined to exercise our supervisory jurisdiction, finding a judgment sustaining the exception of prematurity is a final appealable judgment subject to our appellate jurisdiction. Carl Perry v. State Farm Mutual Automobile Ins. Co. et al., 16-216 (La. App. 5/10/16) (unpublished writ disposition). Thereafter, Mr. Perry sought and was granted a devol-utive appeal.

DISCUSSION

An action is premature when it is brought before the right to enforce it has accrued. Williamson v. Hosp. Serv. Dist. No. 1, 04-0451 (La. 12/1/04), 888 So.2d 782, 785 citing La. C.C.P. art. 423. The dilatory exception of prematurity questions whether a cause of action has matured to the point where it is ripe for judicial determination. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 09/05/07), 966 So.2d 519, 523; Williamson, supra; Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La. 2/29/00), 758 So.2d 116, 119.

Under the Louisiana Medical Malpractice Act (“LMMA”), a medical malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity if such claim has not first been presented to a medical review panel. LaCoste, supra. “No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.” La. R.S. 40:1231.8(B)(1)(a)(i) (formerly La. R.S. 40:1299.47(B)(1)(a)(i)).

When the exception of prematurity is pled in the medical malpractice context, the burden of proving prematurity is on the exceptor, who must show that it is entitled to a medical review panel because the allegations fall within the LMMA. LaCoste, supra, at 523-24. Indeed, the LMMA and its limitations on tort | ¡liability for a qualified health care provider apply only to claims “arising from medical malpractice,” while all other tort liability on the part of the qualified health care provider is governed by general tort law. Id. at 524. Therefore, we conduct a de novo review of the district court’s ruling sustaining the dilatory exception of prematurity because the issue of whether a claim sounds in medical malpractice involves a question of law. Matherne v. Jefferson Parish Hospital Dist. No. 1, 11-1147 (La. App. 5 Cir. 5/8/12), 90 So.3d 534, 536, writ denied, 12-1545 (La. 10/12/12), 98 So.3d 873. Moreover, because no evidence was introduced at the hearing on the exceptions, we must, as the district court did below, render our decision on the exception based solely upon the facts as alleged in the petition, accepting all allegations therein as true. See LaCoste, supra at 525, (“Where no evidence is presented at trial of a dilatory exception, like prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true.”).

It is undisputed that Ms. St. Blanc-Champagne, not Mr. Perry, is the patient in this case. Although the LMMA’s primary focus is patients’ claims of medical malpractice, the Louisiana Supreme Court has held that the LMMA also applies to non-patient claims, but under limited circumstances. See Hutchinson v. Patel, 93-2156 (La. 5/23/94), 637 So.2d 415. The supreme court held that the LMMA “applies exclusively to claims arising from injuries to or death of a patient where such claims are brought by the patients themselves, their representatives on the patient’s behalf, or other persons with claims arising from injuries to or death of a patient.” Id. at 428 (Emphasis added). Accordingly, under this standard, the issue here is whether Mr. Perry’s non-patient claims against defendants arise from injuries to or the death of Ms. St. Blanc-Champagne.

In Hutchinson, the non-patient plaintiff sued a hospital and psychiatrist for the injuries she sustained as a result of their alleged failure to warn or..take | reasonable precautions to protect her against a threat of physical violence communicated to the psychiatrist by the patient, the plaintiffs husband. Hutchinson, supra, at 417-18. Several weeks after being discharged from the hospital, where he had undergone psychiatric treatment, the patient shot the plaintiff, permanently paralyzing her from the waist down, before he committed suicide. Id. at 418. The district court overruled the defendants’ exception of prematurity, which the First Circuit affirmed on appeal, finding the plaintiffs claim was not covered by the LMMA because it “does not involve the medical care or treatment of a patient.” Id. (quoting Hutchinson v. Patel, 626 So.2d 368, 369 (La. App. 1 Cir. 1993)).

On certiorari review, the Louisiana Supreme Court affirmed, reasoning that the doctor’s “alleged tortious conduct was hot based on his treatment or failure to treat [the patient] because his alleged duty to warn [the] plaintiff was independent of the professional standard of care he owed exclusively to [the patient].” Hutchinson, supra, at 423 (Internal quotations omitted). The court concluded that “because [the plaintiffs] claim does not arise from injury to or death of a patient[,]” the LMMA does not apply. Id. at 428.

On the other hand, in Trahan v. McManus, 97-1224 (La. 3/2/99), 728 So.2d 1273, the Louisiana Supreme Court found the LMMA governed non-patient claims for mental anguish caused by negligence in the treatment of the patient. In Trahan, the mother received a telephone message that her adult son had been transported to the emergency room after sustaining’ injuries in a motor vehicle' accident. Trahan, 728 So.2d at 1275. When she arrived to the hospital, her son appeared to be in 15pain, but the doctor assured her that he was not seriously injured and simply needed bed rest. Id. He was discharged within three hours of being admitted to the emergency room. Id. Unfortunately, the doctor had read the wrong chart; and the son, as reflected in the correct chart, was in fact suffering from shock and internal bleeding. Id. At home, he complained of severe pain to both of his parents and subsequently died in them presence about seven hours after his discharge from the hospital. Id. The parents filed an action against the doctor to recover damages under La. C.C. Art. 2315.6 for them mental anguish and emotional distress resulting from their son’s injury and death. Id.

Following a jury trial in which the jury returned a verdict in favor of the defendants, the Third Circuit reversed. Trahan v. McManus, 96-669 (La.App. 3 Cir. 2/19/97), 689 So.2d 696. In addition to reversing the jury’s verdict on the merits, the court of appeal found that the case was not governed by the LMMA and so concluded that the district court had erred in instructing the jury on the law as provided under the LMMA. Id. at 709-10.

On certiorari review, however, the Louisiana Supreme Court reversed and dismissed the parents’ action. Trahan v. McManus, 97-1224 (La. 3/2/99), 728 So.2d 1273. Before concluding that the parents could not succeed on them claims under La. C.C. Art. 2315.6, the court addressed the issue of the jury instructions Rand determined that the case was in fact governed by the LMMA. Applying Hutchinson, the court concluded that the LMMA applied because the parents’ claims of mental anguish arose from their son’s injury and death that had been caused, at least in part, by the negligence of the doctor. Id. at 1276-77.

Conversely, in a case analogous to the one presently before us, the Second Circuit applied Hutchinson to find the LMMA did not govern a non-patient’s claim. In Jones v. Scriber, 30,693 (La.App. 2 Cir. 06/24/98), 716 So.2d 905, the plaintiff was injured when his horse and buggy was struck by a vehicle driven by the defen-' dant. The plaintiff sued the defendant’s ophthalmologist, arguing the doctor negligently certified to the State Office of Motor Vehicles that the defendant’s corrected vision was sufficient for him to safely operate a vehicle. Jones, 716 So.2d at 905-06. The district court overruled the doctor’s exception of prematurity, which the Second Circuit affirmed on appeal. Id. Noting that the record was devoid of any assertion by the defendant “that he was injured in the accident or sought contribution or indemnification from [the doctor] for any damages [the plaintiff] may recover from [him,]” the Second Circuit concluded that, under Hutchinson, because the plaintiffs claim against the doctor “is a non-patient claim which does not arise from injuries to or death of [the doctor’s] patient,” the claim does not fall within the purview of the LMMA. Id. at 906.

Similarly, here, the record does not suggest that Ms. St. Blanc-Champagne was injured in the accident or sought contribution or indemnification from Dr. Labat or the hospital for any damages Mr. Perry may recover from her. In fact, in Ms. St. Blanc-Champagne’s motion to quash Mr. Perry’s request for production of documents, filed on July 6, 2015, she stated, “[Ms. St. Blanc-Champagne] has not asserted any personal injury claim in this suit.” And in her accompanying |7memorandum, she stated, “[Ms. St. Blanc-Champagne] has not put her health at issue. Any medical treatment which she may or may not have received is not relevant to the issues of the instant lawsuit.”

Absent any indication that Ms. St. Blanc-Champagne sustained injuries in this matter, we cannot find that Mr. Perry’s non-patient claims against defendants arise from injuries to the patient. Therefore, in accordance with Hutchinson, his claims are not governed by the LMMA and are not required to be presented to a medical review panel. The district court erred in sustaining the exception of prematurity.

DECREE

For the foregoing reasons, we reverse the district court’s March 29, 2016 judgment sustaining defendants’ exception of prematurity and dismissing without prejudice plaintiffs claims against defendants. We also vacate the district court’s ruling on plaintiffs motion to compel discovery. We remand this matter to the district court for reconsideration of plaintiffs motion to compel and for further proceedings.

REVERSED; REMANDED

      . After this appeal was lodged and docketed in this Court, it was determined that the district court's judgment of March 29, 2016 was deficient because it lacked the requisite decre-tal language. Particularly, the judgment failed to specify the relief that was granted by sustaining the exception of prematurity, i.e., dismissal of claims. Consequently, pursuant to our supervisory jurisdiction, this Court ordered the district court to amend its judgment to specify the relief granted. On November 2, 2016, the district court amended its judgment to specify that as a result of sustaining the exception of prematurity, Mr. Perry's claims against defendants were dismissed without prejudice.

      . Generally, a judgment overruling the dilatory exception of prematurity is interlocutory and unappealable. Louisiana courts, however, have found that a judgment requiring a health care provider to forgo the benefit of a medical review panel is considered appealable because medical review panel proceedings cannot be adequately replicated after reversal on appeal. See Jordan v. Stonebridge, L.L.C., 03-588 (La.App. 5 Cir. 11/25/03), 862 So.2d 181, 182 n.1, writ denied, 03-3520 (La. 3/19/04), 869 So.2d 851; McKnight v. D & W Health Servs., 02-2552 (La.App. 1 Cir. 11/7/03), 873 So.2d 18, 20-21; Fincher v. Dep't of Health & Hosps., 29,640 (La.App. 2 Cir. 4/2/97), 691 So.2d 844, 845; Prisk v. Palazzo, 95-1475 (La.App. 4 Cir. 1/19/96), 668 So.2d 415, 416, writ denied, 96-437 (La. 4/8/96), 671 So.2d 335; Head v. Erath Gen. Hosp., Inc., 458 So.2d 579, 580-81 (La. App. 3 Cir. 1984), writ denied, 462 So.2d 650 (La. 1985).

      . The court reasoned:
      The present case is complicated by the fact that the event which caused the injury and death was the automobile accident. The doctor’s negligence was failing to read the correct chart and to provide treatment to the patient based on the data on the chart, which arguably caused the patient to lose his chance of surviving the automobile accident injuries. This negligence of omission, while a concurrent cause of the death (if plaintiffs proved cause-in-fact, an issue we do not reach), was not an injury-causing event in which the claimant was contemporaneously aware that the event had caused harm to the direct victim, as required for recovery of Article 23IS.6 damages.
      Even under the view of the court of appeal that the injury-causing event was the doctor’s negligent discharge of the patient, that event was not a traumatic event likely to cause severe contemporaneous mental anguish to an observer, even though the ultimate consequences were tragic indeed. There was no observable harm to the direct victim that arose at the time of the negligent failure to treat, and no contemporaneous awareness of harm caused by the negligence. The doctor’s negligent discharge of the patient, accompanied by mistaken assurances that the patient would soon recover, was not itself an emotionally shocking event. Similarly, the father’s witnessing his son’s arrival home from the hospital was not the witnessing of an injury-causing event, or the coming soon after upon the scene of an injury-causing event, for which bystander damages may be awarded under the strict limitations of Article 2315.6.

        Trahan, supra, at 1280.


author: WICKER, J.

text:
    Katherine BLANTON v. Beverly NAPIER
    NO. 16-CA-421
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, KATHERINE BLANTON, Arita M. Bohannan, Lauren Davey Rogers
    COUNSEL FOR DEFENDANT/APPELLANT, BEVERLY NAPIER, Robert L. Raymond
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy
   WICKER, J.

| defendant appeals the trial court’s judgment rendered following a bench trial, ordering her to return certain jewelry to plaintiff. For the following reasons, we find the trial judge was not manifestly erroneous in her finding that plaintiff did not intend to irrevocably give the jewelry at issue to defendant. Accordingly, we affirm the trial court judgment.

FACTUAL AND PROCEDURAL BACKGROUND

This litigation arises out of a dispute between two former friends, Mrs. Kathy Blanton and Mrs. Beverly Napier, concerning the ownership of two pieces of jewelry — a pair of 3.5 carat diamond earrings and a multi-strand pearl bracelet. Mrs. Blanton’s deceased former husband, Greg DuTreil, worked with Mrs. Napier and, through work-related social events, Mrs. Blanton (then, Mrs. DuTreil) and her husband and Mrs. Napier and her husband became good friends. The two couples were good friends for approximately thirty years. In 1984, Mr. DuTreil won a one-million dollar sweepstakes and, as part of that award, he was given loose diamonds that were subsequently made into diamond earrings.

On numerous occasions, Mrs. Napier borrowed various pieces of jewelry from Mrs. Blanton, including the diamond earrings and pearl bracelet at issue in this litigation. In August of 2008, following a gathering at Mrs. Napier’s home, Mrs. Blanton and Mrs. Napier sat at the kitchen table talking. The two women testified to the contents of this “emotional” conversation. Mrs. Blanton testified that in that conversation, she told Mrs. Napier that she intended to leave the diamond earrings to Mrs. Napier in her will and that Mrs. Napier seemed “genuinely moved.” She further testified however that she wanted Mrs. Napier to have physical possession of the earrings prior to her death because, at that time, her health appeared to be fading and her husband, Mr. DuTreil, had been terminally ill |2for years. She explained that she and Mr. DuTreil had not attended any social functions in years and, contrarily, Mrs. Napier and her husband “went to very nice parties” arid had occasion to use and enjoy the earrings. She further explained that she wanted Mrs. Napier to have physical possession of the earrings prior to her death so that Mrs. Napier would not have to go through the trouble of asking to borrow the earrings each time she had an event to attend and, also, Mrs. Blanton would not have to go through the trouble of obtaining the earrings from her safety deposit box. Mrs. Blanton testified that she asked Mrs. Napier to obtain an updated appraisal on the earrings and to acquire an insurance policy to insure the earrings in order to protect her asset “from a business standpoint;”

Mrs. Blanton testified that, iri that same August 2008 conversation, Mrs. Napier mentioned how she “wish[edj it had been the pearl bracelet” because she loved the pearl bracelet. Mrs. Blanton said she wás “taken back” but explained to Mrs. Napier that she would speak with her husband and she decided to “let [Mrs. Napier] borrow that long-term as well.” A week or two thereafter, Mrs. Blanton retrieved thé pearl bracelet from the safety deposit box and brought it to Mrs. Napier’s office;

Mrs. Napier testified, contrarily, that Mrs. Blanton gave her the diamond earrings during the August 2008 conversation while the two sat at her kitchen table. She explairied that Mrs. Blanton gave her the earrings essentially as a thank-you for having saved her life in the hospital earlier that year. Both women testified that in the spring of 2008, Mrs. Blanton was hospitalized for a surgery when a machine malfunctioned and caused Mrs. Blanton to “code.” Mrs. Napier was at Mrs. Blanton’s side at the time and rushed to alert the nurse of the machine’s malfunction. Mrs. Napier testified that Mrs. Blanton never mentioned her will in that conversation nor did she tell her that the diamond earrings were only being loaned to her pending Mrs. Blanton’s death. At trial, Mrs. Napier submitted a Last |sWill and Testament drafted by Mrs. Blanton on October 18, 2013, prior to the initiation of the dispute surrounding this litigation, wherein Mrs. Blanton makes no reference whatsoever to a bequest of a pair of diamond earrings or pearl bracelet. Mrs. Blanton, however, testified that she had a notebook in which she wrote to whom she would like to have small items, such as jewelry and furnishings, bequeathed.

Concerning the pearl bracelet, Mrs. Napier could not recall the circumstances under which she obtained the pearl bracelet, only that Mrs. Blanton delivered the bracelet to her office within a week or two following the transfer of the diamond earrings. Shortly after the August 2008 conversation and physical transfer of the two pieces of jewelry, Mrs. Napier wrote Mrs. Blanton a thank-you note, which stated, “[k]nowing you even want me to have something of yours is such an honor and I will always think of you proudly and with a smile on my face whenever I am wearing your beautiful jewelry.” Mrs. Napier testified that she held herself out to be the owner of the jewelry and told all of her friends that Mrs. Blanton gave her the jewelry at issue.

In October 2011, Mrs. Blanton’s husband, Mr. DuTreil, passed away. Within a few years, Mrs. Blanton married Kevin Blanton. Mrs. Napier and her husband attended the wedding and hosted a brunch the following morning for Mrs. Blanton’s new husband’s grown children and his grandchildren. Mr. and Mrs. Blanton stayed at the Napier’s home for approximately one week prior to the wedding and the Napiers drove the Blantons to the cruise ship in New Orleans for their honeymoon. When Mr. and Mrs. Blanton returned from their honeymoon, they stayed an additional two nights at the Napier’s home while the Napiers vacationed in Las Vegas. Apparently, Mr. and Mrs. Napier returned to their home on a Monday evening and Mr. and Mrs. Blanton left the Napiers’ home early the | .(following Tuesday morning. After each couple returned from vacationing, they did not say “hello” or “good-bye” to each other. Mrs. Napier testified that when she awoke Tuesday morning, before she left for work, she noticed a note on the table from Mrs. Blanton asking if she and Mr. Blanton could simply leave the house keys in the home and exit through the garage. Mrs. Napier understood this to mean that the Blantons did not intend or could not “bother to come say goodbye” before they left. Mrs. Napier was “disappointed that she couldn’t bother to think that maybe I wanted to say good-bye.” She indicated that she thought Mrs. Blanton could have traveled to Mrs. Napier’s office in Kenner, approximately five miles from her home, to drop off the house keys and to say goodbye.

According to Mrs. Blanton, she left a thank-you note on a table in Mrs. Napier’s home, thanking the Napiers for their hospitality during the wedding and for allowing the Blantons to stay in the Napiers home following the honeymoon. Mrs. Blan-ton explained that she and Mr. Blanton were already in bed when the Napiers returned home Monday evening. She further explained that on Tuesday morning she and Mr. Blanton ran errands and took care of some business prior to driving home to Mississippi.

The record reflects that very little to no communication took place until two weeks later, March 16, 2014, when Mrs, Blanton forwarded an email to Mrs. Napier. In the email, Mrs. Blanton again thanked Mrs. Napier for her hospitality before and after the wedding. Additionally, in that email, Mrs. Blanton informed Mrs. Napier that she had colored her hair a honey blonde color and was having a fence constructed and other work performed on her new home in Mississippi.

Mrs. Napier testified that she did not initially respond to the March 16, 2014 email because she was still upset that the two did not say good-bye to each other, [sand Mrs. Napier left shortly thereafter for a 2 week trip to Hawaii with Mr. Napier. Mrs. Blanton became upset that Mrs. Napier did not respond to her March 16,2014 email.

The two women then exchanged additional correspondence, but provided conflicting testimony concerning the sequence or timing of the next correspondence exchanged. Mrs. Blanton forwarded correspondence to Mrs. Napier, stating “it is obvious that you are miffed at me,” referencing their three decade friendship and questioning why Ms. Napier had not responded to her March 16, 2014 email. In that correspondence, Mrs. Blanton makes her first written request for the return of the jewelry:

I am wondering now if I saw more in our relationship than you did all these years. Maybe I as merely an acquaintance to you. If so, then I have made a big mistake. I am not in the habit of giving such generous bequests to acquaintances. The jewelry that I gave to you might be a most unpleasant reminder, and I wouldn’t want to be the source of unpleasantness. You may simply ship it back to me at your earliest possible convenience, and I will definitely reimburse you for the postage and insurance.

Mrs. Napier also sent two letters to Mrs. Blanton during the same time frame, one letter she stated she had written for “therapeutic” purposes but never intended to mail, and another letter she testified she wrote in response to Mrs. Blanton’s written letter and demand for the jewelry. In Mrs. Napier’s letter, she responded that she was not “miffed” but was hurt and disappointed that Mrs. Blanton did not tell her good-bye in person when she left Mrs. Napier’s home following her honeymoon before returning to Mississippi. Mrs. Napier also took issue with the vows exchanged between Mr. and Mrs. Blanton during their wedding ceremony. In the letter that Mrs. Napier testified she did not initially intend to mail, Mrs. Napier referenced Mrs. Blanton’s wedding vows and voiced her disapproval. Mrs. Napier found that the language Mrs. Blanton used in her vows, stating that she was the “safest I have felt in my life” and “happiest I have | (¡ever felt in my life” was disrespectful to her deceased former husband, Mr. Du-Treil. Mrs. Napier’s letter further referenced Mrs. Blanton’s “new life, new husband, a new house, a new car, new hair color, new vocabulary, new way of dressing, and I guess you want new friends. I know Greg wanted you to be happy. He loved you so. I can’t help thinking how disappointed in you he would be.”

Concerning the jewelry, Mrs. Napier’s first written response stated:

I didn’t know the jewelry you gave me came with so many attachments and stipulations.... I didn’t know you felt like it was always something you could dangle in front of my nose. I find that disgusting.

Mrs. Blanton admitted that Mrs. Napier’s comments concerning her deceased husband “got the best” of her. Mrs. Blan-ton forwarded another letter to Mrs. Napier, again referencing the jewelry and stating:

[A]re you going to return the pearl bracelet & diamond earrings or not? I doubt you would ever feel comfortable wearing them again since they came from such a self-centered despicable person. You conveniently did not answer that one. I will reimburse you for the shipping & full insurance coverage.

Mrs. Napier did not respond to this correspondence, which resulted in the initiation of this suit.

Mr. James Zimmerman, Mrs. Napier’s brother, testified at trial that he was at Mrs. Napier’s home on the night that Mrs. Blanton gave her the diamond earrings at issue. He stated that he was not present during the exchange, but walked in shortly thereafter and observed both women “kind of teared up.” He asked the women if they were ok, to which he stated Mrs. Blanton replied, “yes... I just gave Beverly my diamond earrings.” Mr. Zimmerman testified that Mrs. Napier had the earrings in her ear. He acknowledged that he left the room shortly thereafter and |7that he did not hear any of the conversation leading up to the transfer of the earrings.

Mr. Timothy Napier, Mrs. Napier’s husband, testified at trial that on the night in question he and Mrs. Napier hosted a thank you dinner or gathering to thank family and friends for their support following the death of Mrs. Napier’s aunt. Mr. Napier testified that he was not present in the room at the time that Mrs. Blanton handed the earrings to Mrs. Napier, but he did walk into the room at some point and heard Mrs. Blanton explaining to Mrs. Napier how to take care of the earrings and thanking Mrs. Napier for saving her life.

Following trial, the trial judge took the matter under advisement. On January 12, 2016, the trial judge issued a judgment in favor of Mrs. Blanton, finding that Mrs. Blanton did not donate but rather loaned the jewelry to Mrs. Napier and ordering Mrs. Napier to return the jewelry to Mrs. Blanton.

DISCUSSION

In this appeal, Mrs. Napier first argues that the trial judge was clearly wrong in her determination that the physical transfer of the jewelry was a loan to Mrs. Napier rather than a donation or gift in response to Mrs. Napier saving Mrs. Blan-ton’s life months prior. Alternatively, Mrs. Napier argues that she acquired ownership of the jewelry at issue through acquisitive prescription pursuant to La. C.C. art. 3490. For the following reasons, we find that the trial judge was not manifestly erroneous in her factual finding that Mrs. Blanton did not intend to donate the jewelry to Mrs. Napier. We further find that the trial judge was not manifestly erroneous in denying Mrs. Napier’s claim to the jewelry by acquisitive prescription under La. C.C. art. 3490.

|»An inter vivos donation is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it. La. C.C. art. 1468. Pursuant to this article, in order for the donation to be valid, there must be a divestment, accompanied by donative intent. Schindler v. Biggs, 06-0649 (La.App. 1 Cir. 06/08/07), 964 So.2d 1049, 1053. Additionally, acceptance of the object offered must be made by the donee during the donor’s lifetime and by authentic act, unless otherwise expressly permitted by law. La. C.C. arts. 1541 and 1544. The burden to prove that a donation has occurred is on the donee and the proof must be by clear and convincing evidence. O’Krepki v. O’Krepki, 16-50 (La.App. 5 Cir. 05/26/16), 193 So.3d 574, 579.

The Civil Code provides two exceptions to the rule that inter vivos gifts be made by authentic act, the application of which depends on whether the object of the donation is a corporeal or incorporeal movable. La. C.C. art. 1543 provides that the inter vivos donation of a corporeal movable may be made by delivery of the thing to the donee without any other formality. This exception is found in La. C.C. art. 1543 and refers to manual gifts. O’Krepki v. O’Krepki, supra at 579; Succession of Miller, 405 So.2d 812, 819 (La. 1981).

La. C.C. art. 1543, titled “manual gifts,” provides that “[t]he donation inter vivos of a corporeal movable may also be made by delivery of the thing to the donee without any other formality.” Although no formal written act is required, “a manual gift requires both delivery and donative intent.” Succession of Wagner, 08-0212 (La.App. 1 Cir. 08/08/08), 993 So.2d 709, 718. Donative intent is a factual issue subject to the manifest error standard of review. Thus, a trial court’s finding on this issue cannot be reversed unless an appellate court, after review of the entire 18record, finds both that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. Id.; see also Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993).

Under the manifest error standard of review, a district court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the court of appeal is convinced that had it been the trier-of-fact, it would have weighed the evidence differently. Driscoll v. Stucker, 04-0589 (La. 1/19/05), 893 So.2d 32, 46. As the trier-of-fact, a trial court is charged with assessing the credibility of witnesses and, in so doing, is free to accept or reject, in whole or in part, the testimony of any witness. Durapau v. Kallenborn, 09-79 (La.App. 5 Cir. 05/26/09), 13 So.3d 1201, 1206. When factual findings are based upon determinations regarding the credibility of witnesses, the manifest error standard demands that great deference be accorded to the trial court. Hitchen v. Southland Steel, 05-1708 (La.App. 1 Cir. 6/9/06), 938 So.2d 123, 126.

Upon review of the record in this case, we cannot say that the trial judge was manifestly erroneous in her factual finding that Mrs. Blanton lacked the dona-tive intent to donate the jewelry at issue to Mrs. Napier. The trial judge, after hearing the testimony and considering the evidence introduced at trial, made the factual determination that Mrs. Blanton never intended to irrevocably give the jewelry to Mrs. Napier. The record presented conflicting testimony concerning exactly what was said during the August 2008 transfer of the jewelry. Based upon the record and Mrs. Blanton’s testimony in which she stated that she intended to loan the jewelry to defendant and to bequest the earrings to Mrs. Napier at the time of her death, we find there is a reasonable factual basis to support the trial court’s findings.

Alternatively, Mrs. Napier contends that she has acquired the jewelry through three-year acquisitive prescription. Under La. C.C. art. 3490, title to 11nmovables may be acquired through prescription of three years by a good-faith possessor. To establish three-year acquisitive prescription under article 3490 to a moveable that qualifies as a manual gift, one must establish possession as owner in good faith for a period of three years without interruption. The party asserting acquisitive prescription has the burden of proving all facts essential to support each element of the article. Mere physical possession of the moveable is insufficient. Succession of Wagner, supra at 722.

Although it is undisputed that Mrs. Napier had physical possession of the jewelry for more than three years, mere physical possession is insufficient. Mrs. Napier, as the party asserting the defense of acquisitive prescription, carried the burden at trial to prove that she possessed the jewelry as owner and in good faith for a period of three years. Other than her self-serving testimony that she “told” everyone that the jewelry belonged to her, Mrs. Napier put forth no additional fact witnesses or physical evidence (e.g. an updated appraisal or insurance policy listing Mrs. Napier as the owner of the jewelry, or testimony from friends or acquaintances) to prove that she possessed the jewelry as owner.

The trial judge clearly denied or dismissed Mrs. Napier’s claim that she acquired the jewelry through acquisitive prescription. Because the record supports the trial judge’s factual finding that Mrs. Blan-ton never intended to give the jewelry to Mrs. Napier, in addition to the lack of evidence supporting Mrs. Napier’s claim that she possessed the jewelry as owner while it was in her physical possession, we find the trial court was not manifestly erroneous in her finding that Mrs. Napier did not acquire the jewelry through three-year acquisitive prescription.

| iiAccordingly, for the reasons provided above, the trial court judgment is affirmed.

AFFIRMED

      . Mrs. Blanton incorrectly referred to this notebook as a “codicil” to her will. The notebook was not introduced into evidence.

      . Mrs. Blanton testified that she received a phone call from her physician, indicating that she had been diagnosed with insulin-dependent Type II diabetes and needed medication as soon as possible.

      . On October 20, 2014, Mrs. Blanton’s counsel forwarded correspondence to Mrs. Napier, instructing Mrs. Napier to return the jewelry at issue or to submit a payment in the amount of $10,600.00 should she no longer be in possession of the jewelry.

      . After the initiation of this lawsuit, Mrs. Blanton's counsel forwarded correspondence to Mrs. Napier referencing Mrs. Blanton's intent to file a police report for the theft of the jewelry and institute criminal prosecution for Mrs. Napier’s refusal to return the jewelry. As a result, Mrs. Napier filed a motion to deposit the jewelry into the registry of the court.