author: Judge Rosemary Ledet

text:
    Veronica GORDON v. A-1 ST. BERNARD TAXI & DELIVERY
    NO. 2017-CA-0048
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 9, 2017

      Byron, M. Forrest, THE FOREST LAW FIRM, LLC, 601 Poydras Street, Suite 2335, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE
    Sherri L. Hutton, Leslie E. Hodge, Lindsey F. Louapre, BROWN SIMS, 1100 Poydras Street, 39th Floor, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Rosemary Ledet, Judge Regina Bartholomew Woods, Judge Paula A. Brown)
   Judge Rosemary Ledet

_JjThis is a workers’ compensation case. The defendant, A-l St. Bernard Taxie & Delivery, LLC (“A-l”), appeals the August 4, 2016 judgment of the Louisiana Office of Workers’ Compensation (the “OWC”)' rendered in favor of the claimant, Veronica Gordon. For the reasons that follow, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On May 2, 2015, Ms. Gordon was involved in a motor vehicle accident while working as an independent contractor for A-l. At the time of the accident, Ms. Gordon was driving a cab owned by A-l. Three days later, she sought treatment at the emergency room for pain in her left arm, shoulder, neck, and back.

On August 17, 2015, Ms. Gordon filed a disputed claim for compensation—a Form 1008—against A-l (the “Original Claim”). In the Original Claim, she alleged that A-l failed to pay wage benefits and to authorize medical treatment. In- addition to wage and medical benefits, she sought penalties and attorney’s fees. Also in the Original Claim, Ms. Gordon listed A-l’s contact information for |gservice as follows: “Attention Vincent Rizzuto, 3301 Delille Street in Chalmette, Louisiana.” On August 31, 2016, the OWC notified Ms, Gordon’s attorney that service on A-l was unable to be perfected at that location. The OWC also requested that Ms. Gordon provide it with either.the correct address or the name of the registered agent for service of process for service to be reissued.

On September 8, 2015, Ms. Gordon filed an amended disputed claim for compensation (the “First Amended Claim”). In the First Amended Claim, she listed A-l’s and Mr. Rizzuto’s address as “227 W. Genie Street, Chalmette, Louisiana.” On October 16, 2015, the OWC notified Ms. Gordon’s attorney that service could not be perfected at that location. The OWC further explained in the notification that Ms. Gordon’s claim could not proceed until service was perfected and it informed her that she could file a motion to appoint a private process server.

On December 21, 2015, the OWC, sua sponte, ordered that Ms. Gordon show cause why her claim should not be dismissed for failure to prosecute. The record is devoid of a ruling on the dismissal for failure to prosecute. One week later, however, Ms. Gordon filed a motion to appoint Jeff Toepfer as special process server, which the OWC granted. • •

On February 3, 2016, Ms. Gordon filed a second disputed claim for compensation (the “Second Amended Claim”), in which she changed A-l’s and Mr. Rizzuto’s address to “3201 Delille Street, Chalmette, Louisiana.” On- that same date, she filed a “Motion to Appoint Louisiana Secretary of State as Agent for Service of -Process.” In her motion, Ms. Gordon stated that Mr. Toepfer made ^several unsuccessful attempts to serve A-l’s agent'for-service of process; a copy of Mr. Toepfer’s affidavit was attached to Ms. Gordon’s motion. Thereafter, the OWC granted Ms. Gordon’s motion and appointed the Secretary of State as A-l’s agent for service of process. On February 10, 2016, the Secretary of State transmitted, by certified mail, the Second Amended Claim to A-l’s last known mailing address.

On April 25, 2016, the OWC again ordered Ms. Gordon to show cause why her claim should not be dismissed for faitee to prosecute. A minute entry reflects that on May 12, 2016, the OWC denied the motion. Four days later, the OWC scheduled a telephone status conference, which was held on June 22, 2016. On that same date, the OWC judge issued a scheduling order and set an August 2,2016 trial date.

On the scheduled trial -date, a trial against A-l proceeded without either counsel or any representative of A-l being present. Ms. Gordon was the only witness to testify at trial. At the close of Ms. Gordon’s case, the OWC ruled in her 14favor. On August 3, 2016, A-l’s attorney filed a motion to enroll. On August 4, 2016, the OWC granted A-l’s attorney’s motion to enroll and rendered a judgment in Ms, Gordon’s favor. Thereafter, the OWC denied A-l’s motion for new trial. This appeal followed.

STANDARD OF REVIEW

In workers’ compensation cases, the standard of review to be applied by an appellate court to the OWC’s findings of fact is the manifest error-clearly wrong standard. Orozco v. Aries Bldg. Sys., Inc., 16-0187, p. 5 (La. App. 4 Cir. 9/28/16), 202 So.3d 1018, 1022, writ denied, 16-1949 (La. 12/16/16), 212 So.3d 1173 (citing Dean v. Southmark Constr., 03-1061, p. 7 (La. 7/6/04), 879 So.2d 112, 117). “ ‘When legal error interdicts the fact-finding process in a workers’ compensation proceeding, the de novo, rather than the manifest error, standard of review applies.’ ” Orozco, 16-0187 at p. 5, 202 So.3d at 1023 (quoting MacFarlane v. Schneider Nat’l Bulk Carriers, Inc., 07-1386, p. 3 (La. App. 4 Cir. 4/30/08), 984 So.2d 185, 188).

DISCUSSION

Although A-l raises six assignments of error on appeal, we find this appeal presents two issues: (i) whether A-l was properly served; and (ii) whether the OWC erred in rendering judgment in Ms. Gordon’s favor.

A-l contends that it was never properly served with Ms. Gordon’s citation or any of her disputed claims for compensation. A-l argues that there was only one attempt to serve its registered agent at its agent’s proper address before Ms. lfiGordon sought service through the Secretary of State. A-l further argues that service was never perfected by the Secretary of State because the certified mail containing the citation was never delivered; rather, the tracking information showed it was still in transit to its destination at the time of trial. According to A-l, the OWC erred in rendering judgment against A-l when it was never served as required by law. A-l thus contends that the OWC’s judgment must be annulled.

Ms. Gordon counters that service on A-l was perfected when the Secretary of State forwarded the citation to A-l’s last known address. According to Ms. Gordon, the law “simply requires the Secretary of State to forward the citation of service, nothing more.” Louisiana Truck Parts, Inc. v. W & W Clarklift, Inc., 444 So.2d 733, 734 (La. App. 5th Cir. 1984); see also Bastian v. Wallace Colored Sch. Club, 11-708, p. 7 (La. App. 5 Cir. 5/8/12), 99 So.3d 680, 683. Furthermore, she contends that Mr. Riz-zuto, A-l’s registered agent, received notice of the trial date, yet he failed to retain counsel or appear at trial. Given A-l was served as required by law and had notice of the trial, Ms. Gordon submits that the OWC’s judgment was correct.

A judgment rendered against a defendant who has not been served with process as required by law is an absolute nullity, and the judgment shall be annulled. La. C.C.P. art. 2002(A)(2); Brown v. Unknown Driver, 05-0421, p. 11 (La. App. 4 Cir. 1/18/06), 925 So.2d 583, 590 (citing Advanta Bank Corp. v. First Mount Zion Baptist Church, 03-732, p. 4 (La. App. 5 Cir. 12/30/03), 865 So.2d 165, 167); see also Tunnard v. Simply S. Homes, L.L.C., 07-0945, p. 3 (La. App. 1 Cir. 3/26/08), 985 So.2d 166, 168. In ordinary civil actions, the requirements for service of process upon a limited liability company are set forth in La. C.C.P. art. 1266, which provides as follows:

A. Service of citation or other process on a domestic or foreign limited liability company is made by personal service on any one of its agents for service of process.
B. If the limited liability company has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
(1) Personal service on any manager if the management of the limited liability company is vested in one or more managers or if management is not so vested in managers, then on any member.
(2) Personal service on any employee of suitable age and discretion at any place where the business of the limited liability company is regularly conducted.
(3) Service of process under the provisions of R.S. 13:3204, if the limited liability company is subject to the provisions of R.S. 13:3201.

| ¡¡In workers’ compensation cases, service may also be made on a named defendant by certified mail. See La. R.S. 23:1310.3(B); see also Jefferson Par. Hosp. Serv. Dist. No. 2 v. K & W Diners, LLC, 10-767, p. 7 (La. App. 5 Cir. 4/12/11), 65 So.3d 662, 666-67.

“Proper citation is the cornerstone of all actions. The law is, moreover, patently clear that actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation.” Elkins v. Louisiana Dep’t of Agric. & Forestry, 36,829, p. 2 (La. App. 2 Cir. 3/5/03), 839 So.2d 992, 993 (citing Rivers v. Groth Corp. 95-2509, p. 2 (La. App. 1 Cir. 9/27/96), 680 So.2d 762, 763). Nonetheless, when service on an agent for service of process cannot be effectuated with due diligence, a process server may be appointed. La C.C.P. art. 1266(B). After the process server certifies his inability to make service in accordance with Article 1266, a plaintiff may alternatively serve the Secretary of State. La. C.C.P. |Bart. 1267; see also Kallauner v. One Source Const., LLC, 08-0883, p. 3 (La. App. 4 Cir. 10/8/08), 995 So.2d 59, 61 (noting that “[according to La. C.C.P. art. 1266, service pursuant to La. C.C.P. art. 1266 B may only be used where service pursuant to La. C.C.P. art. 1266 A cannot be effectuated with due diligence.”). This court in Kallauner • further noted that “the process server must certify that he was ‘unable, after due diligence, to serve the designated agent’ before an alternative means of service becomes acceptable;’” 08-0883 at p. 3, 995 So.2d at 61 (quoting La. C.C.P. art. 1266) (emphasis in original); see also Willis v. TMB P’ship, 45,813, p. 5 (La. App. 2 Cir. 12/15/10), 56 So.3d 324, 327 (noting that “[o]nly after some form of ‘diligent effort’ or ‘due diligence’ has failed to identify such a person, may an alternative method of service be utilized.”);' Given the Secretary of State was substituted for service, the issue thus turns on whether a diligent effort was first made to serve A-l’s registered agent.

Louisiana law neither defines “diligent effort” nor “due diligence.” Whether a diligent effort has been made to effect service of process depends on the circumstances of the case. 2 Steven R. Plotkin and Mary Beth Akin, LA. PRAC. CIV. PROC., Article 1262 (2016 ed.) (citing Alaynick v. David Reiss, M.D., 482 So.2d 58 (La. App. 5th Cir. 1986). Courts have found a lack of due diligence in Incases where service has been attempted on multiple occasions. See Louisiana Dist. Council of Assemblies of God, Inc. v. Victory Temple Assembly of God, 376 So.2d 169, 171 (La. App. 4th Cir. 1979); Thomas v. Quality Inn Westbank, 01-379, p. 5 (La. App. 5 Cir. 11/27/01), 802 So.2d 930, 933; see also Valvo v. Valvo, 08-622, p. 6 (La. App. 5 Cir. 1/13/09), 7 So.3d 752, 755.

In Victory Temple, the process server made six attempts at service on the church corporation defendant. 376 So.2d at 170. Thereafter, service was made on the Secretary of State. Id. On appeal, the appellate court held that the six attempts to serve did not constitute the required “diligent effort” since no attempt was made on a Sunday morning when church services were conducted. Victory Temple, 376 So.2d at 171. Due to the ineffective.service,'the appellate court annulled the trial court’s granting of a, default judgment. Id.

In Thomas, the process server noted that the agent “is seldom at the address” and that he needed another address. 01-379 at p. 2, 802 So.2d at 931. After a hearing on the defendant’s motion to dismiss for insufficient service of process, the trial court ordered the plaintiff to amend his petition with the correct name of the defendánt and to obtain service through its registered agent by a specified date. Id. The plaintiff, however, did not try to serve the agent until after the court-specified date; and, at that time, the process server was unable to serve the agent' because he was “out of the country.” Thomas, 01-379 at p. 3, 802 So.2d at 931. Thereafter, the trial court found that the plaintiff was not diligent in pursuing service and dismissed the case. Thomas, 01-379 at p. 4, 802 So.2d at 932. On appeal, the appellate court held that “two unsuccessful attempts to obtain service in a period of [nthree years does not constitute a diligent attempt at service.” Thomas, 01-379 at p. 5, 802 So.2d at 933.

In Valvo, the plaintiffs request for service was proper—it had named the proper party and the proper address, service was given to the proper authority, and service was carried out by the proper authority in the proper manner. 08-622 at p. 5, 7 So.3d at 754. After five unsuccessful attempts at service were made within one week, no further service was requested or attempted. Valvo, 08-622, pp. 5-6, 7 So.3d 752, 754-55. The trial court, thereafter, granted the defendant’s motion to dismiss for lack of service. Valvo, 08-622 at p. 4, 7 So.3d at 754. In affirming the judgment, the appellate court found that the “plaintiff was not diligent in attempting to serve defendant.” Valvo, 08-622 at p. 6, 7 So.3d at 755.

Here, the record reflects that A-l’s registered agent listed with the Secretary of State was Mr. Rizzuto, whose address was stated as “3201 Delille Street, Chalmette, Louisiana.” Ms. Gordon’s Original Claim, however, provided the OWC with an incorrect address for Mr. Rizzuto—“3301 De-lille Street.” After service was unable to be perfected at that incorrect address, Ms. Gordon’s First Amended Claim provided the OWC with A-l’s domicile and mailing address listed with the Secretary of State—“227 W. Genie Street.” The certified mail transmitted by the OWC to that location, however, was returned as “Unclaimed.”

The OWC made two unsuccessful attempts at service, both of which were at incorrect addresses for Mr. Rizzuto. - Following those attempts, Mr. Toepfer was | ^appointed as special process server. In his affidavit regarding his attempts at serving Mr. Rizzuto, Mr. Toepfer attested as follows:

[O]n the [sic] January 18, 2016 and January 25, 2016, he attempted personal service of a certified copy of the Citation and Disputed Claim in the above captioned action under LA CCP Art. 1266 through its agent for service of process, Vincent Rizzuto. On January 18, 2016 he attempted to serve at 3301 Delille St., Chalmette, LA and there was no response. On January 25, 2016 he had no response to delivery at 227 W. Genie St., and 3201 Delille St., no one was available for service.

Thereafter, the Secretary of State was substituted for service for A-l.

Based on the record on appeal, we find that an adequate showing of a diligent effort to serve A-l, pursuant to La. C.C.P. arts. 1266 and 1267, was not made. Initially, Ms. Gordon failed to provide the OWC ■with Mr. Rizzuto’s correct address. Then, as A-l points out, Mr, Toepfer was appointed; and he made only a single attempt to serve Mr. Rizzuto at his correct address. At that time, no qne was available to accept service. Furthermore, Ms. Gordon provided the OWC with Mr. Rizzuto’s correct address on the same day that she requested the Secretary of State be substituted for service. Contrary to Ms. Gordon’s contentions, A-l was not properly served with the citation, and notice of the trial date does not constitute sufficient service. Thus, substituting service on the Secretary of State was improper. Given that A-l was never properly served, the OWC’s judgment is an absolute nullity pursuant to La. C.C.P. art. 2002(A)(2).

A-l contends that, even assuming service through the Secretary of State was proper, the OWC erred in rendering a final judgment of default when Ms. Gordon failed to file a motion for preliminary default. As noted elsewhere- in this opinion, the August 2, 2016 minute entry indicates that a motion hearing was held to confirm a default judgment.

| ^Although the rules of evidence and procedure are relaxed in workers’ compensation proceedings, such proceedings are nonetheless lawsuits that must be conducted in conformity with the accepted standards of practice and procedure. See Dick v. B & B Cut Stone Co., L.L.C, 40,441, p. 6 (La. App. 2 Cir. 12/14/05), 917 So.2d 1191, 1195 (citing Taylor v. Tommie’s Gaming, 04-2254, p. 5 (La. 5/24/05), 902 So.2d 380, 383); see also Chapman v. Lalumia, 154 So.2d 93 (La. App. 4th Cir. 1963) (noting that “[w]hile the technical rules of evidence and procedure may be relaxed somewhat in a compensation case, such a case is nevertheless a lawsuit and the rules of practice prescribed by the Code of Civil Procedure and the jurisprudence may not be disregarded entirely.”). A final judgment rendered against a defendant against whom a valid default judgment has not been taken is an absolute nullity. La. C.C.P. art. 2002(A)(2). It is well-settled that this article applies only to technical defects of the form of the judgment or procedure. Ganey v. RMH Cable, Inc, 99-460, pp. 10-11 (La. App. 3 Cir. 10/13/99), 745 So.2d 123, 129 (citing National Income Realty Trust v. Paddie, 98-2063 (La. 7/2/99), 737 So.2d 1270, 1271). In workers’ compensation cases, those procedures require that a preliminary default must be entered before a default judgment may be confirmed; and a judgment entered without a preliminary default having been taken is an absolute nullity. King v. Employers Cas. Co., 515 So.2d 542, 543 (La. App. 1st Cir. 1987). Here, it is undisputed that Ms. Gordon failed to move for a preliminary default.

Ms. Gordon, however, counters that La. R.S. 23:1317(A) explicitly allows the OWC to proceed to a trial on the merits in the absence of the entry of a default judgment. As Ms. Gordon points out, the final judgment indicates that a trial on the merits occurred.

114Louisiana Revised Statute 23:1317(A) provides as follows:

If an answer has been filed within the delays allowed by law or granted by the workers’ compensation judge, or if no judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the workers’ compensation judge shall hear the evidence that may be presented by each party. Each party shall have the right to be present at any hearing or to appear through an attorney. The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or' have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself: The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be.

In this case, A-l had not filed an answer and a default judgment was not entered against it. According to La. R.S. 23:1317(A), A-l had a right to be present at any hearing. The OWC, however, proceeded with trial without either counsel or any representative for A-l present. Contrary to Ms. Gordon’s contentions, we find that the scenario presented here falls outside the scope of La. R.S. 23:1317. Given our finding that the OWC erred in rendering judgment in Ms. Gordon’s favor, we pretermit the other assignments of error raised by A-l.

DECREE

For the foregoing reasons, the judgment of the Louisiana Office of Workers’ Compensation is reversed and this case is remanded for further proceedings.

REVERSED AND REMANDED

      . The record contains no indication that counsel or a representative for A-l participated in the status conference.

      . The record reflects that on July 8, 2016, Mr. Rizzuto received the notice of trial date and scheduling order.

      . Observing A-l’s failure to appear, the OWC stated on the record the following:
      [T]he Defendant Vincent Rizzuto has been served with the Green Card attached to the Record for today's hearing. And he is not present this morning.
      He apparently is not represented by Counsel. And he has honored the Court by calling five minutes ago. We-start at 9:30 and he called about five till 10:00 said he'd be here in an hour. That’s not going to fly we’re going to go ahead and proceed and so you carry on, sir.

      . Although the final judgment states that a trial occurred, the August 2, 2016 minute entry indicates that a motion hearing was held to confirm a default judgment.

      . The August 4, 2016 judgment found, in pertinent part, as follows:
      • On May 2, 2015, Ms. Gordon was involved in a motor vehicle accident while she was in the course and scope of her employment with A-l;
      • The injuries Ms. Gordon sustained or aggravated as a result of the May 2, 2015 motor vehicle accident are com-pensable injuries under the Louisiana Workers Compensation statutes;
      • Ms. Gordon is entitled to all past, present and future medical treatment necessitated by her compensable injuries from the May 2, 2015 work accident, for which A-l is responsible;
      • A-l is responsible for all travel expenses related to Ms. Gordon’s medical treatment;
      • A-l is responsible for all Ms. Gordon’s pharmaceutical and prescription expenses;
      • Ms. Gordon is entitled to temporary total disability payments;
      • Ms. Gordon’s average weekly wage was $124.30 at the time of the accident, with a corresponding weekly compensation rate of $82.87;
      • As of the date of trial the outstanding temporary total disability payments total $5,469.42;
      • A-l failed to initiate medical benefits and temporary total disability payménts and failed to reimburse Ms. Gordon for her travel expenses;
      • A-l is assessed a penalty of $6,000.00 for all violations; and
      • Attorney’s fees are assessed in the amount of $25,000.00.

      .On appeal, A-l raises the following six assignments of error:
      1. The OWC erred in rendering a judgment against A-l when service of the citation had not been perfected in accordance with La. C.C.P. art. 1267.
      2. The OWC erred in failing to allow A-l five (5) working days to comment on the proposed judgment before rendering a final judgment as required under Louisiana Rule of Court 9.5.
      3. The OWC erred in granting a final judgment against A-l when Ms. Gordon failed to file a motion for preliminary ' default.
      4. The OWC erred in refusing to annul the final judgment, which is contrary to law and evidence, and by failing to grant Al’s request for a new trial.
      5. The OWC erred in allowing counsel for Ms. Gordon to admit uncertified medical records into evidence at trial.
      6. The OWC erred in finding that Ms. Gordon met her burden of proof at trial regarding the merits of her claim for confirming a default judgment.

      . La. C.C.P. art. 2002(A)(2) provides as follows:
      A. A final judgment shall be annulled if it is rendered:
      (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

        . See also Washington v. Premiere Auto., L.L.C., 03-1614, pp. 4-5 (La. App. 4 Cir. 3/17/04), 872 So.2d 1187, 1190. In Washington, this court recognized that there are no differences of substance between La. C.C.P. arts. 1261 and 1266. Article 1261 provides as follows:
      A. Service of citation or other process on a domestic or foreign corporation is made by personal service on any one of its agents for service of process.
      B. If the corporation has failed to designate an agent for service of process, if there is no registered agent by reason of death, resignation, or removal, or if the person attempting to make service certifies that he is unable, after due diligence, to serve the designated agent, service of the citation or other process may be made by any of the following methods:
      (1) By personal service on any officer, or director, or on any person named as such in the last report filed with the secretary of state.
      (2) By personal service on any employee of suitable age and discretion at any place where the business of the corporation is regularly conducted.
      (3) By service of process under the provisions of R.S. 13:3204, if the corporation is subject to the provisions of R.S. 13:3201.
      C. Service of citation or other process on a bank is made pursuant to R.S. 6:285(C).
      This court further observed that "the only differences being the substitution of the word ‘corporation’ for ‘limited liability company' and the use of corporate terminology in 1261 B(l) rather than L.L.C. terminology.” Washington, 03-1614 at pp. 4-5, 872 So.2d at 1190. This court thus found that "based on the striking similarity of language and purpose between La. C.C.P. art. 1261 and 1266,” cases under 1261 may serve as authority for cases arising under 1266.” Washington, 03-1614 at p. 5, 872 So.2d at 1190.

      . • La. R.S, 23:1310.3(B) provides as follows:
      Upon receipt of the form, the director shall assign the matter to a district. Upon receipt of the form, a district office shall effect service of process on any named defendant in any manner provided by law or by certified mail. All subsequent pleadings requiring service shall also be served in any manner provided by law or by certified mail. A defendant shall file an answer within fifteen days of service of the form or within a delay for answering granted by the workers’ compensation judge not to exceed an additional ten days.

      . La. C.C.P. art. 1267 provides as follows:
      If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1266, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on limited liability companies. The secretary of state shall forward this citation to the limited liability company at its last known address.

      , La. C.C.P, art, 1262 provides as follows;
      If the officer making service certifies- that ..he is unable, after diligent effort, to,have service made as provided in Article ,1261, then the service may be made personally on the secretaty of state, or on a person in his office designated to receive service of process on corporations, The secretary of state shall forward this citation to the corporation at its last known address.

      . In her brief on appeal, Ms. Gordon concedes that A-l's address for service listed in her -Original Claim was incorrect; however, she characterized this as a “scrivener's error.”

      . The record reflects that the Original Claim, which was sent by certified mail, was "Refused and Unable to Forward."

      . La. R.S. 23:1316 provides as follows:
      If a defendant in the principal or incidental demand fails to answer within the time prescribed by law or the time extended by the workers’ compensation judge, and upon proof of proper service having been made, judgment by default may be entered against him. The judgment shall be obtained by written motion.


source: Caselaw Access Project

author: JAMES F. MCKAY III, CHIEF JUDGE

license: Public Domain

text:
    Jonathan MATHES v. Gia FAUCHEUX
    NO. 2017-CA-0329
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 9, 2017

      CYNTHIA DELUCA, REBECCA GIL-SON, MARY RUSSO, 7037 Canal Boulevard, Suite 204, New Orleans, Louisiana 70124, AND DAVID COURCELLE, LAW OFFICE OF DAVID I. COURCELLE, LLC, 3500 N. Causeway Blvd., Suite 185, Metairie, Louisiana 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    BENNETT WOLFF, LAW OFFICES OF WOLFF & WOLFF, 3017 21st Street, Suite 100, Metairie, Louisiana 70002, AND THEON AGNES WILSON, LAW OFFICES OF THEON A. WILSON, 1100 Poydras Street, Suite ,2900, New Orleans, Louisiana 70163,' COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Rosemary Ledet)
   JAMES F. MCKAY III, CHIEF JUDGE

_JjThis appeal stems from a contentious custody dispute. Jonathan Mathes (Mr. Mathes) seeks review of two judgments rendered on January 30, 2017, setting forth custody and denying his Exception of No Cause of Action. For the reasons set forth below, we affirm both judgments.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The child, N.M., was born on September 6, 2012. The parents, Mr. Mathes and Gia Faucheux (Ms. Faucheux), were never married.

Mr. Mathes ánd Ms. Faucheux began a long distance relationship in 2010 while Mr. Mathes resided in Algiers (a subdivision of New Orleans), Louisiana, and Ms. Faucheux resided in Houston, Texas. After becoming pregnant, Ms. Faucheux lived with Mr. Mathes in New Orleans for a short time, moving back to Houston when she was four months pregnant. N.M. was born in Houston. Shortly thereafter, Ms. Faucheux and N.M. moved to New Orleans to 'reside with Mr. LMathes. Following a rocky relationship, Ms. Faucheux and N.M. moved back to Houston on January 1,2014.

On January 7, 2014, Mr. Mathes filed a Petition for Joint Legal Custody, seeking domiciliary status. On January 14, 2014, Mr. Mathes filed a motion objecting to Ms. Faucheux’s unauthorized relocation of the minor child pursuant to Louisiana’s relocation statute, La. R.S. 9:355.1 et seq. Ms. Faucheux filed an Answer and Reconven-tional Demand, seeking sole custody of N.M.

A hearing was held on April 2, 2014. The parties entered into a Consent Judgment, signed by the court on May 1, 2014, recognizing Mr. Mathes as the biological father of N.M. and designating Louisiana as the child’s home state. An Interim Consent Judgment was also rendered,on May 1, 2014, wherein the parties agreed to participate in a custody evaluation with court appointed expert, Martha Bujanda (Ms. Bujanda). The Interim Consent Judgment further set forth an “interim” physical custody schedule “without prejudice.” Pursuant to this schedule, the parties would share a one week on/one week off arrangement, with the exchange of N.M. taking place on Sundays in Lafayette, Louisiana.

On July 14, 2014, Ms. Bujanda issued her first report. Based on her evaluation of Ms. Faucheux, Mr. Mathes, and N.M., she recommended that the parties keep the same one week on/one week off schedule. She further recommended that Louisiana should be the child’s primary residence.

|3On March 16, 2015, the trial court ordered Ms. Bujanda to update her evaluation. After conducting a re-evaluation, a second report was issued on May 25, 2015, wherein her recommendations for shared custody remained unchanged. Ms. Bujanda again recommended that the child’s primary residence remain in Louisiana.

In a judgment dated June 16, 2015, the trial court ordered that Ms. Bujanda’s recommendations be implemented on an interim basis. In accordance with that ruling, N.M. moved back to Louisiana to take up his primary residence with Mr. Mathes. The judgment further ordered that the parties participate in a custody evaluation with Dr. Erin L. Skaff Vandenweghe (Dr. Vandenweghe).

Dr. Vandenweghe conducted an evaluation of the parties and rendered a report in December 2015, wherein she recommended that Ms, Faucheux be designated as the primary custodian with as much visitation to Mr. Mathes as possible. Dr. Vandenweghe further stated that if the parents were to live in the same city, she would recommend equal physical custody.

On January 19, 2017, Mr. Mathes filed an Exception of No Cause of Action, asserting that Ms. Faucheux’s Reconventional Demand failed to make any request to relocate the minor child’s residence. Mr. Mathes asserts that Ms. Faucheux failed to provide notice of the request for relocation, and therefore failed to abide by the relocation statute. Mr. Mathes also filed a Motion in Limine seeking to prohibit testimony by Dr. Vandenweghe, and to exclude her report because it Lmakes recommendations regarding the relocation of the child to Houston, which Ms. Faucheux failed to properly plead. Both motions were deferred to the day of trial.

Pursuant to Mr. Mathes’ Motion to Determine Final Custody, trial was held on January 25, 26 and 27, 2017. The trial court heard testimony from Ms. Faucheux, Mr. Mathes, court appointed evaluators Ms. Bujanda and Dr. Vandenweghe, along with Dr. Kristen Luscher (Dr. Luscher), a witness called by Mr. Mathes.

Ms. Bujanda and Dr. Vandenweghe testified as to their findings based on their court ordered evaluations. Dr. Luscher never evaluated the parties. Rather, Mr. Mathes called Dr. Luscher as an expert in clinical psychology to critique the evaluations of the court appointed experts. Dr. Luscher opined that some of the tests used by Dr. Vandenweghe were not applicable to child custody evaluations. Dr. Luscher could not say whether she agreed with the opinions of Ms. Bujanda and Dr. Vande-nweghe because she never met with the parties or the child. Moreover, she did not provide a recommendation of her own concerning the custody of N.M.

Judgment was rendered on January 30, 2017, denying Mr. Mathes’ Exception of No Cause of Action and his Motion in Limine. A separate judgment was rendered on that date, granting joint custody to the parties and designating Ms. |,-.Faucheux as the domiciliary parent with liberal and reasonable visitation to Mr. Mathes. The judgment sets forth a very detailed schedule for school year, summer, and holiday visitation with the child.

Mr. Mathes appealed both of the January 30, 2017 judgments. On appeal, Mr. Mathes asserts six assignments, some of which are duplicative.

Assignments of error one and two assert that the trial court erred in denying the Exception of No Cause of Action regarding relocation and in making a relocation determination not properly before the court. Assignments of error three, five, and six assert that the trial court erred in making its custody determination without a finding of a change in circumstances and without considering the best interest factors under the relocation statute. In assignment of error four, Mr. Mathes avers that the trial court erred in admitting highly prejudicial text messages, which he sent to Ms. Faucheux before N.M. was born.

LAW AND ANALYSIS

Standard of Review

Child custody determinations are reviewed under the abuse of discretion standard. State through Dep’t of Children & Family Servs. Child Support Enforcement, 2016-0979, p. 12 (La. App. 4 Cir. 4/12/17), 216 So.3d 130, 139 (citing Leard v. Schenker, 2006-1116, p. 3 (La. 6/16/06), 931 So.2d 355, 357). Likewise, in a relocation case, the trial court’s determination “will not be overturned absent a clear showing of abuse of discretion.” Curole v. Curole, 2002-1891, p. 4 (La. 10/15/02), 828 So.2d 1094, 1096. “In reviewing the record to determine whether the trial court’s ultimate conclusion constitutes an abuse of Indiscretion, an appellate court must accept each factual finding the trial court made in arriving at that conclusion, unless the particular factual finding is manifestly erroneous.” LaGraize v. Filson, 2014-1353, p. 15 (La. App. 4 Cir. 6/3/15), 171 So.3d 1047, 1054.

Assignments of Error One and Two: Exception of No Cause of Action/Relocation

Mr. Mathes filed an Exception of No Cause of Action, wherein he asserted that Ms. Faucheux’s Reconventional Demand failed to make a request to relocate the minor child. For that reason, Mr. Mathes has asserted that the issue of relocation was not properly before the court. The exception was denied.

The Louisiana Supreme Court has summarized the law regarding the peremptory exception of no cause, of action as follows:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Ramey v. DeCaire, 03-1299, p. 7 (La. 3/19/04), 869 So.2d 114, 118; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La. 1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Ramey v. DeCaire, p. 7, 869 So.2d at 118. No evidence may be introduced to support or controvert an exception of no cause of action. La. Code Civ. Proc. - art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Ramey v. DeCaire, p. 7, 869 So.2d at 118; Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La. 5/16/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition,: the plaintiff is legally entitled to the relief sought. Ramey v. DeCaire, p. 6, 869 So.2d at 118; Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131.

State, Div. of Admin., Office of Facility Planning & Control v. Infinity Sur. Agency, L.L.C., 2010-2264, pp. 8-9 (La. 5/10/11), 63 So.3d 940, 945-46.

|7Ms. Faucheux’s Reconventional Demand seeks custody of N.M., for which the law clearly provides a remedy. As applied to the facts of this case, an exception of no cause of action is not the proper procedural vehicle to raise the' failure- of Ms. Faucheux to make a request for relocation, or- to question whether the relocation issue was properly before the court. Thus, we find no error in the denial of-the exception. Nonetheless, the question of Whether the trial court erred in ruling on the merits of the relocation issue will be discussed more fully below.

Assignments of Error Three, Five and Six: Custody/Best interest of the Child:

Mr. Mathes maintains that this is a relocation case, and that the trial court erred in not applying the relocation statute in determining custody of N.M. Ms. Fau-cheux counters, asserting that the relocation statute does not apply here because this is a simple custody dispute between a Texas domiciliary and a Louisiana domiciliary. - .

It is evident from the record that the trial court agreed with Ms. Faucheux’s argument and applied the best, interest of the child factors listed in La. C.C. art. 134, rather than the factors enumerated in the relocation statute,. La. R.S. 9:355.1, et seq. For the reasons set forth below, we find that the trial court erred in not applying the relocation statute ,in making its custody determination.

La. R.'S. 9:355.1 provides the following definitions:

As used in this Subpart:
(1) “Principal residence of a child” means:
(a) The location designated by a court to be the primary residence of the child.
(b) In the absence of a court order, the location at which" the parties have expressly agreed that the child will primarily reside.
I «(c) In the absence of a court order or an express agreement, the location, if any, at which the child has spent the majority of time during the prior six months.
(2) “Relocation” means, a change in the principal residence of a child for a period of sixty days or more, but does not include a temporary .absence from the principal residence.

Based on the evidence presented, and considering the above referenced statutory definitions, New Orleans, Louisiana was N.M.’s primary residence. A couple of months after N.M. was born in Houston on September 6, 2012, Ms. Faucheux and N.M. moved to New Orleans to live with Mr. Mathes in his home. When Ms. Fau-cheux and N.M. moved back to Houston on January 1, 2014, N.M. had resided in New Orleans most of his young life. Thus, as defined in La. R.S. 9:355.1(l)(c), New Orleans would have been his primary residence at the time. Also, as represented in the parties’ April 2014 consent agreement, Louisiana was designated as N.M.’s home state. Clearly, in moving N.M. to Houston, there was a “relocation” of the child’s primary residence outside of the state. For these reasons, we must conclude that the trial court erred in not considering the factors listed in the relocation statute.

La. R.S. 9:355.14 provides:

A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following: (emphasis added).
(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody | sor visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6)How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity, (7) The reasons of each person for seeking or opposing the relocation. (8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

La. R.S. 9:355.14 “mandates that all of the factors be considered by the court.” Curole v. Curole, 2002-1891, p. 6, 828 So.2d at 1097. Here, it is evident from the record that the trial judge chose not to consider the relocation factors. That determination was legal error. However, the jurisprudence demonstrates that the failure to consider the relocation factors does not necessarily mandate a reversal on that ground alone,

_JjjjIt is well established that “the trial court is not required to expressly analyze each statutory relocation factor in its oral or written reasons for judgment in a relocation case.” Gathen v. Gathen, 2010-2312, p. 12 (La. 5/10/11), 66 So.3d 1, 9. “The trial court’s failure to expressly analyze each factor does not constitute an error of law that would allow de novo review.” Id. However, in H.S.C. v. C.E.C., 2005-1490, p. 9 (La. App. 4 Cir. 11/8/06), 944 So.2d 738, 743, this Court held that where the record does not support a finding that the trial court actually considered each relocation factor, de novo review, rather than reversal, was the appropriate remedy. In Smith v. Smith, 44,663, p. 18 (La. App. 2 Cir. 8/19/09), 16 So.3d 643, 654, the Second Circuit determined that the trial court committed legal error when it evaluated the case based on the best interest of the child factors set forth in La. C.C. 134, rather than the relocation factors. Accordingly, a de novo review of the appropriate factors was conducted. The Fifth Circuit has also held that where the record does not support a finding that the trial court actually considered each factor, prejudicial legal error has occurred; and the court of appeal may remedy the deficiency by de novo review of the record. Johnson v. Spurlock, 2007-949, p. 7 (La. App. 5 Cir. 5/27/08), 986 So.2d 724, 728; See also, Bailey v. Bailey, 2016-0212, p. 6 (La. App. 1 Cir. 6/3/16), 196 So.3d 96, 100. In accordance with these precepts, we now conduct a de novo review of the record to determine whether relocation was appropriate in this case.

“The person proposing relocation has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child.” La. R.S. 9:355.10. “If an objection to the relocation is made in accordance with R.S. 9:355.7, the person wishing to relocate must prove by a preponderance of the evidence, on contradictory hearing, that relocation meets the good faith and best [^interest standards.” State ex rel. Dep’t of Soc. Servs. v. Whittington, 2015-1118, p. 4 (La. App. 4 Cir. 5/18/16), 193 So.3d 1234, 1238 (citing La. R.S. 9:355.10, comment a).

Good Faith

Regarding “good faith,” this Court has explained:

While the relocation statute requires a good faith finding, it does not define the term. However, “jurisprudence has defined the meaning of the term good faith in this context as a legitimate or valid reason for the move.” McLain v, McLain, 2007-0752, p. 13-14 (La. App. 4 Cir. 12/12/07); 974 So.2d 726, 734. In contrast, “[r]elocations that are based on a frivolous reason, no reason, or just to interfere with the noncustodial parent’s visitation with the children do not satisfy the good faith requirement.” Id. (internal quotations and citations omitted). Legitimate reasons for relocation include: to be close to significant family or other support networks; for significant health reasons; to protect the safety of the child or another member of the child’s household from a significant risk of harm; to pursue a significant employment or educational opportunity; or to be with one’s spouse (or equivalent) who is established, or is pursuing a significant employment or educational opportunity in another location. Id.

Whittington, 2015-1118, p. 6, 193 So.3d at 1239.

In the instant case, Ms. Faucheux testified that Mr. Mathes had a history of verbal abuse toward her throughout their relationship. She stated that she moved-with N.M. on January 1, 2014, because Mr. Mathes told her to get her stuff and get the “F” out of his house by January 1, 2014 or he would put her things on the street. Mr. Mathes did not deny that he told Ms. Faucheux to get out by January 1, 2014. Rather, he explained that he made the statement after an argument and immediately took it back. He also stated that Ms. Faucheux repeatedly told him she wanted to move out. Ms. Fáucheux testified that she had no other place to stay in the New Orleans area, so she went to Houston where she had a pláce to stay and close family support. There is no evidence from the testimony that Ms. Faucheux’s motivation for moving to Houston was frivolous or that the move was |12an attempt to limit Mr. Mathes’ access to the child. Further, the record is void of any evidence to challenge Ms. Faucheux’s good faith motives in relocating to Houston. The record supports the conclusion that the relocation was made in good faith.

Best Interest of the Child Factors, La. R.S. 9:355.14

(1)The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life. ■

The consensus among the court appointed evaluators, Ms. Bujanda and Dr. Vandenweghe, was that both parties were good and loving parents and that N.M. was well adjusted. Grandparents on both sides assisted in caring for N.M. on occasion.

Based on her evaluation, Dr. Vande-nweghe considered Ms. Faucheux.a more organized and stable parent. She further stated that Ms. Faucheux showed good judgment and demonstrated the ability to make decisions on N.M.’s behalf. Dr. Vandenweghe opined that it was in N.M.’s best interest to reside with Ms. Faucheux in Houston, with liberal visitation to Mr. Mafhes.

Ms. Bujanda considered the parents to be equally good parents. However, she thought that N.M. should remain in Louisiana. In her opinion, the-move to Houston was disruptive.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational and emotional development.

At the time of the -trial court proceedings, N.M. was just over four years old. The evidence indicates that N.M. had equally good educational opportunities available in both states.

11sMs. Faucheux along with Ms. Bujanda and Dr. Vandenweghe were concerned with the fact that Mr. Mathes continued to smoke cigarettes in spite of the fact that N.M. has respiratory problems. Mr. Mathes testified that he smokes on a daily basis, although not inside the home. Ms. Faucheux testified that Mr. Mathes did not keep an inhaler at his home for N.M. Ms. Bujanda cautioned him to stop smoking in light of N.M.’s respiratory problems.

Ms. Faucheux testified that when she moved to New Orleans with N.M. just after his birth, Mr. Mathes had a snake and two alligators in his home. She also stated that Mr. Mathes’ friend, Kenny, was living in the home at the time and that Kenny sometimes had women spend the night in the home. Both evaluators agreed that it was not in the child’s best interest to have the reptiles, or the roommate in the home. Mr. Mathes eventually removed the reptiles and asked Kenny to move out.

(3) The .feasibility. of preserving a good relationship between the. non-relocating person and the child through suitable physical custody - or visitation arrangements, considering the logistics and financial circumstances of the parties.

The.parties demonstrated a willingness to facilitate travel arrangements and liberal visitation with N.M. This is evidenced by the consent agreement, wherein the parties shared a one week on/one week off arrangement, with the exchange of N.M. taking place in Lafayette, Louisiana.

Dr. Vandenweghe testified that in addressing the access to the child issue, she determined that because Ms. Faucheux made efforts to travel, is able to afford travel, and is able to get the child back and forth, it is in the best interest of the child to live with his mother.

1 u(tí The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.

There is no record evidence of the child’s views on relocation.

(5) Whether there is an established pattern of conduct by .either the person seeking or the person opposing the-relocation, either to promote or thwart the relationship of the • child and the other ■ party.

Generally, the parties have demonstrated a willingness to promote visitation with the other parent. There is no evidence that either party has acted in any way to thwart the relationship of the child with the other parent.

(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.

Both parents have the ability to financially provide for N.M. Both parents have equally nice homes. There are family members on both sides that play a role in N.M.’s life.-As previously stated, the educational opportunities appear to be comparable. Ms. Faucheux testified that she brings N.M. to church services. Mr. Mathes does not attend church, but enrolled N.M. in a Catholic school in New Orleans. ■

(7) The reasons of each person for seeking or opposing the relocation.

As previously stated, the record provides a basis for finding that Ms. Fau-cheux’s relocation was made in good faith. Mr. Mathes’ opposition to the relocation also appears to be well-intended. There is no dispute that Mr. Mathes loves N.M. and wants to maintain a close relationship with his son,

(8) The current employment and■ economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.

Ms. Faucheux testified that while she was living in New Orleans, she was working at a job' making approximately $50,000.00. She started a new job in Houston, with NextEra -Energy making $58,000.00, plus bonuses, better insurance, |1fiand a chance for advancement. Ms. Fau-cheux also testified that she is taking classes to expand her career opportunities.

At the time Ms. Faucheux moved to New Orleans with N.M., Mr. Mathes was not .working. At trial, Mr., Mathes testified that he was self-employed in the construction business. ,

(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.

Both parents have provided for N.M. financially. There are no child support disputes here.

(10) The feasibility of a relocation by the objecting person.

Mr. Mathes owns a home-in New Orleans, near his parents. He is self-employed. His relocation to Houston, where he has no family or employment connections, does not appear to be feasible.

(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduat and the failure or success of any attempts at rehabilitation.

There is no evidence of any. physical violence between the parties. However, Ms. Faucheux testified that Mr. Mathes often subjected her to verbal abuse, which continued after she moved back to New Orleans with N.M. Mr. Mathes did not deny the accusations.

At trial, Ms. Faucheux introduced text messages, which Mr. Mathes sent to her prior to N.M.’s birth. As discussed more fully below in assignment of error four, we find no error in the introduction of the text messages. There is no doubt that the language used in the text messages was egregious and vulgar. Mr. Mathes admitted sending the inappropriate text messages. Ms. Bujanda and Dr. Vandenweghe both agreed that the language used in the text messages was abusive l^and demeaning. Dr. Vandenweghe also testified that Mr. Mathes used foul language during the evaluation.

Drug use is not an issue. Ms. Faucheux testified that she was concerned that Mr. Mathes had a drinking problem. Mr. Mathes denied having a drinking problem. He did state that in the past he had been arrested for DWI and for a weapons charge, both of which were dismissed.

At trial, Mr. Máthes was questioned about numerous charges on his credit card made on a regular basis at a neighborhood bar near his home, as well as other local bars. He admitted that he frequented the neighborhood bar and confirmed the credit card charges. He stated, however, that the visits to the bar and -the charges were often work related, explaining that he met with members of his construction crew to plan out upcoming projects. The credit card receipts revealed that, on some occasions, Mr. Mathes made charges at the bar three or four nights in a row. He testified that he was in the bar on the night before trial while N.M. was with his parents. Ms. Bujanda testified that the number' of nights spent in bars as testified to by Mr. Mathes would raise questions, or “trigger an alert” regarding his drinking.

(12) Any other factors affecting the best interest of the child.

In light of our review of the first eleven factors, we do not find any -other factors affecting N.M.’s 'best interest that we need to consider here. -

Based on our de novo analysis of the ¡above twelve factors set forth in La. R,S. 9:355.14, we find no factors that would prevent relocation. After weighing the factors as a whole, we find that they weigh heavily in favor of allowing the relocation. Furthermore, we find that Ms. Faucheux met her burden of proving that the relocation is in the best interest of the child. Accordingly, we find no error 117in the trial court’s ruling, granting joint custody and designating Ms. Faucheux as the domiciliary parent with liberal visitation to Mr. Mathes.-

Assignment of Etror Four: Introduction of Text Messages

Mr. Mathes asserts that the trial' court erred in admitting highly prejudicial text messages, which he sent to Ms, Faucheux. Mr. Mathes admitted to sending the text messages, which contained derogatory, demeaning, and racially inappropriate statements toward Ms. Faucheux. However, he argues that because the text messages were sent before N.M. was born, their probative value is minimal. We disagree.

Ms. Faucheux testified as to Mr. Mathes’ verbally abusive conduct aside from the text messages. She testified that the verbal abuse continued after N.M. was born. Thus, there is confirmation of the verbal abuse aside from the text messages. Moreover, we note that the court ordered evaluators were aware of the contents of the text messages and considered them in formulating their opinions. For these reasons, we find no prejudicial effect with their introduction.

La. C.E. art. 402 provides that “[a]ll relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation.” Article 402 further provides that evidence that is not relevant is inadmissible. La. C.E. art. 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

It is well established that a trial judge has vast discretion concerning the admissibility of evidence. Richardson v. Richardson, 2007-0430, p. 9 (La. App. 4 Cir. 12/28/07), 974 So.2d 761, 769. The trial judge’s decision to admit or exclude | ^evidence will not be reversed on appeal absent a clear showing that he or she has abused that discretion. Id. (citing Boykins v. Boykins, 2004-0999, p. 4 (La. App. 4 Cir. 4/24/07), 958 So.2d 70, 74).

In this custody case, where the court is called upon to assess the best interests of the child, the content of the text messages is clearly relevant. Furthermore, because evidence of the verbal abuse was corroborated by Ms. Faucheúx’s testimony, and admitted to by Mr. Mathes, we do not find that the introduction of the text messages was prejudicial. Accordingly, we find no abuse of discretion on the part of the trial court in admitting the text messages into evidence.

CONCLUSION

For the foregoing reasons, and after our de novo review of the record, we find that the trial court did not err in its custody determination. Moreover, we find no error in the trial court’s denial of Mr. Mathes’ exception of no cause of action. Accordingly, we affirm both of the judgments rendered on January 30, 2017.

AFFIRMED

      . In this opinion, the initials, rather than the full name, of the minor child are used to protect and maintain the privacy of the minor child in these proceedings. See Uniform Rules, Courts of Appeal, Rule 5-1 and 5-2.

      . La. R.S. 9:355.4(A) provides that a person proposing relocation of the child’s principal residence shall notify the other parent.

      . Ms. Bujanda and Dr. Vandenweghe testified as to their findings; their reports were not accepted into evidence.

      . Prior to this hearing to determine custody, numerous interim visitation judgments were rendered to address summer and holiday schedules as they arose. Also during this period, the trial court addressed numerous evi-dentiary and discovery issues raised by the parties.

      . The denial of the Motion in Limine is not before us in this appeal.

      . La. R.S. 9:355.6 further provides, in pertinent part, that "[t]he court may consider a failure to provide notice of a proposed relocation of a child as: (1) A factor in making its determination regarding the relocation of the child.”


author: Judge Sandra Cabrina Jenkins

text:
    Thomas D. BAYER and Laura D. Kelley v. STARR INTERNATIONAL CORPORATION, et al.
    NO. 2017-CA-0257
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 15, 2017

      David W. Bernberg, THE LAW OFFICE OF DAVID W. BERNBERG, L.L.C., 228 St. Charles Avenue, Suite 501, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    L, Peter Englande, Jeffrey E. McDonald, Randell E. Treadaway, T.A., ZAUNBRECHER TREADAWAY BOL-LINGER, LLC, 406 N. Florida Street, Suite 2, Covington, LA 70433, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
   Judge Sandra Cabrina Jenkins

Lin this spit for damages, plaintiffs appeal the trial court’s judgments granting defendants’ motion for summary judgment and denying plaintiffs’ motion for new trial. Finding that'our appellate jurisdiction has nót been properly invoked by a valid final judgment,' we dismiss the appeal without prejudice and remand this matter to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises from a fire that occurred at the property of Thomas Bayer, located at 7418-7422 Maple Street, where he resides with Laura Kelley (collectively, “plaintiffs”). On April 23, 2014, employees of Cimarron Underground, Inc., were performing work on the gas meter on plaintiffs’ property when a gas line was cut, a gas explosion occurred, and a resulting fire damaged plaintiffs’ house. After the fire was extinguished, plaintiffs arrived at the house and viewed the damage. Thereafter, plaintiffs vacated the property for several weeks while repairs 'were made to the house.

li>On April 22, 2015, plaintiffs filed a petition for damages against Cimarron Underground, Inc., Starr Indemnity & Liability Company, Entergy New Orleans, Inc., En-tergy Louisiana, L.L.C., and Entergy Gulf States Louisiana, Inc. (collectively, “defendants”), alleging that defendants’ combined acts of negligence preceding the fire caused plaintiffs to sustain emotional and physical injuries, inconvenience, and loss of enjoyment of life.

On April 27, 2016, defendants filed a motion for summary judgment seeking the dismissal of all of plaintiffs’, claims. On August 12, 2016, the trial court held a hearing on defendants’ motion for summary judgment, which the trial court orally granted. However, the trial court’s August 15, 2016 judgment with incorporated reasons for judgment decreed that “Plaintiffs Motion for Summary Judgment be DENIED.” ...

On September 26, 2016, the trial court signed an order setting aside and vacating its August 15, 2016 judgment and stating that, “this Court erroneously executed a judgment that was inapposite of the oral ruling and mistakenly identified the prevailing party on the Motion for Summary Judgment as the Plaintiff, as opposed to the Defendants.” On that same date, the trial court ^rendered, an “amended” judgment and reasons for judgment, for the stated purpose of “correct[ing] errors contained in this court’s original judgment signed on August 15, 2016”, which decreed that “Defendants’ Motion for Summary Judgment be GRANTED.”

On September 29, 2016, plaintiffs filed a motion for new trial as to the trial court’s granting defendants’ motion for summary judgment. Following a hearing, the trial court rendered judgment on December 6, 2016, denying plaintiffs’ motion for new trial. Subsequently, plaintiffs filed a timely notice of appeal of the trial court’s December 6, 2016 judgment. This appeal followed.

JURISDICTION

Before reaching the merits of an appeal, this Court has a duty to determine, sua sponte, whether our appellate court jurisdiction has been properly invoked by a valid final judgment. Moon v. City of New Orleans, 15-1092, p. 6 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425; Tsegaye v. City of New Orleans, 15-0676, p. 3 (La App. 4 Cir. 12/18/15), 183 So.3d 705, 710; Delta Staff Leasing, LLC v. South Coast Solar, LLC, 14-1328 (La. App. 4 Cir. 9/23/15), 176 So.3d 668. “A valid judgment must be precise, definite, and certain. The decree alone indicates the decision. The result decreed must be spelled out in lucid, unmistakable language. The quality of definiteness is essential to a proper judgment.” Urquhart v. Spencer, 15-1354, p. 3 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1077, quoting Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, p.13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 916 (internal citations omitted). A valid final judgment must contain definitive decretal language. Moon, 15-1092, p. 6, 190 So.3d at 425; Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. Our jurisprudence holds that' the definitive decretal language necessary for a valid final judgment has three components: (1) it must name the party in favor of whom the ruling is ordered; (2) it must name the party against whom the ruling is ordered; and (3) it must state the specific relief that is granted or denied. Freeman v. Phillips 66 Company, 16-0247, p. 2 (La. App. 4 Cir. 12/21/16), 208 So.3d 437, 440; Tsegaye, 15-0676, p. 3, 183 So.3d at 710; Mid City Holdings, 14-0506, p. 3, 151 So.3d at 910; Palumbo v. Shapiro, 11-0769, p. 5 (La. App. 4 Cir. 12/14/11), 81 So.3d 923, 927. “In the absence of the necessary decretal language, the judgment is not final and ap-pealable.” Urquhart, 15-1354, p. 3, 204 So.3d at 1077.

Applying these principles to the instant case, we find that our appellate jurisdiction has not been properly invoked by a valid final judgment. The trial court’s September 26, 2016 judgment fails to identify the particular defendants in favor of whom summary judgment is granted, and it fails to state the specific relief granted. In a case with multiple defendants or plaintiffs, the failure to name the particular party in favor or against whom a ruling is ordered can render the judgment fatally defective if one cannot determine from its face the rights of each party and the relief to which the parties are entitled. See La. C.C.P. art. 1841; see also Urquhart, 15-1354, pp. 4-5, 204 So.3d at 1078. The relief granted or denied |fimust be determinable from the judgment itself without reference to an extrinsic source such as pleadings or reasons for judgment. Moon, 15-1092, p. 6, 190 So.3d at 425-26. A judgment which merely decrees that defendants’ motion for summary judgment be granted, without stating what claims, issues, or parties are being disposed of or dismissed, lacks necessary decretal language and cannot be considered a valid final judgment. In re Medical Review Panel of Williams v. EMSA Louisiana, Inc., 15-1178, p. 2 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423; Contreras v. Vesper, 16-318, p. 3 (La. App. 5 Cir. 10/19/16), 202 So.3d 1186, 1188. In the absence of a valid final judgment, this Court lacks appellate jurisdiction to review the merits of this matter.

In some cases, when confronted with a judgment on appeal that is not final and appealable, this Court has exercised its discretion to convert the appeal to an application for supervisory writs. However, considering the indeterminate language and disposition in this matter, we decline to exercise our supervisory jurisdiction to determine the merits of this case. An adequate remedy by appeal will exist upon the entry of a valid final judgment containing the necessary decretal language. Therefore, we dismiss this appeal without prejudice and remand this matter to the trial court for further proceedings. Once a final appealable judgment is rendered, a new appeal may be filed with this Court.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED

LOBRANO, J., CONCURS IN THE RESULT

      . Plaintiffs allege that Cimarron Underground, Inc. was contracted by Entergy New Orleans, Inc., Entergy Louisiana, LLC, and Entergy Gulf States Louisiana, Inc. to perform the work occurring at plaintiffs’ property on April 23, 2014, and that Starr Indemnity & Liability was the liability insurer for Cimar-ron Underground, .Inc, and/or Entergy New Orleans, Inc. at the time of the incident.

      . The August 15, 2016 judgment also states incorrectly that the matter came for a hearing on August 12, 2016, pursuant to “Plaintiff’s Motion for Summary Judgment.” The record reveals that defendants filed the motion for summary judgment heard on August 12, 2016, and plaintiffs did not file a motion for summary judgment in this matter.

      . A judgment denying a motion for summary judgment is an interlocutory judgment. La. C.C.P. art. 968; Barber v. Russell, 08-1366, pp. 1-2 (La. App. 4 Cir. 4/1/09), 9 So.3d 1033, 1034. Prior to a final judgment, a trial court may, at its discretion, change the substance or the result of an interlocutory ruling. VaSalle v. Wal-Mart Stores, Inc., 01-0462, pp. 5-6 (La. 11/28/01), 801 So.2d 331, 334-35.

      . Arguably, we lack any jurisdiction to review the trial court’s September 26, 2016 judgment because the plaintiffs’ notice of appeal only seeks an appeal from the trial court’s December 6, 2016 judgment denying plaintiffs’ motion for new trial; generally, the denial of a motion for new trial a non-appealable interlocutory judgment that may be considered as part of an unrestricted appeal from a final judgment. Here, there is no valid final judgment on appeal.


author: Judge Marion F. Edwards, Pro Tempore

text:
    Eldridge THOMPSON, Jr. v. Max BEAGLE, Progressive Paloverde Insurance Company, David Casse, and GEICO Indemnity Company et al.
    NO. 2017-CA-0207
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 16, 2017

      Wayne W. Yuspeh, WAYNE W. YUS-PEH, APLC, 3000 West Esplanade Avenue, Suite 301, Metairie, LA 70002,-AND-Michael A. Fenasci, FENASCI & ASSOCIATES, APLC, 3000 W. Esplanade Avenue, Suite 301, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Lance J. Robinson, 4051 Veterans Memorial Blvd., Suite 403, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE
    . (Court composed of Judge Terri F. Love, Judge Marion F. Edwards, Pro Tempore, Judge Terrel J. Broussard, Pro Tempore)
   Judge Marion F. Edwards, Pro Tempore

| An this negligence action, the appellant, David Casse, plaintiff-in-reconvention, appeals the trial court’s October 12, 2016 judgment granting an exception of prescription in favor of the appellee, Carrie Thiele, defendant-in-reconvention. For the reasons that follow, we find that the judgment on appeal lacks necessary decretal language and is, thus, not a valid, final, appealable judgment. Consequently, this court lacks ‘jurisdiction. We dismiss the appeal without prejudice and remand this matter to the trial court so that a valid, final judgment, may be rendered and signed.

FACTS AND PROCEDURAL HISTORY

On December 25, 2014, a multi-motor vehicle accident occurred in Jefferson Parish on Interstate-10 East at or near the Bonnabel Boulevard exit and the interchange with Interstate-610. It is alleged that the vehicle owned and operated by Max Beagle struck the rear end and then the passenger side of the motor vehicle owned and operated by Eldridge Thompson, Jr. Following impact, Thompson’s vehicle came to rest perpendicular across two travel lanes. of the . interstate. | ¿.Thereafter, the motorcycle owned and operated by the appellant, David Casse, struck Thompson’s vehicle.

On November 23, 2015, Thompson filed suit against Max Beagle, Progressive Palo-verde Insurance Company, David Casse, and GEICO Indemnity Company seeking to recover damages for injuries he received in the accident. Casse was served with Thompson’s petition for damages on April 22, 2016, and on June 2, 2016, he filed an answer and defenses. Nowhere in his answer and defenses does Casse refer to the appellee, Carrie' Thiele. ■■ According to the record, on June 29, 2016, Casse filed a reconventional demand and third party demand naming the appellee, Carrie Thiele, as a defendant-in-reconvention.

In his reconventional demand and third party demand, Casse avers that shortly after the collision occurred between the Beagle and Thompson vehicles, a vehicle operated by Shahid Chaudhry stopped in the middle of the interstate alongside the Thompson and Beagle vehicles in order to render assistance. Carrie Thiele was riding as a guest passenger in Chaudhry’s vehicle. Thereafter, Casse, who was operating his motorcycle in an easterly direction on 1-10, claims that he was following behind another vehicle, which came to an abrupt stop when it approached the disabled Thompson vehicle that was blocking two of the travel lanes. As he attempted to avoid hitting the stopped vehicle by swerving around it into the right lane, Casse contends that his motorcycle struck Thiele as she existed Chaudhry’s vehicle and stepped into the open lane of traffic. According to Casse, when he collided with Thiele, he was thrown from his motorcycle, which thereafter | .¡struck the door of the Thompson vehicle, forming the basis of Thompson’s suit against him. Additionally, Casse contends that he sustained severe injuries requiring multiple surgeries as a result of his collision with Thiele, giving rise to his claims against her.

Thiele responded to the claims made by Casse against her in his reconventional demand and third party demand by filing a peremptory exception of prescription. Thiele alleged that at the time Casse’s third party claim against her was filed, more than one year had passed from the original accident; hence, Casse’s claims against her had prescribed. Specifically, Thiele averred that Casse’s claims against her were not incidental to the main demand (the Thompson suit), but arose out of a completely separate accident involving completely separate and distinct facts. Casse opposed Thiele’s exception on the ground that, pursuant to Article 1067 of the Louisiana Code of Civil Procedure, his claims against Thiele were incidental to the main demand and were timely filed within 90 days of his being served with the original demand.

A hearing on Thiele’s exception was held on October 7, 2016. On October 12, 2016, the trial court issued a judgment, without written reasons, granting the exception. It is from this judgment that Casse timely appealed.

DISCUSSION

“Before considering the merits in any appeal, appellate courts have the duty to determine sua sponte whether’ subject matter jurisdiction exits, even when the parties do not raise the issue.” Moon v. City of New Orleans, 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425. This court “cannot reach the merits of an appeal unless our appellate court jurisdiction has been properly invoked by a valid final judgment.” Id. See also Bd. of Supervisors of La. State Univ. and Agric. and Mech. College v. Mid City Holdings, L.L.C., 14-0506, p.2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910. A valid final judgment is one that determines the merits in whole or in part and is identified as such by appropriate language. La. C.C.P. art. 1841, 1918. “A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is .ordered, and the relief that is granted or denied.” Mid-City Holdings, 14-0506, pp. 2-3, 151 So.3d at 910, quoting Palumbo v. Shapiro, 11-0769, p. 5 (La. App. 4 Cir. 12/14/11), 81 So.3d 923, 927. “The result being decreed must be spelled out in lucid, unmistakable language, The quality of definiteness is essential to a proper judgment.” Moon, 15-1092, 15-093, p. 6, 190 So.3d at 425. “The specific relief granted, should be determinable from the judgment without ref-' erence to an extrinsic source such as pleadings or reasons for judgment.” Mid-City Holdings, 14-0506, pp. 3, 151 So.3d at 910, quoting Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Tech., Inc., 10-477, p. 13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 916.

In this matter, the October 12,2016 judgment from which Casse appeals states as follows:

This matter came for hearing on the 7th day of October, 2016, on defendant in reconventional demand Carrie Thile’s Exception of Prescription.
PRESENT: LANCE J. ROBINSON ESQ. ATTORNEY FOR PLAINTIFF CARRIE THILE
WAYNE W. YUSPEH, ESQ. MICHAEL A. FENASCI ESQ. ATTORNEYS FOR DEFENDANT DAVID J. CASSE
THE COURT, after considering the pleadings, evidence, argument of counsel and the applicable law:
|,IT IS ORDERED, ADJUDGED, AND DECREED that the defendant in recon-ventional demand’s Exception of Prescription be granted.

We find that this judgment lacks definitive decretal language necessary for the exercise of our appellate jurisdiction. We cannot determine from the face of the judgment whether the granting of the exception of prescription results in the dismissal of all or only some of Casse’s claims. Although the transcript of the October 7, 2016 hearing on the exception suggests that the trial court intended to dismiss Casse’s reconventional demand, such relief was not granted in the written judgment; any determination of the rights of the parties and the merits of the case must be evident from the language of the judgment without reference to other documents in the record. See Weatherly v. Sanchez, 15-0534, p. 5 n. 4 (La. App. 4 Cir. 11/25/15), 181 So.3d 218, 221-22 (“Our review of the trial judge’s final action is based upon the written judgment and not upon any dispositions made in reasons given, whether the reasons are oral or written.”) In the absence of decretal language specifying the relief granted, the October 12, 2016 judgment cannot be considered a final, appealable judgment. Hence, this court lacks jurisdiction to consider the merits of Casse’s appeal.

On July 6, 2017, this Court issued an order directing Casse to show cause, in writing only, within seven days why the pending appeal should not be dismissed because the October 12, 2016 judgment, lacking decretal language, is not a final and appealable judgment, thus depriving this Court of appellate jurisdiction. Casse failed to comply with this Court’s July 6, 2017 order.

“This court has converted appeals of non-appealable interlocutory judgments to applications for supervisory writs in cases where the appeals were filed within Lthe 30-day period allowed for the filing of applications for supervisory review.” In re: Medical Review Panel of Williams v. EMSA Louisiana, 15-1178, pp. 2-3 (La. App. 4 Cir. 10/21/16), 203 So.3d 419, 423. In this matter, Casse’s petition for appeal was filed on December 8, 2016, more than 30 days of the October 12, 2016 judgment granting Thiele’s exception of prescription. Consequently, we decline to exercise our discretion to convert the appeal to an application for supervisory writs in this case. Accordingly, this appeal is dismissed without prejudice and the matter is remanded to the trial court for further proceedings. Once a final, appealable judgment is signed, a new appeal may be filed with this Court.

DECREE

We dismiss the instant appeal without prejudice. This matter is remanded to the trial court for further proceedings consistent with this opinion.

APPEAL DISMISSED WITHOUT PREJUDICE; REMANDED.

      . Carrie Thiele's name is incorrectly spelled in the pleadings as "Tliile.”

      . In addition to Ms. Thiele, Mr. Casse also named as defendants-in-reconvention, Max Beagle, Eldridge Thompson, Jr„ Shahid R, Chaudhry, GEICO Indemnity Company,. USA-gencies Casualty Insurance Company, Inc., and Progressive Paloverde Insurance Company. State Farm was named as a defendant in cross-claim.


author: Judge Tem F. Love

text:
    Walter BRADIX, IV v. ADVANCE STORES COMPANY, INC. d/b/a Advance Auto Parts
    NO. 2017-CA-0166
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 16, 2017

      Marc R. Michaud, PATRICK MILLER, LLC, 400 Poydras Street, Suite 1680, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT, WALTER BRADIX, IV
    R. Patrick Vance, Tyler J. Rench, JONES WALKER LLP, 201 St. Charles Avenue, Suite 5100, New Orleans, LA 70170-5100, AND, Michael B. Miller, Robert J. Baehr, MORRISON & FOERSTER, LLP, 250 West 55th Street, New York, NY 10019, COUNSEL FOR DEFENDANT/APPELLEE, ADVANCE STORES, CO., INC.
    (Court composed of Judge Terri F. Love, Judge Terrel J. Broussard, Pro Tempore, Judge Marion F. Edwards, Pro Tempore)
   Judge Tem F. Love

| ]This appeal arises from plaintiffs class action petition, which sought damages from defendant for disclosing his personal identity information and the information of other “similarly situated employees” to an unknown third party. Plaintiff claimed that anxiety about his identity possibly being stolen and two unrecognized credit checks were injurious. Defendant filed exceptions of no right of action and no cause of action, which the trial court granted. The trial court found that the harm allegedly suffered by plaintiff was speculative in nature; therefore, he possessed no right of action. Further, as the element of damages was lacking, he did not have a cause of action. Plaintiff appealed.

We find that the trial court correctly granted the defendant’s exception of no right of action because only speculative future harm was alleged. The trial court also did not err by maintaining the defendant’s exception of no cause of action, as the plaintiff lacked elements needed for each theory of recovery. The judgment of the trial court is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Walter Bradix, IV was employed by Advance Stores Company, Inc. d/b/a Advance Auto Parts (“Advance”). In March 2016, Mr. Bradix received a letter ^notifying him of a data breach of the employee information to an unauthorized third party. The information included employees’ names, social security numbers, 2015 gross wages, and the state where each employee paid income tax. Advance advised the former and current employees affected to review the information contained in the letter and remain vigilant. Additionally, Advance provided free identity protection services for two years.

Mr. Bradix noticed two “as-yet unidentified inquiries on his consumer credit monitoring” and suffered anxiety worrying about a third party stealing his identity. As a result, Mr. Bradix filed a Class Action Petition and Demand for Jury Trial (“Petition”) against Advance for himself and “similarly situated employees.” The Petition alleged that Advance: 1) was negligent by permitting the information to be stolen, 2) was grossly negligent in the handling of the information, 3) breached its fiduciary duties, and 4) was liable for an invasion of privacy.

Mr. Bradix’s Petition was removed to the United States District Court of the Eastern' District of Louisiana (“EDLA”). Advance filed a Motion to Dismiss for lack of standing and failure to state a claim pursuant to F.R.C.P. 12(b)(1) and 12(b)(6). The EDLA issued an order partially granting Advance’s motion and found that Mr. Bradix lacked standing pursuant to Article III of the United States Constitution in federal court because Mr. Bradix failed to allege a “certainly impending injury.” The EDLA noted that Mr. Bradix did “not even [allege] that his credit score was adversely impacted by the two inquiries.” The EDLA, finding no subject matter jurisdiction, remanded the -matter to state court instead of dismissing the suit. The EDLA reasoned that the Louisiana state court must determine whether Louisiana law provided a remedy.

Once remanded to the trial court, Advance filed Peremptory Exceptions of |sNo Right and Action and No Cause of Action. Following the submission of memoranda and a hearing, the trial court sustained Advance’s exceptions and dismissed Mr. Bradix’s Petition with prejudice. Mr. Bra-dix’s Motion for Order of Appeal followed.

Mr. Bradix contends that the trial court erred by granting Advance’s exceptions because standing was not lacking, and he suffered harm.

STANDARD OF REVIEW

Appellate courts review questions of law using the de novo standard of review. Davis v. Nola Home Constr., L.L.C., 16-1274, p. 6 (La. App. 4 Cir. 6/14/17), 2017 WL 2570927, *4, 222 So.3d 883, 840. “When reviewing legal issues, an appellate court gives ‘no special weight to the findings of .the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record.’ ” Spencer v. Chevron Corp., 16-0174, p. 5 (La. App. 4 Cir. 9/28/16), 202 So.3d 1055, 1058, quoting Banks v. New Orleans Police Dep’t, 01-0859, p. 3 (La. App. 4 Cir. 9/25/02), 829 So.2d 511, 514.

If the issues involve a mixed question of law and fact, the manifest error standard of review is utilized. Davis, 16-1274, p. 6, 2017 WL 2570927, *4, 222 So.3d at 838-39. “[A] reviewing court may not merely decide if it would have found the facts of the case differently.” Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. When using manifest error review, “[t]he issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the judge’s , or jury’s factfinding conclusion was a reasonable one.” Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rock Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1116. Thus, this Court will not set aside “a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety.” Hall, 03-1734, p. 9, 874 So.2d at 98.

NO RIGHT OF ACTION

Mr. Bradix contends that the trial court erred by finding he lacked standing and granting Advance’s exception of no right of action. Mr. Bradix maintains that he suffered anxiety due to the data breach and unauthorized' credit inquiries as a result of the data breach.

The peremptory exception of no right of action is designed to “have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. “The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 08-0215, p. 17 (La. 12/2/08), 5 So.3d 819, 829. The Louisiana Supreme Court noted that “[t]he focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit.” Hood, 08-0215, p. 17, 5 So.3d at 829. “[I]t assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.” Id. Further, La. C.C.P. art. 931’ provides that “[o]n the trial of thé peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.”

Mr. Bradix cites to numerous federal cases regarding Article III standing in | a order to demonstrate that he possesses standing and has a justiciable controversy even though his identity has yet to be stolen. While these cases can be persuasive, they do not interpret Louisiana laws regarding the exception of no right of action.

In Louisiana, “[wjhether a litigant has standing to assert a claim is tested via an exception of no right of action.” Hershberger v. LKM Chinese, L.L.C., 14-1079, p. 4 (La. App. 4 Cir. 5/20/15), 172 So.3d 140, 143. “Louisiana’s standing requirement is found in Louisiana Code of Civil Procedure Article 681, which provides that ‘[e]xcept as otherwise provided, by law, an action can only be brought by a person having a real and actual interest in what he asserts.’” Id., quoting La. C.C.P. art. 681.

Mr. Bradix did not plead facts sufficient to establish standing.. Specifically, Mr.. Bradix stated that he. suffered the following damages: “including but not limited to potential identity theft, loss of credit, loss of opportunity for credit, denial of credit applications, and severe stress and anxiety associated with the months or years it will take to clear up Advance’s mess.”

As the EDLA stated, Mr. Bradix did not allege that someone successfully stole his identity. Mr. Bradix alleged’ that his information was contained in the information stolen from Advance and that he may become a victim of identity" theft at some point in the'future. Further^'he asserted that he suffered anxiety as a’result of the breach, and that he discovered two unauthorized credit checks. However, Mr. Bra-dix did not contend either that his credit score was negatively impacted or show that the unauthorized credit checks were related to the breach at Advance.

Louisiana courts do not “decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies.” Cat’s Meow, Inc. v. City of New Orleans Through Dep’t of Fin., 98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186, 1193. “In order to avoid deciding abstract, hypothetical or moot questions, courts require cases submitted for adjudication to be justiciable, ripe for decision, and not brought prematurely.” Id. “A court must refuse to entertain an action for a declaration of rights if the issue presented is academic, theoretical, or based on a contingency which may or may not arise.” Louisiana Fed’n of Teachers v. State, 11-2226, p. 5 (La. 7/2/12), 94 So.3d 760, 763.

As Mr. Bradix failed to allege a particular injury, we find that his injury is too abstract such that our opinion on the matter would be advisory. As such, Mr. Bra-dix’s theoretical injuries are based upon the contingency of a third party using his information in the future. We find he lacks a justiciable controversy and standing. Therefore, the trial court did not err by sustaining Advance’s exception of no right of action.

NO CAUSE OF ACTION

Mr. Bradix also asserts that federal jurisprudence provides him with a cause of action, as he should not have to wait until a third party illegally uses his personal information to his detriment before being permitted access to court.

“The limited function of an exception of no cause of action is to determine whether the law provides a remedy to anyone assuming that the facts plead in the petition will be proven at trial.” Farmco, Inc. v. W. Baton Rouge Par. Governing Council, 01-1086, p. 1 (La. 6/15/01), 789 So.2d 568, 569. “In making that limited determination, ‘all doubts are resolved in plaintiffs favor.’” Id., quoting 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.7(2)(1999). “An exception of no cause of action should be granted only when it 17appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief.” New Jax Condominiums Ass’n, Inc. v. Vanderbilt New Orleans, LLC, 16-0643, p. 11 (La. App. 4 Cir. 4/26/17), 219 So.3d 471, 479. “Louisiana utilizes fact pleading, which means that the ‘mere conclusion of the pleader unsupported by facts does not set forth a cause or right of action.’ ” Tuban Petroleum, L.L.C. v. SIARC, Inc., 09-0302, p. 3 (La. App. 4 Cir. 4/15/09), 11 So.3d 519, 522, quoting Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131.

Mr. Bradix’s petition based his recovery on the theories of negligence, gross negligence, a breach of a fiduciary duty, and invasion of privacy.

Ordinary and Gross Negligence

“Both ordinary negligence and gross negligence are analyzed under a duty-risk analysis.” Rathey v. Priority EMS, Inc., 04-0199, p. 29 (La. App. 4 Cir. 1/12/05), 894 So.2d 438, 459. “Though gross negligence and ordinary negligence have distinct meanings, they are both forms or different degrees of negligence.” Solow v. Heard McElroy & Vestal, L.L.P., 44,042, p. 12 (La. App. 2 Cir. 4/8/09), 7 So.3d 1269, 1277. “The lack of care on the part of the tortfeasor distinguishes ordinary negligence from gross negligence.” Id. The duty-risk “analysis requires the plaintiff to prove four distinct elements: (1) existence of a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) the breach is a cause in fact of damage; and (4) actual damage was sustained by the plaintiff.” Taxicab Ins. Store, LLC v. Am. Serv. Ins. Co., Inc., 17-0004, p. 5 (La. App. 4 Cir. 7/12/17), 2017 WL 2963017, *3, 224 So.3d 451, 456-57.

The fourth element of negligence requires that the plaintiff sustain actual damages. As discussed in the section on the exception of no right of action, supra, |sMr. Bradix cannot prove that he suffered actual damages. Mr. Bradix’s alleged damages are too speculative in nature. Therefore, we find that Mr. Bradix did not possess a valid negligence, ordinary or gross, cause of action.

Breach of Fiduciary Duty

Next, Mr. Bradix asserts that Advance breached its fiduciary duty to him “by taking action outside the limits of its authority” when it “disclosed pertinent and confidential personal information.” “The breach of a fiduciary duty entitles one to the recovery of the damages.” Woodward v. Steed, 30,611, p. 2 (La. App. 2 Cir. 6/24/98), 715 So.2d 629, 631. “The basic theory of reparation is that the damaged party should be returned as nearly as possible to his condition prior to the act which caused the damage.” Langendorf v. Administrators of Tulane Ed. Fund, 361 So.2d 905, 909 (La. App. 4th Cir. 1978). Again, Mr. Bradix failed to show that he suffered any harm or attributed damages to Advance’s alleged breach of fiduciary duty. As such, we find that Mr. Bradix did not possess a valid cause of action for a breach of fiduciary duty.

Invasion of Privacy

Lastly, Mr. Bradix contends that Advance invaded his privacy by releasing his personal information to the unknown third party. “The right of privacy involves the basic right of a person to be let alone in his private affairs.” Roshto v. Hebert, 439 So.2d 428, 430 (La. 1983). “Unwarranted invasion of a person’s right of privacy may give rise to liability for the resulting harm.” Id. “The determination of whether a person’s conduct constitutes the tort of invasion of privacy depends on the facts and circumstances of each case.” Id.

“The tort of invasion of privacy is directed at redressing the damage which an individual suffers when legally recognized elements of his right to privacy have | sbeen violated.” Tate v. Woman’s Hosp. Found., 10-0425, pp. 3-4 (La. 1/19/11), 56 So.3d 194, 197. The Louisiana Supreme Court provided that:

[a] tort of invasion of privacy can occur in four ways: (1) by appropriating an individual’s name or likeness; (2) by unreasonably intruding on physical solitude or seclusion; (3) by giving publicity which unreasonably places a person in a false light before the public; and (4) by unreasonable public disclosure of embarrassing private facts.

Tate, 10-0425, p. 4, 56 So.3d at 197. “An actionable invasion of privacy occurs only when a defendant’s conduct is unreasonable and seriously interferes with another’s privacy interest.” Landrum v. Bd. of Comm’rs of the Orleans Levee Dist., 95-1591, p. 14 (La. App. 4 Cir. 11/27/96), 685 So.2d 382, 392.

In the present matter, Mr. Bradix did not show damages as a result of the alleged invasion of privacy because there was only speculative resulting harm. Mr. Bradix also failed to demonstrate that his information was publicly disclosed. Further, with no resulting harm, Mr. Bradix cannot prove that the alleged data breach “seriously” interfered with his privacy interests. Therefore, we find that Mr. Bradix did not possess a valid cause of action for the tort of invasion of privacy, and the exception of no cause of action was properly maintained.

DECREE

For the above-mentioned reasons, we find that the trial court correctly sustained Advance’s exception of no right of action because Mr. Bradix only pled speculative future harm. Additionally, the trial court did not err by maintaining Advance’s exception of no right of action because an element from each theory of recovery was lacking. As such, the judgment of the trial court is affirmed.

AFFIRMED

      . A class action was maintained in Florida with a different lead plaintiff. The only plaintiff at issue in the present appeal is Mr. Bra-dix.

      . We recognize that finding Mr. Bradix has no right of action results in the dismissal of his suit. However, in an attempt at completeness, we examine the exception of no cause of action.