text:
    Louis ROBINSON, Jr. v. Tylan MEAUX, et al.
    Nos. 09-374.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 16, 2009.
    See also 2009 WL 3617576 and 2009 WL 3617582.

      L. Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendant/Appellant, Lafayette Consolidated Government.
    Don J. Hernandez, Christopher Siegrist, Franklin, LA, Edward B. Jones, Edward B. Jones & Associates, Patterson, LA, for Plaintiff/Appellant, Louis Robinson, Jr.
    James Alan Harrell, Heather S. Duplan-tis, Karen Blakemore, Phelps Dunbar, Baton Rouge, LA, for Intervenor/Appellant, Lafayette Specialty Hospital, LLC.
    Thomas R. Hightower Jr., Patrick Wade Kee, Michael S. Harper, Attorneys at Law, Lafayette, LA, for Defendant/Appellee, Lil D’s Bar-B-Que, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

11 One of the defendants in the suit before us, Lil D’s Bar-B-Que, L.L.C., filed a motion for summary judgment, arguing that under the law and the facts in the case, it was not liable for the accident which caused the plaintiffs injuries. The plaintiff, Louis Robinson, and defendants, Tylan Meaux, Rodney Guilbeau, Allstate Insurance Co.(Guilbeau’s insurer), Lafayette Consolidated Government, and Champions’ Express Mart, Inc., Federated Mutual Insurance Company(Champions’ insurer), and intervenors, Louisiana Department of Health & Hospitals and Lafayette Specialty Hospital, opposed the motion. The trial court found in favor of Lil D’s, granted the motion for summary judgment and dismissed Lil D’s from the suit. Several of the opposing parties appeal. We reverse the judgment of the trial court and remand the case for further proceedings.

FACTS

On August 1, 2006, at approximately 11:45 p.m., a pick-up truck/bicycle accident occurred in the 1300 block of U.S. Highway 90/Southeast Evangeline Thruway in the City and Parish of Lafayette. After making a left-hand turn onto Evangeline from Pinhook Road, the 1997 Ford Ranger being driven by Tylan Meaux, and owned by Rodney Guilbeau, went out of control, flipped several times and struck Louis Robinson, Jr., who was riding his bicycle on the sidewalk. As a result of the accident, Louis Robinson Jr. was severely injured and is now a quadriplegic. Meaux’s passenger in the truck, Julian Mayard, was ejected from the vehicle and suffered multiple injuries. It is alleged that one factor contributing to the accident was the presence of a greasy sludge on the roadway.

|2The plaintiffs, Robinson and Mayard, sued, among others, Lil D’s Barbeque which operates a business in a facility owned or leased by Champion’s Express Mart, Inc., at 1139 U.S./Southeast Evangeline Thruway. The plaintiffs claim that one or both businesses created a dangerous condition at the site of the accident by negligently discharging a hazardous substance (grease) into the sewer/drainage system of the City and Parish of Lafayette. They claim that the grease created a dangerous condition on the roadway. Plaintiffs also sued the Lafayette Consolidated Government (LCG) claiming it had prior notice of conditions at the site of the accident and had been tolerant of the continuing discharge of grease into the sewer/drainage system.

In response to claims that Lil D’s was responsible for the accident because a defective grease trap caused the presence of a greasy sludge on the roadway, Lil D’s filed a motion for summary judgment. Lil D’s argued that under the plaintiffs’ theories of liability — La.Civ.Code arts. 2315, 2317 and 2317.1, it was entitled to summary judgment. Lil D’s argued that the record failed to show that it “knew or, in the exercise of reasonable care, should have known” of any problem with the grease trap which caused the accident, and that the accident could have been prevented by the exercise of reasonable care, and that Lil D’s failed to exercise such reasonable care. The trial court granted Lil D’s motion for summary judgment, dismissing it from the suit and the plaintiffs, the remaining defendants and the intervenors appeal.

LAW AND DISCUSSION

The articles governing summary judgment can be found in La.Code Civ.P. art. 966 and art. 967. In Bridges v. City of Carenco, 07-1593 (La.App. 3 Cir. 4/30/08), 982 So.2d 306 (citations omitted)(emphasis in original), this court recounted the law | .^applicable to the review of the trial court’s grant of a motion for summary judgment as follows:

The law applicable to summary judgments and to the appellate review thereof is well settled:
The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. The motion shoidd be granted only if the pleadings, depositions, an-sioers to interrogatories and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. The burden of proof remains with the mover. However, if the party moving for summary judgment will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then that party need not negate all essential elements of the adverse party’s claim, action, or defense but may simply point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense; thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. When a motion is made and supported, as required by La. C.C.P. art. 966, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response must set forth specific facts showing a genuine issue for trial. Otherwise, summary judgment, if appropriate, shall be rendered against him.
Appellate courts review summary judgments de novo under the same criteria that govern a district court’s consideration of whether summary judgment is appropriate.

In the case sub judice, the plaintiffs theories of liability are based upon La.Civ. Code arts. 2315(A), 2317 and 2317.1.

Louisiana Civil Code Article 2315(A) states: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

| .¿Louisiana Civil Code Article 2317.1 states: “We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

Louisiana Civil Code Article 2317.1 states:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

We find La.Civ.Code art. 2322 also applicable to this case. Louisiana Civil Code Article 2322 states:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Riggs v. Opelousas Gen. Hosp. Trust Auth., 08-591, pp. 3-4 (La.App. 3 Cir. 11/5/08), 997 So.2d 814, 817 tells us that:

The addition of the language to article 2317.1 that an owner is liable for damage “only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect” has effectively turned it from a claim based upon strict liability to a claim grounded in negligence. See Monson v. Travelers Prop. & Cas. Ins. Co., 06-921 (La.App.5 Cir. 4/24/07), 955 So.2d 758; Leonard v. Parish of Jefferson, 05-32 (La.App. 5 Cir. 4/26/05), 902 So.2d 502; and Bourquard V. Winn Dixie La. Inc., 04-1150 (La.App. 5 Cir. 3/1/05), 900 So.2d 131.
| ^Accordingly, to prevail in [his] claim, the plaintiff [must] prove the following: (1) that the thing which caused the damage was in the defendant’s custody or control, (2) that it had a vice or defect that presented an unreasonable risk of harm, (3) that the defendant knew or should have known of the vice or defect, (4) that the damage could have been prevented by the exercise of reasonable care, and (5) that the defendant failed to exercise such reasonable care. If the plaintiff fails to provide proof any one of these elements, his ... claim fails.

Our de novo review of the record convinces us that the trial court was in error in granting summary judgment in favor of Lil D’s. The law is perfectly clear, a motion for summary judgment should ONLY be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966 (emphasis ours).

We find there are numerous issues of material fact in dispute in this suit which preclude Lil D’s dismissal via summary judgment. Some examples of disputed issues are the following:

Did Lil D’s have garde over the grease trap? The lease between Lil D’s and Champion’s is silent as to who had the responsibility to maintain the grease trap. While the LCG ordinance which was in effect at the time Champion’s built the grease trap placed responsibility for its maintenance on the “owner,” it is undisputed that Lil D’s scheduled the maintenance.

Was the grease trap defective? There is no evidence in the record that between the October 2005 stoppage and the accident at issue the grease trap had been the subject of a comprehensive examination. Several people (John Johnson, a LCG inspector, Jody Broussard, the person who pumped out the trap, etc.) had looked into |fithe trap, but because of the small opening, the lack of light, etc., it was impossible determine if the trap was defective. The person who serviced the trap did state that the trap appeared to be working and appeared to be keeping up with the grease.

Did Lil D’s know or have reason to believe the trap was defective? The record indicates that there was a stoppage in the sewer line in October 2005. LCG’s inspection of the sewer line confirmed that the stoppage was cause by grease in the line. At that time Mr. Johnson indicated to Lil D’s the possibility that the grease trap was not operating properly and suggested that the trap be timely inspected and that Lil D’s have the grease trap cleaned out more often. Thus, it appears that there is a genuine issue concerning Lil D’s knowledge of a possible defect in the grease trap.

Could the accident have been prevented by the exercise of reasonable care? Although Lil D’s had the trap pumped out •within a week’s time, the record does not reflect that it began a more frequent pumping schedule. If, in fact, one cause of the accident was grease escaping from a defective grease trap, then it would appear that more frequent pumping may have been one way to forestall a build up of grease in the sewer line.

Finally, there is the question of whether Lil D’s failed to exercise reasonable care. If grease from Lil D’s proves to be a cause in fact of the accident, then this question is paramount.

In sum, we find that the pleadings, depositions, answers to interrogatories, and admissions and the affidavits fail to establish a lack of genuine issues of material facts which would entitle Lil D’s to a summary judgment.

| ./Accordingly, for the reasons stated, the judgment of the trial court is reversed, the motion for summary judgment is denied, and the case is remanded for further proceedings. All costs of this appeal are assessed against the appellee, Lil D’s.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Clement MAYARD, et al. v. Tylan MEAUX, et al.
    No. 09-375.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 16, 2009.

    L. Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendant/Appellant, Lafayette Consolidated Government.
    Don J. Hernandez, Christopher Siegrist, Franklin, LA, for Plaintiff/Appellant, Louis Robinson, Jr.

      Edward B. Jones, Edward B. Jones & Associates, Patterson, LA, for Plaintiff/Appellant, Louis Robinson, Jr.
    James Alan Harrell, Heather S. Duplan-tis, Karen Blakemore, Phelps Dunbar, Baton Rouge, LA, for Intervenor/Appellant, Lafayette Specialty Hospital, LLC.
    Thomas R. Hightower Jr., Patrick Wade Kee, Michael S. Harper, Attorneys at Law, Lafayette, LA, for Defendant/Appellee, Lil D’s Bar-B-Que, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

       Painter, J., would grant rehearing.

   PICKETT, Judge.

For the reasons set forth this day in the consolidated case, Robinson v. Meaux, 09-374 (La.App. 3 Cir. 11/4/09), 23 So.3d 1025, the summary judgment in favor of Lil D’s Bar-B-Que, LLC, is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.


text:
    Tylan A. MEAUX, et al. v. LAFAYETTE CONSOLIDATED GOVERNMENT, et al.
    Nos. 09-376.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 16, 2009.

    L. Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendant/Appellant: Lafayette Consolidated Government.
    Don J. Hernandez, Christopher Siegrist, Franklin, LA, for Plaintiff/Appellant: Louis Robinson, Jr.
    Edward B. Jones, Edward B. Jones & Associates, Patterson, LA, for Plaintiff/Appellant: Louis Robinson, Jr.
    James Alan Harrell, Heather S. Duplan-tis, Karen Blakemore, Phelps Dunbar, Baton Rouge, LA, for Intervenor/Appellant: Lafayette Specialty Hospital, LLC.
    Thomas R. Hightower Jr., Patrick Wade Kee, Michael S. Harper, Attorneys at Law, Lafayette, LA, for Defendant/Appellee: Lil D’s Bar-B-Que, LLC.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.

       Painter, J., would grant rehearing.

   PICKETT, Judge.

For the reasons set forth this day in the consolidated case, Robinson v. Meaux, 09-374 (La.App. 3 Cir. 11/4/09), 23 So.3d 1025, the summary judgment in favor of Lil D’s Bar-B-Que, LLC, is reversed and the case is remanded for further proceedings.

REVERSED AND REMANDED.


author: SAUNDERS, Judge.

text:
    Mary Ann Charles CALBERT v. Orlando J. BATISTE.
    No. 09-514.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.

      Guy Olden Mitchell, III, Attorney at Law, Ville Platte, LA, for Intervenor Appellant, Major Patrick Calbert.
    Paul Daniel Gibson, John Blake Bou-dreaux, Gibson, Gruenert, et ah, Lafayette, LA, for Defendant Appellee, Lafayette City-Parish Consolidated Government.
    Randal Lee Menard, Attorney at Law, Lafayette, LA, for Plaintiff Appellee, Mary Ann Charles Calbert.
    Laura Lee Putnam, Assistant Attorney General, Louisiana Department of Justice, Lafayette, LA, for Defendant Appellee, State of Louisiana, Dept, of Transportation & Development.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

|! This case addresses whether the exceptions of lis pendens and prescription were properly granted in a suit instituted by Major Calbert (hereinafter referred to as “Major”) asserting wrongful death and survival actions.

For the following reasons we affirm in part and reverse in part the trial court’s granting of the exceptions.

FACTS AND PROCEDURAL HISTORY:

On July 23, 2007, while walking along Louisiana Highway 14, Raymond Calbert (hereinafter referred to as “Raymond”) was struck by a vehicle driven by Orlando Batiste (hereinafter referred to as “Batiste”). Raymond subsequently died the same day as a result of the injuries he sustained in the accident. On July 14, 2008, an action was filed on behalf of Mary Ann Charles Calbert (hereinafter referred to as “Mary Ann”), individually and on behalf of her minor son, Rashaun Devon Calbert (hereinafter referred to as “Ra-shaun”), against Batiste. The suit is marked as Docket No. 2008-4022-B. Mary Ann is the surviving spouse of Raymond, and Rashaun is their minor child together. Not included as a party in the suit was Major, the son of Raymond and Patricia Dillon Calbert.

Major, on August 28, 2008, filed his own suit asserting wrongful death and survival action claims against Batiste and Appel-lees, the State of Louisiana Department of Transportation and Development (hereinafter referred to as “DOTD”) and Lafayette City-Parish Consolidated Government (hereinafter referred to as “LCG”). The suit was filed separately from that of Mary Ann and Rashaun. Major asserts that the suit was an attempt to intervene in same, but that the caption was inadvertently given an independent docket number-Docket No. 2008-4932-A. Exceptions of prescription, vagueness, and improper service were filed by the | ¡¿defendants.

On December 1, 2008, Major filed a Petition of Intervention in Mary Ann’s suit, Docket No. 2008^022-B, adding DOTD and LCG as defendants along with Batiste. DOTD and LCG filed exceptions of prescription, vagueness, and no cause of action. They also brought an exception of lis pendens, claiming that the existence of Major’s first suit, Docket No. 2008-4932-A, prevented him from intervening in the current matter.

On January 12, 2009, the exceptions filed in the separate Major suit, Docket No. 2008-4932-A, were heard by Judge Trahan of the 15th Judicial District Court. Judge Trahan ordered the Major suit to be transferred to the pending Mary Ann suit, Docket No. 2008^022-B.

On February 17, 2009, the exceptions in the Mary Ann suit (those at issue before this court) were heard by Judge Jules Edwards. Judge Edwards granted the Appellees’ exceptions of prescription and lis pendens. The exceptions of vagueness and no cause of action were not considered by the court in light of the granting of the other exceptions. Major then filed a Motion to Reinstate Lawsuit in the separate Major suit, Docket No. 2008-4932-A. Judge Trahan reiterated his order that the matter be transferred to Judge Edwards.

Major now appeals the granting of the exceptions of prescription and Us pendens in the Mary Ann suit, Docket No. 2008-4022-B. He asserts the following assignment of error:

ISSUE:

Whether the trial court erred as a matter of law in granting the exceptions of lis pendens and prescription in this matter.

LAW AND DISCUSSION ON THE MERITS:

| %Lis Pendens

We will first address the lis pen-dens exception. Appellees, DOTD and LCG, filed exceptions of lis pendens claiming that the existence of Major’s initial suit, Docket No. 2008-4932-A, prevented Major from being able to intervene in the suit originally brought by Mary Ann, Docket No. 2008-4022-B. The trial court agreed and granted the exception. We disagree.

Louisiana Code of Civil Procedure Article 531 reads as follows:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution or any of the suits, but the first final judgment rendered shall be conclusive of all.

The article requires that three elements be satisfied in order for the granting of a lis pendens exception to be proper: (1) There must be two or more suits pending in Louisiana courts; (2) the suits must arise out of the same transaction or occurrence, and; (3) the suits must be made up of the same parties in the same capacities. In the present matter, requirements (2) and (3) are clearly met. The suits are virtually identical and include all the same parties. We find, however, that requirement (1) has been left unsatisfied.

The purpose underlying the lis pendens rules is to protect defendants from having to suffer the costs and burdens of litigating two or more suits when only one is needed to satisfy the dispute. We find that granting the exception in the present matter would be out of character with the article’s intent. Major claims that the original suit was brought with the intent of it being an intervention into the suit brought by Mary Ann, but that it was inadvertently given a separate docket number. Whether or not this is true is irrelevant, although there is some indication that there |4may be some meiit to Major’s claim considering that he filed a pleading entitled “Petition to Intervene with Petition for Damages and Wrongful Death.” What we are concerned with in this matter is the idea of barring a plaintiff from bringing a suit solely because another similar suit existed in name only.

Major’s original suit was scheduled to be held in the court of Judge Trahan. Recognizing that the matter should be tried as an intervention into the suit brought by Mary Ann before Judge Edwards, Judge Trahan transferred the suit to that court. The original suit was not going to be heard, and there was no danger of the Appellees having to litigate multiple versions of the same suit. We saw evidence of this when, after Judge Edwards granted the exceptions dismissing Major’s case, Major attempted, as a measure of last resort, to revive the suit before Judge Trahan. The request was rejected with the court reiterating that the matter had been transferred. If we were to uphold this exception, we would, in effect, be preventing Major from bringing his suit at all. Therefore, we find that, for the purposes of La.Code Civ. P. art. 531, multiple suits were not pending, and the granting of the lis pendens exception was not proper.

Prescription

Louisiana Civil Code Articles 2315.1 and 2315.2 state that, along with certain other relatives, the surviving children of a person, whose death was caused by the fault, offense, or quasi-offense of another, may bring wrongful death and survival actions within one year of the decedent’s death.

Art. 2315.1 Survival Action

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor |sof:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
2315.2 Wrongful death action
A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
B. The right of action granted by this Article prescribes one year from the death of the deceased.

In the present matter, Major, without prescription being interrupted, would have had until July 23, 2008 to have brought his suit for wrongful death and survival damages.

Generally, the party pleading prescription bears the burden of proof. However, when, on the face of the petition, it appears that prescription has run, the burden shifts to the plaintiff to prove that prescription has been interrupted. Younger v. Marshall Ind., Inc., 618 So.2d 866 (La.1993); Williams v. Sewerage & Water Bd. of New Orleans, 611 So.2d 1383 (La.1993). In the present matter, it appears that such is the case. Since Major did not file his intervening suit until December 1, 2008, the burden of disproving prescription is his to bear.

The initial suit filed by Mary Ann, in which Major is seeking to intervene, was brought against Batiste only. Louisiana Code of Civil Procedure Article 1091 directs that:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief | Bagainst the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

Here, Major is joining with the plaintiff in demanding the same or similar relief against the defendant. For the purposes of this discussion, we will consider only Major’s claim of wrongful death damages. The survival action will be addressed later. As the one year liberative prescription period has already run against Major, we must consider whether the original petition brought by Mary Ann interrupted prescription for the benefit of an untimely intervening suit. To determine this, we look to the test set out by the Louisiana Supreme Court in Giroir v. South Louisiana Medical Center Div. Of Hospitals, 475 So.2d 1040 (La.1985). The test was originally used to determine whether an amended petition adding or substituting a plaintiff should be allowed to relate back to the date of the filing of the original petition, but multiple courts have used the same test in considering prescribed intervening suits. Riddle v. Simmons, 626 So.2d 811 (La.App. 2 Cir.1993), writ denied, 93-2920 (La.4/29/94), 637 So.2d 459; Harvill v. Arnold, 34,409 (La.App. 3 Cir. 1/26/01), 777 So.2d 1271.

[A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense. Giroir, 475 So.2d at 1044 (citations omitted).

In examining the four Giroir factors, it is clear that Major’s intervening wrongful death claim against Batiste relates back to the time of the original filing by |7Mary Ann. The claims are virtually identical and arise from the same oecur-rence-the accident on Highway 14 that ultimately lead to the death of Raymond. Considering that the original suit was brought by Raymond’s surviving spouse and minor child, it should have been anticipated that Raymond’s other children might choose to enter the suit. Major is not a wholly new or unrelated party. He is suing in the same capacity as Mary Ann and Rashaun. For these reasons, Batiste would not be prejudiced in preparing and conducting a defense against Major, as the defense put forth would be identical to the one that would be presented against Mary Ann and Rashaun.

While we find that Major’s wrongful death action against Batiste has not prescribed, his claims against the Appel-lees, DOTD and LCG, are not as clear. In considering this issue, we keep in mind that “[prescriptive statutes, under our jurisprudence, are strictly construed in favor of maintaining rather than barring actions. Taylor v. Liberty Mutual Ins. Co., 579 So.2d 443 (La.1991); Montminy v. Jobe, 600 So.2d 121 (La.App. 2d Cir.1992), writ denied, 604 So.2d 1003 (La.1992).” Riddle, 626 So.2d at 814.

Major argues that the original suit filed by Mary Ann interrupted prescription as to all the defendants because all the defendants are solidarily liable. In support of his position, Major points us to Sam v. Sorrel Electrical Contractors, Inc., 525 So.2d 244 (La.App. 1 Cir.), writ denied, 532 So.2d 133 (La.1988) and Fifth District Finance Co. v. Harvey, 189 So. 622 (La.App.Orleans 1939). Appellee, LCG, correctly points out that the jurisprudence relied on in Major’s argument is outdated and inapplicable to the current case. We nonetheless find merit in Major’s conclusion, although for different reasons. Major erred in contending that DOTD and |SLCG were liable in solido. Louisiana Civil Code Article 2324 addresses the liability of solidary and joint obligors:

A.He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. ...
C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.

DOTD and LCG are not alleged to have conspired to commit an intentional or willful act. For the purposes of this litigation they are joint tortfeasors along with Batiste. Recent case law and the above article clearly show that when prescription is interrupted as to one joint tortfeasor, it is interrupted as to all joint tortfeasors. Wheat v. Nievar, 07-0680 (La.App. 1 Cir. 2/08/08), 984 So.2d 773; Boquet ex. rel. Billiot v. SWDI, LLC, 07-0738 (La.App. 1 Cir. 6/06/08), 992 So.2d 1059, writ denied, 08-2086 (La.9/04/09), 17 So.3d 958. “Thus, the addition of additional defendants in a suit will relate back to the date of the original if the defendants are joint tortfea-sors.” Id. at 1063.

Appellees, DOTD and LCG, contend that before prescription can be interrupted, there must be an analysis determining whether the claims relate back to the time of the original petition using the four factors established in Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983). We disagree. “Once a plaintiff establishes that a joint or solidary tortfeasor has been timely sued, consideration of the concept of relating back to interrupt prescription is not necessary. See Etienne v. National Automobile Ins. Co., 99-2610, p. 7 (La.4/25/00), 759 So.2d 51, 56-57; Perkins v. Willie, 2003-0126, pp. 4 & 6 (La.App. 1 Cir. 4/2/04), 878 So.2d 574, 576 & 577-578.”9 Wheat, 984 So.2d at 776. Thus, we find that in light of our determination that prescription was interrupted as to Major’s wrongful death claim against Batiste, his wrongful death claims against the joint tortfeasors, DOTD and LCG, have likewise been interrupted.

The final issue before this court is whether prescription has run as to Major’s survival action. We find that it has. The Supreme Court of Louisiana has made it clear that survival actions and wrongful death actions are separate and distinct causes of action.

We conclude that each of these actions is a separate and distinct cause of action. Although both actions arise from a common tort they are, nevertheless, separate and distinct because each arises at a different time. The survival actions [sic] comes into existence simultaneously with the commission of the tort and is transmitted to the beneficiaries upon the victim’s death. The wrongful death action does not arise until the victim dies. Each right addresses itself to the recovery of damages for totally different injuries and losses. The survival action permits recovery only of the damages suffered by the victim from the time of injury to the moment of death. The wrongful death action is intended to compensate the beneficiaries for compensable injuries suffered from the moment of death and thereafter.

Guidry v. Theriot, 377 So.2d 319, 322 (La.1979), abrogated on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983).

The court in Guidry went on to hold that when prescription is interrupted as to a survival action, that interruption has no bearing on the running of prescription for the wrongful death action. It follows that the same principle applies when prescription has been interrupted as to the wrongful death action but not the survival action.

We have expressly held that the survival and wrongful death actions are separate and distinct causes of action, entirely independent of each other. We also expressly hold that regardless of whether or not suit is instituted by a tort victim during his life, his named beneficiaries must bring their wrongful death action within one year of the victim’s 11ftdeath pursuant to the provisions of La.C.C. Article 3536. This is so because they do not bring the wrongful death action as substituted parties, in which capacity they may bring the survival action to recover the victim’s damages. They must bring their wrongful death action as original plaintiffs suing on a different cause of action which arose upon the victim’s death.

Guidry, 377 So.2d at 327-328.

In the matter before us, the decedent died on July 23, 2007. Mary Ann properly filed her wrongful death claim on July 14, 2008. Major’s intervening suit was not brought until December 1, 2008. For reasons already discussed, the wrongful death action instituted by Mary Ann interrupted prescription as to Major’s wrongful death action, but we find that it had no effect on the survival action in question. Thus, we find that the exception of prescription was correctly granted with regard to Major’s survival action.

CONCLUSION:

For reasons discussed above, we find that the trial court’s granting of the dicli-natory exception of lis pendens was improper. We further find that the trial court’s granting of the peremptory exception of prescription as to Major’s wrongful death claims against DOTD and LCG was similarly improper. We do, however, agree with the trial court’s finding that Major’s survival action has prescribed.

AFFIRMED IN PART, REVERSED IN PART.


author: COOKS, Judge.

text:
    Chermaine DIBARTOLO, et ux. v. STAGE ONE-THE HAIR SCHOOLS.
    No. 09-511.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Barry A. Roach, Larry A. Roach, Inc., Lake Charles, LA, for Plaintiff/Appellant, Chermaine Dibartolo.
    Kristen B. Menard, Lafayette, LA, for Defendant-Appellee, Stage One-The Hair School.
    Court composed of ULYSSES G. THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   COOKS, Judge.

liThe Plaintiff, Chermaine Dibartolo, appeals the trial court’s grant of Defendant’s Motion for Summary Judgment dismissing her personal injury lawsuit. For the following reasons, we reverse and remand, finding there are genuine issues of material facts present that preclude summary judgment.

FACTS AND PROCEDURAL HISTORY

On March 16, 2006, Chermaine Dibarto-lo, was a student at Stage One-The Hair School (hereafter Stage One). Ms. Dibar-tolo was assigned to clean up in the classroom where she and six other students were training. As she was exiting the classroom, Ms. Dibartolo tripped over her own bag. As a result, she suffered “severe bodily injuries.” Ms. Dibartolo filed a Petition for Damages, asserting Stage One was negligent for the following reasons:

(1) Permitting class to be held in a classroom which was too small for students to safely move around the room and/or exit in and out;
(2) Failing to have safety procedures, operating rules and safety training of students to assure that the large rolling bags that students were required to bring to class were not left in the doorway and walk areas of the classroom;
(3) Failing to exercise reasonable care under the circumstances.

Ms. Dibartolo also specifically pled the doctrine of strict liability. Ms. Dibartolo’s husband also joined the suit, requesting damages for his loss or consortium.

Stage One filed a Motion for Summary Judgment alleging that Ms. Dibartolo tripped over her own bag and was at fault in carrying two mannequin heads while walking and, thus, was unable to see her bag which had fallen in the doorway. Ms. Dibartolo opposed the motion for summary judgment, stating there were issues of 12material fact precluding summary judgment in this matter.

A hearing was held on the motion for summary judgment, wherein the trial court ruled in favor of Stage One, finding summary judgment was appropriate. The trial court concluded the classroom’s “ingress and egress was not the issue. [The classroom] was only unsafe because there was a bag in the way.” The trial court emphasized the accident did not occur because it was “a small room” and a “big crowd,” but because Ms. Dibartolo’s bag had fallen in the doorway. Based on those uncontested facts, the trial court concluded summary judgment was warranted.

Ms. Dibartolo appeals the trial court’s grant of summary judgment, contending the record contained genuine issues of material fact which preclude the granting of summary judgment.

ANALYSIS

In Beard v. Grey Wolf Drilling Co., 00-345, pp. 2-3 (La.App. 3 Cir. 11/2/00), 774 So.2d 287, 288-89, we set forth the standard of appellate review of summary judgments:

At the outset, we note that appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Schroeder v. Board of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991); Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).
The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-50 (La.3/13/98), 712 So.2d 882. Thereafter, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Id. Thus, summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts. Id.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. The court must draw those inferences from the undisputed facts, which are most favorable to the party opposing the motion. Id.

To determine whether the trial court erred in granting summary judgment in favor of Stage One, we must determine whether there are any genuine issues of material fact. In conducting our review, we must construe any factual inferences drawn from the evidence in favor of Ms. Dibartolo, who is opposing the Motion for Summary Judgment. Further, in determining whether an issue is genuine, this Court cannot make determinations on the merits of Ms. Dibartolo’s claim, make credibility determinations, or evaluate the weight of the evidence. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 236.

Stage One argued below that Ms. Dibartolo’s theory of liability consisted of the assertion that Stage One should have warned her not to place her bag on the floor where it presented a possible hazard. However, in her deposition, Ms. Dibartolo testified she did not place her bag near the doorway, and did not know how it got near the doorway. Thus, she contends she never alleged Stage One’s negligence derived |4from a failure to warn her not to place her bag near the doorway. Instead, she alleged that Stage One failed to provide adequate storage space for the students’ bags, which forced the students to place their bags inside an already cramped classroom. She further insisted that the small amount of working space and lack of storage facilities forced the students to place their bags against the wall and sometimes near the doorway. Ms. Dibartolo maintained that the only reason her bag was present in the classroom is that she had nowhere else to store it.

The record established the classroom was ten feet, seven inches by nine feet (10'7" x 9') and, on the day in question, there were a minimum of six students in the classroom. A large table where the students worked was set up in the middle of the room, and as set forth earlier the students had no choice but to bring their rolling bags into the classroom and place them against the wall. Ms. Dibartolo alleged the only place the bags could be kept was against the wall, and, when there were six or more students, it was inevitable that a bag would be near the doorway. Ms. Dibartolo presented an affidavit from Chief T.A. Jones of the Lake Charles Fire Department stating that the maximum number of people that should be in a 10'7" x 9' room is five. Ms. Dibartolo maintains, on the day of the accident, there were at least six students in the classroom and at times an instructor. Combine the excessive number of people with the fact that the room contained a large table in the middle and six large bags against the wall, established there was a lack of space to freely walk into and out of the classroom. These alleged facts she contends are sufficient to provide a basis for finding Stage One liable for the injuries sustained as a matter of law.

In granting the motion for summary judgment, the trial court relied primarily |fion its conclusion that there was no link between the size of the room and the cause of the accident. Although it was not established who knocked Ms. Dibartolo’s bag down, there certainly is a realistic dispute that whomever knocked down the bag did so due to the lack of space in the classroom. Ms. Dibartolo’s contention that the lack of storage space was a contributing factor in causing the accident also creates a genuine dispute which is relevant in assigning liability in this case.

Stage One further argues it has no duty to protect Ms. Dibartolo from her own negligence. Specifically, it contends the accident would not have occurred had Ms. Dibartolo’s vision not been obscured by the two mannequin heads she was carrying. However, as Ms. Dibartolo counters, she was carrying the mannequin heads as per the instructions of Stage One. The arguments by Stage One as to Ms. Dibartolo’s negligence may well create issues involving comparative fault, but they do not by themselves absolve all potential claims of negligence made against Stage One.

We also note the trial court emphasized below that it did not believe Ms. Dibartolo would have success at a full trial on the merits, specifically stating he could not “see a jury running with this at all.” While the court’s prognostication could be accurate, it is not grounds for summary judgment. “[T]he likelihood of success at trial is irrelevant to the question of the propriety of a summary judgment.” Montgomery v. Boh Bros. Const. Co., Inc., 572 So.2d 368, 370 (La.App. 4 Cir.1990). While Stage One’s theory may prevail at trial as being more credible than Ms. Dibartolo’s theories, it entails credibility calls, and as such is not a matter proper for summary judgment.

DECREE

After reviewing the facts in a light more favorable to Ms. Dibartolo, the party | ^opposing the motion for summary judgment, we find she has successfully raised material issues of fact such as to preclude summary judgment. Accordingly, we find the trial court erred in granting the motion in favor of Stage One, and we, therefore, reverse the trial court’s granting of summary judgment and remand this case for further proceedings.

REVERSED AND REMANDED.


author: AMY, Judge. GENOVESE, J.,

text:
    The TUNICA-BILOXI TRIBE OF LOUISIANA v. John BLALOCK, et al.
    No. 09-459.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Rehearing Denied Dec. 9, 2009.

      Ricky L. Sooter, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Intervenor/Appellant, Riverview Resort and Marina, LLC.
    Jeanne M. Laborde, The Laborde Law Firm, L.L.C., Lafayette, LA, for Plaintiff/Appellee, The Tunica-Biloxi Tribe of Louisiana.
    Cory P. Roy, Marksville, LA, for Defendants/Appellees, John Blalock, Barbara Boher Blalock.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

|xThe plaintiff tribe filed a possessory action in the Twelfth Judicial District Court, seeking tort damages for use and a determination as to the ownership of property in Avoyelles Parish. The trial court signed a stipulated judgment awarding possession of the disputed property to the Tribe. The damages issue remained pending. Subsequently, the appellant filed a petition of intervention, arguing that it acquired a portion of the disputed tract prior to the filing of the possessory action. The plaintiff filed an exception to the petition for intervention, asserting that the trial court lacked subject matter jurisdiction due to sovereign immunity. The trial court granted the exception. The interve-nor appeals. We affirm.

Factual and Procedural Background

The Tunica-Biloxi Tribe of Louisiana filed a possessory action in the Twelfth Judicial District Court against John and Barbara Blalock. The Tribe asserted that it acquired and possessed a certain tract of property in Avoyelles Parish by virtue of a 1997 donation inter vivos and that the defendants disturbed its possession by certain actions commencing in 2005. The activity complained of included the construction of a fence, the removal of soil, and the placement of culverts into a channel of the Red River in order to allegedly gain entry onto Tribal land. The Tribe sought damages and an order requiring the defendants to return the property to its former condition and prohibiting the defendants’ entry onto the property. The Tribe prayed for a judgment “recognizing Plaintiff[’]s right to the possession of the immovable property described above, and maintaining them in possession thereof[.]” The Tribe further prayed that, in the event that the defendants did not assert an adverse claim of ownership of the property in their answer, “that there be Judgment herein ordering the Defendants to assert any adverse claim of ownership of the said immovable in a |2Petitory Action to be filed within a delay to be fixed by the Court[.]”

However, the trial court never reached consideration of the ownership question. At the hearing on the matter in December 2006, the parties entered into a stipulation, converting the matter to a petitory action. The Blalocks also confessed possession of the property to the Tribe. Thereafter, in July 2007, the trial court signed a resulting Stipulated Judgment entered into between the parties. In the judgment, the Blalocks confessed possession of the property to the Tribe, which was placed in legal possession of the disputed tract. However, the Blal-ocks asserted “a claim of ownership” as to one portion of the disputed property. The Tribe’s claim for damages, costs, attorney fees, and expert fees was reserved for the trial on the merits.

Afterwards, in April 2008, River View Resort and Marina, L.L.C. filed a Petition of Intervention asserting its right of possession of the portion of the disputed property the Blalocks claimed in the stipulated judgment. River View contended that it acquired the property by a September 6, 2005 Act of Exchange. River View | :ialleged that it or its ancestors in title had corporeal or constructive possession of the subject property beginning in January 1969. It asserted that the trial court “should establish the boundary line between the lands owned by Intervenor and the land owned by the Tunica Biloxi Indians of Louisiana.” The prayer of the petition of intervention asked for “judgment in favor of River View Resort & Marina, LLC recognizing it as legal owner of the property including accretion, Judgment establishing a boundary between the properties; and Judgment ordering the Tunica Biloxi Tribe of Louisiana to surrender possession of the property owned by the In-tervenor.” The Blalocks, answering the petition, admitted the allegations.

The Tribe filed an exception to the petition for intervention, which included exceptions of lack of personal and subject matter jurisdiction, lis pendens, improper cumulation of actions, and prescription. The Tribe also alleged that River View had no cause or right of action. After a hearing, the trial court granted the exception of lack of subject matter jurisdiction “[pjursuant to the doctrine of sovereign immunity[.]” In reasons for ruling, it explained:

|4[P]espite the fact that the Blalocks are the sole owners of River View Resort & Marina, L.L.C., River View is a separate legal entity and was not a party to prior actions which resulted in the Stipulated Judgment, signed in July 2007 (noted supra). The Tunica Tribe never waived sovereign immunity as to River View. The prior pleadings by the Tunica Tribe requested that the Blal-ocks assert any claim of ownership. The Tribe did not request that any legal entity or person assert ownership in these 12th JDC proceedings. There is no overt action by the Tunica Tribe which suggests that sovereign immunity is waived as to this defendant.
It is well established that Indian tribes possess sovereign immunity from suit that existed at common law. Rosebud Sioux Tribe v. A & P Steel, Inc., 874 F.2d 550, 552 (8th Cir.1989). The Tribe may waive this immunity. A waiver of sovereign immunity may not be implied, but must be unequivocally expressed by either the Tribe or Congress. Id. Tribes possess immunity because they are sovereigns predating the Constitution. Indian tribes are ‘domestic dependent nations’ that exercise inherent sovereign authority over their members and territories. American Indian [Agric. Credit Consort., Inc.] v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1378 (8th Cir.1985). (Citations omitted.) Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.
This tribal immunity extends to immunity from counterclaims and cross-claims. (American Indian, noted supra.)
La.Code of Civ. Pro. Article 1091, 1036, provide that a petition for intervention may be filed in certain circumstances, but the court has jurisdiction over the incidental demand only if it has jurisdiction over the principal demand.
Pursuant to the doctrine of sovereign immunity, the Exception to the Petition is granted.

The trial court found the remaining exceptions moot.

On appeal, River View asserts that the trial court “erred in sustaining the Exception of Lack of Subject Matter Jurisdiction by holding that the Tribe did not overtly consent to the Jurisdiction of the 12th Judicial District Court to determine ownership of the Disputed Property.”

| ¡¿Discussion

River View contests the trial court’s determination that the Tribe did not waive its immunity to suit in state court in light of its filing of suit against the Blalocks in the Twelfth Judicial District Court. It submits that the Tribe waived its immunity by submitting “the subject matter of possession and ownership” of the disputed property to the state court in the filing of the initial petition.

River View acknowledges the longstanding principle that Native American tribes possess sovereign immunity and are subject to suit only in the presence of Congressional authorization of the suit or waiver of immunity. See Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc,, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998). It also acknowledges both that a tribe’s waiver of its sovereign immunity must be clear and that a tribe is typically immune from counterclaims and cross-claims. See C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 582 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001); U.S. v. U.S. Fid. & Guar., Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894 (1940). However, River View contends that, in this case, the Tribe waived its sovereign immunity by operation of equitable recoupment, a concept River View asserts implies waiver of immunity for matters arising out of the same transaction or occurrence as a suit in which the tribe has, in fact, waived immunity. Citing Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir.1982); FDIC v. Hulsey, 22 F.3d 1472 (10th Cir.1994).

| ¿The parties accurately frame the question of whether the Tribe possesses sovereign immunity as a jurisdictional question. See Rupp v. Omaha Indian Tribe, 45 F.3d 1241 (8th Cir.1995), citing Puyallup Tribe, Inc. v. Washington Game Dep’t, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). We review the ruling on the Tribe’s exception pursuant to the de novo standard of review. Id.

River View argues that the underlying subject matter of this case is the ownership of the property and, thus, the Tribe has waived sovereign immunity with regard to other parties claiming ownership of that property. In support of its argument, River View points to two federal cases, Rupp, 45 F.3d 1241 and Wyandotte Nation v. City of Kansas City, Kansas, 200 F.Supp.2d 1279 (D.Kan.2002), in which counterclaims were allowed to proceed against plaintiff tribes due to the application of equitable recoupment. River View contends this concept provides an avenue for its intervention.

In both Rupp and Wyandotte, however, the parties permitted to maintain counterclaims against the plaintiff tribes were defendants in the underlying matter. As is obvious by its petition of intervention, River View was not named by the Tribe as a defendant like the Rupp and Wyandotte parties. Rather, the Tribe named the Blalocks as the sole defendants in the underlying matter, initially for possessory damages in tort, and then for a determination as to ownership of the larger parcel of property originally at issue.

In Rupp, 45 F.3d 1241, a suit in which the plaintiff tribe originally filed suit against the defendants to quiet title in disputed land, the Eighth Circuit considered whether defendants could maintain a counterclaim despite the previous dismissal of |7the plaintiff tribe as the result of the imposition of a discovery sanction. The court explained that:

By initiating a lawsuit, the Tribe “waives immunity as to claims of the defendant which assert matters in re-coupment-arising out of the same transaction or occurrence which is the subject matter ... [the] suit.” Rosebud Sioux Tribe, 874 F.2d at 552. The commencement of a lawsuit by itself does not, however, operate as a waiver of immunity with respect to compulsory counterclaims. Oklahoma Tax Comm’n v. Potawatomi Indian Tribe, 498 U.S. 505, 508-09, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991). Oklahoma Tax Commission held that a suit filed by the Potawa-tomi tribe to enjoin the state from collecting certain taxes did not waive the tribe’s sovereign immunity with respect to a counterclaim to enforce the state’s tax assessment and enjoin the tribe to collect state sales taxes in the future. Id. at 506-08, 111 S.Ct. at 908.

Id. at 1244 (emphasis added) (alteration in original). The Eighth Circuit remarked that the plaintiff tribe “did not merely file a quiet title action.” Id. Rather, it asked the trial court “to order the defendants to assert any claims in the disputed lands they possessed against the Tribe[.]” Id. (Emphasis added.) Additionally, the Eighth Circuit pointed to specific language in the plaintiff tribe’s prayer and explained that:

This additional language explicitly requesting Rupp and Henderson to assert any “right, title, interest or estate” they may have in the disputed land is an unequivocal consent to any counterclaims asserted by Rupp and Henderson to quiet title and award damages in their respective names. Although waivers of sovereign immunity cannot be implied and are to be strictly construed in favor of the Tribe, this test is satisfied by the Tribe’s affirmative request that Rupp and Henderson assert their claims in the disputed land.

Id. at 1244-45. In light of these express actions, the Eighth Circuit found that the plaintiff tribe waived its sovereign immunity. It noted that “[b]y requesting equitable relief, the Tribe consented to the district court exercising its equitable discretion to resolve the status of the disputed lands.” Id. at 1245. While the language regarding resolution of the status of the disputed land is seemingly applicable to this case, the opinion addresses a situation in which the claim of an unnamed party was not at issue. |Jn sum, the Eighth Circuit remarked that: “To hold that the district court could exercise its discretion to quiet title in favor of the plaintiff (the Tribe) but not the defendant (Rupp and Henderson) would be anomalous and contrary to the court’s broad equitable powers.” Id.

In this case, the language in the Tribe’s original possessory action provided that:

WHEREFORE, Plaintiff prays that the defendants be duly served with a copy of the petition and citation, and after all legal delays and due proceedings had, there be judgment in favor of Plaintiffs, THE TUNICA-BILOXI TRIBE OF LOUISIANA and Defendants JOHN W. BLALOCK AND BARBARA BOHRER BLALOCK recognizing Plaintiffs right to the possession of the immovable property described above, and maintaining them in possession thereof, and in the event that the Defendants do not assert an adverse claim of ownership of the immovable property in his answer hereto, that there be Judgment herein ordering the Defendants to assert any adverse claim of ownership of the said immovable in a Petitory Action to be filed within a delay to be fixed by the Court to not exceed sixty (60) days after the date the Judgment becomes executory, or be precluded thereafter from asserting the ownership thereof.

(Emphasis added.) No reference is made to other parties. Neither does the subsequent stipulated judgment reference other parties.

Another case advanced by River View, Wyandotte, 200 F.Supp.2d 1279, also involves the waiver of a plaintiff tribe’s sovereign immunity in a quiet title suit filed against certain defendants. As in Rupp, the defendants seeking to maintain claims against the plaintiff tribe were named parties in the original suit. Furthermore, it reflects that equitable recoupment requires that the claim under review share a common nexus with the underlying claim. Citing Frederick v. United States, 386 F.2d 481 (5th Cir.1967), the federal district court in Wyandotte explained that:

Equitable recoupment is an exception to the doctrine of sovereign immunity which recognizes that by bringing a claim, a state or tribe necessarily waives immunity for matters “arising out of the same transaction or occurrence” which is the subject matter of the suit, to the |9ea'tent the counterclaims do not seek relief “different in kind or nature” or “exceeding the amount” of the relief sought by the state or tribe.

Id. at 1285 (emphasis added). The federal district court relied on Rwpp in finding that the defendants could maintain a counterclaim to quiet title against the plaintiff tribe as “the tribe’s action in filing a quiet title suit necessarily places before the court the issue of whether plaintiff or defendants hold title to the land.” Id. However, it determined that those defendants could not maintain a counterclaim for reimbursement of improvements made to the subject land. Id. It concluded that, although the reimbursement claim arose out of the same transaction or occurrence as the quiet title claim, “it clearly [was] ‘different in kind and nature’ from the quiet title and trespass claims brought by the tribe” and that it “ ‘exceeded] the amount of relief sought by the tribe.” Id. at 1286, quoting Jicarilla, 687 F.2d at 1345.

In addition to River View not being a named defendant, Wyandotte and Jicaril-la’s consideration of the nature and scope of the relief sought is pertinent to this case as well. The Tribe filed its initial possessory action against the Blalocks seeking damages and requesting the filing of any adverse ownership claim by the Blalocks over a larger parcel of property. Notably, River View is absent both from this petition and from the subsequent stipulated judgment in which the Blalocks asserted an ownership interest in the portion of the disputed property now claimed by River View. In addition to asserting its own ownership interest via the petition of intervention, Riverview seeks a judgment establishing a boundary between the larger parcel now in possession by the Tribe and the parcel claimed by the Blalocks and, now, River View. It also seeks a “Judgment ordering the Tunica Biloxi Tribe of Louisiana to surrender possession of the property owned by the Intervenor.”

LqTo find that the Tribe waived its sovereign immunity against River View in light of its prayer for damages and a determination as to ownership interest of the property against the Blalocks would require a determination of implied waiver. However, a waiver of sovereign immunity cannot be implied, but must be express. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Price v. United States, 174 U.S. 373, 19 S.Ct. 765, 43 L.Ed. 1011 (1899). See also Bonnette v. Tunica-Biloxi Indians, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1. In this case, the Tribe has not expressly-waived its sovereign immunity to suit over this subject matter by this third party.

We find no error in the trial court’s maintaining of the exception of subject matter jurisdiction.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, River View Resort & Marina, LLC.

AFFIRMED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

|TI find that the doctrine of equitable recoupment applies in this case. When the tribe filed suit in state court in this matter, unquestionably, the object of its demand was the possession and ownership, vel non, of the disputed property. When that claim was brought in state court by the tribe, it waived immunity on the issues of possession and ownership. The doctrine of equitable recoupment is an exception to the doctrine of sovereign immunity. Thus, by the tribe bringing a claim in state court over disputed property rights, it waived immunity for matters “arising out of the same transaction or occurrence.” The contested issues of possession and ownership are part and parcel of the tribe’s disputed property claim and arise out of the same transaction or occurrence regarding same. As a result thereby, tribal immunity was waived.

I would reverse the trial court and deny the tribe’s exception of lack of subject matter jurisdiction and remand the matter to state court for further proceedings.

      . That portion of the stipulated judgment provides:
      IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants, John Blal-ock and Barbara Bohrer Blalock assert a claim of ownership of a portion of the above described property more fully described as follows:
      A certain tract or parcel land [sic] parcel of land together with all improvements thereon, situated in and forming a portion of Section 2, 3 and 4 Township 2 North, Range 3 East, formally [sic] lying North of the Red River, Avoyelles Parish, Louisiana, said tract containing 45.74 acres, more or less, and being more clearly shown on Plat of survey by Jessie P. Lachney, Registered Surveyor, dated November 8, 1983, a copy of said Plat attached hereto and made a part hereof for identification. The tract herein being n[sic] being [sic] bounded, now or formerly, as follows: Northeast by the centerline of the Old Red River Channel; South by Earl A. Aymond; and on the West by the New Red River Channel^]

      . The Petition of Intervention provides that: Intervenor asserts that prior to the institution of the above captioned matter it acquired the property for which the Blalocks were ordered to assert ownership by an instrument entitled "Act of Exchange” dated September 6, 2005 and recorded September 7, 2005 at Conveyance Book 525, Page 713 under Instrument No. 2005-00006761 which described the following property to-wit:
      A certain tract or parcel of land together with all improvements thereon, situated in and forming a portion of Sections 2, 3, and 4, Township 2 North, Range 3 East, formerly lying North of the Red River, Avoyelles Parish, Louisiana, said tract containing 45.74 acres, more or less, and being more clearly shown on that plat of survey by Jessie P. Lachney, Registered Surveyor, dated November 8, 1983, a copy of which is recorded at COB A-86, page 89, records of Avoyelles Parish, Louisiana. The tract herein being bounded, now or formerly, as follows: Northeast by the centerline of the Old Red River Channel; South by A. Earl Aymond; and on the West by the New Red River Channel.
      Being the same property acquired by John W. Blalock and Barbara Bohrer Blalock from Frank W. Campbell, et ux per Sale with Mortgage recorded in COB A-357, page 86, and in MOB 352, page 240, records of Avoyelles Parish, Louisiana.
      Rights as land owner to that certain 25 foot right of passage (predial servitude) granted to John and Barbara Blalock and their property in # 96-3217 A of the 12th Judicial District Court in the matter entitled "John Blalock vs. Glenda Bourgeois Franklin, et al.” and as described on the plat of Frank Willis attached to the judgment and recorded in the conveyance records of Avoyelles Parish at COB A-472, page 106 (See also judgment in the same suit rendered October 30, 2002, recorded in COB A-524, Page 793).

      . Equitable Recoupment is defined in Black's Law Dictionary 373 (abridged 6th ed. 1991) as:
      Rule of the law which diminishes the right of a party invoking legal process to recover a debt, to the extent that he holds money or property of his debtor, to which he has no moral right, and it is ordinarily a defense remedy going only to mitigation of damages. This doctrine provides that, at least in some cases, a claim for a refund of taxes barred by a statute of limitations may nevertheless be recouped against a tax claim of the government.


author: SULLIVAN, Judge.

text:
    Weldon VITTO, Sr. v. Donald Ray DAVIS, et al.
    Nos. 09-498.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    See also, 996 So.2d 550, and 2 So.3d 1226.

      Kenneth W. DeJean, Attorney at Law, Lafayette, Louisiana, for Plaintiff/Appellant: Weldon Vitto, Sr.
    William H. Parker, III, Allen & Gooch, Lafayette, Louisiana, for Defendant/Appel-lee: National Chiropractic Mutual Insurance Company.
    Richard J. Petre, Jr., Onebane Law Firm, Lafayette, Louisiana, for Defendants/Appellees: Deep South Surplus, Inc., Clarendon America Insurance Company, Donald Ray Davis, Affordable Rent To Own, LLC, Affordable Rent To Own of Lafayette, LLC, Affordable Rent To Own of New Iberia, LLC, Deep South Surplus of Louisiana, LP.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   SULLIVAN, Judge.

hln these consolidated appeals, Weldon Vitto, Sr. (Vitto) seeks review of two trial court judgments granting summary judgment in favor of National Chiropractic Mutual Insurance Company (NCMIC) and dismissing Vitto’s claims against it with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

Vitto was involved in an automobile accident on August 30, 2004. He hired former Lafayette attorney, Mel Credeur, to represent him regarding his claims arising from the accident. Although Credeur never filed a suit on Vitto’s behalf, he confected a settlement with Clarendon America Insurance Company (Clarendon), the insurer of the tortfeasor, Donald Ray Davis, without Vitto’s knowledge and consent. Credeur then negotiated a check and executed a receipt and release per the terms of the settlement.

In December of 2006, Vitto received a copy of a $55,000 check that Clarendon had issued through its servicing agent, Deep South Surplus of Louisiana (Deep South). The check was payable to Cred-eur and himself, in full and final settlement of his claims associated with the August 2004 automobile accident. Credeur forged Vitto’s signature on the check, endorsed it, and deposited it into an account at Home Bank in Lafayette. Vitto received none of the settlement funds.

After learning of the fraud committed against him, Vitto filed two suits in the Fifteenth Judicial District Court in July of 2007. Named as defendants in the first suit were Davis; Affordable Rent to Own, Davis’s employer and the owner of the truck Davis was driving at the time of the accident; Deep South; and Clarendon (these 12f'our defendants are collectively referred to hereinafter as “the Accident Defendants”); and Credeur. Named as defendants in the second suit, which was filed on the same date as the first suit, were Home Bank, Clarendon, Deep South, and Credeur. In response to Vitto’s first suit, the Accident Defendants filed exceptions of prescription, res judicata, and no cause of action. The trial court granted the exception of res judicata. Vitto appealed on the basis that no valid and final judgment had been rendered for the exception of res judicata to apply. He further contended that the settlement could not constitute a transaction or compromise because he had no knowledge of, nor had he consented to, the settlement. We affirmed the trial court’s ruling, noting that:

Without evidence that the Accident Defendants had knowledge of Mr. Cred-eur’s fraud or that it had reason to suspect that Mr. Credeur was not acting with Mr. Vitto’s knowledge and consent when he settled his claims, the settlement cannot be set aside, even though Mr. Vitto did not consent to it.

Vitto v. Davis, 08-401, pp. 3-4 (La.App. 3 Cir. 10/1/08), 996 So.2d 550, 553. Clarendon filed similar exceptions in response to Vitto’s second suit against it. The trial court in the second suit likewise granted Clarendon’s exception of res judicata and dismissed Vitto’s suit as to Clarendon. Vitto appealed that ruling, and for the reasons cited in Vitto, 996 So.2d 550, a second panel of this court affirmed the trial court’s ruling in that matter as well. Vitto v. Home Bank, 08-758 (La.App. 3 Cir. 1/28/09), 2 So.3d 1226.

While the two aforementioned appeals were pending, Vitto filed supplemental and amending petitions in both of his trial court suits on July 9, 2008, naming NCMIC, in its capacity as the professional liability insurer of Credeur, as an additional defendant. NCMIC filed an exception of vagueness in both suits with | .¡regard to the allegations made against Credeur, its insured. Vitto supplemented both petitions to allege that Credeur had caused injury to him through Credeur’s negligence and/or omissions and/or commissions in failing to timely file suit, failing to keep an updated prescription calendar, and in failing to keep a prescription system to prevent the occurrence of such negligent errors.

NCMIC filed motions for summary judgment in both suits asserting that because the policy that it issued to Credeur was a claims-made policy and because Vit-to’s claim was neither made nor reported to it during the applicable policy period, May 1, 2005 to May 1, 2006, the NCMIC policy did not provide coverage for Vitto’s claims. Attached to the motion was an affidavit by Troy Miller, a representative of NCMIC, stating that NCMIC first received notice of the claims against Credeur on July 16, 2008, with formal service of Vitto’s amended petition being received on July 17, 2008. The affidavit further provided that NCMIC had never received notice of the claims made subject of this suit from its insured, Credeur.

In its motion, NCMIC acknowledged that the language of claims-made policies had been jurisprudentially modified following the advent of Hedgepeth v. Guerin, 96-1044 (La.App. 1 Cir. 3/27/97), 691 So.2d 1355, writ denied, 97-1377 (La.9/26/97), 701 So.2d 983. In Hedgepeth, the first circuit held that those portions of a claims-made policy which limited the medical malpractice insurer’s liability to only those claims which occurred and were reported during the policy’s effective dates violated Louisiana law inasmuch as they limited a plaintiffs right of action against the insurer to less than one year from the date of the malpractice. As a result, the Hedge-peth court effectively rewrote the policy to afford coverage “to those acts of malpractice which occurred during the policy period, were filed within one year from accrual of 14the cause of action, and were reported to the insurer within one year of the date from accrual of the cause of action.” Id. at 1364. Nevertheless, NCMIC averred that its policy did not provide coverage to Vitto because his claim had not been reported to it within one year of the date of accrual of Vitto’s cause of action, whether that be one year from the anniversary of the automobile accident, i.e., August 30, 2005, or one year from December 2006, when Vitto admitted to learning of Credeur’s wrongdoing.

Vitto opposed the motion, arguing that because Credeur had constantly reassured him that his suit had been filed and negotiations were ongoing, there was no way for him to have known that fraud had been committed. Following a hearing, the trial court presiding over the first suit granted NCMIC’s motion for summary judgment and dismissed Vitto’s claims against it. The trial court based its ruling on Hood v. Cotter; 08-215 (La.12/2/08), 5 So.3d 819, noting that it could find no way to distinguish that case from the matter before it. When NCMIC’s motion for summary judgment in the second suit came up for hearing a week later, the parties agreed to submit the matter on the pleadings. Based on Hood, the trial court granted NCMIC’s motion and dismissed Vitto’s claims against it.

Vitto appealed both judgments, and his appeals were consolidated by this court. In his sole assignment of error, Vitto asserts that the trial courts erred in granting NCMIC’s motions for summary judgment.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A motion for summary judgment will be granted if the pleadings, depositions, answers |5to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of eveiy action.... ” La.Code Civ.P. art. 966(A)(2).

In Hood, a patient sued his former doctor for medical malpractice in April 2004. The doctor had treated the plaintiff from April 2003 until September 2003. The patient later amended his petition in February 2005 to name the doctor’s malpractice insurer as a defendant. The insurer had issued a professional liability claims-made policy to the doctor with a policy period of January 1, 2003 to January 1, 2004. The policy was not renewed and lapsed on January 1, 2004. The insurer had offered the doctor tail coverage that would have insured him against claims that arose during the policy period but which were made and reported after the policy period; however, the doctor did not purchase the tail coverage.

The insurer moved for summary judgment on the basis that its policy did not provide coverage for the patient’s claim because, although the tortious conduct alleged by the patient had occurred during the policy period, the complaint was not made to the insurer during the policy period. Citing Hedgepeth, the patient opposed the motion arguing that the policy's claims-made provision was void because it:

[Violates La. R.S. 22:629, which provides that “[n]o insurance contract shall contain any condition, stipulation or agreement limiting right of action against the insurer to a period of less than one year from the time when the cause of action accrues in connection with all other insurances unless otherwise specifically provided in this [Insurance] Code.”

Hood, 5 So.3d at 821-22. The trial court denied the insurer’s motion for summary judgment, “indicating] it felt constrained by the first circuit’s decisions in [Hedgepeth] and Bennett v. Krupkin, 99-2702 (La.App. 1 Cir. 12/22/00), 779 So.2d 928, writ denied, 01-0193 (La.3/30/01), 788 So.2d 1190, to find the LAMMICO policy provided coverage for plaintiffs claim.” Id. at 822. The first circuit affirmed the denial, citing Hedgepeth. The supreme court granted certiorari and reversed, concluding that summary judgment should have been granted in favor of the insurer, observing:

In the instant case, the provision in the claims-made policy limiting coverage to those claims made and reported during the policy period does not limit plaintiffs right to bring his suit against LAMMICO. Rather, it provides the scope of coverage bargained for by defendant. ... Here, the claims-made policy denies coverage to defendant for plaintiffs claim, but it does not itself limit plaintiffs right of action. To hold otherwise would effectively convert a claims-made policy into an occurrence policy and change the bargained-for exchange between the insurer and the insured. As this court has previously held, claims-made policies are not per se impermissible or against public policy, and we do not interpret La. R.S. 22:629 as prohibiting the claims-made policy provision that makes coverage dependent upon a claim being first made and reported during the policy period....
Hedgepeth was incorrectly decided to the extent it conflicts with this decision.... La. R.S. 22:629 prohibits any condition, stipulation or agreement in an insurance contract from limiting a right of action against the insurer to a period of less than one year from the time when the cause of action accrues; it is not a prescriptive statute nor does not mandate coverage where none is found.

Hood, 5 So.3d at 829-30.

On appeal, Vitto points out that he filed the supplemental petition naming NCMIC as an additional defendant as soon as he discovered that NCMIC had issued a professional liability policy in favor of Credeur. He contends that “he should not be penalized for something over which he and/or his present counsel had absolutely | jno coTCiroi-Credeur’s timely reporting, vel non, of Vitto’s malpractice claim.” He insists that, at least through December of 2006, “he had been repeatedly and specifically advised by Credeur that Credeur had filed a suit against the proper defendants” and, thus, there was “simply no way that [he] could have discovered, within NCMIC’s policy period, that he even possessed a claim against Credeur, much less a claim against NCMIC as Credeur’s professional liability insurer.”

Vitto attempts to distinguish Hood on the basis that the plaintiff in that case was aware of his cause of action against his former doctor within the policy period, but the doctor failed to inform his insurer of the plaintiffs claim within the policy period, thus defeating coverage under the policy and entitling the insurer to summary judgment. Vitto submits that, in contrast to the Hood plaintiff, he had absolutely no knowledge that he possessed a claim against Credeur or NCMIC until long after the expiration of the NCMIC policy period.

Vitto calls this court’s attention to the transcript of the January 12, 2009 hearing in the first suit wherein the trial court expressed its concern that Hood did not seem fair, especially in light of the facts at hand where the plaintiff was harmed so late in the policy period. He contends that equity and justice should dictate a different result to him, an innocent plaintiff harmed by the unilateral and wrongful acts of his former attorney. Finally, citing Fakouri v. Insurance Co. of North America,, 378 So.2d 1083 (La.App. 3 Cir.1979), Vitto argues that NCMIC failed to demonstrate that it suffered actual prejudice as a result of its having received late notice of Vitto’s claim against its insured.

IrNCMIC contends that arguments similar to those made by Vitto were presented to the Hood court and rejected. It rejects Vitto’s argument that it was required to prove that it was prejudiced by receiving late notice of Vitto’s claim, noting that the Hood court “cemented the proposition that claims-made policies are to be enforced as written, with no antecedent showing or prejudice being part of the reasoning.” NCMIC further contends that there are no controverted facts at issue, thus making this case appropriate for summary judgment as to NCMIC’s liability to Vitto.

We are convinced that Hood controls this matter and that the trial courts did not err in granting summary judgment in favor of NCMIC. As in Hood, the provision in the NCMIC policy limiting coverage to those claims that were both made and reported during the policy period does not serve to limit Vitto’s right to bring suit against NCMIC. “Rather, it provides the scope of coverage bargained for by [the] defendant,” Credeur. Hood, 5 So.3d 829. While, as in Hood, this result may seem inequitable at first glance, “[t]o hold otherwise would effectively convert a claims-made policy into an occurrence policy and change the bargained-for exchange between the insurer and the insured.” Id. at 830. Vitto still has a right of action; that right is just not against Credeur’s insurer, NCMIC, because Vitto’s claim was not made and reported to NCMIC during the applicable policy period. NCMIC is correct in its assertion that the arguments similar to those now made by Vitto based on equity and justice were at play when Hood was decided, and those arguments did not change the outcome of that case. Finally, we reject Vitto’s claim that Fak-ouri dictates that NCMIC was required to demonstrate that it suffered actual prejudice as a result of its having received late notice of Vitto’s claim. The policy at issue in Fakouri was not a claims-made policy, and Vitto’s reliance on Fakouri is misplaced. Moreover, if the 19law required a claims-made insurer who received late notice of a claim to make a showing of actual prejudice, the Hood court would have noted such a requirement.

DECREE

For the foregoing reasons, the two trial court judgments granting summary judgment in favor of National Chiropractic Mutual Insurance Company and dismissing Weldon Vitto, Sr.’s claims against it with prejudice are affirmed. Costs of this appeal are assessed against Weldon Vitto, Sr.

AFFIRMED.

      . Those suits were not consolidated in the trial court.

      . Although the denial of a motion for summary judgment is a non-appealable interlocutory judgment, the appellate court reviewed the denial under its supervisory jurisdiction in conjunction with an appeal taken by the insurer with regard to the granting of a motion for summary judgment in favor of another party because both rulings involved related issues.

      . Vitto also asks this court to apply the equitable doctrine of contra non valentem and reverse the district courts’ granting of NCMIC's motions for summary judgment. Because Vitto failed to present this argument to the trial courts, we will not consider it for the first time on appeal.


text:
    Weldon VITTO, Sr. v. HOME BANK, et al.
    No. 09-542.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 4, 2009.
    Kenneth W. DeJean, Attorney at Law, Lafayette, Louisiana, for Plaintiff/Appellant, Weldon Vitto, Sr.
    William H. Parker, III, Allen & Gooch Post, Lafayette, Louisiana, for Defendant/Appellee, National Chiropractic Mutual Insurance Company.
    Richard J. Petre, Jr., Onebane Law Firm, Lafayette, Louisiana, for Defendants/Appellees, Deep South Surplus, Inc., Clarendon America Insurance Company, Donald Ray Davis, Affordable Rent To Own, LLC, Affordable Rent To Own of Lafayette, LLC, Affordable Rent To Own of New Iberia, LLC, Deep South Surplus of Louisiana, LP.
    Joseph C. Giglio, Jr., Liskow & Lewis, Lafayette, Louisiana, for Defendant/Appel-lee, Home Bank.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   SULLIVAN, Judge.

For the reasons discussed in the companion case in this consolidated matter, Vitto v. Davis, 09-498 (La.App. 3 Cir. 11/4/09), 23 So.3d 1048, the two trial judgments granting summary judgment in favor of National Chiropractic Mutual Insurance Company and dismissing Weldon Vitto, Sr.’s claims against it with prejudice are affirmed. Costs of this appeal are assessed against Weldon Vitto, Sr.

AFFIRMED.