text:
    Corbett L. OURSO, Jr. v. CAVE LAW FIRM, LLC; Donald Cave; and Micheal Cave
    NO. 2017-CC-1679
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. C, No. 2011-0000563; to the Court of Appeal, First Circuit, No. 2017 CW 0819; November 28, 2017

11 Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Johnny Oneal LAPOOLE
    NO. 2017-KO-0618
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 14F3348; to the Court of Appeal, Second Circuit, No. 51,-199-KA

11 Denied.


text:
    Tina RAMUS, Individually and on Behalf of Madison Ricketson (Decedent: Stephen Ricketson) v. KCJS TRUCKING, LLC Tina Ramus, Individually and on Behalf of Xander Ramus (Decedent: Stephen Ricketson) v. KCJS Trucking, LLC
    NO. 2017-CC-1593
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 6, No, 16-02905 C/W 16-02946; to the Court of Appeal, First Circuit, No. 2017 CW 0647;

h Denied.


text:
    STATE of Louisiana IN the INTEREST OF D.H.
    NO. 2017-CK-0615
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Orleans Parish Juvenile Court, No. 2015-349-06-DQ-C/B; to the Court'of Appeal, Fourth Circuit, No. 2016-CA-0963

| denied.


text:
    STATE of Louisiana v. Tyrone PARKER
    NO. 2017-KK-1888
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish ■ of, Orleans, Criminal District Court Div. F, No. 584-360; to the Court of Appeal, Fourth Circuit, No. 2017-K-0799; ■ ' . t .

| denied.


text:
    STATE of Louisiana v. Warren CIRAVOLA, Jr.
    No. 2015-K-1604
    Supreme Court of Louisiana.
    November 28, 2017
   Applying for Reconsideration of this Court’s action dated September 6, 2017; Parish of Washington, 22nd Judicial District Court Div. G, No. 13-CRS-122104; to the Court of Appeal, First Circuit, No. 2015 KA 0032;

hNot considered. See La.S.Ct. Rule IX, §6.

HUGHES, J., would grant.


text:
    STATE of Louisiana v. Courtney ABLES
    NO. 2017-KO-0488
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. J, No. 15-1411; to the Court of Appeal, Fifth Circuit, No. 16-KA-538;

I .Denied.


text:
    PARK PLACE SURGERY CENTER, LLC dba Park Place Surgical Hospital v. NATIONAL OILWELL VARCO, L.P. and New Hampshire Insurance Company
    NO. 2017-CC-1682
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs Office of Workers’ Compensation, District 04, No. 17-01205; to the Court of Appeal, Third Circuit, No. 17-483;

| í Denied.


text:
    STATE of Louisiana v. Moriel GAUDET
    NO. 2017-KK-1903
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish- of Orleans, Criminal District Court Div. E, No. 521425; to the Court of Appeal, Fourth Circuit, No. 2017-K-0893;

| denied.

GENOVESE, J., would grant.


text:
    STATE of Louisiana v. Daniel Brandon PRINCE -aka- Daniel B. Prince
    NO. 2017-K-0410
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Acadia, 15th Judicial District Court Div. J, No. 72189; to the Court of Appeal, Third Circuit, No. 16-260

| denied.


text:
    STATE of Louisiana v. Roland Alexis WHITE, II
    NO. 2017-KH-1782
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. F, No. 349,913; to the Court of Appeal, Second Circuit, No. 51,-880-KH;

|! Denied.


text:
    STATE of Louisiana v. Vincent COOPER
    NO. 2017-K-1561
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 519-463; to the Court of Appeal, Fourth Circuit, No. 2015-KA-0820;

| denied.

GUIDRY, J., would grant.

CRICHTON, J., would grant and remand for an evidentiary hearing.

GENOVESE, J., would grant and remand for an evidentiary hearing.


text:
    Darren THOMAS v. WAUSAU UNDERWRITERS INSURANCE COMPANY, BLD Service, Inc., David Garcia
    NO. 2017-CC-1595
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 65,435; to the Court of Appeal, Fifth Circuit, No. 17-C-427;

11Denied.


text:
    Tyshara BLOUIN, et al. v. Sheriff Newell NORMANO, et al.
    NO. 2017-CC-1665
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 17-994; to the Court of Appeal, Fourth Circuit, No. 2017-C-0666;

11 Denied.

GUIDRY, J., would grant.

CLARK, J., would grant.

CRICHTON, J., would grant.


text:
    Murphy J. PAINTER v. STATE of Louisiana, THROUGH the OFFICE OF the GOVERNOR, the Department of Revenue and Taxation, Alcohol Tobacco Control Commission, Cynthia Bridges, in Her Official Capacity as Secretary of the Department of Revenue and Taxation, the Office of State Inspector General, and, Stephen Street in His Official Capacity as State Inspector General
    NO. 2017-CC-1658
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 604308; to the Court of Appeal, First Circuit, No. 2017 CW 0353;

11 Granted. The application is granted for the sole purpose of remanding the matter to the district court to allow relator an opportunity to amend his petition in order to remove the. grounds for objection. La. Code Civ. P. art. 934. In all other respects, the application is denied.


text:
    CONSTANTIN LAND TRUST v. PITRE INDUSTRIES, L.L.C.
    NO. 2017-C-1644
    Supreme Court of Louisiana.
    November 28, 2017
   Applying ;For Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court D,iv. E, No., 128510; to the Court of Appeal, First Circuit, No. 2016 CA 0993;

hDénied.

WEIMERi J., recused.


text:
    Kathleen COMELLAS v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, et al.
    NO. 2017-CC-1664
    Supreme Court of Louisiana.
    November 28, 2017
   Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No, 721-014; to the Court of Appeal, Fifth Circuit, No. 17-C-415;

| denied.


text:
    STATE of Louisiana v. Ryan HICKMAN
    NO. 2017-K-0142
    Supreme Court of Louisiana.
    November 28, 2017
   Applying for Reconsideration of this Court’s action dated September 29, 2017; Parish of Orleans, Criminal District Court Div. A, No. 522-295; to the Court’ of Appeal, Fourth Circuit, No. 2016-KA-0579 C/W 2016-K-0367;

JjNot considered. See La.S.Ct Rule IX, § 6.


author: SHANNON J. GREMILLION, JUDGE

text:
    GBB PROPERTIES TWO, LLC, et al. v. STIRLING PROPERTIES, INC., et al. GBB Properties Two, LLC, et al. v. Stirling Properties, LLC, et al.
    17-352
    16-1063
    Court of Appeal of Louisiana, Third Circuit.
    10/25/2017

      Brent B. Barriere, Fishman Haygood, L.L.P., 201 St. Charles Avenue, 46th Floor, New Orleans, LA 70170-4600, (504) 586-5252, COUNSEL FOR DEFENDANTS/APPELLEES: Stirling Properties, LLC, Ambassador Town Center JV, LLC, Four Magnolias, LLC, Ambassador Infrastructure, LLC
    Rickey W. Miniex, Clyde R. Simien, Ka-trena A. Porter, Simien & Miniex, APLC, 104 Rue Iberville, Lafayette, LA 70508, (337) 269-0222, COUNSEL FOR DEFENDANTS/APPELLEES: Stirling Properties, LLC, Ambassador Town Center JV, LLC, Four Magnolias, LLC, Ambassador Infrastructure, LLC

      Patrick S. McGoey, Schonekas, Evans, McGoey & McEachin, LLC, 909 Poydras Street, Suite 1600, New Orleans, LA 70112, (504) 680-6050, COUNSEL FOR PLAINTIFFS/APPELLANTS: GBB Properties Two, LLC, DBR Properties, LLC
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   SHANNON J. GREMILLION, JUDGE

| j Plaintiffs, GBB Properties Two, LLC and DBR Properties, LLC (GBB and DBR), appeal the trial court’s judgment granting the defendant’s, Stirling Properties, LLC, exception of no cause of action. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves complex commercial developments relating to a mixed-use retail center known as' “Ambassador Town Center” (Town Center) in Lafayette, Louisiana. The construction of the retail center involved extensive public' infrastructure improvements relating to roads, sidewalks, streetlights, traffic signals, street modifications, drainage improvements, and public utilities. There are multiple parties to various contracts and a PILOT (payment in lieu of taxes) agreement.

In May 2016, GBB and DBR filed suit against Stirling, CBL Associates Management, Inc., and Ambassador Infrastructure, LLC. It alleged breach of contract by Stirling and Ambassador Infrastructure “an entity created by Stirling and/or CBL,” including 1) negligent misrepresentation, 2) breach of fiduciary duty, 3) breach of contract due to substandard construction, 4) property damage, and 5) requested an accounting of the PILOT funds. Ambassador Infrastructure filed an answer and reconventional demand in June 2016. In July 2016, Stirling and CBL filed peremptory exceptions of no cause of action and a dilatory exception of vagueness arguing, essentially, that the PILOT agreement GBR and DBR entered into was with Ambassador Infrastructure, and “Plaintiffs have not alleged facts to suggest that [Ambassador] Infrastructure’s corporate veil should be pierced.” Attached to its pleading was the “PILOT REIMBURSEMENT AGREEMENT,” a Rten-page document signed by representatives of Ambassador Infrastructure, L.L.C. and Ambassador Town Center JV, L.L.C. with subheadings for each as follows:

By: CBL Ambassador Member, LLC, a Louisiana limited liability company, its managing Member
By: CBL & Associates Limited Partnership, a Delaware limited partnership, its Chief Manager
By CBL Holdings I, Inc., a Delaware corporation, its sole general partner

Both were signed by Farzana K. Mitchell, Executive Vice President and Chief Financial Officer.

In August 2016, GBB and DBR filed a motion for leave to file an amended petition, which was granted. In their amended petition, they added as a defendant Four Magnolias, LLC, stating that it is “owned and/or controlled by Stirling and is located in and operated from Stirling’s corporate office.” It also added Ambassador Town Center JV, LLC stating that it is “owned and controlled by Stirling' and its joint venture partner, CBL & Associates Property, Inc.” GBB and DBR further stated that Town Center “is operated from Stirling’s corporate office.” Finally, GBB and DBR urged that Ambassador Infrastructure is owned and/or controlled by Stirling, that is has no existence separate from Stirling, and that together they “constitute a single business enterprise and/or Infrastructure is the alter ego or instrumentality of Stirling.” ■ ...

The amended petition then went on to describe, in more than twenty pages, the nature of the relationship between Stirling and GBB/DBR and the agreements' pertaining to the PILOT program. In essence, GBB and DBR claim that Stirling failed to construct the public utility improvements it agreed to in the original purchase agree-' ment, instead using PILOT monies to fully develop its' tract of land while neglecting the GBB/DBR land.

|sThe thirty-eight-page amended petition contained the following allegations:

COUNT I: Declaratory Judgment (Against Stirling and Infrastructure)
COUNT 2: Breach of Purchase Agreement and Guaranty (Against Four Magnolias, Town Center, and Stirling)
COUNT 3: Breach of Reimbursement Agreement (Against Stirling and Infrastructure) ■ ■
COUNT 4: Intentional and/or negligent misrepresentation (Against, Stirling)
COUNT 5: Conversion (Against Stirling and Infrastructure)
COUNT 6: Detrimental, Reliance (Against Stirling and Infrastructure)
COUNT 7: Unjust Enrichment (Against Stirling and Town Center)

GBB and DBR entered into a Purchase Agreement with Four Magnolias to sell at least forty-one acres of the master tract of land.. Stirling executed a “Guaranty of Buyer’s Performance,” guaranteeing the performance of the obligations “under the terms of the Purchase Agreement.” Stirling further agreed to be “jointly and severally liable with Buyer” for all obligations of the Purchase Agreement. The development plans outlined that GBB and DBR would give Four Magnolias up to a $1.4 million infrastructure credit against the purchase price. Stirling then proposed to GBB and DBR that the infrastructure improvements could be accomplished through a PILOT program, to which GBB an DBR agreed.

Regarding its claim that Stirling and Ambassador Infrastructure are a single business enterprise, GBB and DBR state in their first amended and supplemental verified petition:

166.
On information and belief, Infrastructure has no assets or existence separate and apart from Stirling and is wholly owned, controlled, funded and/or financed by Stirling. Infrastructure conducts no business except that given to it by Stirling.
Ji167-
For, example, throughout the course of the events at issue, in this litigation, Plaintiffs have always dealt with Stirling and Stirling employees. On information and belief, Infrastructure has no employees of its own.. Rather, at all times, officers, directors, managers or employees of Stirling wholly direct the activities of Infrastructure and performed Infrastructure’s’ obligations, particularly Infrastructure’s obligations under the Reimbursement Agreement.
168. .
Additionally, Infrastructure has no physical offices of its own and is operated from Stirling’s Covington .office. In fact, Infrastructure’s registered address with the Secretary of State is listed as “c/o” Stirling.
169.
Further, communication .to Plaintiffs regarding Infrastructure’s obligations under the Reimbursement Agreement were sent from Stirling’s offices, by Stirling’s employees, on Stirling’s letterhead.
170.
Further, [a contracting company] represented that Stirling was the party making the decisions concerning the design, construction, and funding for the public infrastructure improvements.
171.
Accordingly, Infrastructure’s separate organizational identity should -be disregarded and Stirling should be found to be liable for all obligations and breaches of Infrastructure. .

GBB and DBR further requested a declaratory judgment as to whether Stirling and Ambassador Infrastructure are a single business enterprise and/or Ambassador Infrastructure is the alter ego of Stirling and whether the organizational form' of Ambassador Infrastructure should be disregarded and Stirling should be held liable for all obligations and breaches of Ambassador Infrastructure. -

IpAs Defendants-in-reconvention, GBB and DBR filed a peremptory exception of no'cause action in response to the récon-ventional demand filed by Ambassador Infrastructure. In September 2016, GBB and DBR dismissed CBL & Associates Management, Inc. Stirling filed a supplemental memorandum in support of its exceptions of no cause of action, prescription, and vagueness. Four Magnolias and Town Center filed answers.

Following an October 2016 hearing, the trial court, in a minute entry, granted Stirling’s exception of no cause of action, finding:

All parties referred to the Pilot Reimbursement Agreement (Exhibit B). An examination of .the PILOT Reimbursement Agreement, clearly names the parties bound fty.that agreement, namely: •Ambassador Infrastructure, Ambassador Town Center, GBB Properties and [DBR] Properties. There are no facts admissible under the allegations of Plaintiffs [sic] petition which establishes that Plaintiffs, GBB/DBR [sic] have a cause of action against the defendants, Striling [sic], since Plaintiffs had no privity of contract with Stirling. Additionally, the court does not find that Stirling controlled the actions of Ambassador Infrastructure. Nor, is there a finding that plaintiffs have sufficiently alleged facts which might suggest that Infrastructure’s corporate veil should be pierced. The law does not afford a remedy to plaintiff because there is lack of privity , of contract, hence no breach of contract.

GBB and DBR filed a notice of intention to apply for supervisory writs on the trial court’s minute-entry. Judgment was rendered on December 22, 2016. .Numerous other pleadings were filed subsequently, but they are unrelated to the issue before us. In January 2017, GBB and DBR filed a motion for appeal relating to the December 22, 2016 judgment. In docket number 16-1063, we .denied Stirling’s motion to dismiss.- its supervisory writ and granted GBB and DBR’s writ for the limited purpose of ordering the consolidation of the writ application with .the appeal in docket number 17-352. - ■ ■

| «ASSIGNMENTS OF ERROR
GBB and DBR assign as error:
1. The trial court erred in granting Stirling’s exception of no cause of action and dismissing Counts I, III, IV, and V with prejudice.
2. The trial court erred in sua sponte dismissing Counts II, VI, and VII with prejudice.
3. The trial court erred in failing to afford GBB and DBR an opportunity to amend their pleading to cure any deficiencies.

DISCUSSION

On appeal, we review the trial court’s grant of an exception of no cause of action using the de novo standard of review. ERA Helicopters, LLC v. Amegin, 15-753 (La.App. 3 Cir. 12/9/15), 181 So.3d 241.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. Jarrell v. Carter, 577 So.2d 120 (La.App. 1 Cir.), writ denied, 582 So.2d 1311 (La.1991). The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff. LA.CODE CIV.P. arts. 927, 931; Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La. 1984)....
Generally, under LA.CODE CIV.P. art. 931 parties may introduce no evidence to support or controvert the exception. See, e.g., Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010 (La.App. 1 Cir. 3/27/97), 691 So.2d 751, 754, writ denied, 97-1066 (La. 6/13/97), 695 So.2d 982....
An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. [City of New Orleans v.] Board of Comm’rs of Orleans Levee Dist., 640 So.2d [237] at 237 [ (La. 1994) ]. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the ^plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law.
City of New Orleans v. Bd. of Dir. of Louisiana State Museum, 98-1170, pp. 9-10 (La. 3/2/99), 739 So.2d 748, 755-56.

Sun Coast Contracting Servs., Inc. v. Dien’s Auto Salvage, Inc., 14-307, pp.1-2 (La.App. 3 Cir. 10/1/14), 148 So.3d 964, 966-67, writ denied, 14-2432 (La. 2/13/15), 159 So.3d 465.

Single Business Enterprise Doctrine

In Dishon v. Ponthie, 05-659, p.5 (La.App. 3 Cir. 12/30/05), 918 So.2d 1132, 1135, writ denied, 06-599 (La. 5/5/06), 927 So.2d 317, (quoting Green v. Champion Ins. Co., 577 So.2d 249, 257 (La.App. 1 Cir.), writ denied, 580 So.2d 668 (La. 1991)), we discussed the single-business-entity exception, which allows for the piercing of the corporate veil in order to find that one corporation is deemed responsible for the liabilities of another because the corporation is found to be the “ ‘alter ego, agent, tool or instrumentality of another corporation.’ ” See also Interstate Battery Sys. of Am., Inc. v. Kountz, 11-636 (La.App. 3 Cir. 11/2/11), 78 So.3d 200.

[T]he legal fiction of a distinct corporate entity may be disregarded when a corporation is so organized and controlled as to make it merely an instrumentality or adjunct of another corporation. If one corporation is wholly under the control of another, the fact that it is a separate entity does not relieve the latter from liability. .. .When corporations represent precisely the same single interest, the court is free to disregard their separate corporate identity.

Green, 577 So.2d at 257 (citation omitted).

In determining whether the single-business-entity exception should be applied to a group of entities, the following factors are examined:

|«1) corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control;
2) common directors or officers;
3) unified administrative control of corporations whose business function are similar or supplementary;
4) directors and officers of one corporation act independently in the interest of that corporation;
5) corporation financing another corporation;
6) inadequate capitalization (“thin incorporation”);
7) corporation causing the incorporation of another affiliated corporation;
8) corporation paying the salaries and other expenses or losses of another corporation;
9) receiving no business other than that given to it by its affiliated corporations;
10) corporation- using the property of another corporation as its own;
11) noncompliance with corporate formalities;
12) common employees;
13) services rendered by the employees of one corporation on behalf of another corporation;
14) common offices;
15) centralized accounting;
16) undocumented transfers of funds between corporations;
17) unclear allocation of profits and losses between corporations; and
18) excessive fragmentation of a single enterprise into separate corporations.
[Green ] at 257-258. In summing' up, the first circuit stated.that "[t]hese factors are similar to factors that have been used in Louisiana ‘piercing the veil’ cases. This list is illustrative and is not intended as an exhaustive list of relevant factors. Ño one factor is dispositive of the issue of ‘single business enterprise.’” Id. at 258 (citations omitted).

Dishon, 918 So.2d at 1135-36.

In Che v. First Assembly of God, 50,360 (La.App. 2 Cir. 1/13/16), 185 So.3d 125, 134 (citations omitted), the court stated:

The sirigle-business-enterprise doctrine is a theory for imposing liability where two or more business entities act as one. Generally, under this doctrine, when corporations integrate their resources in operations to achieve a common business purpose, each business may be held liable for wrongful acts done in pursuit of that purpose.
Whether two -or more entities comprise a single-business enterprise is a factual determination to be decided by the tier of fact which is subject to the manifest error standard of review.

Defendants heavily rely on Ogea v. Merritt, 13-1085 (La. 12/10/13), 130 So.3d 888, for the proposition that the single-business-enterprise theory has been abolished via legislation. We do not agree. Ogea involved the imposition of personal liability on the member of an LLC. The supreme court, relying on La.R.S. 12:1320, discussed the exceptions to the general rule regarding the imposition of personal liability on LLC members. This case is inapplicable to the facts at hand. GBB and DBR make no allegations that the any of the members of the assorted LLCs should be personally liable.

Based on the original petition and first amended petition, we find that GBB and DBR have sufficiently pled facts which state a, cause of action under, the single-business-entity theory relating to their claims against Sterling. GBB and DBR pled that Stirling entered into a contract of guaranty relating to the purchasers of the GBB/DBR property. They further alleged sufficient facts, when accepted as true, that suggest a single business enterprise exists amongst Stirling, Ambassador | ^Infrastructure, 'Four Magnolias, and Town Center JV. We note that we make no 'finding that these companies operate as a single business enterprise; rather, the grant of the no cause of action in favor of Stirling was inappropriate based on the pleadings in the record which do not indicate an “insurmountable bar to relief.” Accordingly, the trial court erred in its dismissal of counts I,, III, IV, and V, '

Trial Court’s Dismissal of Counts II, VI, and VII

Based on our above finding and the fact that Stirling asserted no objections to counts II, VI, and VII, we find these claims were improperly'dismissed by the trial court. Assignment of error three is rendered moot by our findings here.

CONCULSION

The trial court’s judgment granting Stirling Properties, LLC’s, no cause,of action, is reversed. All costs of this appeal are assessed to Stirling Properties, LLC.

REVERSED.

      . Finding no error in the trial court’s ruling, we have already denied the supervisory’ writ filed by GBB and DBR contesting the trial court's minute entry in. February 2017, and subsequent March 2017 judgment denying their exception of no cause of action against Town Center. See GBB Props. Two, LLC v. Stirling Props., LLC, 17-384 (La.App. 3 Cir. 7/5/17), 224 So.3d 1001.


author: SAUNDERS, Judge.

text:
    Dustin William BOWDOIN v. WHC MAINTENANCE SERVICES, INC., et al.
    17-150
    Court of Appeal of Louisiana, Third Circuit.
    10/25/2017

      Robert E. Kerrigan, Jr., Raymond Lewis, Deutsch, Kerrigan, & Stiles & Stiles, 755 Magazine Street, New Orleans, LA 70130, (504) 581-5141, COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company
    Edwin G. Preis, Jr., M. Benjamin Alexander, Preis PLC, Post Office Drawer 94-C, Lafayette, LA 70509, (337) 237-6062, COUNSEL FOR DEFENDANTS/APPELLANTS: Zurich American Insurance Company, WHC Maintenance Services, Inc., WHC, LLC
    Louis C. LaCour, Jr., Adams and Reese, LLP, 4500 One Shell Square, New Orleans, LA 70139, (504) 585-0328, COUNSEL FOR DEFENDANT/APPELLANT: AIG Specialty Insurance Company
    Chad E. Mudd, David P. Bruchhaus, M. Keith Prudhomme, Matthew P. Keating, Mudd & Bruchhaus, LLC, 410 E. College Street, Lake Charles, LA 70605, (337) 562-2327, COUNSEL FOR PLAINTIFF/AP-PELLEE: Dustin William Bowdoin
    Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   SAUNDERS, Judge.

| ] This is a case involving a motor vehicle accident in which Plaintiff sustained serious injuries. Plaintiff, who resides in Louisiana, was recruited by a pipeline employee to work with him at a pipeline construction and maintenance company performing work in Florida. As agreed, the employee picked Plaintiff up in Louisiana to transport him to the job location in Orlando, Florida. Prior to arriving in Orlando, the employee’s personal vehicle in which they were traveling, broke down twice. Plaintiff attempted to assist the employee in towing the inoperable vehicle by steering it as the employee pulled it with a company vehicle and towing assembly. Ultimately, the employee accelerated to 55 miles per hour, which caused Plaintiff to lose control of the inoperable vehicle, and the vehicle flipped. As a result, Plaintiff sustained severe injuries resulting in paraplegia.

Following the accident, Plaintiff sued the employee’s employer and its insurers claiming that the employee was in the course and scope of his employment at the time of the accident which rendered his employer vicariously liable for Plaintiffs injuries. The employer and its insurers filed a motion for summary judgment alleging that employer’s employee was not in the course and scope of employment at the time of the accident. In response, Plaintiff filed a motion for summary judgment that the employee was in the course and scope of his employment at the time of the accident. The trial court granted. Plaintiffs motion and denied the employer and its insurers’ motion. The employer and its insurers have appealed.

FACTS AND PROCEDURAL HISTORY:

Plaintiff, Dustin William Bowdoin (“Bowdoin”), was recruited by Devin Ba-don (“Badon”), an employee of WHC Maintenance Services, Inc. (‘WHC”). WHC is a large pipeline construction and maintenance company based in | ¡¡Louisiana which performs work on gas pipelines throughout the country. At the time, WHC was performing projects at multiple locations throughout the state of Florida (the “Florida projects”), and was experiencing a labor shortage.

"While working on the Florida projects, Badon was employed by WHC as a temporary laborer with an hourly wage. WHC paid crewmembers a per diem for their travel and lodging expenses, as travel and effectively relocating are critical components of the work of pipeline construction for workers like Badon, who are required to move from project to project. The project for which Bowdoin had been recruited was scheduled to begin on Tuesday, May 27,2014.

On Friday, May 23 2014, Badon, having completed work on a project in Perry, Florida, left his camper trailer he had previously towed there for the purpose of staying at campsites near the various WHC job locations, and drove to Louisiana where he picked up Bowdoin. Badon’s intent was to get back from Louisiana to the Perry, Florida campsite, retrieve his camper, and relocate it to the Orlando job location so that he and Bowdoin would be staged and ready to work on the date the project was scheduled to begin. En route back to Florida, Badon’s vehicle broke down twice. The first time, Roy O’Quinn (“O’Quinn”), a WHC labor foreman whose responsibilities included making sure WHC employees made it to the next job site, came to Badon’s aid in a WHC company vehicle, and, using a WHC towing assembly, towed Badon’s vehicle to an auto parts store so that he could have it repaired. When Badon’s efforts to repair the vehicle failed, O’Quinn towed Badon’s vehicle to the Perry campsite. Badon and Bow-doin then rode back to Orlando, Florida, with O’Quinn. The following day, Saturday, May 24, 2014, on which Badon and the entire WHC crew was being paid a per diem, WHC Foreman Chris Aguillard (“Aguillard”) loaned Badon his WHC company vehicle and towing assembly for the purpose of retrieving Badon’s vehicle and camper | ¡¡from the Perry campsite and relocating it to the Orlando job location. Bowdoin assisted Badon by attempting to steer Badon’s inoperable vehicle as Badon towed it. When Badon accelerated to 55 miles per hour, Bowdoin lost control of the inoperable vehicle, and it flipped. As a result, Bowdoin sustained severe injuries resulting in paraplegia.

Bowdoin filed suit against WHC, Zurich American Insurance Company, and AIG Specialty Insurance Company (collectively “Defendants”) alleging, inter alia, that Ba-don was in the course and scope of his employment with WHC, and, as such, WHC was vicariously liable unto him for Badon’s actions. Defendants filed a motion for summary judgment asserting that Ba-don was not acting within the course and scope of his employment with WHC at the time of the accident. Bowdoin filed an opposition to that motion and a cross motion for summary judgment asserting that Ba-don was within the course and scope of his employment with WHC at the time of the accident.

The trial court denied Defendant’s motion and granted Bowdoin’s motion finding that Badon .was within the course and scope of his employment with WHO at the time of the accident. Defendants filed this appeal asserting two assignments of error.

ASSIGNMENTS OF ERROR:

1. The District Court improperly granted summary judgment in Plaintiffs favor despite the existence .of evidence squarely contradicting the factual allegations relied upon by Plaintiff in support of his argument that Devin Badon was within the course and scope of his employment with , WHO at the time of the accident, thereby establishing genuine issues of disputed fact and precluding the . availability of summary judgment in Plaintiffs favor.
2.' The District Court improperly denied , summary judgment in Defendants’ favor when the disputed facts relied on by Plaintiff are immaterial to the question of course and scope, and the undisputed material facts established that Devin Badon was outside the course and scope of his employment with WHC at the time of the accident.

^ASSIGNMENT OF ERROR NUMBER ONE:

Defendants assert that the trial .court erred .in granting Bowdoin’s motion for summary judgment, due to existing evidence that contradicts Bowdoin’s alleged undisputed material facts, precluding the availability .of summary judgment.in Bow-doin’s favor. We find merit to .this assertion.

Appellate courts review summary judgments de novo, under the same criteria that govern the trial court’s, determination of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544.

In order to prevail on a motion for summary judgment, the moving party must show that, “there [is] no genuine issues of material fact and that he is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3). “A fact is ‘material’ when its existence or nonexistence may be essential to [the] plaintiffs cause- of action.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no n.eed for trial on that issue and &um-mary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 8 (La. 7/2/12), 94 So.3d 750, 755 (superseded by statute on other grounds).

When considering a motion for summary judgment, the court cannot “consider the merits, make credibility determinations, evaluate testimonyf,] or weigh evidence.” Prop. Ins. Ass’n of La. v. Theriot, 09-1152, p. 3 (La. 3/16/10), 31 So.3d 1012, 1014 (quoting Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459, p. 11 (La. 4/12/05), 907 So.2d 37, 48). Moreover, although “summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be |Bresolved in the opponent’s favor.” Willis v. Medders, 00-2507, p. 2 (La. 12/8/00), 775 So.2d 1049, 1050.

[A]n employer is answerable for the damage occasioned by its servants in the. exercise of , the functions in which the servant is employed. Specifically, an employer is liable for its employee’s torts committed if, at the time, the employee was acting within the course and scope of his employment. An employee is acting within the course and scope of his employment when the employee’s action is “of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve the .employer.” An employee may be within the course and scope of his employment yet step out of that realm while engaging in a personal mission.

Timmons v. Silman, 99-3264, p. 4 (La. 5/16/00), 761 So.2d 507, 510 (citations omitted). Courts are to consider four factors when assessing vicarious liability set forth in LeBrane v. Lewis, 292 So.2d 216 (La. 1974), and summarized by the supreme court in Edmond v. Pathfinder Energy Services, Inc., 11-151 (La.App. 3 Cir. 9/21/11), 73 So.3d 424, writ denied, 11-2234 (La. 12/16/11), 76 So.3d 1204. They are whether the tortious act: (1) was primarily employment rooted; (2) was reasonably incidental to the performance of the employee’s duties; (3) occurred on the employer’s premises; and (4) occurred during the hours of employment. Edmond, 73 So.3d at 426.

It is not necessary that each factor be present in each case, however each must be weighed on its own merits. Lemaire v. Richard, 13-581 (La.App. 3 Cir. 11/6/13), 125 So.3d 558. The determinative question is whether “the tortious conduct ... was so closely connected [in] time, place, and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.” LeBrane, 292 So.2d at 218.

lain the case before us, Defendants aver that Bowdoin’s motion for summary judgment was improperly granted because it relied upon disputed facts. After reviewing the record, we find that there is conflicting testimony as to whether Badon was directed by WHC to travel to Louisiana to retrieve Bowdoin for work on the next WHC project. Badon testified that he was directed to do so while this testimony was contradicted by the testimonies of WHC employees, Rusty Smith and Chris Aguillard. In order to grant' a summary judgment, as the trial court did in this Case, one would have to give credence to Badon’s testimony regarding whether he was directed to retrieve Bowdoin by WHC over that of Smith and Aguillard. Such a finding requires a credibility determination made to evaluate or weigh testimony which is impermissible when considering the merits of a motion for summary judgment.

On its own, an impermissible weighing of evidence does not defeat summary judgment. The fact impermissibly weighed must be a material fact. Whether WHC directed Badon to retrieve Bowdoin is material because it shows the extent of control, if any, WHC was exerting over Badon in his endeavor to bring Bowdoin to Florida to work for it. This is certainly material as it is a factor to consider when contemplating whether Badon was in the course and scope of his employment with WHC when the accident occurred.

Moreover, there is' conflicting testimony as to why Badon was being paid on the day of the accident. According to Badon’s testimony, he was being paid wages and per diem in pursuit of his mission to deliver Bowdoin to the jobsite. Badon’s statement taken after the accident contradicts this testimony wherein he stated that he was getting paid that’ day despite no construction ongoing in order to correct an accounting error with the crew’s per diem from previous days of work. Badon’s previous statement is corroborated'by the testimony of other WHC employees who 17also stated that the entire crew was being paid wages and per diem that -day, in order to make up for an accounting error in the paychecks the entire crew had been receiving. Thus, in order to consider it a fact that Badon was being paid on the day of the accident to specifically retrieve Bow-doin for WHC would require impermissible weighing of evidence. This fact is also material because it shows whether Badon’s accident occurred while he was on the clock, which is a factor in the temporal element present in a course and scope analysis.

Given the above, we cannot say that there is no genuine issue of material fact as to whether Badon was in the course and scope of his employment with WHC when the accident occurred that injured Bow-doin. Accordingly, summary judgment was not proper in this case at this time, and we reverse the trial court’s grant of Bowdoin’s motion.

ASSIGNMENT OF ERROR NUMBER TWO:

Defendants assert that the trial court incorrectly denied them motion for summary judgment that Badon was not in the course and scope of his employment with WHC when the accident occurred because the disputed facts relied on by Bowdoin to defeat their motion are immaterial to course and scope analysis in this case. We find no merit to this assertion.

As stated in assignment of error number one, appellate courts review summary judgments de novo, under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Duncan, 950 So.2d 544. In order to prevail on a motion for summary judgment, the moving party must show that “there [is] no genuine issues of material fact and that he is entitled to judgment as a matter of law.” La. Code Civ.P. art. 966(A)(3)

|sFor consideration of this motion for summary judgment, while Defendants are the movant, they do not have the burden of proof on the issue at trial. Therefore, they need only establish that Bowdoin lacked support for one or more elements required to establish his claim. La.Code Civ.P. art. 966(D)(1). If WHC satisfies its burden on the motion, Bowdoin must “produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.” Id. Otherwise, Bowdoin’s opposition fails.

Defendants’ argument is that even if you take all the facts alleged by Bowdoin as true, Badon was still not within the course and scope of his employment with WHC when the accident happened. According to Defendants, Bowdoin’s course and scope claim relies on the purpose of Badon’s mission being to bring Bowdoin from Louisiana to Florida and Badon had completed that mission the night before the accident occurred. We do not find this argument convincing.

If we are to take all the facts alleged by Bowdoin as true, a reasonable person could conclude that Badon was in the course and scope of his employment with WHC at the time of the accident. Bowdoin alleges that Badon’s mission was to get him to the jobsite and have him staged and ready for work the next week. According to Bowdoin, Badon having his camper at the campsite was necessary in order for Badon to complete that mission.

Moreover, according to Badon, WHC’s supervising employees gave him permission to use the company’s vehicle and towing equipment to get his camper from the Perry campsite to the Orlando campsite for WHC’s benefit. Thus, while there is conflicting evidence on this issue, if we are to take Badon’s testimony as true, it would be reasonable to find that Badon’s mission to get his camper from the Perry campsite to the Orlando campsite was within the course and scope of his 19employment given evidence in the record that use of campers at the' campsites was necessary and their use benefitted WHC. Additionally, given that Bowdoin had not yet been staged and ready for work at the campsite, it would also be reasonable to find that Badon had not accomplished his mission allegedly given to him by WHC. Thus, Defendants’ argument regarding the fact that Bowdoin could have stayed at a hotel or other lodging and gotten a ride to work on the day work began does not mean that Badon’s mission to get him to Florida was completed nor does it mean that they are entitled to summary judgment.

As such, given the status of the record, we find that reasonable minds could differ as to whether Badon was in the course and scope of his employment with WHC when the accident occurred. Accordingly, we find no error by the trial court in denying Defendants’ motion for summary judgment.

CONCLUSION:

WHC Maintenance Services, Inc., Zurich American Insurance Company, and AIG Specialty Insurance Company raise two assignments of error. We find merit in the first and reverse the trial court’s judgment granting Dustin William Bowdoin’s motion for summary judgment based on the factual question of whether Devin Ba-don was in. the course and scope of his employment with WHC Maintenance Services, Inc. when the automobile accident in question transpired. ■ Further, we. affirm the trial court’s denial of WHC Maintenance Services, Inc., Zurich American Insurance Company, and AIG Specialty Insurance Company’s motion for summary judgment because whether Devin Badon was not in the course and scope of his employment with WHC Maintenance Services, Inc. when the automobile accident in question transpired is a question of material fact. Accordingly, we remand this matter for further proceedings consistent with this opinion.

| ^AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: COOKS, Judge.

text:
    David M. DOOLEY, Sr., et al. v. BRANCH BANKING & TRUST CO., et al.
    17-121
    16-766
    Court of Appeal of Louisiana, Third Circuit.
    10/25/2017

      Gerald C. deLaunay, Oscar E. Reed, Jr., Perrin, Landry, deLaunay, P.O. Box 53597, Lafayette, LA 70505, (337) 237-8500, ATTORNEY . FOR PLAINTIFFS/APPELLANTS David M. Dooley, Sr. and Gerald deLaunay

      W. Michael Adams, Robert W. Johnson, Timothy R. Wynn, Blanchard, Walker, O’Quin & Roberts, APLC, 383 Texas Street, Suite 700, P.O. Drawer 1126, (318) 221-6858, ATTORNEY FOR DEFENDANTS/APPELLEES Branch Banking & Trust Co., Hailwood Financial - Limited, Hailwood. Modular Buildings, LLC and Frederick J. Gossen, Jr.
    Michael J. Remondet, Jill B. Wade, Jeanso'nne & Remondet, 200 West Congress Street, Suite 1100, P;0. Box 91530, Lafayettte, LA 70509, (337) 237-4370, ATTORNEY FOR DEFENDANTS/APPEL-LEES: Branch Banking & Trust Co., Hailwood Financial Limited, Hailwood Modular Buildings, LLC and Frederick J. Gossen, Jr. ■'
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H, Kyzar, Judges.
   COOKS, Judge.

JjFrom 1999 to 2014, MB Industries, L.L.C. (MBI) was in the business of manufacturing and selling blast-resistant buildings. MBI’s affiliate, MBI Leasing, L.L.C. (MBI Leasing), leased- blast-resistant buildings. Up until October of 2011, Frederick Gossen, Jr., served as the president of both MBI and MBI Leasing. David M. Dooley, Sr., served as the CEO of both companies. Gossen and Dooley also served as the companies’ managers and they both owned equity in the companies either directly or through their family trusts and holding companies.

MBI and MBI Leasing suffered significant financial losses in 2010 and 2011, and were in default on a $17 million debt to Capital One Bank. Dooley negotiated a deal with Hailwood Financial Limited (HFL) whereby HFL agreed to purchase an eighty percent (80%) interest in MBI Leasing, L.L.C. in a contract styled the Membership Interest Purchase Agreement. The parties, agreed that Dooley would retain a nine percent (9%) membership interest in .MBI Leasing. Further, HFL agreed to help refinance the' debts of MBI and MBI Leasing. To assist with the debt- owed to Capital One, HFL arranged for Branch Banking & -Trust Company (BB & T) to provide-a $20 million line of credit, to MBI Leasing. •

At a closing in October 2Ó11, the parties signed various closing documents;' including a MBI Leasing- Operation Agreement, a Pledge Agreement, and a Carmel Companies Realignment Agreement (Realignment Agreement). Pursuant to the Realignment Agreement, Dooley -sold all of his interest, with the exception of the aforementioned • nine percent' (9%) interest- in MBI Leasing, in a group of companies known as the Carmel Companies'. In the Pledge Agreement, MBI Leasing’s equity owners pledged to BB & T their membership interests in MBI’ Leasing as security for the line-of-credit which BB <&• T had provided. 'Thus, Dooley’s nine percent interest in MBI Leasing was pledged to BB &-T. As consideration, Dooley received a $2.75 million promissory note from MBI, 12$250,000.00 in cash, and salary and benefits for Dooley’s wifd, son and son-in-law.

On February 15, 2013, Dooley filed a “Suit on Promissory Note” in the Fifteenth Judicial District Court for Acadia Parish, seeking payment from MBI Leasing, which has now become Hailwood Modular Buildings, LLC (HMB),- on the $2.75 million promissory note. Nearly one year from the filing of that suit (hereafter referred to -as the “First State Court;-Action”), Dooley amended the petition adding numerous defendants, including Gossen and HFL. In the amended petition Dooley claimed the agreements entered into should be rescinded because he and-his family were not paid pursuant to the Realignment Agreement. Dooley also asserted his consent to the Realignment Agreement was vitiated due to fraud or error. Specifically, it was asserted that after Dooley signed the Realignment Agreement, various defendants secretly altered the language in the agreement such that Dooley’s claims under the promissory- note were made subordinate to other indebtedness owed by MBI Leasing. A second amending petition was filed adding Dooley’s family members and family trusts as plaintiffs (hereafter the Dooley plaintiffs)..

On October 2, 2014, MBI Leasing was placed into involuntary bankruptcy in the United States Bankruptcy Court, Western District of Louisiana (hereafter Bankruptcy Court), and the First State Court Action was automatically stayed pursuant to 11 U.S.C. § 362. The Dooley plaintiffs then filed a Motion to Sever them claims against MBI Leasing (now HMB), so they could proceed against the remaining defendants. The Dooley plaintiffs then filed a Motion for Partial Summary Judgment against all defendants (except MBI Leasing), seeking rescission of the Realignment Agreement. In response, HFL and HMB filed a motion to strike both the. Motion to Sever and the Motion for Partial Summary | {Judgment. They also requested the court “stay the matter pending the outcome of the bankruptcy proceedings of [MBI Leasing].”

On April 28, 2015, the trial court rendered judgment granting HFL’s and HMB’s motion to strike the Dooley plaintiffs’ motions. The court also specifically held the “matter is stayed until further notice from the Bankruptcy .Court.” This court, finding “no error in the trial court’s ruling,” denied the Dooley plaintiffs’ writ application. David M. Dooley, Sr. v. MB Industries, LLC, 15-460 (La.App. 3 Cir. 2015).

Meanwhile in Bankruptcy Court, on January 21, 2015, the Dooley plaintiffs filed a Motion for Relief from Stay in the MBI Leasing bankruptcy case, requesting the automatic stay be lifted to allow them to proceed with the state district court suit. They maintained this would allow them to “prosecute claims pending in state court in which [MBI].is a party and obtain relief.” On March 10, 2015, the Bankruptcy Court denied the Motion for Relief from Stay. On that same day, the Dooley plaintiffs filed a “Complaint to Rescind and Dissolve Contract, and for Damages” in Bankruptcy Court. This commenced the currently pending adversary proceeding, David M. Dooley, Sr., et al. v. MB Industries, L.L.C., et al., in the United States Bankruptcy Court, Western District of Louisiana. On April 8, 2015, the Dooley plaintiffs also filed four Proofs of Claim covering the claims for damages and rescission.

Several months later, a Writ of Mandamus and/or Writ of Quo Warranto was filed by some of the Dooley plaintiffs in the Fifteenth Judicial District Court. In this state court action, a determination was sought as to whether the transaction had been “extrajudicially” rescinded. The Bankruptcy Court enjoined the state court action, finding it was an “attempt to imper-missibly collaterally attack this [Bankruptcy] Court’s prior order staying denying relief from the automatic stay.”

' | .[On May 6, 2016, Dooley, along with his attorney, Gerald C. deLaunay, filed the present suit for declaratory judgment in the Fifteenth Judicial District Court, naming as defendants, BB & T, HFL, HMB and Gossen. Among the assertions was that the MBI Leasing Operation Agreement contains non-competition provisions which impermissibly restrict Dooley from engaging in certain lawful occupations in violation of La.R.S. 23:921. The petition also alleges that the Operation Agreement restricts Dooley’s ability to sell or use his membership interest in HMB as security. Thus, Dooley sought a declaratory judgment holding the non-competition and non-alienation provisions of the operating agreement with HMB invalid.

The other plaintiff in this suit (and Dooley’s attorney), Mr. deLauney alleges that because of Dooley’s contingency fee arrangement with him and by operation of law, pursuant to La.R.S. 37:218, deLaunay holds a first priority privilege that trumps any security interest held by BB & T in Dooley’s nine percent (9%) interest in HMB. Thus, they also seek a judgment declaring the validity and ranking of a purported pledge of Dooley’s nine percent (9%) interest in HMB in favor of the defendant, Branch Banking and Trust Company.

In response, the defendants in this matter filed exceptions of lis pendens and prematurity, as well as a- motion to stay. Defendants maintain that deLaunay’s action for declaratory judgment regarding the validity or ranking of his contingency claim is premature because deLaunay has no right to a contingency fee for his work in the Bankruptcy Court proceeding until those proceedings have been resolved. With regard to Dooley’s claims, defendants maintain that Dooley’s claims in the instant case and in the proceeding in Bankruptcy Court arise out of the same transaction or occurrence between the same parties. Therefore, defendants contend the exception of lis pendens applies to Dooley’s claims and the | ¡¡instant case should be dismissed and/or stayed pursuant to La. Code Civ.P. arts. 531 and 532.

Following a hearing, the trial court granted the exception of prematurity and dismissed deLaunay’s claims. The trial court also granted the exception of lis pen-dens and stayed Dooley’s claims.- Judgment was signed on September 14, 2016. Dooley applied for writs to this court, seeking reversal of his claim and -deLau-nay appealed the dismissal of his claim as premature. This court granted Dooley’s writ for the sole purpose of consolidating it with deLaunay’s appeal for a single ruling on the merits. Additionally, Dooley and deLaunay have filed a motion to strike exhibits which defendants attached to their opposition to the writ application, asserting the exhibits were not introduced into' evidence in the trial court. This motion to strike is also deferr'ed to the merits of the appeal. ■

Dooley and deLaunay assert the following assignments of error:

1. The trial court improperly considered evidence that was never offered or admitted into evidence.
2. The trial court improperly sustained the Exception of Lis Pendens to the claims of David M. Dooley, Sr.
3. The trial court improperly sustained the Exception of Prematurity to the claims of Gerald C. deLaunay.

ANALYSIS

I. The Trial Court’s Judgment Staying Dooley’s Claims.

The declinatory exception of lis pendens is appropriate “[wjhen two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities.” La.Code Civ.P. art. 531.

Louisiana Code of Civil Procedure Article 532 provides as follows:

When a suit is brought in a Louisiana court while another is pending in a court of another state or of the United States on the same transaction or occurrence, between the same parties in the same Incapacities, on motion of the defendant or on its own motion, the court may stay all proceedings in the second suit .until the first has been discontinued or final judgment has been rendered.

That article “gives the district court the discretion to grant a lis pendens exception.” Brooks Well Servicing, Inc. v. Cudd Pressure Control, Inc., 36,723, p. 5 (La.App. 2 Cir. 6/27/03), 850 So.2d 1027, 1031, writ denied, 03-2606 (La. 12/12/03), 860 So.2d 1157. Moreover, “[t]he decision of whether to stay a proceeding .under the doctrine of lis pendens.-rests in. the'sound-discretion of the trial court,’ and cannot be overturned on review absent a. clear abuse of that discretion. Southwestern Electrical Power Co. v. Amax, Inc., 621 So.2d 615 (La.1993).” Brooks Well Servicing, 850 So.2d at 1031.

Initially, Dooley asserts the trial court’s decision was incorrect because defendants “offered no evidence” in support of.their position. We disagree. The trial court obviously relied on the numerous exhibits attached to the Motion for Stay. Those exhibits included pleadings and filings in the suits filed by Dooley in the state court and Bankruptcy Court.

Dooley maintains it was error for the trial court to consider those exhibits because they were not “admitted” into evidence. It is clear these exhibits, which largely are comprised of Dooley’s own pleadings and'submissions, are admissible evidence and, as defendants note, would not be excluded from consideration on remand. In the petition in the instant suit, Dooley even references “the matter entitled ‘David M. Dooley, Sr., et al v. MB Industries, LLC, et al,’ bearing Case No. 15-1005 , of the United States Bankruptcy Court, Western District of LA,” Thus, remanding the case back to the trial court simply to formally enter the exhibits into the record would be a waste of judicial resources.

Moreover, we agree with defendants that the trial court was able to take judicial notice of the court records. Louisiana Code of Evidence Article 201(B) provides, “[a] judicially noticed fact must be one not subject to reasonable dispute |7in that it is ... (2).Capable of accurate and ready determination by resort to sources whose accuracy • cannot reasonably be questioned.” The article .also notes a court “may take judicial notice whether requested or ■ not.” We find the trial- court could properly take judicial notice .of the relevant facts with regard to the pending suits that were previously filed. -

The record also establishes Dooley never objected at the hearing to the trial court’s consideration of the exhibits attached to the Motion to.Stay, despite reference to the specific exhibits by defendants during argument, Dooley at no point argued to the trial court that the Motion to Stay was not supported by the evidence.

Moreover, as defendants note, Dooley directly engaged in an argument based on thepleadings' in the Bankruptcy Court proceeding that the motion should be denied. The parties to the Bankruptcy Court proceeding were specifically listed by Dooley, which could only be determined by reference to the exhibits. As this court pointed out in Abshire v. Belmont Homes, Inc., 04-1200, p. 2 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, 280, writ denied, 05-862 (La. 6/3/05), 903 So.2d 458, documents that were merely “attached to the-pre-hearing memoranda filed by the litigants” were not properly introduced into evidence at the hearing on a dilatory exception. Id. However, this court went on to review those documents because the litigants in that case “treated the documents as if they were introduced; therefore, we. will treat their acknowledgment as a judicial confession, of the existence of the documents as evidence.” Id. Therefore, we find the facts concerning the contents of the exhibits were judicially confessed, and were properly considered by the trial court.

We also find no merit in Dooley’s contention that the trial court erred in granting the stay. Under La.Code Civ. P. arts. 531 and 532, the only thing required for the application of lis pendens or a stay is that the claims asserted in this suit I ¡/‘arise out of the same transaction or occurrence” as claims asserted in a previous suit between the same parties or parties whose interests are adequately represented in the previous suit. In the present suit, Dooley requests this court declare certain agreements with defendants as null. Likewise, Dooley is a plaintiff in a proceeding in Bankruptcy Court and requests the same relief as to the same contracts against the same defendants.

Dooley also argues the fact BB & T is named in the instant lawsuit as a defendant, and that deLaunay is a party plaintiff, are factors that preclude maintaining the stay in this matter because neither were parties in the Bankruptcy Court proceeding. We disagree. Dooley’s claims against BB & T are the same claims Dooley made in the Bankruptcy Court proceeding against other defendants who adequately represent BB & T’s interest. As defendants note, both the defendants who are parties in the Bankruptcy Court proceeding and BB & T have the identical interest of upholding the validity of the BB & T Pledge Agreement and the HMB Operating Agreement. Therefore, BB & T’s interests are adequately represented in the Bankruptcy Court proceeding. Further, the facts and contested legal issues surrounding the propriety of the Pledge Agreement and Operating Agreement will be litigated fully in Bankruptcy Court, with Dooley able to present any defenses and arguments he believes are applicable.

Lastly, we agree with defendants that the naming of deLaunay as a plaintiff is irrelevant to the stay of Dooley’s claims. The court in Dean v. Delacroix Corp., 03-1352, p. 4 (La.App. 4 Cir. 8/27/03), 853 So.2d 769, 772, held that “the filing of a new suit naming new and additional parties will not defeat an exception of lis pendens. The party to the earlier filed suit is. entitled to have the later filed suit dismissed as to him, and the new. parties remain in the later filed suit,”

For the reasons expressed above, we deny Dooley’s writ application, and affirm the stay of proceedings pursuant to La. Code Civ.P. art 532. The law, as |flwell as judicial economy, dictate that the parties litigate this matter in Bankruptcy Court.

II, The Trial Court’s Judgment Granting the Exception of Prematurity.

deLaunay has appealed the judgment of the trial court holding that his request for a declaration that his contingency fee agreement with Dooley is first priority is premature. For the following reason, we affirm that judgment.

This court in Crooks v. Louisiana Pacific Corp., 14-724, p. 3 (La.App. 3 Cir. 12/10/14), 155 So.3d 686, 688, discussed the purpose of the dilatory exception of prematurity:

“The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination, because an action will be deemed premature when it is brought before the right to enforce it has accrued.” LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-8, 07-16, p. 5 (La. 9/5/07), 966 So.2d 519, 523. The function of an exception of prematurity is to determine whether a judicial cause of action is not available yet because of some unmet prerequisite condition. Rico v. Cappaert Manufactured Hous., Inc., 05-141 (La.App. 3 Cir. 6/1/05), 903 So.2d 1284.

It is clear the matter for which deLau-nay’s contingency fee applies has not been settled and no court has issued a final judgment. Thus, deLaunay cannot have a right to a contingency fee until that time, and his claim that he has a superior privilege above other security rights in Dooley’s purported membership interest in HMB or any potential damage award recovered is premature. deLaunay has not alleged he is owed a current sum of money, and in fact the petition specifically stated that the purported privilege applies to a “portion of any sums which may be ultimately recovered.” Any contingency fee owed to deLaunay is conditioned upon Dooley actually securing some form of recovery in Bankruptcy Court. As that has not yet happened, deLaunay’s claim is premature and the trial court correctly granted the exception.

| mill. The Motion to Strike Exhibits.

Dooley and deLaunay filed a motion to strike exhibits which defendants attached to them opposition to the writ application, asserting the exhibits were not introduced into evidence in the trial court. For the reasons discussed previously, we deny this motion to strike.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. The writ application filed by David M. Dooley, Sr., is denied. The appeal of the dismissal of Gerald C. deLaunay’s claims on an Exception of Prematurity is affirmed. The Motion to Strike exhibits which defendants attached to their writ application is denied. All costs are assessed to appellants, David M. Dooley, Sr. and Gerald C. deLaunay.

AFFIRMED; WRIT DENIED; AND MOTION TO STRIKE DENIED.


author: KEATY, Judge.

text:
    Debra WHITE v. WIS INTERNATIONAL
    17-132
    Court of Appeal of Louisiana, Third Circuit.
    10/25/2017

      W. Jay Luneau, Robert L. Beck, III, Luneau & Beck, LLC, 5208 Jackson Street Extension, Suite A, Alexandria, Louisiana 71303, (318) 445-6581, Counsel for Plaintiff/Appellee: Debra White
    Eric J. Waltner, Corey Meaux, Allen & Gooch, Post Office Box 81129, Lafayette, Louisiana 70598-1129, (337) 291-1400, Counsel for Defendant/Appellant: Washington Inventory Service Inc. (erroneously listed as WIS International)
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   KEATY, Judge.

liThe employer, Washington. Inventory Service Inc. (WIS), appeals an October 26, 2016 judgment rendered by the workers’ compensation judge (WCJ) in favor of its former employee, Debra White, awarding her indemnity benefits, plus a penalty and attorney fees after a confirmation of default hearing. White answers the appeal seeking an award of additional attorney fees for having to defend this appeal. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On May 28, 2016, White tripped and fell over security rail tracks that were left-on the floor of an Office Depot she was entering to perform inventorying services as part of her employment with WIS. By check dated August 8, 2016, White began receiving Temporary Total Disability Benefits (TTDs) retroactive tó July 27, 2016, which benefits WIS continues to pay her to the present time. White filed a Form 1008 Disputed Claim for Compensation (1008) against WIS on August 31, 2016, alleging that she sustained injuries to her knees, upper and lower back, neck, and left shoulder in the May 28, 2016 accident and seeking an award of indemnity benefits from that date, plus penalties and attorney fees. She wrote “unknown” in the sections of the 1008 asking for her “Average Weekly Wage” and “Workers’ Compensation Rate.” WIS failed to answer the complaint, and the WCJ éntered a preliminary default against it on' September 27, 20Í6. After an October 24,. 2016 evidentiary hearing, the WCJ rendered judgment declaring that White suffered disabling injuries in an on-the-job accident on May 28, 2016, awarding her TTDs in the amount of $164.30 per week beginning the day after the accident, ^subject to a credit for all indemnity benefits paid by WIS since July 27, 2016. White was also awarded a $2,000.00 penalty for WIS’s failure to pay indemnity benefits and $6,000.00 in attorney fees.

WIS filed a motion for new trial, which White opposed. Following a hearing, the WCJ' denied WIS’s motion for new trial, and this appeal followed. In a single assignment' of error, WIC asserts that the WCJ erred in finding that White “proved her prima facie case and in granting the default judgment awarding indémñity benefits between the date of the accident and July 27, 2016[,] and in awarding penalties and attorney’s-fees.” As mentioned previously, White answered the appeal to request an award of additional attorney fees for the work necessitated to - defend - the judgment rendered in her favor.

DISCUSSION

The second circuit discussed the law applicable to appellate review of a confirmation of a default judgment in a workers’ compensation: case in Nickerson v. Finance America of Louisiana, 47,876, pp. 2-3 (La.App. 2 Cir. 2/27/13), 110 So.3d 1216, 1218, wherein it held:

A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C. C. P. art. 1702; Nickens v. Patriot Home Systems, 97-0291 (La.App.1st Cir. 06/29/98), 713 So.2d 1179. A. prima facie case is established when the claimant proves the essential allegations of her petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Nickens, supra.

.The legislature set out the requirements for rendition of a default judgment in a workers’ compensation matter in La.R.S. 23:1316.1, which provides:

|aÁ. A judgment by default on behalf of any party at interest must bé confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. A prima facie case shall include but not be limited to proof of the following:
1). The employee’s average weekly wage.
2) The existence of an employer-employee relationship at the time of the work-related accident.
3) The occurrence of an accident arising out of and in the course of the employment, or the existence of an occupational disease.
4) Entitlement to benefits under the provisions of this Chapter.
C. Medical evidence shall include oral testimony or certified medical records from all treating and all examining health care providers. All other evidence may be presented by sworn affidavit.

“In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. This determination is a factual one governed by the manifest error standard of review.” Arias v. Stolthaven New Orleans, L.L.C., 08-1111, p. 5 (La. 5/5/09), 9 So.3d 815, 818 (citations omitted). “[TJhere is no entitlement to a default judgment absent strict compliance with [the] procedural requirements” found in La.R.S. 23:1316,1. Nickens v. Patriot Home Sys., 97-291, p. 5 (La.App. 1 Cir. 6/29/98), 713 So.2d 1179, 1182.

Louisiana Revised Statutes 23:1221(l)(c) provides that “compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-] 4employment[.]” “To satisfy the burden of proving, by .clear and convincing evidence, his physical inability to engage in any employment, [a claimant is] required to introduce objective medical evidence of his disabling condition.” Jackson v. Domtar Indus., Inc., 98-1335, pp. 6-7 (La.App. 3 Cir. 4/7/99), 732 So.2d 733, 738 (emphasis added), writ denied, 99-1369 (La. 7/2/99), 747 So.2d 21. “Thus, the claimant must provide objective, expert testimony as to their medical condition, symptoms, pain, and treatment, in addition to personal testimony, in order to fulfill this standard.” Alexander v. Autozone, Inc., 04-871, p. 6 (La.App. 3 Cir. 12/8/04), 889 So.2d 366, 372. Once an employee has proved her entitlement to indemnity benefits, the amount of benefits owed by her employer is determined according to the formulas set out in La.R.S. 23:1021 which dictate how her average weekly wage is to be calculated.

WIS’s Appeal

White was the only witness to testify at the confirmation hearing. She stated that when she- tripped over the track when entering the Office Depot, she hit the floor with her knees, and then her stomach, and she raised her right arm to avoid hitting her face on the floor. White stated that she and her supervisor, who was on the scene, completed an incident report which her supervisor told her to bring to the emergency room. Thereafter, White Went to the emergency room at Christus St. Frances Cabrini Hospital (Cabrini) where she was examined, X-rayed, prescribed medication, and given “an excuse for work.” White testified that she returned to Cabrini several days later due to her pain, and she was given an excuse to remain off work'for “more days.” She next saw her primary care physician, |BPr. R. Brar, who prescribed medication and gave her several more days off work. White’s attorney submitted into evidence an EOB that she received from her personal health insurance plan that listed charges she received from Cabrini on May 28, 2016, and from Dr. Brar and Walmart Pharmacy on June 1, 2016. According to White, she contacted her attorney soon after the accident to determine her rights. Her attorney wrote a letter to’WIS to initiate a workers’ compensation claim on her behalf, and WIS forwarded to him the name of its workers’ compensation insurer. White stated that she asked WIS’s insurance carrier for an appointment with Dr. Gerald Leglue, Jr., a physical medicine and rehabilitation physician, whom had treated her in the past. According to White, her request was not immediately approved, so she directed her attorney to send a second request for approval to see Dr. Leglue. White’s attorney then elicited testimony from her about a June 15, 2016 letter that she received from WIS telling her that it needed an excuse for why she had not returned to work. White explained that when she eventually saw Dr. Leglue, she was still having pain in her knees, shoulder, neck, and back. After she told him that her work required her to bend, stoop, squat, and reach, Dr. Leglue gave her work restrictions pending the outcome of an MRI. Her attorney then contacted the insurance company to let it know about the outcome of her visit with Dr. Leglue. In conjunction with her testimony, White’s attorney offered into evidence copies of all of the aforementioned correspondence. Certified copies of Dr. Le-glue’s records were also entered into evidence. Those records included an “Excuse Slip” restricting White to sedentary activities. No other medical evidence was offered into |fievidence at the default confirmation hearing. White testified that she has been unable to work since her accident and that her condition has worsened over time. Finally, she stated that she was paid $8.50 per hour but had received a raise of $.24 per hour the day before her accident. Copies of the checks paying White indemnity benefits from July 27, 2016 forward were submitted into evidence.

WIS does not dispute on appeal that White was its employee at the time of her May 28, 2016 accident or that she was injured in the course and scope of her employment. It contends, however, that White failed to offer proof of her entitlement to indemnity benefits between the date of her accident and July 27, 2016, the date upon which it began paying her TTDs after receiving a work restriction slip from Dr. Leglue. WIS points out that White failed to offer into the record any objective expert evidence as to her disability and her inability to work prior to July 27, 2016, and that her self-serving testimony failed to meet the standards required to prove a prima facie case under La.R.S. 23:1316.1. WIS also contends that White failed to prove her average weekly wage, as she offered no testimony as to whether she was a full or part-time employee or how many hours she worked in the four weeks preceding her accident.

At oral argument before this court, counsel for White made reference to a Form 1002 that WIS allegedly filed regarding her claim wherein it listed the date of her accident, her average weekly wage, and the amount of TTDs that it was paying her per week. White’s counsel did not mention the date that WIS filed the Form 1002. We have performed a search of the record, including the exhibits introduced by White at the confirmation hearing, and have been unable to locate the Form 1002 relied upon by White. Thus, we need not determine whether such evidence would have fulfilled the requirements of La.R.S. 23:1316.1(B)(4).

|7In her appellee brief, White points out that whether an employee is disabled can be proven by medical and lay evidence. She submits that her testimony coupled with Dr. Leglue’s records prove that she was entitled to TTDs beginning on the date of her accident. White argues that because WIS does not dispute that she has been disabled since July 27, 2016, the date upon which it began paying her TTDs, common sense dictates that she must have been disabled since the date of her on-the-job injury. Finally, she contends that WIS should not be allowed to benefit from its failure to respond to this lawsuit or from its failure to timely respond to her requests to see her choice of physician.

In Davis v. Petroleum Club of Lafayette, 01-142 (La.App. 3 Cir. 9/19/01), 795 So.2d 506, writ granted, judgment set aside, 01-2818 (La. 1/11/02), 806 So.2d 654, this court concluded that the workers’ compensation judge did not err in admitting into evidence at the default judgment confirmation hearing the unsworn and uncertified medical records of the claimant’s treating physician, which the claimant testified were in accordance with his alleged injury. In doing so, we relied upon the supreme court’s recognition in Chaisson v. Cajun Bag & Supply Co., 97-1225 (La. 3/4/98), 708 So.2d 375, that evidentiary standards are relaxed such that hearsay evidence may be admitted in workers’ compensation cases. Thus, we rejected the employer’s argument that such evidence was improperly relied upon by the workers’ compensation judge, as recognized in Nickens v. Patriot Home Systems, 97-291 (La.App. 1 Cir. 6/29/98), 713 So.2d 1179. The supreme court granted writs in Davis, and citing Nickens, set aside the judgment and remanded the matter to the workers’ compensation judge, finding that the claimant failed to present “statutorily sufficient medical evidence” as required by La.R.S. 23:1316.1. Davis, 806 So.2d at 654.

| sIn Nickens, the employer appealed a default judgment rendered against it awarding' the claimant, amongst other things, TTDs from the date he was injured in a work-related accident. On appeal, the first circuit noted that the claimant and his mother had testified at trial and that claimant had submitted into evidence a report from Dr. Andrew Kucharchuk dated seven days after the accident, a note from Dr. Kucharchuk dated several weeks after the accident, and a physical therapy referral dated nearly two months after the accident. The appellate court then stated:

We note Nickens’ testimony clearly established his average weekly wage, his employment with Patriot Home Systems and the fact that he was injured during the course and scope of his employment. However, we find Nickens has failed to establish he was entitled to the workers’ compensation benefits. Specifically, the medical evidence presented by Nickens was not oral testimony from his treating physician, nor was it in the form of a sworn narrative report. This type of proof is in direct violation of LSA-C.C.P. art. 23:1316.1 C. Therefore, we find Nickens’ testimony was not supported by competent, statutorily sufficient medical evidence.
In Jules v. Lege, 618 So.2d 1121 (La.App. 5th Cir.), writ denied, 629 So.2d 344 (La.1993); Peel v. Ray, 572 So.2d 739 (La.App. 4th Cir.1990); and Charia v. Mungoven, 550 So.2d 939 (La.App. 5th Cir.1989), courts have held there is no entitlement to a default judgment absent strict compliance with procedural requirements. These cases involved LSA-C.C.P. art. 1701R704]. Although the case sub judice involves LSA-R.S. 23:1316.1, we find the holdings in favor of strict compliance with procedural requirements when confirming a default judgment are applicable.

Nickens, 713 So.2d at 1182. Soon after the supreme court’s endorsement of the rule pronounced in Nickens, the second circuit made the following pronouncement, which we find particularly relevant to this matter:

It is one thing for either side to introduce hearsay, medical records in the trial of a workers’ compensation case with the opposing side present to offer other possible evidence to dispute such hearsay. It is another thing to have such hearsay evidence support a confirmation of default. At the minimum, under Section 1316.1(0), the more formalized and detailed hearsay of a sworn narrative is required to insure .the existence of a prima facie case.

Horne v. Lowe's Home Improvement, 35,683, p. 9 (La.App. 2 Cir. 2/27/02), 810 So.2d 1235, 1239.

In the instant case, White testified as to her pain and inability to work following her May 28, 2016 accident; however, she failed to submit any medical evidence to support her claim that she was disabled and' unable to work before July 27, 2016, the date Dr. Leglue restricted her from working. White testified that she went to the' emergency room the day she was injured and several days later and thát on both occasions she was given excuses to miss work. White also testified that she later sought treatment from her primary care physician, who also told her to remain off of work. Her attorney did not present the WOJ with any of the work excuses that White was supposedly given at- Cabri-to or at Dr. Brar’s office. The EOB that White submitted into evidence simply shows the dates she received services -at Cabrito and at Dr. Brar’s office. They do not, however, contain any of the actual medical records, notes, findings, or diagnoses from the physicians who treated her at those visits. Thus, White failed to offer into evidence any “objective medical evidence” from any of the healthcare providers that treated her before July 27, 2016, to “prov[e] by clear and convincing evidence, h[er] physical inability to engage in-any employment!).]” See Jackson, 732 So.2d at 738; La.R.S. 23:1221(l)(c). While White did submit into evidence a certified copy of Dr. Leglue’s records, to the extent White argues.that they can serve, as proof, she was disabled since her accident, ,we note that those records do not address White’s ability to work between May 28. and July 27, f2016. Moreover, because La.R.S. 23:1204 provides that - “[njeither the furnishing of medical services nor payments by the employer or his insurance carrier shall constitute an admission of liability for compensation,” we find no merit to White’s argument that her burden of proof |inunder La.R.S. 23:1316,1 was lessened by the fact that WIS began paying her,. TTDs two months after her accident. As a result, we conclude White’s testimony alone was not sufficient proof that she was disabled before July 27, 2016, such that she was entitled to receive indemnity benefits from WIS before that time.

In addition, while La.R.S. 23:1121 dictates that an injured employee has the right to seek treatment from a physician of his or her choice, thé statute further provides'thát the remedy for án employer’s denial of such right is to seek a hearing before a WCJ. White has offered no support for her claim that WIS’s delay in approving, her request to see Dr, Leglue should result in its inability to dispute the date she became disabled.

For these-reasons, we ■ conclude' that White failed to establish'her entitlement to workers’ compensation 'benefits. See La. R.S. 23:1316.1(B)(4). Having so found, we need not address whether White proved her average weekly wage. Finally, because White failed to prove a -prima facie case, the WCJ erred in confirming a default judgment in favor, of White. That-being said, White was likewise not entitled to an. award of a penalty or attorney fees.

White’s Answer to Appeal

Because White was unable to successfully defend the judgment in her favor, she is not entitled to an award of additional attorney fees.

DECREE

For the foregoing reasons, the judgment rendered by the WCJ in favor of Debra White and against Washington Inventory Service Inc. is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed against Debra White.

REVERSED AND REMANDED.

      . In its appellate brief, counsel for appellant noted that the record erroneously lists Washington Inventory Service Inc. as "WIS International.”

      , No .transcript from the hearing on .WIS’s motion for new trial appears in the record.

      . Note: La.R.S. 23:1316.1 was amended by 2017 La. Acts No. 419, § 3, and according to the 2017 comments to the statute, the amendments were "intended to be stylistic only.” For purposes of this opinion we cite the version of the statute that existed when the default judgment was rendered.

      . White’s primary care physician's last name is spelled “Bara” in the hearing transcript and "Brar” in the Explanation of Benefits (EOB) she received from Humana, her personal health insurance plan. We refer to him as Dr. Brar. ,


author:
PICKETT, Judge.
      COOKS J.,

text:
    STATE of Louisiana v. Clayton HELAIRE
    17-802
    Court of Appeal of Louisiana, Third Circuit.
    10/25/2017
    Keith A. States, Lafayette Parish District Attorney, Emilia Salas Pardo, Assistant District Attorney, P, O. Box- 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR PLAINTIFF-RESPONDENT: State of Louisiana
    C. Cass Luskin, Public Defender’s Office, 600 Jefferson St. Ste. #902, Lafayette, LA 70502, (337) 889-5671, COUNSEL FOR DEFENDANT-APPLICANT: Clayton Helaire

      Court composed of, Judges Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell.
   PICKETT, Judge.

hOn Monday, July 24, 2017, the defendant, Clayton Helaire, was arrested on charges of violation of a protective order and domestic abuse battery. Seven days later, on July 31, 2017, a Gwen’s Law hearing was set for August 3, 2017. At the hearing, defense counsel requested the defendant’s immediate release due to the failure to comply with the statutory requirement that a hearing to set bond be held within five days. The trial court denied the writ and ordered Defendant held on a $10,000 bond for each charge. The defendant is before this court requesting immediate release and discharge of his bail obligation.

ASSIGNMENT OF ERROR

The defendant contends he is entitled to immediate release from custody because a Gwen’s Law hearing was not held within five days of his July 24, 2017 arrest. He argues that the right to bail is a fundamental constitutional right, just as the right to a probable cause determination (La.Code Crim.P. art. 230.2) and the seventy-two hour right to counsel hearing (La.Code Crim.P. art. 230.1). Since the remedy for an untimely probable cause determination or an untimely right to counsel hearing pursuant to La.Code Crim.P. arts. 230.1 and 230.2 is release, the defendant contends the same remedy should apply in his situation.

In response, the state notes that the bail hearing was ordered by the commissioner on July 31, 2017, and that notice was sent to the Public Defender’s Office that day. According to the state’s brief, Gwen’s Law hearings are set for Mondays and Thursdays, and generally any matter set after Saturday is set for the following Thursday. The state contends that the Public Defender’s Office could have requested an immediate hearing be held within the five days or asked that a bond be set immediately without a hearing; however, the defense did not raise the 12issue until the writ was filed at the August 3, 2017 hearing. Further, the state contends there is no right to immediate bond, but there is a right to bond, and the defendant was not denied that right.

Louisiana Code of Criminal Procedure Article 313(A), effective January 1, 2017, provides in pertinent part:

(1) This Paragraph may be cited as and referred to as “Gwen’s Law”.
(2) A contradictory bail hearing, as provided for in this Paragraph, may be held prior to setting bail for a person in custody who is charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense involving the use or threatened use of force or a deadly weapon upon the defendant’s family member, as defined in R.S. 46:2132 or upon the defendant’s household member as defined in R.S. 14:35.3, or upon the defendant’s dating partner, as defined in R.S. 46:2151. If the court orders a contradictory hearing, the hearing shall be held within five days from the date of determination of probable cause, exclusive of weekends and legal holidays. At the contradictory hearing, the court shall determine the conditions of bail or whether the defendant should be held without bail pending trial. If the court decides not to hold a contradictory hearing, it shall notify the prosecuting attorney prior to setting bail.

On the defendant’s arrest warrant, next to the word “bond” is written “Hold for Gwen’s Law Hearing.” Under this notation is the signature of Judge Marilyn Castle. On July 31, 2017, Commissioner Thomas Frederick signed an order setting a contradictory bail hearing for August 3, 2017, the day it was held.

At the August 3, 2017 hearing, the defense filed a writ of habeas corpus seeking the defendant’s immediate release. Although the state offered no opposition to the writ of habeas corpus, the court did not grant the requested relief. Rather, it determined that the hearing was three days beyond the five-day time limit and that the appropriate remedy was to have bail set without a contradictory | shearing as opposed to release. The court asked whether the defense wished for bond to be set or whether it wanted the opportunity to have a hearing. Defense counsel approached the bench and had a discussion off the record, immediately after which the court set a bond of $10,000.00 on each charge.

As stated in Article 313, the court is not required to hold a Gwen’s Law hearing; the determination of whether to have the hearing is discretionary, If, however, the court orders a hearing, Article 313 requires it be held within five days of the determination of probable cause. If a warrantless arrest is effected, La.Code Crim.P. art. 230.2 requires a determination of probable cause within forty-eight hours of arrest. In this case, law enforcement obtained arrest warrants. They were signed by the judge on July 7, 2017, and the warrants were executed on July 24, 2017. We find the five days runs from the date of arrest (July 24, 2017). A Gwen’s Law hearing was not held within that five-day period. Nevertheless, we agree with the trial court’s determination that the remedy for a violation is not immediate release.

Gwen’s Law is relatively new, and there is no jurisprudence discussing the remedy for a.violation of the five-day time period. In an analogous case from the supreme court, State v. Taylor, 02-1276 (La. 5/8/02), 815 So.2d 827, the trial court interpreted former La.Code Crim.P arts. 330 and 330.1. Article 330 stated that, except for certain offenses, bail is required before conviction. Article 330 set forth certain classes of offenses for Which the judge or magistrate could refuse bail after holding a contradictory hearing. Article 330.1 required that the contradictory hearing must be held within five days. In Taylor, the court found' error in the trial court’s order that the defendant be held without bond without holding a contradictory hearing. The supreme court ordered the trial court to conduct a 1 ¿contradictory hearing as expeditiously as possible but ordered the defendant to remain in custody pending the resolution of the hearing.

When the trial court failed to hold a contradictory hearing on July 31, 2017, the appropriate action pursuant to the statute was to set bail after notifying the district attorney. The remedy for failure to comply with this statute is not immediate release, it is the setting of a bond based on the factors set forth in La.Code Crim.P. arts. 313(A)(3). and 316. The trial court set bail on the date of the hearing set by the commissioner. We find no error in the trial court’s denial of the defendant’s request for immediate release and discharge of his bail obligation. The application for supervisory writ is therefore denied.

WRIT DENIED,

Cooks, J., dissents and assigns written reasons.

COOKS J.,

dissents.

ItThe purpose of a bail hearing is to give Defendant an opportunity to provide reasons why bail should not be fixed high, why he is not a flight risk,' etc. In this case, Defendant has'been denied that right altogether and bail was fixed without providing him his right to a hearing.

We must stop patching the holes in the system from the bench. This is not the role of the judiciary but the obligation of the legislature. In this instance, it makes' no sense to say, yes Defendant has a right to have his bond fixed within five days, but if we mess up, then we can simply fix the bond in seven days or whatever and that cures it all. Never mind that Defendant stayed in jail past the fifth day without a hearing or opportunity, to post a bond; and never mind that he is now made to suffer another denial of his right—the right to be heard before the bond is in fact fixed.

      . The prosecutor informed the judge at the hearing that "parole put a hold” on the defendant, so he was not "going anywhere.”