text:
    Tanya MADERE v. Louise Gautreaux COLLINS, M.D. and Ochsner Medical Center-Kenner, LLC
    NO. 2017-CA-0723
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 28, 2018
    John D. Sileo, Casey W. Moll, LAW OFFICE OF JOHN D. SILEO, LLC, 320 N. Carrollton Avenue, Suite 101, New Orleans, LA 70119, COUNSEL FOR PLAINTIFF/APPELLANT, TANYA MADERE
    Louis Simon, II, Charles J. Boudreaux, Jr., Jones Walker, LLP, 600 Jefferson, Suite 1600, P. O. Drawer 52828, Lafayette, LA 70502-3408, COUNSEL FOR DEFENDANT/APPELLEE, LOUISE GAUTREAUX COLLINS, M.D.
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Sr., Pro Tempore)
   Judge Dennis R. Bagneris, Sr., Pro Tempore

Plaintiff/appellant, Tanya Madere ("Madere"), appeals the district court's May 25, 2017 ruling that granted summary judgment in favor of Louise Gautreaux Collins, M.D. ("Dr. Collins") and dismissed Madere's claims with prejudice. For the reasons that follow, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

This medical malpractice case arises from a gynecological surgical procedure. Madere alleges that as a result of Dr. Collins' negligence, she suffered from kidney complications, additional surgeries, and treatment. Madere timely requested review from a medical review panel, which rendered an opinion favorable to Dr. Collins. Madere then filed a petition for damages in the district court.

On March 23, 2016, Dr. Collins filed a motion for summary judgment, seeking dismissal of Madere's lawsuit on the basis that Madere had produced no expert testimony to support her claim that Dr. Collins breached the applicable medical standard of care or that a breach of the standard of care caused Madere's injuries. See Samaha v. Rau , 07-1726, pp. 5-6 (La. 2/26/08), 977 So.2d 880, 884 ; Schultz v. Guoth , 10-0343, p. 12 (La. 1/19/11), 57 So.3d 1002, 1009 (discussing the general principle that expert testimony is required to establish the applicable medical standard of care, breach of the standard of care, and causation, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony). In support of her motion for summary judgment, Dr. Collins introduced as evidence Madere's petition for medical malpractice review and the medical review panel opinion favorable to Dr. Collins.

On May 12, 2016, Madere filed an opposition to summary judgment arguing that she retained an expert, Dr. Lawrence Thomas Kim, and needed time to conduct discovery. The district court continued the summary judgment hearing until August 5, 2016, to allow Madere additional time for expert discovery.

On August 3, 2016, two days before the new hearing date of August 5, 2016, Madere filed a supplemental opposition memorandum attaching the affidavit of another physician, Dr. Alexander F. Burnett. The opposition and affidavit were untimely under La. Code Civ. P. art. 966(B)(2), which requires that an opposition be filed no later than fifteen (15) days before the summary judgment hearing. The affidavit submitted was also that of Dr. Burnett, a physician different from the expert whom Madere previously had identified-Dr. Kim. Dr. Burnett attested in his affidavit to his opinion that Dr. Collins' medical treatment more probably than not fell below the applicable medical standard of care, and further stated that he would supplement his affidavit in the future with an expert report providing an explanation of his opinion.

At the August 5, 2016 summary judgment hearing, the district court admitted into evidence the untimely expert affidavit over Dr. Collins' in-court objection and denied Dr. Collins' motion for summary judgment. Dr. Collins filed a writ application with this Court, which was denied. Madere v. Collins , 16-0896 (La. App. 4 Cir. 10/14/16) (unpub.). Dr. Collins then filed a writ application with the Louisiana Supreme Court. The Supreme Court granted the writ and decreed as follows: "Granted. The district court abused its discretion." Madere v. Collins , 16-2011 (La. 1/9/17), 208 So.3d 370. The majority's ruling did not contain additional instructions, but in a concurring opinion, Justice Crichton wrote:

I agree that the district court abused its discretion and a remand is warranted-ordering the district court to
hear the motion for summary judgment without consideration of the untimely affidavit.
I write separately to spotlight my concern that district courts are improperly applying La. C.C.P. art. 966(B)(2) and ignoring La. D.Ct. R. 9.9(c). See Newsome v. Homer Memorial Medical Center , 10-0564 (La. 4/9/10), 32 So.3d 800 [ ]; see also Guillory v. Chapman , 10-1370 (La. 9/24/10), 44 So.3d 272 ) [ . Before a district court can consider an untimely affidavit, a party must show "good cause under La. C.C.P. art. 966(B) why she should have been given additional time to file an opposing affidavit." See Sims v. Hawkins-Sheppard , 11-0678, p. 4 (La. 7/1/11), 65 So.3d 154, 157 (internal quotations removed).
This case adds to my concern. Despite the district court's grant of a nearly three-month continuance on the hearing on the defendant's motion for summary judgment, the plaintiff waited until two days prior to the hearing to file an opposing affidavit. Doing so was impermissible under La. C.C.P. art. 966(B)(2). Buggage v. Volks Constructors , 2006-0175 (La. 5/5/06), 928 So.2d 536, 536 ("The time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court."). Under these circumstances, the district court abused its discretion.

Madere , 16-2011, pp. 1-2, 208 So.3d 370, 370-71.

On January 18, 2017, Dr. Collins filed a "motion for rehearing and/or new trial" on the motion for summary judgment. Attached to the motion was the Supreme Court's January 9, 2017 ruling. Dr. Collins argued that the district court should consider the evidence before it at the original summary judgment hearing, excluding the affidavit of Dr. Burnett. On March 9, 2017, Madere filed an opposition memorandum, attaching as exhibits Dr. Burnett's affidavit as well as Dr. Burnett's expert report, which was not previously in evidence in opposition to summary judgment. Madere contended that Dr. Collins' motion for rehearing and/or new trial was procedurally improper, and that in order to obtain reconsideration of summary judgment, Dr. Collins was required to re-file her motion for summary judgment with all exhibits. Madere also argued that Dr. Burnett's affidavit and report demonstrated disputed factual issues for trial.

On March 13, 2017, Dr. Collins filed a reply memorandum, urging the district court to construe her "motion for rehearing and/or new trial" as a "motion for summary judgment." On March 15, 2017, Madere filed a sur-reply memorandum, objecting to Dr. Collins' request for her motion to be treated as a renewed motion for summary judgment.

On April 10, 2017, the district court issued an Order continuing the previously scheduled hearing to May 12, 2017 and indicating that the district court would consider Dr. Collins' motion as a "motion for rehearing on the motion for summary judgment, following remand from the Louisiana Supreme Court" rather than a "motion for new trial." Subsequently, on April 19, 2017, Dr. Collins filed a response to Madere's sur-reply memorandum, to which Dr. Collins attached as exhibits the medical review panel opinion and the transcript of the original summary judgment hearing.

After the May 12, 2017 hearing, the district court granted summary judgment in favor of Dr. Collins. This appeal followed.

On appeal, Madere sets forth three assignments of error, as follows:

(1) The District Court erred when it granted Dr. Collins' "Motion for Rehearing on the Motion for Summary Judgment."
(2) The District Court erred when it granted Dr. Collins' "Motion for Rehearing on the Motion for Summary Judgment" when Ms. Madere submitted the expert report of her expert physician, Dr. Burnett, in opposition to the Motion, which was admitted into evidence without objection, creating a genuine issue of material fact.
(3) The District Court erred when it ruled it would consider Dr. Collins' "Motion for Rehearing and/or New Trial" as a "Motion for Rehearing on the Motion for Summary Judgment."

DISCUSSION

Appellate courts review a grant of a motion for summary judgment de novo using the same criteria district courts consider when determining if summary judgment is proper. Kennedy v. Sheriff of E. Baton Rouge , 05-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686.

Summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of a case. La. Code Civ. P. art. 966(A)(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. Code Civ. P. art. 966(A)(3). The burden of proof remains with the mover, but if the mover does not bear the burden of proof at trial on the issue before the court in the motion for summary judgment, the mover is not required to "negate all essential elements of the adverse party's claim, action or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." La. Code Civ. P. art. 966(D)(1). The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.

ASSIGNMENTS OF ERROR NUMBERS 1 AND 3

Madere argues that it was error for the trial court to effectively grant Dr. Collins' motion for rehearing and reconsider Dr. Collins' previously filed motion for summary judgment. She contends that Dr. Collins was required to re-file her entire motion for summary judgment with all exhibits in support, and argues that filing a "Motion for Rehearing and/or New Trial" is procedurally improper.

Plaintiff cites Magallanes v. Norfolk So. RR Co. , 09-0605 (La. App. 4 Cir. 10/14/09), 23 So.3d 985, and Daniels v. SMG Crystal, LLC , 13-0761 (La. App. 4 Cir. 12/4/13), 128 So.3d 1272, but we do not find that Magallanes and Daniels control here. In those cases, the trial court initially denied a motion for summary judgment. The mover did not seek a supervisory writ from this Court or from the Louisiana Supreme Court as to the denial of summary judgment. Instead, mover filed a motion for rehearing and/or new trial in the district court. A hearing on the motion for rehearing and/or new trial was set, at which the district court both granted the rehearing and granted summary judgment. Magallanes , 09-0605, p. 3, 23 So.3d at 987 ; Daniels , 13-0761, p. 11, 128 So.3d at 1277-78.

We agree that a mover generally is not permitted to seek rehearing of a motion for summary judgment but instead is required to re-urge the motion by filing a new motion for summary judgment with all attachments. In the unique circumstances presented by the instant case, however, we disagree with plaintiff that Magallanes and Daniels control. In both of those cases, no reviewing court had determined that the trial court abused its discretion by considering evidence not timely submitted under La. Code Civ. P. art. 966. Magallanes and Daniels are therefore distinguishable from the present facts.

On April 10, 2017, the trial judge in this case re-set the hearing date in an Order clearly notifying the parties that he would consider Dr. Collins' motion "as a Motion for Rehearing on the Motion for Summary Judgment, following remand from the Louisiana Supreme Court, and not on the Motion for New Trial [.]" The parties were put on notice as to the purpose of the hearing and were aware that the motion for summary judgment would be considered in conjunction with the Supreme Court's writ grant. Here, Dr. Collins' "Motion for Rehearing and/or New Trial" is akin to a motion to set the motion for summary judgment hearing due to the Supreme Court writ grant. The trial Court's April 10, 2017 Order indicates as much when it suggests that the hearing is "following remand" and "not on the Motion for New Trial."

We find no merit to Madere's argument that because the Supreme Court's writ grant does not specifically reverse or vacate the district court's ruling denying Dr. Collins' motion for summary judgment, and the ruling does not grant summary judgment or provide any remand instructions, Dr. Collins' only recourse was to file a brand new motion for summary judgment with the necessary attachments.

The Louisiana Supreme Court granted a writ in favor of Dr. Collins because the district court abused its discretion in admitting for consideration an expert report that plaintiff did not timely submit under La. Code Civ. P. art. 966 and District Court Rule 9.9. See Sims v. Hawkins-Sheppard , 11-0678 (La. 7/1/11), 65 So.3d 154 (finding no abuse of discretion where the district court refused to grant plaintiff a continuance to find new counsel and a medical expert, and affirming summary judgment); Guillory v. Chapman , 10-1370 (La. 9/24/10), 44 So.3d 272 (reversing court of appeal and reinstating the district court's judgment, where district court correctly refused to consider a late-filed expert affidavit); Newsome v. Homer Memorial Med. Ctr. , 10-0564 (La. 4/9/10), 32 So.3d 800 (holding that it was error for the district court to continue a hearing solely to allow plaintiff to comply with the eight-day limit for filing an opposition to summary judgment under La. Code Civ. P. art. 966 ).

The fact that the Supreme Court's majority ruling did not include additional language does not mean that the Supreme Court intended Dr. Collins to file a new motion for summary judgment. If that had been the Court's intended result, it simply could have denied the writ. Dr. Collins would be free to re-urge a motion for summary judgment prior to trial under La. Code Civ. P. art. 966.

Moreover, if Dr. Collins were required to file a new summary judgment motion, Ms. Madere would get a second bite at the apple-an opportunity to submit the expert affidavit and report of Dr. Burnett that the Supreme Court has agreed should not have been admitted or considered due to its untimeliness. See Sims , Guillory , and Newsome , discussed supra.

The language in the first paragraph of Justice Crichton's concurrence confirms our analysis. Justice Crichton states: "I agree that the district court abused its discretion and a remand is warranted-ordering the district court to hear the motion for summary judgment without consideration of the untimely affidavit."

(Emphasis added). These initial remarks suggest that remand for consideration of the summary judgment motion, without the admission of untimely expert evidence, is the result that the Supreme Court majority reached as well, even if the majority's statement did not include language to that effect. Justice Crichton's second paragraph further explains why he wrote separately: to highlight the fact that the language in La. Code Civ. P. art. 966 requiring the submission of affidavits and other evidence supporting or opposing summary judgment must be filed timely. Justice Crichton's concurrence, when read in its entirety, does not imply that there was any disagreement between the majority and Justice Crichton's conclusion-that remand was warranted for consideration of the motion without the benefit of evidence not submitted timely under La. Code Civ. P. art. 966. Again, if the Supreme Court had intended Dr. Collins to begin summary judgment proceedings anew, it could have denied the writ.

Finding that Dr. Collins was not required, in these unique circumstances, to file a new motion for summary judgment, we next consider whether the trial court erred in granting the motion for summary judgment at the May 12, 2017 hearing.

ASSIGNMENT OF ERROR NUMBER 2

To succeed in a medical malpractice action, the plaintiff has the burden of proving the standard of care to which the defendant must adhere by showing "[t]he degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... actively practicing in a similar community or locale and under similar circumstances[.]" La. R.S. 9:2794(A)(1). The plaintiff must further establish that "the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill." La. R.S. 9:2794(A)(2). Finally, plaintiff must show that "as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care," she suffered injuries that would not have otherwise been incurred. La. R.S. 9:2794(A)(3). See also Samaha , 07-1726, pp. 5-6, 977 So.2d at 884 ; Williams v. Mem'l Med. Ctr. , 03-1806, pp. 15-16 (La. App. 4 Cir. 3/17/04), 870 So.2d 1044, 1054.

The claims asserted against Dr. Collins in this case involve an initial surgical procedure performed by Dr. Collins and a subsequent procedure performed by Dr. Ryan Krlin. Madere alleges that during the procedure performed by Dr. Collins, Dr. Collins "stitched the plaintiff's ureter closed causing her left kidney to shut down." This required a second surgical procedure, a ureteroneocystostomy, performed by Dr. Krlin to re-implant the ureter into a new site in the bladder, as well as additional medical procedures and renal ultrasounds every three months. Madere alleges that she suffered additional scarring and medical expense due to the need for further extensive medical treatment.

The negligence that plaintiff has alleged emanates from complex surgical and medical actions. The alleged acts of negligence are not so obvious that malpractice could be inferred merely from the facts presented. Pfiffner v. Correa , 94-0992, p. 10 (La. 10/17/94), 643 So.2d 1228, 1234 ; Samaha , 07-1726, pp. 5-6, 977 So.2d at 884 ; Schultz v. Guoth , 10-0343, p. 12, 57 So.3d at 1009. These allegations require expert evidence of the applicable standard of care and expert testimony regarding negligence and causation. "[T]his requirement of producing expert medical testimony is especially apt when the defendants have filed summary judgment motions and supported such motions with expert opinion evidence that their treatment met the applicable standard of care."

Williams , 03-1806, pp. 16-17, 870 So.2d at 1054. Unlike a claim where a physician leaves a sponge in a patient's body or amputates the wrong limb, a layperson cannot infer negligence from these complex facts without the assistance of expert testimony. Pfiffner , 94-0992, p. 10, 643 So.2d at 1234.

Dr. Collins' motion for summary judgment included the Medical Review Panel Opinion finding that the evidence presented to the Panel did not support a conclusion that Dr. Collins had failed to meet the applicable standard of care. More specifically, the medical review's unanimous report determined:

1) The patient was consented properly and had a known potential complication that was listed in the consent form.
2) As soon as the complication was recognized the patient received appropriate care and consultations.
3) Following the complication, the patient had good repair with good renal function.

Medical Review Panel opinions are admissible evidence under La. R.S. 40:1231.8 (H) ; Samaha , 07-1726, p. 15, 977 So.2d at 890 ; McGlothlin v. Christus St. Patrick Hosp. , 10-2775, p. 9 (La. 7/1/11), 65 So.3d 1218, 1226-27. "Nevertheless, as with any expert testimony or evidence, the medical review panel opinion is subject to review and contestation by an opposing viewpoint." McGlothlin , 10-2775, p. 9, 65 So.3d at 1227 (citing Samaha , 07-1726, p. 15 (La. 2/26/08), 977 So.2d 880, 890 ).

Madere contends it was error for the district court to refuse to consider the expert report of Dr. Burnett, which Madere claims "was admitted into evidence without objection, creating a genuine issue of material fact." This contention ignores the salient basis for the Louisiana Supreme Court's writ grant in this case and attempts to do what the Supreme Court has said cannot be done. It also ignores the substance of the district court's April 10, 2017 Order, indicating that the court would consider Dr. Collins' motion as a "motion for rehearing on the motion for summary judgment, following remand from the Louisiana Supreme Court"-an Order from which Madere did not seek supervisory review.

Despite being granted a three-month continuance after Dr. Collins had submitted her motion for summary judgment in March 2016, plaintiff did not timely submit expert testimony sufficient to refute the opinion of the medical review panel or to prove that she could meet her burden of proof at trial. Madere submitted an affidavit from Dr. Burnett-promising a subsequent report-only two days before the second scheduled summary judgment hearing in August 2016. Dr. Burnett's report, which Madere offered for the first time in opposition to Dr. Collins' motion for rehearing filed after the Supreme Court's writ grant, was likewise submitted too late.

The trial court did not err in addressing Dr. Collins' prior motion for summary judgment and refusing to consider Dr. Burnett's expert report offered for the first time in March 2017. The trial court notified the parties more than a month before the May 12, 2017 hearing that it would treat Dr. Collins' motion for rehearing as a re-urged motion for summary judgment in conjunction with the Supreme Court writ grant. Madere was not entitled to offer additional evidence from Dr. Burnett, and Dr. Collins was not required to file a new motion for summary judgment in light of the Supreme Court writ grant.

After conducting a de novo review and considering the summary judgment evidence properly before the Court, we agree with the trial court that plaintiff cannot meet her burden of proof at trial. We therefore affirm the trial court's ruling granting summary judgment in favor of Dr. Collins and dismissing Tanya Madere's claims against Dr. Collins with prejudice.

AFFIRMED

LOBRANO J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectfully dissent. I would reverse the district court's May 25, 2017 judgment, which granted summary judgment in favor of Dr. Collins and dismissed Madere's claims with prejudice, and I would remand this matter for further proceedings. I disagree with the majority's conclusion that, under the particular circumstances of this case, Dr. Collins was alleviated from the procedural requirement to file a re-urged motion for summary judgment with all supporting exhibits.

On August 16, 2016, the district court allowed introduction of Dr. Burnett's expert affidavit and denied summary judgment. Following this Court's denial of supervisory writ, Dr. Collins sought, and the Louisiana Supreme Court granted, Dr. Collins' writ application. In its January 9, 2017 writ grant, the Supreme Court ruled as follows: "Granted. The district court abused its discretion." Madere v. Collins , 2016-2011 (La. 1/9/17), 208 So.3d 370. Neither remand instructions, relief granted language, nor further reasons were provided by the Supreme Court.

The majority opinion of this Court points to and seemingly adopts language in a concurring opinion by Justice Scott J. Crichton, stating that "a remand is warranted-ordering the district court to hear the motion for summary judgment without consideration of the untimely affidavit." The Supreme Court majority's ruling, however, contained no directive to the district court. There is no language setting aside or otherwise disturbing the district court's denial of summary judgment. Thus, I find that, at the time Dr. Collins filed her "motion for rehearing and/or new trial," the district court's ruling denying summary judgment remained intact.

This Court has held that a district court "erred as a matter of law when it reconsidered its previous denial of summary judgment through the procedural vehicle of a motion for new trial and then rendered a final summary judgment dismissing [the] suit with prejudice." Magallanes v. Norfolk S. Ry. Co. , 2009-0605, p. 5 (La. App. 4 Cir. 10/14/09), 23 So.3d 985, 988-89. Instead, the "proper procedure for obtaining a reconsideration of the motion for summary judgment which has been denied is to re-urge the motion itself by re-filing it prior to trial." Id. , 2009-0605 at p. 4, 23 So.3d at 988 (citations omitted).

I recognize the distinction noted by the majority between the procedural posture of this case when compared to Magallanes and its progeny. In the Magallanes line of cases, the district court reconsidered its own rulings in the absence of properly filed and supported motions for summary judgment, with no intervening supervisory or appellate review. In the case presently on appeal, the district court sought to comply with what it perceived to be a decree from the Supreme Court. I find, however, that while the Supreme Court pointed out the district court's error and found an abuse of discretion in considering an untimely affidavit, the Supreme Court did not disturb the denial of summary judgment in its ruling. Thus, where summary judgment has been denied, I find the Magallanes line of cases instructive as to the proper procedure to re-urge a motion for summary judgment.

La. C.C.P. art. 966(D)(2) provides that "[t]he court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made." Comment (k) of the 2015 comments to La. C.C.P. art. 966 explains that "[s]ubparagraph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion. This rule differs from Federal Rules of Civil Procedure, Rule 56(c)(3), which allows the court to consider other materials in the record." See also Washington v. Gallo Mech. Contractors, LLC , 2016-1251, p. 6 (La. App. 4 Cir. 5/17/17), 221 So.3d 116, 121 ("unlike its federal counterpart, Article 966 D(2) does not allow the trial court to consider the record as a whole in deciding a motion for summary judgment").

Thus, La. C.C.P. art. 966(D)(2) only permits the district court to consider those documents filed in support of or in opposition to the particular summary judgment motion before the district court. This article does not authorize the district court to consider other materials found elsewhere in the record in support of a motion for summary judgment.

Here, after the Supreme Court rendered its ruling, the district court reconsidered Dr. Collins' original motion for summary judgment, with the evidence originally introduced in support of that motion, while excluding the untimely affidavit of Dr. Burnett. Dr. Collins, however, did not re-file her original motion for summary judgment with the evidence she originally introduced in support of her motion. It is evident from the record that, in revisiting Dr. Collins' original motion for summary judgment, the district court failed to consider and rule on the particular motion and evidence before it-Dr. Collins' motion for rehearing and/or new trial. Under these circumstances, I find the district court erred as a matter of law in granting summary judgment and dismissing Madere's claims against Dr. Collins with prejudice.

I also find that the issue as to whether Dr. Burnett's affidavit can be admitted into evidence to oppose a motion for summary judgment filed by Dr. Collins is now moot because of the unique procedural posture of this case and Dr. Collins' procedural decisions. The abuse of discretion stemming from the district court's August 16, 2016 evidentiary ruling cannot be cured at this time due to the manner in which Dr. Collins decided to procedurally pursue her case after the district court's August 16, 2016 evidentiary ruling admitting an untimely affidavit and after the Supreme Court's January 9, 2017 writ grant. The Supreme Court's January 9, 2017 ruling, either interpreted pursuant to the majority opinion in this case as a writ granted/relief granted or pursuant to my dissent as a writ granted/relief denied, cannot give any practical relief at this stage of the case.

I would therefore reverse the district court's judgment granting summary judgment in favor of Dr. Collins, and remand the case for further proceedings.

      The only other defendant in this litigation was Ochsner Medical Center-Kenner, L.L.C., the hospital where the surgery performed by Dr. Collins took place. Ochsner Medical Center-Kenner, L.L.C. was dismissed without prejudice from the lawsuit before this appeal.

      The Supreme Court's published ruling says only "Writ granted." But the slip sheet attached to Dr. Collins' Motion reads: "Granted. The district court abused its discretion."

      The record on appeal does not contain a Scheduling Order to indicate that the time for submitting another motion for summary judgment had passed under La. Code Civ. P. art. 966 (B)(1), which requires summary judgment motions to be filed and served on all parties no fewer than sixty-five days prior to trial.

      See, e.g., Daniels v. SMG Crystal, LLC , 2013-0761 (La. App. 4 Cir. 12/4/13), 128 So.3d 1272 ; Condon v. Logan , 2015-0797 (La. App. 4 Cir. 3/30/16), 190 So.3d 778.

      See Cat's Meow, Inc. v. City of New Orleans Through Department of Finance , 98-0601, p. 8 (La. 10/20/98), 720 So.2d 1186, 1193 ("An issue is moot when a judgment or decree on that issue has been deprived of practical significance or made abstract or purely academic.")


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Jamie LYONS
    NO. 2018-K-0280
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 29, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 White Street, New Orleans, LA 70119, COUNSEL FOR RESPONDENT-STATE OF LOUISIANA
    John Walker Rick, Orleans Public Defenders, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR RELATOR-DEFENDANT
    (Court composed of Judge Regina Bartholomew-Woods, Judge Tiffany G. Chase, Judge Dennis R. Bagneris, Pro Tempore)
    Judge Regina Bartholomew-Woods Defendant-Relator, Jamie Lyons, seeks review of the district court's March 9, 2018 judgment granting the State permission to introduce evidence of Relator's other crimes, wrongs, or acts pursuant to La.C.E. art. 404(B) and State v. Prieur , 277 So.2d 126 (La. 1973), abrogated by State v. Taylor , 2016-1124 (La. 12/1/16), 217 So.3d 283. For the reasons that follow, we grant Relator's writ, but deny relief.
    On May 16, 2016, the State charged Relator with two counts of aggravated assault with a firearm, in violation of La.R.S. 37.4, and felon in possession of a firearm, in violation of La.R.S. 95.1, for conduct occurring on March 29, 2016. On September 29, 2016, the State charged Relator with felon in possession of a firearm, in violation of La.R.S. 95.1, and illegal discharge of a firearm, in violation of La.R.S. 14:94, for conduct occurring on August 10, 2016. The charges are to be tried separately.
    According to the State, on March 29, 2016, two females, T.D. and N.M., were engaged in a verbal altercation with the mother of Relator's children, N.J. Relator arrived at the scene and fired two shots at T.D. and N.M. N.M. stated that she and Relator had previously been in a relationship. A gunshot residue ("GSR") test on Relator returned presumptively positive, and nearby residents confirmed hearing gunshots around the time of the incident. On August 10, 2016, relator fired multiple shots at the mother of his child, R.F., as she drove away from him with the child and another minor. Both minors confirmed the incident, and another GSR test on Relator came back presumptively positive.
    The State subsequently filed notices pursuant to La.C.E. 404(B) regarding evidence of other crimes, wrongs, or acts ("404(B) evidence") it intended to introduce at Relator's trials on the charged offenses occurring on the dates above. While 404(B) evidence is generally inadmissible, exceptions do exist when the evidence is relevant to other, admissible purposes, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident[.]" La.C.E. art. 404(B)(1).
    Specifically, the State sought to introduce evidence of allegations from three prior instances. The first was a September 3, 2000 incident involving Relator's "known" but unidentified ex-girlfriend. The facts alleged that Relator grabbed her by the neck, forced her into a vehicle, and demanded she provide her current boyfriend's address. Upon locating the boyfriend, Relator allegedly shot at him three times with a shotgun. The second allegation concerned an October 15, 2009 incident in which Relator appeared at the home of his ex-girlfriend, N.J., who refused to answer her front door. Believing Relator to have left, she opened her door and was allegedly punched by Relator with a closed fist in the side of her head. The third incident concerned a May 22, 2013 incident in which the mother of Relator's children, R.F., alleged he grabbed her by the hair and punched her in the face. The two struggled over a screwdriver in Relator's hand, and Relator bit R.F. Additionally, the State sought to introduce evidence of the charged offenses occurring on March 29, 2016, at the trial on the offenses occurring on August 10, 2016, and vice versa.
    A hearing was held on March 9, 2018, with the State submitting its argument on the papers filed. Therein, the State argued the evidence would be relevant to "motive, intent, and absence of mistake or accident." The State suggested "all [the acts] show a pattern of domestic arguments that regularly culminate with [Relator] firing shots indiscriminately on the streets of New Orleans that has continued for almost twenty years. This demonstrates the Defendant's intent and absence of mistake or accident in other incidents." Though the State did not expand on its argument as it relates to Relator's motive, it did reference the common thread that all of the prior and charged acts involved women with whom Relator had an intimate relationship. Before the district court and this Court, Relator claimed his intent to defend himself against the charged offenses by arguing that the incidents did not occur, such that the intent exception would not apply. Relator further noted that none of the alleged prior bad acts resulted in a conviction, a point which the State did not dispute, though we note that "admissible evidence is not limited to only those instances where a conviction has resulted." State v. Williams , 2011-0414, p. 25 (La.App. 4 Cir. 2/29/12), 85 So.3d 759, 774.
    The district court ultimately granted the State permission to introduce all of the proffered 404(B) evidence at each trial. The court found the allegations relevant to the issues of motive and absence of mistake or accident, relying upon the Louisiana Supreme Court's ruling in State v. Rose , 2006-0402 (La. 2/22/07), 949 So.2d 1236, and the Second Circuit Court of Appeal's ruling in State v. Howard , 47,495 (La.App. 2 Cir. 11/14/12), 106 So.3d 1038.
    ANALYSIS
    We review the district court's ruling for abuse of discretion. See State v. Garcia , 2009-1578, p. 55 (La. 11/16/12), 108 So.3d 1, 39. As noted, the district court relied upon Rose , 2006-0402 at 16-17, 949 So.2d at 1245-46, which stated:

      Taylor held that the State need only make "a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act." State v. Taylor , 2016-1124 (La. 12/1/16), 217 So.3d 283, 291.

   [D]espite some clear dissimilarities in the details of the homicide and violence inflicted upon [the victim] and the homicide and violence involving the defendant's prior wife, the crimes "clearly express the vicious, deviant attitude that [defendant] holds toward women with whom he has a romantic relationship. This attitude is so similarly reflected in each of the crimes that [defendant] has committed that crimes are inextricably connected in the pattern ... they exhibit." [State v.] Rose, 05-0396 at p. 4 [ (La.App. 4 Cir. 1/18/06), 925 So.2d [34] at 49 (Cannizarro, J., dissenting).

The district court also observed the Second Circuit's reliance on Rose in Howard, 47,495 at 9-10, 106 So.3d at 1044, which allowed 404(B) evidence because it showed defendant's "deviant attitude toward women he was dating" and "[i]t also negated any claim that [defendant] intended only to frighten, not injure, [the victim]."

As an initial matter, we note that an individual's "deviant attitude" toward any particular group of people is not, in itself, an exception to the general rule disallowing 404(B) evidence. In Rose , the Supreme Court highlighted the defendant's "deviant attitude" in the context of an inextricable connection between all the acts in question, thereby rendering it relevant to the identity exception to La.C.E. 404(B) :

[T]he crimes revealed sufficient similarities arising from a fixed and aberrant pattern of behavior that tended to identify defendant as the perpetrator in the death of his second wife[, Ms. Rose]. The other crimes evidence was extremely probative, especially considering the circumstantial nature of the case against defendant. The prior crimes evidence tended to corroborate the remaining evidence introduced at trial. For example, the jurors heard from Mr. James that Ms. Rose and defendant were arguing on the morning of her death over a traffic ticket. They also heard from Mr. Wilson that he and defendant had engaged in a heated telephone conversation on the morning of her death in which defendant accused Mr. Wilson of having an affair with
Ms. Rose. The other crimes evidence showed defendant had previously grabbed and struck Ms. Rose during another argument when defendant accused her of not looking at him when he spoke to her. The other crimes evidence also showed defendant acted violently toward another woman with whom he had a close personal relationship [his previous wife], and eventually killed her during an argument. Thus, rational jurors could have found the similarities sufficiently probative to identify defendant as Ms. Rose's murderer because a specific pattern of violent and obsessive behavior earmarked the crimes as the work of one man and thereby "sustain[ed] the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict." Old Chief [v. United States ], 519 U.S. [172,] 187, 117 S.Ct. [644,] 653, 136 L.Ed.2d 574 [ (1997) ].

Rose , 2006-0402 at 16-17, 949 So.2d at 1246.

The unique factual circumstances of Rose are not entirely comparable to the facts alleged here. Rose drew on the similarities between acts of violence against defendant's two wives, both of whom he killed. The Supreme Court highlighted the facts that both women were married to defendant when he killed them, and that both women experienced "stormy" marriages that involved times of separation. Defendant was physically violent with both women. The Court described both murders as "brutal" and as having taken place in defendant's home. After each homicide, defendant contacted his mother and fled the state. Lastly, defendant turned himself in on each incident. Id. , 2006-0402 at 16, 949 So.2d at 1245. Unlike Rose , the State's proffered 404(B) evidence involves conduct targeted at multiple different women over a span of eighteen years.

The Rose Court highlighted these facts as they related to identity. That is, evidence of defendant's acts against another woman was more probative than prejudicial and admissible because the similarities between the two homicides shed light on a material issue genuinely in dispute-defendant's identity as the perpetrator. However, the identity exception is one the State has not placed at issue here.

However, Rose did address motive as well, noting that "[f]or evidence of motive to be independently relevant, it must be factually peculiar to the victim and the charged crime." Id. , 2006-0402 at 15, 949 So.2d at 1244. The court went on to hold:

[W]e find the evidence that defendant physically abused Ms. Rose is independently relevant to show the volatile nature of the relationship between defendant and Ms. Rose. This evidence tends to show defendant's motive for commission of Ms. Rose's murder. The State was attempting to prove that defendant was the perpetrator of Ms. Rose's violent death. The State's case was largely dependent on circumstantial evidence, so any evidence tending to prove that defendant had a motive or reason for committing the murder was extremely probative. See [State v. ] Lafleur, 398 So.2d [1074,] 1081. Defendant's documented physical abuse of Ms. Rose illustrates a motive factually peculiar to her murder.

Rose , 2006-0402 at 15, 949 So.2d at 1245. Each of the cases cited by Rose in this regard involved prior bad acts against the same victim as that for the offense for which defendants were ultimately charged, not other individuals. See State v. Lafleur , 398 So.2d 1074, 1080 (La. 1981) (stating the State "served defendant with notice of its intention to introduce evidence of prior acts of violence by defendant as well as certain statements and threats made toward the deceased child."); State v. Walker , 394 So.2d 1181, 1184-85 (La. 1981) (stating "[t]he testimony of Ms. Normand, the victim of the alleged beatings administered by defendant, constitutes clear and convincing evidence that defendant committed the criminal acts. The evidence is substantially relevant for the purpose of showing defendant's motive for committing the crime charged, that is, because of the troubled marriage of the parties and its subsequent dissolution, defendant harbored ill will towards Ms. Normand which, upon defendant seeing his ex-wife celebrating her engagement to another man, led to his commission of the crime charged. Also, the evidence tends to prove a material fact at issue, the nature of the prior relationship between the parties in regard to defendant's motive for committing the crime."); State v. Welch , 615 So.2d 300, 303 (La. 1993) (stating "[i]n this case, the state could not place the circumstances of the offense in their proper context without reference to the nature of the relationship existing between the victim and the defendant. Without that evidence, which included prior acts of violence or threatened violence by both parties ... the jury would have lacked the context in which to evaluate the victim's testimony about what otherwise appeared to be a gratuitous attack by the defendant. To that extent, the threat against the victim's fiancé, Sims, was also relevant, not because it said anything about the defendant's intent to harm the victim directly, but because it showed how he clung to the relationship, even after it was long over, and how far he was willing to go to enforce that preoccupation on the victim by isolating her from the companionship of other men.") Thus, prior acts may indeed be relevant to the issue of motive when the victim in the prior act is the same as that in the charged offense. However, to take one example, Relator's conduct toward N.J. on October 15, 2009, is in no way relevant to his motive in committing the charged offense on August 10, 2016, against R.F. Indeed, only the incidents involving R.F. as a victim occurring on May 22, 2013, and August 10, 2016, would satisfy the requirements of this exception.

While we find the district court erred in finding all of the acts relevant to the issues of motive and intent, we deny relief. Louisiana Code of Evidence art. 404(B) requires that the State "provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes[.]" Another recognized exception to the general rule prohibiting 404(B) evidence is pattern. The State did submit the pattern exception, in that "Defendant has committed multiple incidents in the past of being directly involved or happening upon a scene during incidents [of] both verbal and physical arguments with women who he is either in a sexual relationship in or has been in a sexual relationship with." The Louisiana Supreme Court recognized the admissibility of such pattern evidence in State v. Altenberger , 2013-2518, p. 10 (La. 4/11/14), 139 So.3d 510, 516, in which the Court approved the use of acts against other women because "the State's intent to introduce these prior offenses to established [sic] defendant's pattern of domestic abuse goes directly to rebut defenses defendant may raise at trial and demonstrates their independent relevancy besides merely painting defendant as a bad person."

Lastly, we address the State's contention that Relator may not dictate its proof at trial by "stipulating" to intent. However, Relator has not stipulated to intent; Relator has argued that intent will not be an issue at trial because he plans to deny the conduct occurred. The State's notices pursuant to La.C.E. art. 404(B) both specifically describe Relator's actions of taking a gun and shooting "at" the victims. Our jurisprudence provides:

To establish the general criminal intent for an aggravated assault, jurisprudence holds that the act of pointing a weapon at another person and threatening bodily harm is sufficient to establish the element of intent. See State v. Hill , 47,568, p. 11 (La. App. 2 Cir. 9/26/12), 106 So.3d 617, 624 (finding that aiming a pistol at a victim from point blank range and verbal threatening harm satisfies the level of proof required to sustain a conviction for aggravated assault); State v. Connors , 432 So.2d 308 (La. App. 5th Cir. 1983) (finding that an aggravated assault occurred when defendant intentionally raised the gun as if to aim at victim and thereby placed the victim in reasonable apprehension of receiving a battery).

State v. Brown , 2017-0124, pp. 6-7 (La. App. 4 Cir. 12/12/17), 234 So.3d 978, 982-83. Illegal use of a weapon is also a general intent crime. State v. Etienne , 94-910, p. 5 (La.App. 3 Cir. 2/1/95), 649 So.2d 1230, 1233. Here, the alleged conduct of Relator of taking a gun and shooting it at the victims is sufficient to meet its burden in this regard. Prieur stated that before the State may introduce such evidence, it must show "that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting the defendant's bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered." Prieur , 277 So.2d at 130. While the State indeed bears the burden of proof, such obligation does not permit otherwise inadmissible evidence from being presented to the jury if it is simply cumulative.

We find that the State placed Relator on sufficient notice regarding its intent to use the prior bad acts to show Relator's pattern of abusive behavior towards women with whom he has had an intimate relationship.

Accordingly, Relator's writ is granted, but relief is denied. The acts in question are relevant and admissible to the issues of motive, as detailed above, and pattern. The Court's limiting instructions should be specific as to the legitimate purposes for which the jury may consider this evidence.

      Should intent indeed become an issue at trial, the court's instructions may include language indicating the jury may consider the acts for that purpose as well.


author: McCLENDON, J.

text:
    BEAR INDUSTRIES, INC. v. The HANOVER INSURANCE COMPANY & Amtek of Louisiana, Inc.
    2017 CA 0301
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 04, 2018
    Craig L. Kaster, Teresa D. Cop, Allyson S. Jarreau, Zachary, Louisiana, Counsel for Plaintiff/Appellee, Bear Industries, Inc.
    Donnie L. Floyd, Prairieville, Louisiana, Counsel for Defendant/Appellee, Amtek, Inc.
    Michael R. C. Riess, Christy R. Bergeron, New Orleans, Louisiana, Counsel for Defendant/Appellant, Hudson Construction Company and The Hanover Insurance Company
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   McCLENDON, J.

In this matter, a contractor and its surety appeal a trial court judgment in favor of a supplier of materials used on a construction project. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Bear Industries, Inc. (Bear) supplied limestone and sand materials to Amtek of Louisiana, Inc. (Amtek), a subcontractor on the New Roads Wal-Mart Supercenter project. The contractor was Hudson Construction Company of Tennessee (Hudson). Hanover Insurance Company (Hanover), as surety for Hudson, furnished the payment bond for the project. Bear, Hudson, and Amtek executed a Joint Check Agreement, and all payments to Bear on the project were by joint check from Hudson.

Bear sold the materials to Amtek from May 21, 2012, to July 12, 2013. It is undisputed that the materials were delivered. However, at some point, a dispute arose between Amtek and Hudson, and Hudson stopped making payments. Bear filed a Statement of Claim and Privilege on September 16, 2013, alleging it was owed a total of $259,148.00 for the materials furnished and installed on the project. Payment was still not made, and on March 6, 2014, Bear filed suit against Amtek and Hanover under the Private Works Act. In response, Amtek filed a cross-claim against Hanover and Hudson, claiming an unpaid amount of $701,296.52. Hudson filed a peremptory exception raising the objection of prematurity, claiming that under its subcontract with Amtek all disputes had to be arbitrated. On July 9, 2014, the trial court granted the exception as to Hudson and ordered that Hudson and Amtek arbitrate their disputes.

The arbitration was conducted in April of 2016, and a Ruling was rendered on June 1, 2016. Thereafter, Hudson and Hanover filed a Motion to Confirm the Arbitration Award, and Amtek filed a motion to confirm as well. Following a hearing on August 8, 2016, the trial court rendered judgment, and on August 24, 2016, the trial court signed its judgment, confirming the arbitration award.

Thereafter, on August 29, 2016, the trial court held a bench trial on Bear's claims. On October 20, 2016, the trial court read its reasons for judgment into the record, and on October 31, 2016, the trial court signed a judgment in favor of Bear and against Hanover and Amtek in the full sum of $259,914.80. The trial court also found Hanover obligated to Bear in the amount of $25,914.80 for attorney fees and found Amtek obligated to Bear in the amount of $40,000.00 for attorney fees. Lastly, the trial court found Amtek obligated to Hudson in the amount of $40,000.00 for attorney fees expended in defense of Bear's claim. Hudson and Hanover then filed a suspensive appeal, asserting several assignments of error, essentially arguing that Bear's lien did not comply with the Private Works Act and therefore was invalid. Hudson and Hanover additionally assert that the trial court erred in limiting Hudson's recovery for attorney fees from Amtek to $40,000.00.

DISCUSSION

The Louisiana Private Works Act, LSA-R.S. 9:4801, et seq. , was enacted to facilitate the construction of improvements on immovable property; it serves this purpose by granting certain rights to enumerated persons to facilitate recovery of the costs of their work from an owner with whom they lack privity of contract. Wholesale Electric Supply Company v. Honeywell International, Inc. , 16-1180 (La.App. 1 Cir. 5/11/17), 221 So.3d 98, 101. The Private Works Act is in derogation of general contract law; therefore, it must be strictly construed. In interpreting the Private Works Act, care must be taken not to overlook the legislative intent and fundamental aim of this act, which is to protect materialmen, laborers, and subcontractors who engage in construction and repair projects. Bernard Lumber Co., Inc. v. Lake Forest Const. Co., Inc. , 572 So.2d 178, 181 (La.App. 1 Cir. 1990).

Louisiana Revised Statutes 9:4802 clearly defines those persons granted a claim or privilege pursuant to the Act and provides, in pertinent part:

A. The following persons have a claim against the owner and a claim against the contractor to secure payment of the following obligations arising out of the performance of work under the contract:
* * *
(3) Sellers, for the price of movables sold to the contractor or a subcontractor that become component parts of the immovable, or are consumed at the site of the immovable, or are consumed in machinery or equipment used at the site of the immovable.
* * *
B. The claims against the owner shall be secured by a privilege on the immovable on which the work is performed.
C. The owner is relieved of the claims against him and the privileges securing them when the claims arise from the performance of a contract by a general contractor for whom a bond is given and maintained as required by R.S. 9:4812 and when notice of the contract with the bond attached is properly and timely filed as required by R.S. 9:4811.

In their first assignment of error, Hudson and Hanover assert that the trial court erred in interpreting LSA-R.S. 9:4811. Specifically, they assert that the Notice of Commencement filed by Wal-Mart in the public records of Pointe Coupee Parish on May 31, 2012, did not contain the statutory requirements of a notice of contract under LSA-R.S. 9:4811. Therefore, according to Hudson and Hanover, the trial court erred in finding that the Notice of Commencement qualified as a notice of contract so that Bear's lien was untimely filed and Bear lost its privilege. To the contrary, Bear asserts that the trial court correctly interpreted LSA-R.S. 9:4811 and found that a timely notice of contract was properly filed.

Louisiana Revised Statutes 9:4811 provides, in relevant part:

A. Written notice of a contract between a general contractor and an owner shall be filed as provided in R.S. 9:4831 before the contractor begins work, as defined by R.S. 9:4820, on the immovable. The notice:
(1) Shall be signed by the owner and contractor.
(2) Shall contain the legal property description of the immovable upon which the work is to be performed and the name of the project.
(3) Shall identify the parties and give their mailing addresses.
(4) Shall state the price of the work or, if no price is fixed, describe the method by which the price is to be calculated and give an estimate of it.
(5) Shall state when payment of the price is to be made.
(6) Shall describe in general terms the work to be done.
B. A notice of contract is not improperly filed because of an error in or omission from the notice in the absence of a showing of actual prejudice by a claimant or other person acquiring rights in the immovable. An error or omission of the identity of the parties or their mailing addresses or the
improper identification of the immovable shall be prima facie proof of actual prejudice.

The Comments to LSA-R.S. 9:4811 provide that "[t]he owner is made personally liable, and the contractor may lose his privilege if the notice is not properly filed. A form of notice that substantially complies with the act will avoid imposition of these penalties unless actual prejudice to a claimant can be demonstrated." See LSA-R.S. 9:4811, Comment (c).

The trial court, in its reasons for judgment, discussed the requirements for the notice of contract. The court then stated, with regard to the notice of contract in this matter:

It does contain the signature of the owner, a legal description of the property, the names of the parties and their mailing address[es], and the general terms of the work to be done. It does not contain the signature of the contractor, the price, or when the payments were to be made, but it does have the bonds attached.

The trial court then noted that although the error or omission of certain items referred to in LSA-R.S. 9:4811B would make a prima facie case of actual prejudice, the trial court found that those items were not omitted here. Therefore, the court determined the issue to be whether the items that were omitted in the notice resulted in actual prejudice to a claimant or other person acquiring rights in the immovable. The trial court stated that Bear was the claimant and claimed no prejudice. Additionally, the court stated that Hudson was not a claimant or person acquiring rights in the immovable and, even if it was, there was no showing of actual prejudice to Hudson or Hanover. Accordingly, the trial court determined that the Notice of Commencement amounted to the notice of contract required under LSA-R.S. 9:4811 and LSA-R.S. 9:4802C.

The determination of whether a notice of contract was filed that met the requirements of LSA-R.S. 9:4811 is a question of fact, the resolution of which is subject to the manifest error standard of review. See Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882 (La. 1993) ; Rosell v. ESCO , 549 So.2d 840, 844 (La. 1989). In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Thus, if the factfinder's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Pitre v. Buddy's Seafood , 11-0175 (La.App. 1 Cir. 8/16/12), 102 So.3d 815, 820, writ denied, 12-2058 (La. 11/16/12), 102 So.3d 41.

Upon our thorough and careful review of the record, we find no manifest error in the trial court's factual finding that a valid notice of contract was filed for the Wal-Mart project. As noted by the trial court, the Notice of Commencement set forth the parties and their addresses, the legal property description, and a general description of the improvements. Additionally, the performance and payment bonds attached to the Notice of Commencement stated the price of the project. Bear did not claim any prejudice, and there is no prima facie proof of actual prejudice. Therefore, finding substantial compliance with the form of the notice and no "actual prejudice by a claimant or other person acquiring rights in the immovable", we cannot say that the trial court lacked a reasonable basis for its decision that a notice of contract was properly and timely filed. Accordingly, Hudson and Hanover's first assignment of error is without merit.

In their second assignment of error, Hudson and Hanover assert that the trial court erred in determining the time frame for the filing of the Bear lien. The Private Works Act provides for the respective time periods for the filing of statements of claims and privileges. A 30-day time period after the filing of a notice of termination of the work is provided for in LSA-R.S. 9:4822A when a notice of contract has been filed, and, when no notice of a contract is filed, LSA-R.S. 9:4822C provides for a 60-day time period after the filing of a notice of termination of the work or the substantial completion of the work. Bernard Lumber Co. , 572 So.2d at 181. Hudson and Hanover maintain that because no notice of contract was filed, Bear's preservation of claims and privileges was regulated by LSA-R.S. 9:4822C, requiring that the claim be filed within sixty days of substantial completion, and Bear's lien was untimely filed.

We have already found no manifest error in the trial court's determination that the Notice of Commencement amounted to a notice of contract that was properly and timely filed. Therefore, LSA-R.S. 9:4822A is the applicable provision, which provides, in part:

If a notice of contract is properly and timely filed in the manner provided by R.S. 9:4811, the persons to whom a claim or privilege is granted by R.S. 9:4802 shall within thirty days after the filing of a notice of termination of the work:
(1) File a statement of their claims or privilege.

The Comments to LSA-R.S. 9:4822 provide: "[i]f a notice of contract is filed, a notice of termination is always required to commence the 30 day time for filing." See LSA-R.S. 9:4822, Comment (a).

It is undisputed that a notice of termination was not filed in this matter. Therefore, the 30-day tolling period for filing a statement of claim was never triggered. See Bernard Lumber Co. , 572 So.2d at 181-82. Accordingly, Bear's Statement of Claims and Privileges filed on September 16, 2013, was timely, and Hudson and Hanover's second assignment of error lacks merit.

Hudson and Hanover next assert that Bear's lien was also invalid because Bear failed to give the 10-day notice required under LSA-R.S. 9:4802G(2). In response, Bear asserts that the statute does not apply. Louisiana Revised Statutes 9:4802G(2) provides:

For the privilege under this Section or R.S. 9:4801(3) to arise, the seller of movables shall deliver a notice of nonpayment to the owner at least ten days before filing a statement of his claim and privilege. The notice shall be served by registered or certified mail, return receipt requested, and shall contain the name and address of the seller of movables, a general description of the materials provided, a description sufficient to identify the immovable property against which a lien may be claimed, and a written statement of the seller's lien rights for the total amount owed, plus interest and recordation fees. The requirements of this Paragraph (G)(2) shall apply to a seller of movables sold for use or consumption in work on an immovable for residential purposes.

Although the trial court determined that service upon Wal-Mart was not a prerequisite under LSA-R.S. 9:4802 to the preservation of Bear's privilege, see Lambert Bros., Inc. v. Ziegler , 361 So.2d 948, 950 (La.App. 4 Cir.), writ denied, 364 So.2d 121 (La. 1978), this court has previously decided that "the last sentence of paragraph G(2) is deemed to qualify the whole paragraph, including the first sentence, and notice is required only for properties used for residential purposes." Standard Materials L.L.C. v. C & C Builders, Inc. , 10-0250, p. 4 (La.App. 1 Cir. 12/22/10) (unpublished). Because the Wal-Mart Supercenter project was clearly a commercial project and not for residential purposes, we find this assignment of error to be without merit.

In their next assignment of error, Hudson and Hanover contend that Bear failed to comply with the 60-day notice requirement in the Joint Check Agreement, and, therefore, the trial court erred in failing to find that Bear forfeited its collection and lien rights to all but $30,545.07 of the $259,148.00 unpaid amount. In support of their argument, Hudson and Hanover rely on Section 1(e) of the Joint Check agreement, which provides:

Supplier will notify Hudson Construction Company if there is a failure of payment on the part of the subcontractor within sixty (60) days of the date of invoice. Failure of the supplier to so notify Hudson Construction Company shall constitute a waiver of any liens, rights or rights of collection against Hudson Construction.

Hudson argues that it had no knowledge of the outstanding sums due Bear until July 26, 2013, when it received an email from Bear with the Sworn Statement of Account, and, therefore, the notice was outside of the 60-day requirement for all but $30,545.07 of the invoices. On the other hand, Bear asserts it did not have to comply with the terms of the Joint Check Agreement because Hudson was consistently late in its payments and therefore had breached that agreement by failing to properly and timely pay Bear as evidenced in the Statement of Account. Bear also contends that it did not fail to comply with the terms of the Joint Check Agreement because the agreement did not specify that the notice be in writing, it put on evidence that there were emails and discussions throughout the project between Bear and Hudson regarding invoices and payments, and Hudson was aware of the balance owed to Bear.

The trial court initially determined that the general principles of suretyship law, as asserted by Hudson and Hanover, did not control the determination of the surety's liability on the bond and stated:

Hanover's liability under the Private Works Act differs from conventional surety principles. The Louisiana First Circuit in its 1975 decision of [ Bowles & Edens Co. v. H & H Sewer Systems, Inc. ], 324 So.2d 528, reviewed the legislative history of earlier and then current versions of the Private Works Act and concluded that the legislative intent was that the bond provided for in the Act was a statutory bond entitled to the same status as [the] bond furnished under the Public Works Act. As such, safeguards required for the bond by the Act would be read into the bond and provisions in the bond, not required by the Act, would be read out of the bond. The court noted that the main provision required of the bond by the statute was that it provided solvent security for the payment of workmen and furnishers of materials.

See Bowles & Edens Co. v. H & H Sewer Systems, Inc. , 324 So.2d 528, 532 (La.App. 1 Cir. 1975). The trial court then discussed the case of Glencoe Educ. Foundation, Inc. v. Clerk of Court and Recorder of Mortgages for Parish of St. Mary , 10-1872 (La.App. 1 Cir. 5/6/11), 65 So.3d 225, writ denied, 11-1142 (La. 10/21/11), 73 So.3d 383, stating that, although dealing with the Public Works Act, the trial court held that allowing a surety to assert a "pay when paid" provision in its principal's contract as a defense to subcontractor claims for unpaid materials would render the protection afforded to such suppliers by the Public Works Act meaningless. The application of traditional suretyship articles in such a scenario would be contrary to the Public Works Act's avowed purpose of providing a sense of security to those performing work and furnishing materials. Glencoe , 65 So.3d at 233. Thus, the trial court, in Glencoe , held that because the contractual provision on which the surety relied was contrary to the purpose of the Public Works Act, the surety, which had issued a statutory bond, could not assert a "pay if paid" clause in a principal's subcontract as a defense to payment of sums owed to subcontractors who have performed work and supplied materials on a public construction project. Id.

For these same reasons, we agree with the trial court and find that the "pay if paid" defense is not available to Hanover under the Private Works Act. Allowing a surety to assert a "pay if paid" clause to defeat payment to a subcontractor on the basis that the contractor has not received full payment from the owner, where the owner has escaped liability to the subcontractors by relying on the payment bond, would render the protections afforded to laborers and suppliers on private works projects set forth in the Private Works Act meaningless.

The trial court also found that the defense based on the Joint Check Agreement was not available to Hanover. The agreement provided for payments from Hudson for Bear's materials to be paid by checks made payable to both Amtek and Bear. Further, according to the agreement, Bear was required to notify Hudson if Amtek did not pay an invoice within sixty days, and the failure of Bear to notify Hudson would constitute a waiver of any liens, rights, or rights of collection against Hudson. The trial court stated:

[T]he Private Works Act is sui generis and must be strictly construed and applied. This agreement cannot alter, add to, or detract from the strict statutory provisions. The statutes do not provide for a waiver of lien rights for failure to give the contractor advanced notice of an unpaid invoice.
Accordingly, Hanover cannot use this provision as a defense to Bear's claim. In addition, the agreement appears to be a unilateral obligation on the part of Bear with no reciprocal obligation or consideration from Hudson.

We agree with the trial court on both issues and find that Hanover is not entitled to read into its bond a safeguard that is not required by the Private Works Act and cannot read the terms of the Joint Check Agreement into its statutory bond. Accordingly, we find no error by the trial court. This assignment of error lacks merit.

In their fifth assignment of error, Hudson and Hanover complain that the trial court erred in finding Hudson liable to Bear for the amount of Bear's lien while alleviating Amtek of the responsibility to pay same, despite the express wording of the arbitration decision that Amtek shall indemnify, hold harmless, and defend Hudson for those claims. In its reasons, the trial court stated:

In making the awards, the arbitrator offset Amtek's claim against Hudson by the exact value of Bear's lien. Thus, the arbitrator clearly envisioned that Hudson would pay the lien. That decision has previously been made an enforceable judgment of this court. Therefore, as between Hanover and Amtek, Hudson, or more accurately, [its] surety, Hanover should pay Bear the $259,148 for the unpaid materials supplied to the job.

The record shows that in the arbitration award, Amtek was awarded $313,279.34 and Hudson was awarded $396,345.49, which included the $259,148.00 for Bear's lien. The awards resulted in Amtek owing $83,066.15 ($396,345.49-$313,279.24), which was the exact amount the arbitrator awarded Hudson in the arbitration decision. Hudson was given and credited the sums owed Bear from Amtek, constituting the indemnity required of Amtek. The trial court followed the arbitration ruling. Considering the foregoing, this assignment of error is without merit.

Lastly, Hudson and Hanover maintain that the trial court erred in limiting the award of attorney fees to Hudson from Amtek for the defense of Bear's claim to $40,000.00. They maintain that the uncontroverted testimony at trial established that it had incurred at least $75,000.00 in attorney fees. Amtek responded by arguing that no documentation was presented to support that amount.

The trial court has much discretion in fixing an award of attorney's fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Whitney Bank v. NOGG, L.L.C. , 15-1399 (La.App. 1 Cir. 6/3/16), 194 So.3d 819, 824 ; Regions Bank v. Automax USA, L.L.C. , 02-1755 (La.App. 1 Cir. 6/27/03), 858 So.2d 593, 595, writ denied, 03-2131 (La. 11/7/03), 857 So.2d 503. Based on our review, we find no abuse of the trial court's discretion and affirm the award of $40,000.00 to Hudson for reasonable attorney fees.

CONCLUSION

Based on the foregoing, we affirm the October 31, 2016 judgment of the trial court. All costs of this appeal are assessed to Hudson Construction Company of Tennessee and Hanover Insurance Company.

AFFIRMED.

WELCH, J., concurs in result only without reasons.

      Amtek claimed that it was owed $701,296.52 from Hudson, an amount Hudson disputed. Hudson also sought recovery from Amtek for unsatisfactory work.

      Hudson was awarded $83,066.15 in the arbitration.

      We note that, in their appellee brief, Amtek asserted that the trial court erred in awarding any attorney fees to Hudson from Amtek for defending the Bear claim. However, Amtek has neither appealed nor filed an answer to Hudson and Hanover's appeal, and we are precluded from reviewing same. See LSA-C.C.P. arts. 2082 and 2133 ; Jackson Nat'l Life Ins. Co. v. Kennedy-Fagan , 03-0054 (La.App. 1 Cir. 2/6/04), 873 So.2d 44, 51, writ denied, 04-0600 (La. 4/23/04), 870 So.2d 307.