author: McDonald, j.

text:
    Ronald COURVILLE and Angela Courville v. ALLIED PROFESSIONALS INSURANCE COMPANY, a Risk Retention Group, Inc., Rathmann-Keogh Chiropractic Clinics, L.L.C. and Thomas J. Rathmann, D.C.
    2016 CW 1354
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Thomas A. Gennusa, II, Joseph S- Pia-ran, Reid S. Uzee, Metairie, Louisiana, Attorneys for Plaintiffs/Appellees, Ronald and Angela Courville
    Guice A. Giambrone, III, Bert J’ Miller, Metairie, Louisiana, and Michael B, Kadish, Santa Monica, California, Attorneys for Defendant/Appellant, Allied Professionals Insurance Company, A Risk Retention Group, Inc. ,
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

         Judge Curtis A, Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, j.

Lin this appeal, a risk retention group challenges a judgment denying its motion to tax costs and legal fees against plaintiffs whose direct action claims against the group had previously been ordered to proceed to arbitration. We convert the appeal to an application for supervisory writs and affirm:

FACTUAL AND PROCEDURAL BACKGROUND

Ronald and Angela Courville filed a petition for medical malpractice damages against Thomas J. Rathmann, D.C., a chiropractor; Rathmann-Keogh Chiropractic Clinics, L.L.C (Clinic); as well as a direct action against Allied Professionals Insurance Company, A Risk Retention Group, Inc. (APIC), Dr. Rathmann’s liability insurer. APIC filed a motion to compel arbitration and to stay the proceedings, based on its contract with Dr. Rathmann, which required that all claims involving APIC be resolved by binding arbitration in Orange County, California. The trial court signed a judgment on February 4, 2013, granting APIC’s motion to compel arbitration and staying the proceedings. The Courvilles appealed. In our prior opinion, Courville v. Allied Professionals Ins. Co., 13-0976 (La. App. 1 Cir. 6/5/15), 174 So.3d 659, 673, writ denied, 15-1309 (La. 10/30/15), 179 So.3d 615 (Courville I), we affirmed the February 4 judgment insofar as it ordered arbitration of the Courvilles’ claims against APIC and ordered arbitration between APIC, Dr. Rathmann, and/or the Clinic; reversed the judgment insofar as it ordered arbitration between the Courvilles, Dr. Rathmann, and/or the Clinic; and, lifted the stay.

Later, APIC filed a motion to tax over $62,000 in costs and attorney fees against the Courvilles based on APIC’s contract with Dr. Rathmann, which allowed any party forced to seek a court order compelling arbitration to recover such costs and fees. After a hearing, the trial court signed a judgment on April 26, 2016, denying APIC’s motion, and APIC appealed. After the appeal was lodged, this court issued a rule to show cause, noting that the April 26 judgment appeared to be non-appeal-able. Another panel of this court referred the rule to this panel for decision, which we now address before reaching the merits.

^DISCUSSION

Appealability of the April 26, 2016 Judgment

A costs judgment may constitute a separately appealable judgment, when rendered after a judgment on the merits. Mack v. Wiley, 07-2344 (La.App. 1 Cir. 5/2/08), 991 So.2d 479, 486, writ denied, 08-1181 (La. 9/19/08), 992 So.2d 932. Here, there is no judgment on the merits between the Courvilles and APIC, because the trial court’s February 4, 2013 judgment did not decide the merits but instead ordered the parties to arbitration. The judgment did not dismiss the Courvilles’ claims against APIC. And, although the Courville I court affirmed the February 4 judgment ordering arbitration, the Courvilles’ claims against APIC have never been dismissed. Contrast Green Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79, 89, 121 S.Ct. 513, 521, 148 L.Ed.2d 373 (2000) (concluding that when the district court has ordered the parties to arbitration, and dismissed all the claims before it, 'the district’s court’s decision is final within the meaning of federal arbitration law and therefore appealable). Thus, because the April 26 judgment was not rendered after a final judgment on the merits, it is not a separately appealable judgment.

This Court has discretion, however, to convert an appeal to an application for supervisory writs, if the appeal would have been timely had it been filed as a writ application. See LSA-C.C.P. art. 1914; URCA Rule 4-3; Stelluto v. Stelluto, 05-0074 (La. 6/29/05), 914 So.2d 34, 39. In this case, the trial court signed the judgment denying costs on April 26, 2016, and notice of the judgment was sent the same day. APIC filed its motion for appeal on May 20, 2016. Because the appeal was filed within 30 days of the notice, we exercise our discretion to consider the motion for appeal as a timely-filed application for supervisory writs under URCA Rule 4-3. We now turn to the merits of APIC’s writ application.

APIC’s Motion to Tax Costs and Legal Fees to Courvilles

APIC claims that the trial court erred by denying its motion to tax costs and legal fees to the Courvilles. APIC argues that both the trial court and this court found the contractual arbitration provision between Dr. Rathmann and APIC enforceable against the Courvilles and that this very same arbitration provision allows APIC to ¡¿recover its costs and legal fees. In opposition, the Courvilles argue that the Courville I court found the arbitration provision enforceable only because federal law preempts state law regarding arbitration agreements as they relate to foreign risk retention groups such as APIC. According to the Courvilles, the fact that the arbitration provision is valid does not necessarily mean the attorney fee provision is valid. They argue the attorney fee provision is not valid against them, because they are not parties to the contract between APIC and Dr. Rathmann. In Courville I, we concluded the federal Liability Risk Retention Act of 1986, 15 U.S.C. § 3901 et seq. (LRRA), preempted two Louisiana statutes: LSA-R.S. 22:868, which prohibits arbitration provisions in insurance contracts, and LSA-R.S. 22:1269, the Direct Action Statute, which allows direct actions against insurers. Consequently, based on this federal preemption, the Courvilles could not bring a direct action against APIC, a risk retention group chartered in Arizona, but were instead required to arbitrate their claims against APIC. Courville I, 174 So.3d at 673. We now decide whether the attorney fee provision in APIC’s contract with Dr. Rathmann can be enforced against the Courvilles.

The arbitration provision in APIC’s contract with Dr. Rathmann provides:

C. Arbitration. All disputes or claims involving [APIC] shall be resolved by binding arbitration, whether such dispute or claim arises between the parties to this Policy, or between [APIC] and any person ... who is not a party to the Policy but is claiming rights either under the Policy or against [APIC].... If any party seeks a court order compelling arbitration under this provision, the prevailing party in such motion ... shall recover all reasonable legal fees and costs incurred thereby and in any subsequent appeal, and in any action to collect the fees and costs.

The Courvilles are not parties to the contract between APIC and Dr. Rath-mann. Generally, arbitration is a matter of contract and a party cannot be required to subipit to arbitration any dispute which, he has not agreed to so submit. Snyder v. Belmont Homes, Inc., 04-0445 (La.App. 1 Cir. 2/16/05), 899 So.2d 57, 63, writ denied, 05-1075 (La. 6/17/05), 904 So.2d 699. And, even though a non-signatory to a contract containing an arbitration provision may be bound by that provision under certain IfiCircumstances, such does not necessarily require that the Courvilles pay attorney fees to APIC in this case. The trial court denied APIC’s motion to tax costs and attorney fees, because the Courvilles- were hot parties to APIC’s contract with Dr. Rathmann. A trial court’s determination that a party is entitled to attorney fees is a legal, determination. See Cajun Concrete Services, Inc. v. J. Caldarera & Co., Inc., 99-1205 (La.App. 5 Cir. 4/12/00), 759 So.2d 237, 240. We review the denial of the motion under the abuse of discretion standard of review. See Guidry v. State Farm Mut. Auto. Ins. Co., 99-0383 (La.App. 3 Cir. 12/8/99), 759 So.2d 95, 98; Murphy v. Murphy, 432 So.2d 978 (La. App. 1 Cir. 1983).

Louisiana Policy Regarding Arbitration, Direct Actions, and Attorney Fees

In Louisiana, compulsory arbitration provisions in insurance contracts are prohibited as a matter of public policy because they operate to deprive Louisiana courts of jurisdiction over actions against the insurer; further, such provisions deny Louisiana citizens of free access to its courts, a right guaranteed by the state’s constitution. LSA-Const. Art. I, § 22; LSA-R.S. 22:868(A)(1)(2); Hobbs v. IGF Ins. Co., 02-26 (La.App. 3 Cir. 10/23/02), 834 So.2d 1069, 1071, writ denied, 02-2869 (La. 1/31/03), 836 So.2d 71; also see Dore v. Shelter Mut. Ins. Co., 13-0545 (La.App. 1 Cir. 11/1/13), 2013 WL 5915141, *2, n.2 (unpublished).

Also, in Louisiana, our legislature has mandated that liability insurance contracts, within their terms and limits, are executed for the benefit of all injured persons to whom the insured is liable, not just to the insured himself. LSA-R.S. 22:1269(D). Thus, Ras a matter of policy, our Direct Action Statute expressly gives an injured person a direct action against the insurer of the party who 'injured him, even though the injured person has no contractual privity with the insurer. LSA-R.S. 22:1269(B)(1).

Next; under Louisiana law, attorney fees are recoverable only where specifically authorized by statute or contract. Campbell v. Melton, 01-2578 (La. 5/14/02), 817 So.2d 69, 80; Wilson v. Two SD, LLC, 15-0477 (La.App. 1 Cir. 12/23/15), 186 So.3d 159, 162, writ denied, 16-0306 (La. 4/8/16), 191 So.3d 588; Accusess Environmental, Inc. v. Walker, 15-0008 (La.App. 1 Cir. 12/17/15), 185 So.3d 69, 75, 78. An award of attorney fees is a type of penalty imposed not to make the injured party whole but'rather to discourage certain behavior on the part of the opposing party. Langley v. Petro Star Corp. of La., 01-0198 (La. 6/29/01), 792 So.2d 721, 723; Sharbono v. Steve Lang & Son Loggers, 97-0110 (La. 7/1/97), 696 So.2d 1382, 1386. Also, Louisiana’s disfavor of attorney fee awards reflects a public policy that routinely awarding attorney fees to a prevailing party could possibly close the doors of our courts to a large class of litigants, “who would not dare assert to their just rights' lest they should expose themselves to a heavy penalty” of attorney fees. See Smith v. Bradford, 17 La. 263, 266 (1841). Because attorney fee awards are punitive in nature, they are not favored and should be made only in cases that are clear and free from doubt. Ferrier v. Jordache-Ditto’s, 94-1317 (La.App. 3 Cir. 5/17/95), 662 So.2d 14, 20, wit denied, 95-2865 (La. 2/2/96), 666 So.2d 1100; Texas Industries, Inc. v. Roach, 426 So.2d 315, 317 (La. App. 2 Cir. 1983).

In this case, APIC’s contract with Dr. Rathmann contains a compulsory arbitration provision and allows APIC to recover costs and legal fees for having to compel arbitration. The enforcement of this provision against the Courvilles, who are not parties to the contract, is contrary to LSA-R.S. 22:868’s anti-arbitration policy, is, contrary to LSA-R.S. 22:1269’s direct action policy, and conflicts with Louisiana’s disfavor for attorney fees.-But, as explained in Courville I, federal preemption stops us from upholding the anti-arbitration policy; stops us from upholding the direct action policy; and forces the Cour-villes to arbitrate their claims against APIC in California. See Courville I, 174 So.3d at 673. This federal preemption, however, does not change the |7fact that these strong Louisiana public policies still exist. The State of Louisiana remains hostile to compulsory arbitration provisions in insurance contracts- and still favors direct actions against insurers. The use of an attorney fee award to penalize injured persons for resisting arbitration against an insurer enables the enforcement of two already disfavored policies (forced arbitration and no direct action) with yet a third disfavored and punitive tool (attorney fees). Further, the punitive purposes of attorney fees are not warranted against the Courvilles in this case; their right to assert tort claims against Dr. Rathmann’s insurer should not be discouraged. We refuse to allow an attorney fee provision to give additional punitive effect to a compulsory arbitration clause, which is in itself against Louisiana public policies.

Further, we note the competing equities involved in this case. APIC argues that the Courvilles cannot sue to enforce APIC’s contract with Dr. Rathmann yet seek to avoid the arbitration provision in- that same agreement. This argument is based on “direct benefits” estoppel and precludes a non-signatory from relying on the contract when it works to his advantage and then repudiating the contract when it works to his disadvantage. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 394, writ denied, 04-0969, 0972 (La. 6/25/04), 876 So.2d 884; also see Authenment v. Ingram Barge Co., 878 F.Supp.2d 672, 681 (E.D. La. 2012). Contrast Hansford v. Cappaert Manufactured Housing, 40, 160 (La.App. 2 Cir. 9/21/05), 911 So.2d 901, 906, writ denied, 05-2338 (La. 3/17/06), 925 So.2d 542 (“An agreement to arbitrate a dispute with one party cannot encompass disputes against another party when the second party is not mentioned in the written agreement.”)

On the other hand, although parties to a contract are free to provide for attorney fees in their contract (see LSA-C.C. art. 1971), the Courvilles are not parties to APIC’s contract with Dr. Rathmann and did not bargain for arbitration or for the attorney fee provision. When they filed suit in district court, the Courvilles sought to assert a just claim against Dr. Rath-mann for injuries he allegedly caused them. What began as an ordinary tort suit by Louisiana citizens in a Louisiana court against a Louisiana tortfeasor became a procedural battle over the provisions of a contract the Courvilles did not | snegotiate, did not sign, and did not know existed until after suit was filed. And, all of which ultimately compelled them to forego their access ’ to court and to pursue their claim against an Arizona insurer before an arbitrator in California. Notably, the linchpin for the equitable estoppel principle is equity—fairness. Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir. 2000), cert. denied, 531 U.S. 1013, 121 S.Ct. 570, 148 L.Ed.2d 488 (2000). In this case, it appears inherently inequitable to subject the Courvilles to the payment of over $62,000 in costs and legal fees for resisting the terms of an onerous contract to which they were not parties.

In sum, Louisiana has public policies: (1) against compulsory arbitration provisions in insurance contracts; (2) in favor of direct actions against liability insurers; and (3) against the recovery of attorney fees unless specifically authorized by statute or contract. In this case, federal preemption precludes the enforcement of two of these public policies. Although we are bound by the federal preemption, under the facts of this case, we refuse to allow the enforcement of a provision in a contract against a non-signatory to that contract when to do so would allow the violation of all three of these Louisiana policies. We see no abuse of the trial court’s discretion in denying APIC’s motion to tax costs and attorney fees to the Courvilles.

CONCLUSION

For the foregoing reasons, we convert the appeal to an application for supervisory writs, grant the writ, and affirm the trial court’s April 26, 2016 judgment. Costs of this appeal are assessed to Allied Professional Insurance Company, A Risk Retention Group, Inc.

APPEAL CONVERTED TO WRIT; JUDGMENT AFFIRMED.

      . APIC also timely filed a notice of intent to seek supervisory writs, and although it received a return date, APIC but did not file a writ application with this court. Also, the Courvilles assert in brief that they filed an answer to APIC’s appeal, but no such answer was filed with this court.

      . The Courvilles also argue that APIC waived its right to attorney fees against them by failing to assert a claim for such in the underlying suit. Based on our resolution of the appeal on other grounds, we need not address the waiver argument.

      . A non-signatory to a contract containing an arbitration provision may be bound by that provision under accepted theories of agency or contract law. Green v. Regions Banks, 13-0771 (La.App. 1 Cir. 3/19/14), 2014 WL 3555820 *6 (unpublished); Gunderson v. FA. Richard & Assoc., Inc., 05-917 (La.App. 3 Cir. 8/23/06), 937 So.2d 916, 921; Prasad v. Bullard, 10-291 (La.App. 5 Cir. 10/12/10), 51 So.3d 35, 40. When a signatory to a contract . requiring arbitration seeks to compel a non-signatory to arbitrate a dispute, federal jurisprudence has required the signatory to establish that the non-signatory derived a direct ,- benefit from the contract. Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 03-1662 (La.App. 4 Cir. 3/17/04), 871 So.2d 380, 394, writ denied, 04-0969, 0972 (La. 6/25/04), 876 So.2d 834. "Direct benefit” estoppel applies when a non-signatory plaintiff sues to enforce a contract containing an arbitration provision yet seeks to avoid the arbitration provision in that same agreement. Id. The non-signatory cannot have it both ways; he cannot rely on the contract when it works to his advantage and then repudiate the contract when it works to his disadvantage. Green, 2014 WL 3555820 *6; also see Authenment v. Ingram Barge Co., 878 F.Supp.2d 672, 681 (E.D. La. 2012). On the other hand, when the non-signatoiy’s claims are not associated with the enforcement of the contract containing the arbitration provision, the non-signatory is not bound to arbitrate those claims. Billieson v. City of New Orleans, 02-1993 (La.App. 4 Cir. 9/17/03), 863 So.2d 557, 562, writ denied, 04-0563 (La. 4/23/04), 870 So.2d 303; Lakeland Anesthesia, Inc., 871 So.2d at 394-95.


source: Caselaw Access Project

license: Public Domain

text:
    Joel PORTER v. BATON ROUGE POLICE DEPARTMENT
    2016 CA 0625
    2016 CW 0850
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Elton Heron, Geismar, Louisiana and Joel G. Porter, Baton Rouge, Louisiana Attorneys for Plaintiff/Appellee, Joel G. Porter
    Jeff Landry, Louisiana State Attorney General, Andrea Barient, David Jeddie Smith, Assistant Attorneys General, Baton Rouge, Louisiana Attorneys for Appellant, State of Louisiana

      BEFORE: PETTIGREW, McDonald, and calloway , jj.

       Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   McDonald, j.

| gThis case involves a public records request pursuant to La. R.S. 44:3(F) made by Joel G. Porter on July 28, 2015, to the Baton Rouge Police Department (BRPD), and in particular a subpoena issued to an Assistant Attorney General.

FACTS AND PROCEDURAL HISTORY

Mr. Porter asked for the release of records and access to evidence from the investigation into the 1985 murder of his wife, Denise Washington Porter, for which Mr. Porter, who is an attorney, was a suspect. Louisiana Revised Statute 44:3(F) provides that ten years after the unnatural death of a person, with the approval of the district court that would have jurisdiction over any criminal prosecution which may result due to the death of such person, immediate family members of the victim may request from governmental agencies copies of numerous materials related to the death.

The City of Baton Rouge/Parish of East Baton Rouge (City/Parish) answered the suit, maintaining that Mr. Porter had sought to obtain the documents in question through legal action in the United States District Court, Middle District of Louisiana, which had issued a protective order in favor of BRPD. The City/Parish also maintained that the Middle District Court expressly stated that BRPD had readily admitted throughout its deposition and motion for protective order that Mr. Porter remained a suspect in the investigation. After filing its answer, the City/Parish filed a motion to quash.

After a hearing on Mr. Porter’s public records request, the district court ruled in favor of Mr. Porter and against BRPD, finding that pursuant to La. R.S. '44:3(F), as the surviving spouse of Ms. Porter, who died on March 15, 1985, Mr. Porter had a right to access all records of the investigation into her death, ordering BRPD tols provide to Mr. Porter “copies of all such files, records, and documents and provide [Mr.] Porter with unlimited access for any and all purposes to all evidence, potential evidence, and other items from the investigation of the death of Denise Porter including examination, inspection, photographing, copying, testing, making impressions, and the use in any court proceeding of and conducting forensic studies on such evidence, potential evidence, and other items.” The district court ordered BRPD to produce the items to Mr. Porter on or before September 10, 2015. That judgment was signed on August 12, 2015.

On September 9, 2015, BRPD filed an application for supervisory writs with this court. On September 10, 2015, this court denied the application for advisory writ, stating that “we find that, as a matter of law, the trial court did not err in ordering the disclosure of the records in its August 12, 2015 judgment.” Porter v. Baton Rouge Police Department, 2015-CW-1388 (La. App. 1 Cir. 9/10/15) (unpublished writ action). Thereafter, Mr. Porter filed a motion to enforce the district court order, noting that there had been “some compliance” with the order by BRPD, but not “full compliance.”

After a hearing on October 15, 2015, the district court signed an order directing BRPD to immediately comply with its August 12, 2015 order, to immediately produce a list of items, and directing the Chief of Police, Carl Dabadie, Jr., to immediately request that all other agencies, including the Attorney General’s Office, produce any and all information to BRPD, or Mr. Porter, or his attorney. Further, the district court ordered that the parties meet at an agreed upon date, time, and place to compile a numerical or alphabetical list of all the reports produced, and that Chief Da-badie submit an affidavit immediately upon compliance with the court’s order. That judgment was signed on October 15, 2015.

|4By letter to Mr. Porter’s attorney dated October 19, 2015, an attorney for BRPD noted she had “attached four discs and documents ... received from the [Louisiana State Police]” and that the Attorney General’s office had answered her inquiry by informing her that “their file consists of BRPD police reports, crime scene photos and [Louisiana State Police] lab reports. All of this information has now been provided to you.” She further stated that the evidence review would begin at 8:30 on October 22, 2015. In further compliance with the court’s order, she further provided that by letter to Mr. Porter’s attorney dated January 7, 2016, the attorney for BRPD stated that she was attaching an invoice for two Louisiana State Police crime lab reports “that have been generated since our last disclosure to you.”

Thereafter, on January 22, 2016, Mr. Porter issued a subpoena for the deposition of Assistant Attorney General Matthew Derbes, and issued a subpoena to the Attorney General’s Office for documents related to the investigation of Ms. Porter’s death by BRPD and the Attorney General’s Office.

Mr. Derbes was personally served with the subpoena by a Sheriff on January 28, 2016 for the deposition which was scheduled for the next day, January 29,2016. On January 28, 2016, the Attorney General’s Office filed a motion to quásh the subpoenas, asserting that Mr. Derbes was a non-party attorney and that special rulés applied before a subpoéna'could be issued to an attorney in both civil and criminal cases. The Attorney General’s Office asked that the subpoenas be quashed- 'on the basis of insufficient notice under La. C.E. arts. 507 and 508, and also because a required contradictory hearing to determine whether the information requested- by the plaintiff was protected before the subpoena could be determined to be proper had not been held.

In response, the district court ordered the deposition of Matthew Derbes stayed and set the matter for a contradictory hearing on February 4, 2016. After ,|Bthe hearing the district court took the matter under advisement, requested that the parties submit post-hearing briefs on whether the Attorney General “could.be made a party”, and set a subsequent hearing for February 24, 2016. After the February 24, 2016 hearing, the district court granted the motion to quash on the grounds that it was not issued “with sufficient time” in accordance with law, denied the motion to quash “on the remaining groundsf,]” and ordered the deposition of Mr. Derbes to take place within fifteen days to'determine “to what extent the [BRPD] had complied with the October 15, 2015 [district .court’s] .ORDER instructing the [BRPD] to request, all items belonging to the [BRPD] to which Mr. Porter is entitled, pursuant to La. R.S, 44:3(F), that are within the physical, control and possession of the Louisiana Attorney General’s Office.” The judgment was signed on March 8, 2016. On March 10, 2016, the district court signed an order granting , the Attorney General’s Office a devolutive appeal from that judgment, rather than the suspensive appeal it had requested in its motion.

On March 23, 2016, the Attorney General’s Office filed an emergency application for supervisory review with this court. On March 29, 2016, this court granted the writ application, ordered the proceedings stayed pending appeal, and ordered the district court to grant the Attorney General’s Office a suspensive appeal. Porter v. Baton Rouge Police Department, 2016-CW-0382 (La. App. 1 Cir. 3/29/16) (unpublished writ action). On March 30, 2016, pursuant to the order of this court, the district court granted the Attorney General’s Office’s suspensive appeal.

THE WRIT APPLICATION

On June 27, 2016, Mr. Porter filed an application for supervisory writs, which was referred to this panel. Upon review of Mr. Porter’s writ application, for numerous reasons it appears that this filing was intended to serve as his appellee brief rather than as a writ. Therefore, Mr. Porter’s writ application is denied, and) his writ application will be considered as his appellee brief. Porter v. Baton Rouge Police Department, 2016-CW-0850 (La. App. 1 Cir. 04/12/17), 2017 WL 1376583, 218 So.3d 150.

PENDING MOTION

On June 6, 2016, the Attorney General’s Office filed a motion with this court asking that it take judicial notice that on April 5, 2016, the Attorney General’s Office voluntarily provided Mr. Porter with any and all documentation to which he was entitled pursuant to La. R.S. 44:3(F). Mr. Porter’s attorney signed an acknowledgment that he received “the responsive documents pursuant to Title 44 of the Louisiana Revised Statutes” and that he signed the document “on the behalf of Joel Porter, my client, as his authorized agent”.

A judicially noticed fact must be one not subject to reasonable dispute in that it is either generally known within the territorial jurisdiction of the trial court or capable of accurate and ready determination by resort to sources the accuracy of which cannot reasonably be questioned. La. C.E. art. 201B(1) and (2); Dufresne v. Dufresne, 2010-963 (La.App. 5 Cir. 5/10/11), 65 So.3d 749, 753. Additionally, courts may properly take judicial notice only of facts that may be regarded as forming part of the common knowledge of every person of ordinary understanding and intelligence. Miranne v. State Farm Mut. Auto Ins. Co., 54 So.2d 538, 540 (La. App. Orl. 1951).

The Attorney General’s office asks this court to take judicial notice of the “fact” that it has provided all the documents to Mr. Porter to which he is entitled pursuant to La. R.S. 44:3(F). However, the letter which Mr. Porter’s attorney signed does not state that the documents were “all” of the public records to which Mr. Porter was entitled under La. R.S. 44:3(F).

Moreover, it appears that the motion for judicial notice does not relate to facts that form part of the common knowledge of eveiy person of ordinary understanding and intelligence. The motion for judicial notice concerns specific) 7 information given by the Attorney General to Mr. Porter’s attorney, not facts that form part of the common knowledge of every person of ordinary understanding and intelligence. Also, the standard for what is considered sufficient under La. R.S. 44:3 is a question of law, not a question to which the general person of ordinary understanding and intelligence would know the answer. See Miranne, 54 So.2d at 540. Thus, the motion is denied.

THE APPEAL

The Attorney General makes two assignments of error on appeal.

1. The District Court erred in finding that a La. C.E. art. 508 hearing was not required prior to the issuance of a subpoena upon a lawyer in his representative capacity.
2. The District Court erred in denying the motion to Quash Subpoena when the subpoena did not meet the requirements of La. C.E. art. 508.

THE LAW

Louisiana Revised Statute 44:3, which is part of the Public Records Act, provides for records of prosecutive, investigative, and law enforcement agencies, and communication districts. In particular, La. R.S. art. 44:3 provides:

F. Notwithstanding any other provision of law to the contrary, after a period of ten years has lapsed from the date of death of a person by other than natural causes, and upon approval by the district court having jurisdiction over any criminal prosecution which may result due to the death of such person, any prosecutive, investigative, and other law enforcement agency, or any other governmental agency in possession of investigative files or evidence or potential evidence, or any other record, document, or item relating to said death shall, upon request, provide copies of all such files, records, and documents to immediate family members of the victim and shall provide unlimited access for any and all purposes to all such evidence, potential evidence, and other items to any member of the immediate family and to any person or persons whom any member of the immediate family has designated for such purposes. The access granted shall include but not be limited to the examination, inspection, photographing, copying, testing, making impressions, and the use in any court proceeding of and conducting forensic studies on such evidence, potential evidence, and other items. For the purposes of this Subsection, the term “immediate family” shall mean the surviving spouse, children, grandchildren, and siblings of the victim.

IsLouisiana Code of Evidence article 507 provides part for the subpoena of a lawyer or his representative in criminal cases:

A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or his representative to appear or testify in any criminal investigation or proceeding where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about a client or former client obtained in the course of representing the client unless the court after a contradictory hearing has determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:
(1) The information sought is essential to the successful completion of an ongoing investigation, prosecution, or defense.
(2) The purpose of seeking the information is not to harass the attorney or his client.
(3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.
(4) There is no practicable alternative means of obtaining the information.
B. Waiver. Failure to object timely to non-compliance with the terms of this Article constitutes a waiver of the procedural protections of this Article, but ■-..does.not constitute a waiver of any privilege.
C. . Binding effect . of determination; notice to client. The determination that a lawyer-client privilege is not applicable to the testimony shall not bind the client or former client- unless the ■ client or former client was given notice of the time, place, and substance of the hearing and had an opportunity fully to participate in that hearing.
D. Exceptions. This Article shall not apply in habitual offender proceedings when'a lawyer is called as a witness for purposes of identification of his client or former client, or in post-conviction proceedings when a lawyer is called as a witness on the issue of ineffective assistance of the lawyer.
E. ■ The procedural provisions and protections afforded by Paragraph A of "'this Article Shall extend to lawyers serving as prosecutors in state, parish, or municipal courts, whether those functions' are exercised in the name of the 'state of Louisiana or any parish or municipality, and whether the' lawyer is the , attorney general or assistant attorney general, a district attorney or assistant district attorney, or a parish or municipal prosecutor, and shall extend to lawyers employed by either house of the Louisiana Legislature.

Louisiana Code of Evidence article 508 provides for subpoena of a lawyer or 19his •representative in civil cases:

A. General rule. Neither a subpoena nor a court order shall be issued to a lawyer or his representative to appear or testify in any civil or juvenile proceeding, including pretrial discovery, or in' an administrative investigation or hearing, where the purpose of the subpoena or order is to ask the lawyer or his representative to reveal information about - a client or former- client obtained in the course of representing the client unless, after a contradictory hearing, it has been determined that the information sought is not protected from disclosure by any applicable privilege or work product rule; and all of the following:
(1) The information sought is essential to the successful completion of an ongoing investigation, is essential to the case of the party seeking the information,, and is not merely peripheral, cumulative, or speculative.
(2) The purpose of seeking the information is not to harass the attorney or his client.
(3) With respect to a subpoena, the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, and gives timely notice.
■ (4) There is no practicable alternative means of obtaining the information.
B. Waiver. Failure to object timely to non-compliance with the terms of this Article constitutes a waiver of the procedural protections of this Article, but does not constitute á waiver of any privilege!
C. Binding effect of determination; notice to client. The determination that a lawyer-client privilege is not applicable to the testimony shall not bind the client or former client unless the client or former client was given notice of the time, place, and substance of the hearing and had an opportunity fully to participate in that hearing.
D. Scope. Nothing in this Article is intended to affect the provisions of Code of Civil Procedure Articles 863 and 1452(B).
E. The procedural provisions and protections afforded by Paragraph A of this Article shall extend to lawyers representing the state or any political subdivision, whether the lawyer is the attorney general or. assistant attorney general, a district attorney or assistant district attorney, a parish attorney or assistant parish attorney; or a municipal or city attorney or assistant municipal or assistant city attorney; and shall extend to lawyers employed by either house of the Louisiana Legislature.

THE STANDARD OF REVIEW

| mThe trial court has broad discretion in ruling on discovery matters. Stolzle v. Safety & Sys. Assur. Consultants, Inc., 2002-1197 (La. 5/24/02), 819 So.2d 287, 289.

ANALYSIS

Mr. Porter has not issued á public records request to the Attorney General’s Office. The underlying lawsuit is a mandamus action brought to enforce a public records request directed to the BRPD, and the Office of the Attorney General is not a party to that litigation. Mr. Porter is attempting to issue a' subpoena to a non-party to his civil suit and thereby depose a prosecutor regarding the contents of an investigative file in a criminal case. Louisiana Code' of Evidence article 508(A) provides that in a subpoena of a lawyer in a civil case the trial court shall conduct a contradictory hearing to determine that the information sought is not protected from disclosure by any applicable privilege or work product rule.

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such .others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. The word “shall” is mandatory and the word “may” is permissive. La. R.S, 1:3.

Thus, the district court abused its discretion in denying the motion to quash the subpoena for Mr. Derbes’s deposition. The subpoena may be issued if, after a contradictory hearing, the district court considers La. C.E. art. 508 and determines that the information sought is not protected by any applicable privilege or work product rule, that the purpose of seeking the information is not to harass the attorney or his client, that the subpoena lists the information sought with particularity, is reasonably limited as to subject matter and period of time, that it gives timely notice, and that there is no practicable alternative means of obtaining] n the information. State v. Gates, 2008-0006 (La.App. 1 Cir. 5/15/09), 17 So.3d 41, 47, writ denied, 2009-1342 (La. 10/9/09), 18 So.3d 1283.

Although an Article 508 hearing is mandatory in regard to the subpoena issued to Mr. Derbes, we note that there is very little to be asked of Mr. Derbes at such a deposition, as the Attorney General’s Office is not a party to the -suit, The March 8, 2016 district court order directed that the deposition of Mr. Derbes take place within fifteen days to determine to what extent the BRPD had complied with the October 15, 2015 order “instructing the [BRPD] to request all items belonging to the [BRPD] to which Mr.' Porter is entitled, pursuant to La. R.S. 44:3(F), that are within the physical control and possession of the Louisiana Attorney General’s Office.” To comply with the order, only one question need be directed to the Attorney General’s Office and this easily could be accomplished by an interrogatory asMng whether the Attorney General’s Office provided to BRPD, upon BRPD’s request, “all items belonging to the [BRPD] to which Mr. Porter is entitled, pursuant to La. R.S. 44:3(F), that are within the physical control and possession of the Louisiana Attorney General’s Office.”

Therefore, we reverse the judgment denying Mr. Derbes’s motion to quash the subpoena issued for his deposition, and the case is remanded to the district court for further proceedings in accordance with this judgment.

CONCLUSION

For the foregoing reasons, the motion filed by the Attorney General’s Office asking this court to take judicial notice that it has provided all the documents to Mr. Porter to which he is entitled pursuant to La. R.S. 44:3(F) is denied. The writ application filed by Joel G. Porter is denied, and his writ application is considered as his appellee brief. The district court judgment denying Assistant Attorney General Matthew Derbes’s motion to quash the subpoena issued for his deposition is reversed, and the case is remanded to the district court for further proceedings in| 1⅞ accordance with this opinion. The costs of this appeal are assessed against Joel G. Porter.

MOTION DENIED, WRIT DENIED, JUDGMENT REVERSED, CASE REMANDED.

      , An answer was filed on behalf of BRPD and the City of Baton Rouge. However, in a later motion to enroll as counsel of record, a Senior Special Assistant Parish Attorney noted that BRPD was not a legal entity, and that the City of Baton Rouge/Parish of East Baton Rouge was the proper party defendant.


author: CALLOWAY, J.

text:
    CITY OF BATON ROUGE, Parish of East Baton Rouge and The Department of Public Works v. Anthony DOUGLAS and The Personnel Board of the City of Baton Rouge, Parish of East Baton Rouge
    2016 CA 0655
    Court of Appeal of Louisiana, First Circuit.
    APRIL 12, 2017

      Anthony W. Douglas Baton Rouge, Louisiana Appellant, In Proper Person Plaintiff—-Anthony W. Douglas

      Lea Anne Batson Parish Attorney and Marston Fowler Assistant Parish Attorney Baton Rouge, Louisiana Attorney for Ap-pellee Defendant—City of Baton Rouge, Parish of East Baton Rouge Department of Public Works
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

      . Hon. Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

12This is the fifth appeal in this employment dispute between the plaintiff-appellant, Anthony W. Douglas, and the defendant-appellee, the City of Baton Rouge/Parish of East Baton Rouge (“City/Parish”). The complete history is set forth in the following opinions:

City of Baton Rouge v. Douglas (Douglas I), 2000-1736 (La.App. 1 Cir. 9/28/01), 800 So.2d 448 (unpublished), unit denied, 2001-2806 (La. 11/9/01), 801 So.2d 1066, overruled by City of Baton Rouge v. Douglas (Douglas II), 2004-1448 (La.App. 1 Cir. 12/29/05), 923 So.2d 166 (en banc), writ denied, 2006-0675 (La. 6/2/06), 929 So.2d 1254, enforcement denied, 2006-0675 (La. 11/4/11), 75 So.3d 912, writs denied, 2011-0328 (La. 4/1/11), 60 So.3d 1255, 2006-0675 (La. 12/16/11), 76 So.3d 1189;
City of Baton Rouge v. Douglas (Douglas III), 2007-1153 (La.App. 1 Cir. 2/8/08), 984 So.2d 746, 747, writ denied, 2008-0939 (La. 6/20/08), 983 So.2d 1284; and
City of Baton Rouge v. Douglas (Douglas IV), 2011-2061 (La.App. 1 Cir. 6/8/12), 2012 WL 2061419 (unpublished), writ denied, 2012-1575 (La. 10/12/12), 98 So.3d 875.
To summarize, this litigation began with Mr. Douglas’s disputed termination of employment with the City/Parish in 1999. After two appeals, Mr. Douglas was reinstated to his employment. In connection with Mr, Douglas’s reinstatement to employment, he underwent a routine physical examination and drug/alcohol screening in January 2007. Following the results of tjie drug screening, the City/Parish again sought to terminate Mr. Douglas’s employment, and Mr. Douglas once again disputed the termination. The parties and their attorneys engaged in a settlement conference with the trial court, after which a settlement agreement was entered on the record in open court. It was made clear that the settlement agreement was intended to end all litigation between the parties. After the City/Parish made the necessary arrangements to have the settlement approved by the Baton Rouge Metro Council and to obtain the settlement funds, Mr. Douglas changed his mind and attempted to refuse to accept the terms of the settlement. In Douglas III, this court determined that the parties had entered into a valid compromise agreement and affirmed the April 30, 2007 judgment of the trial court that granted the City/Parish’s motion to enforce the settlement agreement, and ordered Mr. Douglas to execute all of the documents and take all actions necessary to consummate the settlement agreement. The record reflects that Mr. Douglas executed the documents and acknowledged money payments under the terms of the settlement agreement.
After the Louisiana Supreme Court denied writs in Douglas III, Mr. Douglas filed a petition in the trial court seeking to recognize the absolute nullity of the April 30, 2007 |.judgment of the trial court and the settlement agreement that Mr. Douglas executed pursuant to the April 30, 2007 judgment. Mr. Douglas set forth numerous bases for recognizing the nullity of the April 80, 2007 judgment, this court’s decision in Douglas III, as well as the settlement agreement that he executed pursuant to the April 30, 2007 judgment, with the central argument being that the prior judgment ordering him reinstated to employment could not be set aside.

Douglas IV, 2011-2061, 2012 WL 2061419, at *1.

In Douglas IV, this court concluded that Mr. Douglas was attempting to relitigate the validity of the compromise agreement and the April 30, 2007 judgment ordering him to consummate the settlement agreement. This court noted that these arguments had been considered and rejected in Douglas III and then affirmed the trial court’s judgment. Douglas IV, 2011-2061, 2012 WL 2061419, at *2.

According to the City/Parish, after the Louisiana Supreme Court denied writs in Douglas IV, Mr. Douglas filed pleadings in the United States District Court for the Middle District of Louisiana in February 2013, asserting age and employment discrimination, as well as violations of the Fourteenth Amendment’s guarantee of equal protection and due process of law. The City/Parish successfully filed a Rule 12(b) motion, the federal district court dismissed all matters. ■

In January 2015, Mr. Douglas filed a petition for a writ of mandamus in the Nineteenth Judicial District Court seeking to be immediately reinstated to his former employment with the City/Parish Department.of Public Works and awarded full back pay and monetary damages.- The City/Parish filed peremptory exceptions pleading res judicata and no cause of action on March 9,2015, which the trial court set for hearing on June 8, 2015; however, our review of the record shows the trial court did not hear or issue an oral'or written ruling on these exceptions.

Following a hearing on Mr. Douglas’s petition for a writ of mandamus, held on March 16, 2015, the trial court signed a ruling denying Mr. Douglas’s petition on March 18, 2015, and signed a judgment in accordance therewith on April 2, 2015. Thereafter, |4Mr. Douglas filed a motion requesting the trial court give written reasons for its ruling. The trial court issued written reasons for its judgment on Juné 3, 2015. Mr. Douglas then filed a motion for recusal, requesting that the trial court recuse itself from his case for alleged violations of the Code of Judicial 'Conduct, Rules of Professional Conduct, and La. C.C.P. articles 151 and 154. The trial court denied that motion, without a hearing, on June 22, 2015.

Thereafter, Mr. Douglas filed a motion for new trial regarding the trial court’s denial of his petition for a writ of .mandamus in the judgment signed April 2, 2015; the City/Parish opposed the motion -for new trial. The trial court denied Mr. Douglas’s motion for new trial in a judgment signed September 21, 2015. Mr.: Douglas filed notice of his intent to apply for-supervisory writs with this court’ regarding the September 21, 2015 judgmeht denying his motion for new trial and the June 22,2015 judgment denying his motion for recusal; however, our records indicate that -Mr. Douglas never filed a writ application with this court.

Mr. Douglas filed a devolutive appeal of the September 21, 2015 judgment denying his motion for new trial. Mr. Douglas assigns error to the trial court’s refusal to grant his motion for recusal. Mr. Douglas also argues that the trial court erred by allowing the City/Parish to “commit fraud by filing and maintaining false public records and making false statements to the court[.j”

I JURISDICTION

Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. Our appellate jurisdiction extends to “final judgments,” which are those that determine the merits in whole or in part. La. C.C.P. arts. 1841 and 2083; see Van ex rel. White v. Davis, 2000-0206 (La. App. 1 Cir. 2/16/01), 808 So.2d 478, 483.

Mr. Douglas appealed only the judgment rendered on September 21, 2015, which was the judgment denying his motion for a new trial. The established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non-appealable judgment. McKee v. Wal-Mart Stores, Inc., 2006-1672 (La.App. 1 Cir. 6/8/07), 964 So.2d 1008, 1013, writ denied, 2007-1655 (La. 10/26/07), 966 So.2d 583. However, the Louisiana Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that he intended to appeal the merits of the case. Carpenter v. Hannan, 2001-0467 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-29, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. Furthermore, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. Landry v. Leonard J. Chabert Medical Center, 2002-1559 (La.App. 1 Cir. 5/14/03), 858 So.2d 454, 461 n.4, writs denied, 2003-1748, 20031752 (La. 10/17/03), 855 So.2d 761. Thus, the interlocutory denial of a motion for new trial is subject to review on appeal in connection with the review of an appealable judgment in the same case. Moran v. G & G Construction, 2003-2447 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, 83 n.4, writ denied, 2004-2901 (La. 2/25/05), 894 So.2d 1148.

It is obvious from Mr. Douglas’s brief that he intended to appeal the judgment on the merits—the April 2, 2015 judgment that denied his petition for a writ of mandamus. The denial of a request for a writ of mandamus is an appealable judgment. Constr. Diva, L.L.C. v. New Orleans Aviation Bd., 2016-0566 (La.App. 4 Cir. 12/14/16), 206 So.3d 1029, 1032, writ denied, 2017-0083 (La. 2/24/17), 216 So.3d 59, 2017 WL 944282; ANB Pipeline Co. v. Louisiana Tax Comm’n, 2001-2594 (La. App. 1 Cir. 3/20/02), 815 So.2d 178, 186 n.5, writ granted, 2002-1479 (La. 3/21/03), 840 So.2d 527, aff'd and remanded, 2002-1479 (La. 7/2/03), 851 So.2d 1145; Authement v. Larpenter, 97-1985 (La.App. 1 Cir. 5/15/98), 713 So.2d 718, 719 n.3, writ denied, 98-1584 (La. 9/18/98), 724 So.2d 771; See, e.g., In re Belle Co., L.L.C., 2006-1077 (La.App. 1 Cir. 12/28/07), 978 So.2d 977, writs denied, 2008-0220, 2008-0229 (La. 3/24/08), 977 So.2d 957, 958 and Fire Prot. Dist. Six v. City of Baton Rouge Dep’t of Pub. Works, 2003-1205 (La.App. 1 Cir. 12/31/03), 868 So.2d 770, writ denied, 2004-0299 (La. 4/8/04), 870 So.2d 270. Thus, we will treat the appeal accordingly. See State ex rel. Div. of Admin., Office of Risk Management v. National Union Fire Ins. Co. of Louisiana, 2013-0375 (La.App. 1 Cir. 1/8/14), 146 So.3d 556, 561 n.8.

DISCUSSION

The trial court may issue a writ of mandamus “directed to a public officer to compel the performance of a ministerial duty required by law[.]” La. C.C.P. art. 3863. In reviewing Mr. Douglas’s claims, we start with the premise that mandamus is an extraordinary remedy which must be used by courts sparingly only to compel action that is clearly provided by law, but only where it is the only available remedy or where delay occasioned by the use of any other remedy would cause an injustice. See La. C.C.P. art. 3862; Allen v. St. Tammany Par. Police Jury, 96-0938 (La. App. 1 Cir. 2/14/97), 690 So.2d 150, 153, writ denied, 97-0599 (La. 4/18/97), 692 So.2d 455. Mandamus will not lie in matters in which discretion and evaluation of evidence must be exercised. The remedy |7is not available to command the performance of an act which contains any element of discretion, however slight. Allen, 690 So.2d at 153.

Although the granting of a writ of mandamus is considered improper when the act sought to be commanded contains any element of discretion, it has, nevertheless/been allowed in cases to correct an arbitrary and capricious abuse of discretion by public boards or officials. Generally, the action of a governmental body is arbitrary, capricious, and unreasonable if it bears no relation to the health, safety, or general welfare of the public; the violation of a specific city ordinance, rule, or regulation that prohibits such action can constitute an abuse of discretion. Fire Prot. Dist. Six, 868 So.2d at 772-73.

We review the trial court’s decision to deny a request for a writ of mandamus under the abuse of discretion standard. Constr. Diva, L.L.C., 206 So.3d at 1037. An appellate court will grant a writ ,of mandamus only when there is a usurpation ,of. judicial power or clear abuse of discretion. Constr. Diva, L.L.C., 206 So.3d at 1037. We too, like the trial court, find that the action Mr. Douglas seeks to compel is a discretionary function—not a ministerial duty. Our review of the petition for mandamus, as well of the transcript of the hearing held on March 16, 2015, shows that Mr. Douglas failed to point to any evidence to indicate that his immediate reinstatement to his former employment with the City/Parish Department of Public Works and an award of full back pay and monetary damages leaves no element of discretion to the City/Parish. To reinstate Mr. Douglas to his former employment is not a purely ministerial duty, without an exercise of discretion. The City/Parish would be required to evaluate evidence and exercise discretion in deciding whether to reinstate Mr. Douglas to his former employment and award him back pay. Therefore, because the City/Parish’s decision contains an element of discretion, Mr. Douglas is not entitled to a writ of mandamus. Furthermore, the trial court’s refusal to reinstate' 'Mr. Douglas to his former employment and award him full back pay and monetary damages was not an arbitrary and ’capricious abuse of discretion. | fjWe find no error in the trial court’s judgment, and we affirm the trial court’s refusal to issue the writ of mandamus.

MOTION FOR CONTEMPT OF COURT, REMAND, ■ AND VACATE

Mr. Douglas filed a motion for contempt of court, remand, and vacate with this court on July 11, 2016. Mr. Douglas filed a second motion for contempt of court and to strike and vacate on September 9, 2016. This court denied the September-filed motion on October 31, 2016. This court referred the July-filed motion to this panel, which we now address. In his motion, Mr. Douglas requests that this court hold the City/Parish and its attorney in contempt of court and remove the trial court judge, Judge Donald R. Johnson, from the case.

Mr. Douglas argues the City/Parish has engaged in patterns of constructive contempt by making fraudulent and untrue statements in pleadings, briefs, and in open court regarding the termination of his employment, his notice of termination, and his opportunity to be heard. Specifically, on April 28, 2010, Mr, Douglas filed a motion to strike the City/Parish’s memorandum in opposition to his motion to change venue on the grounds the City/Parish fraudulently and untruthfully claimed that he was given notice and an opportunity to be heard before the City/Parish Personnel Board following the termination of his employment. The trial court granted his motion to strike on April 30, 2010. Mr. Douglas argues the City/Parish has willfully disobeyed the April 30, 2010 “constructive contempt” order of the trial court.

Mr. Douglas also argues the City/Parish engaged in direct contempt of court when the City/Parish attorney allegedly admitted at the March 16, 2015 hearing on his petition for mandamus that the April 30, 2007 judgment (wherein the trial court granted the City/Parish’s motion to enforce the settlement agreement, ordering Mr. Douglas to execute all of the documents and take all actions necessary to consummate the settlement agreement, which was at issue in Douglas III and Douglas TV) “was in fact a new disciplinary action and plaintiff was not afforded a notice and an opportunity to be heard before the City/Parish Personnel Board.” Furthermore, Mr. Douglas argues that the transcript of the March 16, 2015 hearing on his petition for mandamus that is in the | ^appellate record has been altered to change statements made by the City/Parish ‘attorney to say that the City/Parish afforded Mr. Douglas notice and an opportunity to be heard before the Personnel Board regarding his termination. Mr. Douglas argues that the City/Parish attorney admitted at the hearing that the April 30, 2007 judgment was a new disciplinary action and Mr. Douglas was not afforded notice and opportunity to be heard, and that if the transcript was altered, 'that constitutes direct contempt of court; we note, however, Mr. Douglas does not state who he believes allegedly altered the public record.

Ultimately, Mr. .Douglas requests that this court: strike the March 16, 2015 transcript of the hearing on his petition for mandamus from the court’s records and remand his own appeal to the trial court; strike and vacate “every judgment, order and ruling, that has been in favor of [the City/Parish] from April 30, 2007” to present; reinstate his employment with the City/Parish (the subject of his appeal); order the City/Parish to pay all court costs and the cost of this appeal for making “intentional, [knowing,] purposeful, and without justifiable excuse, [... ] false statements] and misrepresentations] of-material fact... ”; and, remove trial judge Donald R. Johnson from the case for “going along with the actions” of the City/Parish, or set the motion for recusal (denied on June 22, 2016) for hearing.

The Louisiana Code of Civil Procedure defines contempt of court as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” La. C.C.P. art. 221; Dauphine v. Carencro High Sch., 2002-2005 (La. 4/21/03), 843 So.2d 1096, 1107. Contempt is either direct or constructive. La. C.C.P. art. 221.

“A direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowletjge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” La. C.C.P. art. 222. “A person who has committed a direct contempt of court may be found guilty and punished therefor by the court forthwith, without any trial other than affording him an opportunity to be heard orally by way of defense or mitigation.” La. C.C.P. art. 223.

1 m“A constructive contempt of .court is any contempt other than a direct one.” La. C.C.P. art. 224. “Except as otherwise provided by law, a person charged with committing a constructive contempt of court may be found guilty thereof and punished therefor only after the trial by the judge of a rule against him to show cause why he should not be adjudged guilty of contempt and punished accordingly.” La. C.C.P. art. 225(A).

A trial court is vested with great discretion in determining whether a party should be held in contempt; and its decision will only be reversed when the appellate court discerns an abuse of that discretion. While it.is true that the trial court’s ultimate decision to hold a party or attorney in contempt of court is subject to review under the abuse of discretion standard, the trial court’s predicate factual determinations are reviewed under the manifest error standard in the ease of a civil contempt, and under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the case of a criminal contempt. Rogers v. Dickens, 2006-0898 (La.App. 1 Cir. 2/9/07), 959 So.2d 940, 945.

Furthermore, inasmuch as Mr. Douglas seeks redress from this court for the City/Parish’s alleged contempt of court, we note that courts of appeal may punish a person adjudged guilty of a contempt of court pursuant to the authority granted to us by La. Const, art. V, § 2, La. C.C.P. art. 225(A), and La. R.S. 13:4611(1). The punishment for contempt of court is provided in La. R.S. 13:4611(1) and includes fines and imprisonment. La. C.C.P. art. 227.

As to Mr. Douglas’s claim that the City/Parish has willfully disobeyed the April 30, 2010 “constructive contempt” order of the trial court, we note that the April 30, 2010 order solely granted his motion to strike a memorandum in opposition filed by the City /Parish in response to his motion to change venue. The April 30, 2010 order contained no other orders, instructions, or rulings. Mr. Douglas has provided no evidence that the Clerk of Court did not comply with the motion to strike and remove the City/Parish’s memorandum in opposition from the public record. See La. C.C.P. art. 251. Furthermore, the trial court denied his motion to change venue on May 24, 2010. Mr. | n Douglas did not seek review of that decision. There is no merit to the argument that the City/Parish has somehow willfully disobeyed the April 30, 2010 order granting Mr. Douglas’s motion to strike a memorandum from the court record, especially considering the fact that the order was in no way whatsoever directed to the City/Parish.

Furthermore, there is no evidence that the City/Parish admitted at the March 16, 2015 hearing on his petition for mandamus that the April 30, 2007 judgment was a new disciplinary action and that Mr. Douglas was not afforded a notice and an opportunity to be heard before the City/Parish Personnel Board. Mr. Douglas has provided no evidence that the transcript of the March 16, 2015 hearing has been tampered with in any way. It appears that Mr. Douglas is again attempting to relitigate the validity of the settlement agreement and the April 30,2007 judgment by arguing the City/Parish, as well as the judge, engaged in contempt of court. In Douglas III and IV, this court affirmed the validity of the settlement agreement and the April 30, 2007 judgment ordering Mr. Douglas to consummate the settlement agreement. Those rulings are now the law of the case, and we will not revisit them. See State ex rel. Div. of Admin., Office of Risk Mgmt. v. Nat’l Union Fire Ins. Co. of Louisiana, 2013-0375 (La.App. 1 Cir. 1/8/14), 146 So.3d 556, 562-63. Thus, we find no merit to Mr. Douglas’s claims that the City/Parish should be held in contempt of court.

As to Mr. Douglas’s claim that the trial judge should be removed from this case, we note that a judge is presumed to be impartial. Slaughter v. Bd. of Sup’rs of S. Univ. & Agr. & Mech Coll., 2010-1114 (La.App. 1 Cir. 8/2/11), 76 So.3d 465, 471, writ denied, 2011-2112 (La. 1/13/12), 77 So.3d 970. The grounds and procedures for recusing a judge enumerated in La. C.C.P. arts. 151-161 are exclusive and do not include a “substantial appearance of the possibility of bias” or even a “mere appearance of impropriety” as causes for removing a judge from presiding over a given action. Article 151 requires a finding of actual bias or prejudice, which must be of a substantial nature and based on more than conclusory allegation. Slaughter, 76 So.3d at 471. Mr. Douglas does not provide any evidence that the trial judge in this matter was actually biased or prejudiced against him. Furthermore, the trial court denied his motion to recuse on June |1⅞22, 2015. Mr. Douglas did not seek review of that decision. There is no merit to his arguments.

Based on the foregoing, the motion for contempt of court, remand, and vacate filed by Mr. Douglas on July 11, 2016, is hereby denied.

DECREE

The motion for contempt of court, remand, and vacate filed by Mr. Douglas on July 11, 2016 is denied. The April 2, 2015 judgment denying Mr. Douglas’s petition for mandamus is affirmed. The September 21, 2015 judgment denying Mr. Douglas’s motion for new trial is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Anthony W. Douglas.

MOTION DENIED; JUDGMENTS AFFIRMED.

McDonald, and Pettigrew, JJ., concurs.

      . Our review of the record shows the trial court did not hear or issue an oral or written ruling on these exceptions. A court of appeal is a “court of record" and must limit its review to evidence in the record before it and render its judgment upon, the record on appeal. See La. C.C.P. art. 2164; Denoux v. Vessel Mgmt. Servs., Inc., 2007-2143 (La. 5/21/08), 983 So.2d 84, 88.

      . While his appeal was pending, on January 19, 2016, Mr. Douglas filed a petition to annul the judgment of April 30, 2007 (wherein the trial court granted the City/Parish’s motion to enforce the settlement agreement, ordering Mr. Douglas to execute all of the documents and take all actions necessary to consummate the settlement agreement, which was at issue in Douglas III and Douglas IV). Mr. Douglas also filed a supplemental and amending petition to annul judgment on March 14, 2016. The trial court did not issue a rule to show cause on either petition, noting that it no longer had jurisdiction due to the pending appeal. See La. C.C.P. art. 2088.
      Mr. Douglas then filed a motion for preliminary default after the City/Parish failed to answer his petitions. The trial court entered a judgment of default against the City/Parish on April 15, 2016. However, the City/Parish had filed a peremptory exception pleading res ju-dicata to Mr. Douglas's petitions on April 14, 2016. Thereafter, the trial court set aside its judgment granting the preliminary default. The trial court did not set the City/Parish’s exception for hearing; our review of the record shows that the trial court did not hear or issue an oral or written ruling on the City/Parish's peremptory exception pleading res judicata that was filed on April 14, 2016.

      . By 2005 La. Acts No. 205, effective January 1, 2006, La. C.C.P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that “may cause irreparable harm” are appealable. An interlocutory judgment is now appealable only when expressly provided by law. La. C.C.P. art. 2083(C). Accordingly, the denial of a new trial is not generally appealable. McKee, 964 So.2d at 1013 n.8.

      . The standard of review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Rao v. Rao, 2005-0059 (La.App. 1 Cir. 11/4/05), 927 So.2d 356, 361, writ denied, 2005-2453 (La. 3/24/06), 925 So.2d 1232.

      . Because the judgment in this case does not turn upon a factual finding, we conclude that the abuse of discretion standard is the appro-i priate benchmark by which to review the judgment in this case. See Constr, Diva, L.L.C., 206 So.3d at 1037 n.6. Findings of fact regarding whether to issue a writ of mandamus are subject to the manifest error standard of review. Hess v. M & C Ins., Inc., 2014-962 (La.App. 3 Cir. 2/11/15), 157 So.3d 1200, 1203.


text:
    Nathan and Sharon MITCHELL d/b/a Shapes Gym v. AARON’S RENTALS, Duplantis Design Group, and Wal-Mart Stores, Inc.
    2016 CA 0619
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: APRIL 12, 2017

      Marvin Gros, Donaldsonville, Louisiana, Attorney for Appellants Plaintiffs—Nathan and Sharon Mitchell .d/b/a , Shapes Gym , ■
    Thomas J. Eppling, Craig W. Brewer, Sara P. Scurlock, Metairie, Louisiana, Attorneys for Appellee Defendant—Aaron’s, Inc.
    Michael W. Rutledge,’ James G. Alber-tine, III, New Orleans, Louisiana, Attorneys for Appellee Defendant—Wal-Mart Stores, Inc. . . ,
    BEFORE: PETTIGREW, McDonald, and calloway, jj.

      . Hon. Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   CALLOWAY, J.

|aThe plaintiffs-appellánts, "Nathan and Sharon Mitchell d/b/a Shapes Gym (“Mitchells”), appeal a summary judgment in favor of the defendants-appellees, Ahar-on’s Rentals,. Inc. (“Aaron’s”) and Wal-Mart Stores, Inc. (“Wal-Mart”), dismissing their claims with prejudice. Based on the following, we affirm.

FACTS AND PROCEDURAL HISTORY

The Mitchells are the owners of Shapes Gym, a commercial property located on Louisiana Highway 3089 in Donaldsonville. Aaron’s and Wal-Mart, operators of commercial retail businesses, are located next to Shapes Gym: the gym is adjacent to the Wal-Mart parking lot, and Aaron’s is located directly behind the gym. Aaron’s and Wal-Mart retained Duplantis Design Group (“Duplantis”) to design a drainage system for their respective businesses.

On December 8, 2009, Shapes Gym was inundated with approximately six inches of rain water. Thereafter, the Mitchells filed a petition for damages naming as defendants Aaron’s, Wal-Mart, and Duplantis. The Mitchells sought damages following the flooding of Shapes Gym, alleging the defendants negligently maintained their respective storm water drainage systems. The Mitchells further alleged that Duplan-tis negligently designed the defendants’ drainage systems, and was therefore also responsible for the damages caused by the flooding of Shapes Gym.

Motions for Summary Judgment Filed by Wal-Mart and Duplantis

Wal-Mart and Duplantis filed a motion for summary judgment on July 10, 2013, arguing that the Mitchells did not possess evidence sufficient to meet their burden of proof at trial, specifically, that Duplantis breached the standard of care for its drainage design work for Wal-Mart that the Mitchells alleged caused rain water to inundate Shapes Gym in December 2009. On August 2, 2013, Aaron’s filed a motion for summary judgment, adopting and incorporating Wal-Mart and Duplantis’s motion for summary | ¿judgment, memorandum in support, statement of undisputed material facts, and the attachments thereto. The Mitchells opposed the motions on October 11, 2013. The defendants replied to the opposition filed by the Mitchells.

Following a hearing on October 21, 2013, the trial court granted partial summary judgment in favor of Wal-Mart, Duplantis, and Aaron’s with respect to the Mitchells’ negligent drainage design claims, on the basis that the Mitchells did not produce sufficient evidence to rebut the evidence produced by Duplantis. The trial court dismissed all of the Mitchell’s claims against Duplantis, with prejudice. As to the Mitch-ells’ negligent maintenance claims against Wal-Mart and Aaron’s, the trial court denied summary judgment and continued the hearing to December 16, 2013, to give the Mitchells the opportunity to further support their negligent maintenance claim.

On December 6, 2013, the Mitchells filed a supplemental opposition to Wal-Mart and Aaron’s motions for summary judgment. Four days later, the Mitchells filed a second supplemental opposition to Wal-Mart and Aaron’s motions for summary judgment, and attached the affidavit of a purported expert. The defendants replied to the supplemental oppositions filed by the Mitchells. Aaron’s also filed a supplemental reply memorandum in support of its motion for summary judgment.

Wal-Mart subsequently filed a second motion for summary judgment on October 16, 2014, after deposing the Mitchells’ expert. Wal-Mart argued the expert affidavit provided by the Mitchells in their second supplemental opposition and the deposition testimony of their expert did not create a genuine issue of material fact as to causation or a breach of the standard of care by Wal-Mart. Aaron’s also filed a second motion for summary judgment on November 13, 2014, arguing the Mitchells had produced no evidence to support their claim that Aaron’s failed to maintain its drainage features or that its drainage system caused the flooding of Shapes Gym. The Mitchells opposed Wal-Mart’s motion for summary judgment, attaching a second, revised affidavit of their Rexpert. Wal-Mart filed a reply memorandum in support of its motion for summary judgment.

A hearing on the defendants’ motions for summary judgment was held on December 3, 2014; however, the trial court continued the hearing to January 21, 2015. On January 12, 2015, the trial court granted the Mitchells leave of court to file their fourth supplemental and amending petition for damages to include a claim for damages for the flooding of Shapes Gym that occurred on May 5, 2014 as the result of the alleged negligence of the defendants. On January 21, 2015, the trial court continued the hearing on the motions for summary judgment without date. Thereafter, Wal-Mart and Aaron’s filed motions to reset the hearings on their motions for summary judgment. The trial court ultimately continued the motions to September 1, 2015.

On September 1, 2015, the trial court addressed the pending motions for summary judgment. The parties agreed to waive further hearings and to submit on briefs. Thereafter, the Mitchells filed a supplemental opposition to the motions for summary judgment. Wal-Mart also filed a supplemental memorandum in support of its motion for summary judgment.

The trial court signed a judgment on December 8, 2015, granting summary judgment in favor of Wal-Mart and Aaron’s, and dismissing all of the Mitchells’ claims against the- defendants. The trial court also issued reasons- for judgment. The Mitchells now appeal.

DISCUSSION

Standard of Review

After adequate discovery, a motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, if any, admitted for purposes of the motion, show that there is no genuine issue [Sas to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2) and (C)(1) (prior to amendment by 2015 La. Acts, No. 422, effective January 1, 2016). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. See La. C.C.P. art. 966(A)(2).

The mover bears the burden of proving that ■ he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No. 422, effective January í, 2016). If the moving party points out that there is an absence of factual support for one or more elements essential to the- adverse party’s claim, action, or defense, then the nonmoving party must produce- factual support sufficient to satisfy .his evidentiary burden at trial. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No, 422, effective January 1, 2016). If the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. art. 966(C)(2) (prior to amendment by 2015 La. Acts, No. 422, effective January 1, 2016). If, however, the mover fails in his burden to show an absence of factual support for one or more of the elements of the adverse party’s claim, the burden never .shifts to the adverse party, and the mover is not entitled to summary judgment. LeBlanc v. Bouchereau Oil Co., Inc., 2008-2064 (La.App. 1 Cir. 5/8/09), 15 So.3d 152, 155, writ denied, 2009-1624 (La. 10/16/09), 19 So.3d 481.

In ruling on a motion for summary judgment, the-trial court’s-role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the |ñoutcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66. Factual inferences reasonably drawn from the evidence must be construed in favor of .the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507 (La. 12/8/00), 775 So.2d 1049, 1050 (per curiam).

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. East Tangipahoa Development Company, LLC v. Bedico Junction, LLC, 2008-1262 (La.App. 1 Cir. 12/23/08), 5 So.3d 238, 243-44, writ denied, 2009-0166 (La. 3/27/09), 5 So.3d 146. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Pumphrey v. Harris, 2012-0405 (La.App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

Causation and the Burden of Proof

In this case, the issues raised in the motions for summary, judgment center on the issue of causation, specifically: (i) whether res ipsa, loquitor allows the inference that the defendants’ negligent maintenance of their.respective-drainage systems caused the flooding of Shapes Gym; and, (ii) whether the testimony of the Mitch'ells’ expert, Dr, Tonja L. Koob, was sufficient to establish that some act or omission by Wal-Mart and Aaron’s caused the flooding.

Wal-Mart filed two motions for summary judgment. The first motion was accompanied by a list of undisputed material facts and a memorandum; the second was accompanied by a memorandum. In support of its motions, Wal-Mart submitted the following exhibits:

A. expert affidavit of Theodore E. De-baene, P.E., CFM, regarding Wal-Mart’s drainage analysis prepared by Duplantis;
B. expert affidavit of Theodore E. De-baene, P.E., CFM, regarding Aaron’s drainage project;
_JjA. affidavit of the plaintiffs’ expert, Dr. Tonja L. Koob, PhD., P.E., CFM, dated December 9, 2013;
B. portions of the deposition of the plaintiffs’ expert, Dr. Tonja L. Koob, taken on August 26, 2014; and
A. portions of the transcript of the December 3, 2014 hearing on the defendants’ motions for summary judgment.

Aaron’s also filed two motions for summary judgment. Both motions were accompanied by a list of “indisputable” material facts and a memorandum. In support of its motions, Aaron’s submitted the following exhibits:

A. Wal-Mart and Duplantis’s expert affidavit of Theodore E. Debaene, P.E., CFM, regarding Wal-Mart’s drainage analysis prepared by Du-plantis, in support of their motion for summary judgment;
B. Wal-Mart and Duplantis's expert affidavit of Theodore E. Debaene, P.E., CFM, regarding Aaron’s drainage project, submitted in support of their motion for summary judgment;
1. affidavit of the plaintiffs’ expert, Dr. Tonja L. Koob, PhD., P.E., CFM, dated December 9, 2013; .
2. Aaron’s certificate of Occupancy issued December 11, 2009 by the Ascension Parish Department of Planning; and
3. portions of the deposition of the plaintiffs’ expert, Dr. Tonja L. Koob, taken on August 26,2014.

The Mitchells opposed the motions for summary judgment filed by the defendants, and in support of their opposition, submitted the following exhibits:

A. affidavit of Nathan Mitchell, dated October 9, 2013, and photographs attached thereto;
B. portions of the deposition of Ricky Gallow, an engineer with Duplantis, taken on March 21,2013;
C. expert affidavit of Jared Monceaux, P.E., dated October 10, 2013;
A. affidavit of Sharon Mitchell, dated November 26, 2013;
A. affidavit of Nathan Mitchell, dated November 26, 2013;
B. affidavit of George Rodeillat, an Ascension Parish employee, dated December 4, 2013, and particular exhibits attached thereto;
kB. affidavit of the plaintiffs’ expert, Dr. Tonja L. Koob, PhD., P.E., CFM, dated December 9,2013;
C. Duplantis Grading Plan sheet C-2 (02-264-009 Change Directive # 8);
D. copies of Google Earth aerial photographs of the property in question; and
A. revised affidavit of the plaintiffs’ expert, Dr. Tonja L. Koob, PhD., P.E., CFM, dated November 25, 2014, and particular exhibits attached thereto.

Wal-Mart and Aaron’s replied to the Mitchells’ opposition, and in support of their arguments, Aaron’s attached the following exhibits to its reply:

1. email correspondence between Craig Brewer, counsel for Aaron’s, and Tommy Bennett, counsel for the Mitchells, dated December 11, 2013; and
2. written correspondence sent from Craig Brewer, counsel for Aaron’s, to Jeffrey Heggelund, counsel for the Mitchells, dated October 24, 2013, and the particular exhibit attached thereto.

Pursuant to La. C.C.P. article 966(C)(2), Wal-Mart and Aaron’s needed only to demonstrate the absence of factual support for one or more essential elements of the Mitchells’ claim, action, or defense. The defendants moved for summary judgment on the issue of causation, arguing the Mitchells failed to produce sufficient evidence demonstrating they could make a prima facie showing that any act or omission of the defendants caused the flooding of Shapes Gym. The burden then shifted to the Mitchells to produce factual support sufficient to prove they would be able to satisfy their evidentiary burden at trial. See La. C.C.P. art. 966(C)(2), now 966(A)(3).

Res Ipsa Loquitur

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 1007-1008, 245 So.2d 151, 155 (1971). The Mitchells contend the doctrine 19of res ipsa loquitur, as set forth in La. C.C. article 667, applies in this matter, and that the trial court erred in determining that doctrine did not apply.

Louisiana Civil Code article 667 is found in the Title of the Louisiana Civil Code governing “Predial Servitudes,” which establishes certain limitations on the scope and extent of the right of ownership in immovable property, namely by requiring an owner to use his property in such a manner as to not injure another. Inabnet v. Exxon Corp., 93-0681 (La. 9/6/94), 642 So.2d 1243, 1250-51. Article 667 provides, in pertinent part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Res ipsa loquitur (the thing speaks for itself) is a rule of circumstantial evidence which allows an inference of negligence on the part of the defendant if the facts indicate the defendant’s negligence, more probably than not, caused the injury. Linnear v. CenterPoint Energy Entex/Re liant Energy, 2006-3030 (La. 9/5/07), 966 So.2d 36, 45; Boudreaux v. Am. Ins. Co., 262 La. 721, 763, 264 So.2d 621, 636 (1972). In light of ordinary experience, the event must be of such a nature that it could only have resulted from someone’s negligence. Fisher v. Catahoula Par. Police Jury, 2014-1034 (La.App. 3 Cir. 4/29/15), 165 So.3d 321, 325, writ denied, 2015-1402 (La. 10/2/15), 178 So.3d 993.

The Louisiana Supreme Court has ruled that res ipsa loquitur applies in cases involving circumstantial evidence, rather than direct evidence, provided the plaintiff establishes the following foundation of facts:

(1) the injury is of the kind which does not ordinarily occur in the absence of negligence; (2) the evidence sufficiently eliminates other possible causes of the injury, such as the plaintiffs own responsibility or the responsibility of others; and (3) the alleged negligence of the defendant must fall hnwithin the scope of his duty to the plaintiff, which will often be the case if the defendant had exclusive control of the thing or situation that caused the injury to the plaintiff.

Linnear, 966 So.2d at 45. The trial judge determines whether reasonable minds could differ on the presence of all three criteria. Linnear, 966 So.2d at 44. If reasonable minds could not conclude that all three criteria are satisfied, then the legal requirements for the use of res ipsa loqui-tur are not met. Linnear, 966 So.2d at 44. The plaintiff does not have to eliminate all other possible causes or inferences, but must present evidence which indicates at least a probability that the injury would not have occurred without negligence. Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654, 665-666 (La. 1989). Res ipsa loquitur is defeated if an inference that the injury was due to a cause other than the defendant’s negligence can be drawn as reasonably as one that it was due to the defendant’s negligence. Boudreaux, 264 So.2d at 636.

Following our de novo review, we hold the doctrine of res ipsa loquitur is inapplicable in the matter before us. Based on our review of the motions for summary judgment and the evidence submitted in support of and in opposition to them, we are able to draw a reasonable inference that the flooding of Shapes Gym could have been due to a cause other than the alleged negligent maintenance of drainage systems by Wal-Mart or Aaron’s. The Mitchells did not submit any evidence in opposition to the motions for summary judgment to indicate that the flooding would not have occurred absent the negligence of Wal-Mart or Aaron’s. This assignment of error is without merit.

Negligence

In their second assignment of error, the Mitchells argue the trial court erred in determining that they failed to meet the burden of proof on the negligence claim, specifically, that they failed to prove the defendants’ negligence was the cause of the flooding.

Under La. C.C. article 2315, an individual is entitled to recover the damages he sustains as a result of another’s fault. Landry v. Bellanger, 2002-1443 (La. 5/20/03), 851 So.2d 943, 949. Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his [nconduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So.2d 564, 579.

In its motion for summary judgment, Wal-Mart pointed out there is an absence of factual support for an essential element of the Mitchells’ claim, namely, causation. Under Article 966, the burden of proof shifted to the Mitchells to produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial. Based on our de novo review of the record, the plaintiffs did not meet their burden of proof as to the essential element of causation. The Mitchells relied on the affidavit of their expert, Dr. Tonja L. Koob, to establish causation; however, after reviewing her affidavits, we conclude that her opinions are devoid of specific underlying facts to support a conclusion regarding causation. See La. C.C.P. art. 967; Thompson v. S. Cent. Bell Tel. Co., 411 So.2d 26, 28 (La. 1982).

As part of its opposition to the summary judgment filed by Wal-Mart, the Mitchells argued that dirt, debris, grass, and sediment built up in the drainage ditches and a detention pond on and surrounding Wal-Mart and Aaron’s properties were a cause-in-fact of the flooding of Shapes Gym on December 8, 2009 and May 5, 2014. The Mitchells’ expert, Dr. Koob, examined multiple storm water drainage system maintenance forms that were prepared by contracting firms AD Storm Water & Environmental Services,' Inc. and Retention Pond Services, Inc. for Wal-Mart’s Corporate Compliance division, from 2008 through 2014. Dr. Koob also examined precipitation data from the Donaldsonville gage obtained from NOAA and the Grading Plan, Drawing C2, Storm Sewer Profiles, Drawing CIO, produced by Duplantis Design Group, PC dated April 4, 2004. Dr. Koob concluded:

|1gIt is my opinion that the asymmetric drainage ditch combined with the lack of maintenance in the Aaron’s detention pond and Aaron’s and Wal-Mart drainage ditches produce a drainage system that does not meet its design conditions. The result of the undersized drainage system is overtopping of the drainage ditch on to the Shapes property.

However, Dr. Koob did not refer to any evidence of negligent conduct by Wal-Mart or by Aaron’s in maintaining their respective drainage systems that could have caused the flooding of Shapes Gym on December 8, 2009 or May 5,2014.

Dr. Koob indicated in her affidavit that she examined thirty-eight maintenance forms prepared prior to the flooding events. These forms indicated varying levels of sediment, trash, debris, and vegetation accumulation in the drainage systems, specifically in the detention basins, concrete bottoms, and the pond. Dr. Koob noted the maintenance forms did not indicate if the sediment was removed in the instances where accumulation was found following site inspection. In the last report prepared prior to the 2009 flooding event, the preparer of the maintenance form rated the site conditions of the drainage systems for “Trash and Debris” and “Aquatic Vegetation” as “Light” and indicated that the trash was “Picked up/Removed” while the vegetation was “Weedeated.” The “Sediment Accumulation” was rated as “Low” and no action was taken by the preparer beyond inspection. In the “Other Observations or Comments” section of the form, the preparer stated “raining sediment built up along side of flume.” In the last report prepared prior to the 2014 flooding event, the preparer of the maintenance form noted that the vegetation coverage was “Good” and that he did not mow; that trash and debris were removed from the site; and that no sediment was removed. In the “Comments” section, the preparer noted: “Pvc drain pipe with hole in top and broken in pond in rear of store.” In the “Comments/Additional Information” section of the form, the preparer stated, “[r]emoved trash and debris from pond... [c]leaned out trash around loading dock drain.”

While Dr. Koob stated these forms indicate that at various times from 2008 to 2014, there was trash, debris, vegetation, and sediment built up in the drainage system and the retention pond on the Wal-Mart and Aaron’s properties, and that it was not | ^always clear if this buildup was removed following inspection. Those statements alone, however, do not establish that those reported instances of buildup caused the flooding of Shapes Gym that occurred in 2009 and 2014. First, Dr. Koob did not state the conditions or measurable amount of buildup of trash, debris, vegetation, or sediment that would have caused the defendants’ drainage systems to fail and overflow. Second, Dr. Koob did not provide a scientifically measurable amount of trash, debris, vegetation, or sediment buildup that existed in the drainage systems on any particular day, including December 8, 2009 and May 5, 2014, but merely repeated instances of undeterminable amounts of buildup as reported in the Wal-Mart storm water drainage system maintenance forms. Dr. Koob did not provide her- opinion, documented measurements, or pictures regarding the actual condition of the site immediately prior to, on, or immediately following the December 8, 2009 rain event. Third, Dr. Koob did not analyze the scientific method that was used by Wal-Mart’s contracting firm to prepare its storm'water drainage system maintenance forms to report buildup in the drainage systems, nor did Dr. Koob establish the corporate procedure ■ or frequency with which Wal-Mart conducted- these maintenance inspections of the drainage systems. '

In order to defeat a motion for summary judgment, an expert’s opinion must be more than a conclusory assertion about ultimate legal issues. See Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226, 232-33. The Mitchells have failed to show the existence of genuine issues of material fact regarding their ability .to prove causation, ,an essential element of their claim. -Summary judgment was therefore appropriate. This assignment of error -is without merit.

DECREE

Based on the foregoing, the December 8, 2015 judgment of the trial court is affirmed. All costs of this appeal are cast to the plaintiffs-appellants, Nathan and Sharon Mitchell d/b/a Shapes Gym.

AFFIRMED.

      . The Mitchells filed several amended petitions for damages. In their second amended petition for damages, the Mitchells added Admiral Insurance Company, the insurer of Du-plantis, as a defendant. The plaintiffs move to dismiss Admiral, without prejudice, which the trial court granted. In their third supplemental and amended petition for damages, the Mitchells added Union Pacific Railroad and the Louisiana Department of Transportation and Development as defendants; both parties settled the claims against them and were dismissed from the suit.

      . Wal-Mart and Duplantis filed an objection/motion to strike Exhibit C attached to the Mitchells’ opposition, the affidavit of Jared Monceaux, P.E., as speculative and lacking methodology.

      . The record does not contain an opposition by the Mitchells to Aaron's second-filed motion for summary judgment.

      . On November 18, 2015, the Mitchells filed a fifth supplemental and amending petition for damages to include a claim for damages for the flooding of Shapes Gym that occurred on October 25, 2015 as the alleged result of the negligence of the defendants. The trial court did not grant the Mitchells leave of court to file this petition.

      .Now, see La. C.C.P. art. 966(A)(3).

      . Now, see La. C.C.P. art. 966(D)(1).

      , Now, see La. C.C.P. art. 966(D)(1).