author: McClendon, j.

text:
    Lorraine GILARDI v. Benny P. GILARDI, Sr.
    2016 CA 1645
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: AUGUST 16, 2017
    Nelson Rivers, Covington, Louisiana, Counsel for Plaintiff/Appellant, Lorraine Gilardi

      Roy K. Burns, Jr., Covington, Louisiana, Counsel for Defendant/Appellee, Benny P. Gilardi, Sr.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj. .
   McClendon, j.

. | RA former spouse seeks review of a trial court judgment that ordered her ex-husband to, pay spousal support arrearages, but limited the arrearages sought because the trial court concluded that the former spouses had compromised all arrearages allegedly due prior to February 2015. For the following reasons, we amend the trial court’s judgment and affirm, as amended.

FACTS AND PROCEDURAL HISTORY

Lorraine Gilardi and Benny P. Gilardi, Sr., who were married for 43 years, divorced in 2002. In accordance with a consent judgment signed in 2002, the parties agreed that Benny would pay Lorraine an award of final spousal support- in the amount of $150.00 per month, plus the premiums of Lorraine’s automobile and homeowner’s insurance policies. The judgment did not specify the costs of Lorraine’s automobile insurance ' and homeowner’s insurance, given that these premiums could change over time. Benny paid Lorraine’s automobile insurance directly to the insurance carrier each month, and Benny paid Lorraine -directly each month for the monthly pro rata share of the annual homeowner’s insurance premium.

In May 2016, Lorraine filed a “Rule to Compel and for Contempt.” The rule to compel concerned certain discovery Lorraine sent to Benny arising from issues related to a supplemental partition. Regarding the rule for contempt, Lorraine asserted that Benny, despite being repeatedly advised ■ that Lorraine’s homeowner’s insurance had increased, had failed to pay a sufficient amount to cover the increased homeowner’s insurance, beginning in 2010. ¡Lorraine alleged that if Benny continued to pay the amount he was paying at the time the rule was filed, Benny-would owe a balance of.$5,205.55 by February 2017. Lorraine prayed that the amount sought be made executory, and sought attorney’s fees and court costs for preparation and prosecution .of the rule.

Is At the hearing on Lorraine’s, rule on September 27, 2016, the motion to compel was resolved by joint stipulation of the parties. In connection with the motion to compel, the parties also agreed that Benny would pay “fees of $500.00 plus court costs.”

At the contempt hearing held :that same date, Lorraine testified that due to her strained relationship with Benny, she never discussed spousal support with him. Rather, her friend, Tammy McCauley, was the one who communicated with Benny regarding the amount due for homeowner’s insurance. Tammy testified that she would meet Benny each year in February and would show him the homeowner’s bill. She further indicated that when the homeowner’s insurance increased, she would ask Benny to pay more, and although Benny generally did pay more, “he .didn’t pay enough.” According to Tammy, in February 2015, when the yearly homeowner’s insurance increased significantly, Benny stated that he would not pay any additional amount for the homeowner’s insurance. Benny did not begin to pay the increased insurance rate of $82.00 per month until August 2016.. Moreover, Lorraine admitted that prior to February 2015, she had never told Benny that he was not paying the full amount due because communications-were through Tammy.

Benny testified that he did not know how .much in spousal support he had actually paid from February 2010 through February 2015. However, Benny testified that he paid whatever increase Tammy told him to pay until February 2015. When Tammy told Benny about the additional $82.00 per month increase in the homeowner’s insurance in February 2015, Benny indicated he did not begin paying an additional amount because he had not been shown proof of the increased sum. Benny testified that when he was shown such proof in August 2016, he began paying the increased amount at that time.

Following the hearing, the trial court found that Benny was not in contempt of court and that he did not owe any arrear-ages allegedly due prior to February 2015, insofar as those arrearages had been compromised between the parties. However, the trial court found that Benny owed $1,558.00 to Lorraine, representing the ar-rearages in | ¿Benny’s spousal support payments from February 2015 through the date of hearing. Specifically, the trial court reasoned, in part:

[I]t occurs to the Court that no matter what was meant for a period of time [by the 2002 consent judgment] ,,. that there were compromises between the parties - [from February 2010 through February 2015] as to how much [Benny] was to pay oh the homeowners insurance on a monthly basis.
This was done through a third party. He is never given the written homeowners [insurance statement]. He is apparently shown it, or apparently there was some discussion about that when they would meet, he and Miss Tammy, at the Abbey. But to me, it appears that the parties agreed to compromise between them. Nothing was filed. He paid more in response to being asked to pay more. There’s no evidence that he was given a precise figure to pay [between February 2010 and February 2015] that would have equaled the actual amount that was owed until February 2015.
Beginning February 2015, he clearly, at that point in time, is asked to pay the total amount. He doesn’t respond in a good way to that, which a lot of people, án $82 a month increase might shock them a little bit, particularly at your clients’ ages; and I am sure they have rather fixed incomes at this ‘ point in time. That’s difficult for both of them.
But, clearly, then, he does know how much that it’s risen; that apparently they don’t have agreements as to how much more he is to. pay, and he begins to pay by check.
The Court is making a finding that from February 2015 on that he owes the difference in what.the true amount of the homeowners insurance was. They clearly had no agreement from that point on to discount it for, any intents and purposes, no matter what the earlier agreement was 14 years ago, and that he does owe the sum of $1558.

The court ordered the parties to split the total court costs, but. was silent on the issue of attorney fees, leaving each party responsible for their own attorney fees. The court also, in accordance with the parties’ agreement, ordered Benny to pay Lorraine “the sum of $500.00 in full satisfaction of the Rule to Compel.”

Lorraine has appealed, assigning the following as error:

1. The Trial Court was manifestly erroneous in finding that Lorraine Gi-lardi’s friend, Tammy McCauley, was an agent authorized by Lorraine Gilardi to compromise the spousal support due.
2. The Trial Court was manifestly erroneous in finding the parties had compromised the amount of spousal support due.
3. The Trial Court was manifestly erroneous is voiding the court cost stipulation between the respective counsel for the parties.
4. The Trial Court was manifestly erroneous in failing to award attorney’s fees and court costs to Mrs. Gilardi for the Contempt Rule, even | ^though the court found that Mr. Gilardi’s spousal support obligation was in arrears.

DISCUSSION

In her first two related assignments of error, Lorraine contends that the trial court manifestly erred in finding that her friend, Tammy McCauley, was an agent authorized to compromise the amount of spousal support due. Lorraine contends that the transcript is devoid of any reference made by her to Tammy to authorize any compromise, nor does the record disclose that Tammy was Lorraine’s agent.

On appeal, Benny does not dispute that he owed arrearages arising from his failure to pay the increased homeowner’s insurance from February 2015 through August 2016. However, Benny asserts that February 2015 is the earliest instance in which there is uncontested testimony that he did not pay the full spousal support obligation. Benny avers that the testimony shows that on numerous occasions between February 2010 and February 2015, Tammy asked Benny to pay more to comply with his spousal support obligations and that Benny generally did. Benny concludes that, he did not owe any arrearages prior to February 2015.

The trial court found that any outstanding sums due prior to February 2015 had been compromised. A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. LSA-C.C. art. 3071. A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings. LSA-C.C. art. 3072. In the instant case, there is no writing or recitation in open court reflecting that the parties agreed to compromise any amount of alleged arrearages due.

Moreover, we recognize that the discussions regarding payments due were between Benny and Tammy. As such, even if Tammy were Lorraine’s agent, authority must be expressly given by the principal to the agent to enter into a compromise. LSA-C.C. art. 2997(5). There is no evidence that Lorraine gave Tammy any such authority. Cf. Marietta Trust v. J.R. Logging Inc., 16-1136 (La.App. 1 Cir. 5/11/17), 225 So.3d 1144, 2017 WL 1960525. Accordingly, the trial court erred in concluding the parties compromised any alleged arrearages due prior to February 2015.

At the contempt hearing, Lorraine testified that beginning in 2010, Benny paid $200.00 per month in spousal support for three years, then he paid $220.00 per month in spousal support for a period of two years, and then he paid $240.00 per month in spousal support- for a period of eighteen months. Thereafter, in August 2016, he began paying $322.00 per month in spousal support. Therefore, over this 79-month period Benny paid a total of $17,122.00 in spousal support.

Lorraine introduced her homeowner’s insurance bills for each year from 2010/2011 through 2016/2017. The homeowner’s insurance premium over this period of time totaled $10,125.55. As such, the total amount due in accordance with the consent judgment would be $21,975.55 (representing $150.00 per month spousal support for a period of 79 months and the total of the homeowner’s insurance premium due for that 79-month period). Accordingly, we will amend the judgment to reflect that the arrearage due is $4,853.55.

In her fourth assignment of error, which we now address for purposes of clarity prior to addressing assignment of error number three, Lorraine contends that the trial court was manifestly erronéous in failing to award her attorney fees. Specifically, Lorraine cites Louisiana Revised Statutes 9:875(A), which 'provides:

When the court renders judgment in an action to make executory past-due payments under a spousal or child support award, or to make executory past-due installments under an award for contributions made1 by a-spouse* to the other spouse’s education or training, it shall, except for good cause shown, award attorney’s fees and costs to the prevailing party.

Pursuant to LSA-R.S. 9:375(A), Lorraine notes that the trial court found that Benny was past due in his spousal support obligation, and the court rendered judgment in favor of |.7Lorraine. Lorraine submits that Benny failed.to show good cause, and she should have been awarded attorney fees in accordance with LSA-R.S. 9:375(A).

The trial court has much discretion in determining whether good cause exists under LSA-R.S. 9:375(A) in deciding whether to award attorney’s fees and costs and that decision should not be overturned absent.an abuse of that-discretion. See Duncan v. Duncan, 408 So.2d 449, 451 (La.App. 1 Cir. 1981) and Chauvin v. Chauvin, 46,365 (La.App. 2 Cir. 6/22/11), 69 So.3d 1192, 1199. Considering the record, we do not find that the trial court abused its -discretion in determining that Benny established good cause for his failure to pay the total amount of spousal support due. Specifically, Benny testified that he was not aware that his payments made prior to February 2015 were insufficient to cover the rising iomeowner’s insurance. Additionally, although Benny did not initially pay the higher amount after Tammy informed him of the rising homeowner’s cost in February 2015, Benny testified that he began paying the. higher amount in August 2016, when he was shown proof that the bill had increased. As the trier of fact, the trial court was free to accept, in whole or in part, the testimony of any witness. Succession of Wagner, 08-0212 (La.App, 1 Cir. 8/8/08), 993 So.2d 709, 722. When factual findings are determinations regarding credibility of witnesses, the manifest error standard demands that great deference be accorded to the trier of fact’s findings. Succession of Wagner, 993 So.2d at 722. Linder these circumstances, we cannot conclude that the trial court abused its discretion in failing to award attorney fees under LSA-R.S. 9:375(Á). Assignment of error number four is without merit.

In her third assignment of error, Lorraine contends that the trial court manifestly erred in voiding the stipulation reached between respective counsel- regarding court costs. Lorraine notes that on the morning of the hearing, the parties agreed “on the. [motion to] compel, we discussed fees of $500 plus court costs,?’ and the court accepted the stipulation. As such, Lorraine contends that the trial court manifestly erred when it cast Benny with- only half the court costs. .

We note that in its judgment, the trial court, in accordance with the parties’ agreement, ordered Benny to pay Lorraine “$500.00 in full satisfaction of the Rule to | sCompel, which amount was paid by defendant in open court on September 27, 2016.” The judgment further ordered that the parties split court costs.

Louisiana Code of Civil Procedure article 1920 grants the trial court discretion to assess costs in' any equitable manner. This article has been liberally interpreted as granting broad discretion to the trial court. Upon review, an appellate court will not disturb the trial court’s fixing of costs absent an abuse of the sound discretion afforded the trial court, Gauthier v. Wilson, 04-2527 (La.App. 1 Cir. 11/4/05), 927 So.2d 383, 387, writ denied, 05-2402 (La. 3/31/06), 925 So.2d 1258.

In assessing costs, the trial court noted that Lorraine’s pleading included two motions in a sole pleading—a motion to compel and a motion for contempt. The parties specifically limited the stipulation to the “motion to compel.” The trial court, noting that it did not find Benny in contempt and finding that-all issues were, included in one pleading chose to split the court costs between the parties. Moreover, while LSA-R.S. 9:375(A) provides that costs -be assessed in favor of the prevailing party when a court makes past-due spousal support payments executory, for the reasons stated above, we cannot find that the trial court abused its discretion in concluding that good cause existed for Benny’s failure to pay the total amount of spousal support due. Accordingly, given the trial court’s findings and the fact that both motions were raised in one pleading, we likewise find no abuse of discretion in the trial court’s assessment of costs. Assignment of error number three is without merit.

CONCLUSION

For the foregoing reasons, we amend the judgment of the trial court to reflect that the arrearage due is $4,853.55, and we maintain the trial court’s arrearage pay1 ment schedule. The judgment is affirmed in all other respects. Costs of this appeal are to be split between the parties.

JUDGMENT AMENDED AND AFFIRMED, AS AMENDED.

      . Lorraine filed a “Petition for Supplemental Partition,” asserting that Benny’s pension was omitted from the commuhity property partition. That matter is still pending before the trial court.

      . The annual renewal. date for the homeowner's insurance was February of each year.

      . An action to make executory arrearages of spousal support payments is subject to a liber-ative prescription of five years. LSA-C.C. art. 3497.1. Although some arrearages went beyond the five-year window, the trial court agreed with Lorraine’s position that each partial payment was deemed an acknowledgment and interrupted the prescriptive period. However, the issue of prescription was not assigned as error on appeal.

      . Although Benny does not know the amounts he paid, Benny does not challenge the amount Lorraine testified that she received from him over the 79-month period.

      . This amount is lower than that sought in the motion for contempt because the pleadings sought the total amount of-homeowner’s insurance due through February 26, 2017. However, the hearing was held on September 27, 2016.


source: Caselaw Access Project

license: Public Domain

text:
    Bennie JONES v. AMERICAS INSURANCE COMPANY, certain underwriters at Lloyds, London subscribing to Policy No. MSP0664130070 and Enviro-Clean Services, Inc.
    2016 CA 0904
    Court of Appeal of Louisiana, First Circuit.
    AUGUST 16, 2017

      Joseph F. LaHatte, III, Kristin M. Bar-one, Metairie, Louisiana, Counsel for Plaintiff/Appellee, Bennie Jones
    Matthew D. Monson, Donald J. Latuso, Jr., Laura H. Abel, Mandevilie, Louisiana, Counsel for Defendant/Third-Party, Plain-tiffAppellant, Americas Insurance Company
    Galen M. Hair, New Orleans, Louisiana, Counsel for Third-Party Defendants/Ap-pellees, Maria Odeh, Nader Anthony Odeh, and Claims, Consulting and Contracting, LLC
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

|2In this appeal, a defendant/third-party plaintiff insurance company appeals a trial court judgment that granted the exception of no right of action filed by the third-party defendants and dismissed the third-party demand. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On February 28, 2014, Benny Jones’s home in Tickfaw, Louisiana, was damaged by fire. Thereafter, Mr. Jones submitted a claim with his homeowner’s insurer, Americas Insurance Company (Americas), naming Claims Consulting and Contracting, LLC (CCC) as his claims appraiser. On May 14, 2014, Americas issued a check payable to “Benny Jones & Magee Financial LLC” in the amount of $76,478.73, According to Americas, the check was forwarded to Mr. Jones on May 15, 2014, for damages to his home. Magee Financial, LLC (Magee) was the mortgagee of Mr. Jones’s property and listed as the mortgagee and additional interest on the policy’s declaration page.

Thereafter, the check was signed by Mr. Jones and contains a stamp by “Magee Financial LLC” evidencing its endorsement. Below the endorsements of Mr. Jones and Magee was a handwritten notation that stated, “Pay to the order of Claims Consulting & Contracting” and, below that notation, Maria Odeh signed her name on behalf of CCC. The check was deposited on October 2, 2014, into CCC’s Capital One bank account.

Subsequently, Magee advised CCC, through its attorney, on December 11, 2014, that “Magee Financial LLC did not endorse or authorize endorsement of said check, and that no employee or agent of Magee Financial LLC endorsed or authorized endorsement. The stamp on the check purporting to be that of Magee Financial LLC is Lfraudulent.” In February 2015, the funds were taken from CCC’s account and returned to Americas.

On July 20, 2015, Mr. Jones filed a petition for damages against Americas, among others, alleging that Americas failed to fulfill its obligations under the insurance policy. Thereafter, on October 28, 2015, Americas filed an answer and third-party demand, naming as third-party defendants, Maria Odeh a/li/a Maria Les Camelas, Nader “Anthony” Odeh, and CCC, and asserting that the third-party defendants committed fraud in purposefully and deliberately attempting to circumvent payment to Magee. Americas filed a First Supplemental and Amending Third Party Demand on January 4, 2016. In its third-party demand, Americas specifically alleged negligence, pursuant to LSA-C.C. art 2315; civil conspiracy, pursuant to LSA-C.C. art. 2324; civil conversion; violation of Louisiana’s Unfair Trade Practices and Consumer Protection Law (LUT-PA), LSA-R.S. 51:1401, et. seq.; and unfair trade practices under. LSA-R.S. 22:1964(Í3). Americas claimed that it suffered damages in that it “was exposed to a double payment to Magee and the inconvenience suffered by Americas in reissuing the insurance proceeds check.” Americas also asserted a claim for damages, including: “[rjeimbursement of all insurance proceeds paid as a part of [the] scheme to defraud Magee arising out of the service agreement;” “[d]amages pursuant to all Louisiana Revised Statutes;” attorney fees; court costs; intérest; punitive damages; and all other fair and equitable relief.

On November 23, 2015, in response to the third-party demand, the third-party defendants filed- a pleading entitled “Exception of Improper Venue, No Right of Action, No Cause of Action, Peremption, and Request for Attorneys’ Fees arid Sanctions for Bad Faith Filing under Louisiana Code of Civil Procedure Article 863.” Thereafter, on December 17, 2015, prior to the healing on the exceptions, Americas filed Interrogatories, Request for Production of Documents, and Request for Admissions upon the third-party defendants, and the third-party defendants responded by filing a motion for protective order, asserting an abuse of. the discovery rules.

l4On February 29, 2016, the, trial court heard the pending motions and exceptions. Following argument, the trial court sustained the third-party defendants’ "exception of no right of action and dismissed Americas’s third-party demand with prejudice. The court deferred ruling on all of the other exceptions and the motion for protective order. The trial court signed a judgment on March 16, 2016, and Americas appealed, assigning the following as error:

1. The trial court erred in granting the third-party defendants’ exception of no right of action because the trial court misapplied the law, because a) it, failed to consider extrinsic evidence, and b) the third-party defendants failed to meet their burden of proof; and.
2. The trial court erred in sustaining the third-party defendants’ exception of no right of action before responses to written discovery were received from the third-party defendants, which resulted in significant prejudice and harm to Americas.

DISCUSSION

An action can only be brought by a person having a real and actual interest which he asserts.’ LSA-C.C.P. art. 681; Randy Landry Homes, LLC v. Giardina, 12-1669 (La.App. 1 Cir. 6/7/13), 118 So.3d 459, 460. The function of the exception urging rib right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. LSA-C.C.P. art. 927A(6); Randy Landry Homes, 118 So.3d at 460-61. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit;' it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Randy Landry Homes, 118 So.3d at 461.

The exception does not raise the question of the plaintiffs ability to prevail on the merits nor the question of whether the defendant may have a valid defense. OXY USA Inc. v. Quintana Production Co., 11-0047 (La.App. 1 Cir. 10/19/11), 79 So.3d 366, 376, wit denied, 12-0024 (La. 3/2/12), 84 So.3d 536. Unlike the objection of no cause of action, evidence supporting or controverting an objection of no right of action |Bis admissible on the trial of the exception for the purpose of showing that the plaintiff does not possess the right he claims or that the right does not exist. LSA-C.C.P. art 931; OXY USA, 79 So.3d at 376. The party raising a peremptory exception bears the burden of proof. To prevail on a peremptory exception pleading the objection'of no right of action, the defendant must show that the-plaintiff does not have an interest in' the subject matter of. the suit or legal capacity to proceed with .the suit. Id.

Whether a plaintiff has a right of action is a question of-law and is therefore reviewed de novo on appeal. Randy Landry Homes, 118 So.3d at 461. Appellate review of question's of law is simply to determine whether the trial court was legally correct. LaCombe v. McKeithen, 04-1880 (La.App. 1 Cir. 8/30/04), 887 So.2d 48, 51, writ denied, 04-2240 (La. 9/2/04), 882 So.2d 588. On legal issues, an appellate court gives no special weight to the findings of the trial court but, instead, exercises its constitutional duty to review questions of law and render a judgment on the record. City of Baker School Bd. v. East Baton Rouge Parish School Bd., 99-2505 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292-93.

In this matter, the trial court found no contractual relationship or fiduciary relationship between the third-party defendants and Americas. It identified the relationship between Mr. Jones and Americas under the insurance policy, and also found that Americas owed Magee certain duties under the insurance policy as the mortgagee of Mr. Jones’s property. However, because the trial court found that no relationship existed between the third-party defendants and Americas, it determined that the third-party defendants owed no legal duty to Americas. The court stated that the funds were intended for the benefit of Magee, who was not a party to this suit, and that the funds were paid to Ma-gee, who has not' sought any relief. Therefore, the trial court concluded, if any right of action existed, it would belong to Ma-gee.

Initially, we note that the trial court incorrectly stated in its written reasons that “in reviewing the No Right of Action one must look at the pleadings alone in |fidetermining whether a right exists.” Americas argues that this misapplication of the-law requires reversal of the trial court’s judgment. Americas asserts that 'the trial court erred because it did not appear to consider evidence submitted with its third-party demand and with its opposition to the third-party defendants’ exceptions. However, because our standard of review on the peremptory exception raising the objection of no right of action is de novo, we owe no deference to the ruling of the trial court on an objection of no right of action. See Jenkins v. City of Baton Rouge, 14-1235 (La.App. 1 Cir. 3/9/15), 166 So.3d 1032, 1036.

Americas additionally contends that during the hearing on the exception, the trial court refused its request to have Mr. Odeh testify. Americas asserts that this failure deprived it of the procedural opportunity to present evidence to substantiate its right of action, and it cites Eubanks v. Hoffman, 96-0629 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, in support of its argument. However, in Eubanks, an exception of no right of action was not filed by any of the parties, Mr. Eubanks’s right of action was never questioned during the trial, and the trial court raised it for the first time after trial. The first notice to Mr. Eubanks that his right of action was at issue was in the trial court’s judgment and reasons for judgment that decided the entire case. Eubanks, 685 So.2d at 599. See LSA-C.C.P. arts. 929 and 931. Such is not the case before us. The record in this matter does not show that Americas was denied the opportunity to present evidence. In fact, the minute entry for February 29, 2016, does not indicate that any evidence was introduced at the hearing, nor does it show that a proffer was made. Further, no transcript of the hearing has been provided to this court. There is nothing in the record to suggest that the trial court refused to hear live testimony at the hearing or that Americas offered to have Mr. Odeh testify.

Our examination begins with the pleadings. See Gisclair v. Louisiana Tax Com’n, 10-0563 (La. 9/24/10), 44 So.3d 272, 274 (per curiam) (quoting Howard v. Administrators of Tulane Educational Fund, 07-2224 (La. 7/1/08), 986 So.2d 47, 60). As is customary on consideration of an objection of no right of action, the averments of fact in the pleadings will be taken as true in the absence of evidence to the contrary. Niemann v. Crosby Development Co., L.L.C., 11-1337 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1046.

Americas has made allegations of negligence, civil conspiracy, civil conversion, LUTPA violations, and unfair trade practices, based on the fraudulent endorsement of the check. Under Louisiana Civil Code Article 2315, a person may recover damages for injuries caused by a wrongful act of another. In Louisiana, conversion is an intentional tort and consists of an act in derogation of the plaintiffs possessory rights. The tort of conversion is committed when one wrongfully does any act of dominion over the property of another in denial of or inconsistent with the owner’s rights. Any wrongful exercise or assumption of authority over another’s goods, depriving him of the possession, permanently or for an indefinite time, is a conversion. Aymond v. State, Dept. of Revenue and Taxation, 95-1663 (La.App. 1 Cir. 4/4/96), 672 So.2d 273, 275. See also Melerine v. O’Connor, 13-1073 (La.App. 4 Cir. 2/26/14), 135 So.3d 1198, 1203. The intent required for a conversion is not necessarily that of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the owner’s rights. Louisiana State Bar Ass’n v. Hinrichs, 486 So.2d 116, 121 (La. 1986).

Louisiana Revised Statutes 10:3-420, conversion of instrument, provides, in pertinent part:

(a) An instrument is converted when
(iii) it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce-the instrument or receive payment.
(b) An action for conversion of an instrument may not be brought by (i) the issuer or acceptor of the instrument or
(ii)a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or co-payee or (iii) by the drawer.

|sIn ASP Enterprises, Inc. v. Guillory, 08-2235 (La.App. 1 Cir. 9/11/09), 22 So.3d 964, 973, writ denied, 09-2464 (La. 1/29/10), 25 So.3d 834, we held that claims for conversion and negligence,- grounded in general Louisiana law outside the ambit of the Louisiana Uniform Commercial Code (UCC), are displaced by the UCC. See also Hardin Compounding Pharmacy, LLC v. Progressive Bank, 48,397 (La.App. 2 Cir. 9/25/13), 125 So.3d 493, 498, writ denied. 13-2517 (La. 1/27/14), 131 So.3d 60 (“This court and other state courts have consistently held that when the facts satisfy 10:3-420’s definition of conversion of instruments, this statute supplants other general laws regarding personal actions and breach of fiduciary duty claims.”) and Innovative Hospitality Systems, L.L.C. v. Abe’s Inc., 10-509 (La.App. 3 Cir. 12/8/10), 52 So.3d 313, 316 (“The UCC displaces the Louisiana law applicable to negligent acceptance, ' payment, or presentment of a forged check by a depositary bank prior to its enactment. La. R.S. 10:1-103.”). See also Robertson v. Sun Life Financial, 09-2275 (La.App. 1 Cir. 6/11/10), 40 So.3d 507. Accordingly, if Americas’s allegations as set forth in its third-party demand are accepted as true, then LSA-R.S. 10:3-420 of the UCC does not provide Americas, as the issuer of. the check, with a right of action in its negligence-based or civil conversion claims.

With regard to Americas’s claim of civil conspiracy, Louisiana Civil Code Article 2324A provides that “[h]e 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.” However, Article 2324 does not by itself impose liability for a civil conspiracy. The actionable element in a claim under this article is not the conspiracy itself, but rather the tort, which the conspirators agreed to perpetrate and which they actually commit in whole or in part. Ross v. Conoco, Inc., 02-0299 (La. 10/15/02), 828 So.2d 546, 552. Accordingly, for the reasons set forth above, Americas has no right of action for a civil conspiracy claim.

. Regarding Americas’s claim under LSA-R.S. 22:1964(13), LSA-R.S. 22:1961, et seq., entitled Unfair Trade Practices, provides a detailed enforcement mechanism by which the Commissioner of Insurance is empowered to investigate allegations of unfair methods of competition or unfair or deceptive acts in the insurance business, to hold hearings, to issue cease and desist orders, to 'assess monetary penalties against violators, and to suspend or revoke the license of violators. See LSA-R.S.22:1967, 1968,1969 and 1970. No provision in this statutory, scheme, however, creates a cause of action in favor of a person allegedly injured by unfair trade practices in the insurance business as set forth in LSA-R.S, 22:1964. Klein v. American Life & Cas. Co., 01-2336 (La.App. 1 Cir. 6/27/03), 858 So.2d 527, 533, writs denied, 03-2073, 03-2101 (La. 11/7/03), 857 So.2d 497, 499; Clausen v. Fidelity and Deposit Co. of Maryland, 95-0504 (La. App. 1 Cir. 8/4/95), 660 So.2d 83, 86, writ denied, 95-2489 (La. 1/12/96), 666 So.2d 320. Consequently, because the right of action under LSA-R.S, 22:1961, et seq., belongs to the Commissioner of Insurance, we find that the trial court did not err in granting the exception of no right of action as to this claim. See Tobin v. Jindal, 11-1004 (La.App. 1 Cir. 2/10/12), 91 So.3d 329, 334.

As to Americas’s claim against the third-party defendants under LUTPA, the legislation specifies that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” LSA-R.S. 51.-1405A. Because of the broad sweep of this language,. Louisiana courts determine what is a LUTPA violation on a case-by-case basis. Quality Environmental Processes, Inc. v. I.P. Petroleum Co., Inc., 13-1582 (La. 5/7/14), 144 So.3d 1011, 1025. “Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act, or practice declared unlawful by R.S. 51:1405, may bring an action individually but not in a representative capacity to recbver actual damages.” LSA-R.S. 51:1409A.

| ^Louisiana Revised Statutes 51:1402, the definition portion of LUTPA, provides, in pertinent part:

(1) “Consumer” means any person who uses, purchases, or leases goods or services.
⅜ ⅜ ¾»
(2) “Consumer transaction” means any transaction involving trade or commerce to a natural person, the subject of which transaction is primarily intended for personal, family, or household use.
* * *
(10) “Trade” or “commerce” means the advertising, offering for sale, sale, or distribution of any services and any property, corporeal or incorporeal, immovable or movable, and any other article, commodity, or thing of value wherever situated, and includes any trade or commerce directly or indirectly affecting the people of the state.

The Louisiana Supreme Court has recognized that any person, not just a competitor or consumer, has standing to sue under LUTPA, stating that “LUTPA grants a right of action to any person, natural or juridical, who suffers an ascertainable loss as a result of another person’s use of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade, or commerce.” Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 09-1633 (La. 4/23/10), 35 So.3d 1053, 1057.

Americas has alleged that it was damaged as a result of the third-party defendants’ unfair practices. Specifically, Americas asserted that Mr. Jones and the third-party defendants éngaged in a calculated scheme to deprive Magee, out of its entitlement to insurance proceeds to the detriment of Americas in violation of LUTPA. However, we find that based on the facts alleged herein, Americas does not fall within the class of persons LUTPA was meant to 'protect.

Accordingly, we find that the trial court was legally correct in granting the peremptory exception raising the objection of no right of action filed by the third-party defendants. Further, when the grounds of the objection cannot be removed, a plaintiff Inneed not be given an opportunity to amend. LSA-C.C.P. art. 934. Here, Americas cannot remove the grounds of the objection because the law provides it with no legal remedy, and it cannot cure the defect by amending the petition. The defect was not in the failure to state a right of action, which might be curable by amendment, but in the failure to have a right of action. See Estate, Inc. v. Southern Land Title Corp., 230 So.2d 341, 342 (La.App. 4 Cir. 1970). See also Gisclair, 44 So.3d at 280-81.

CONCLUSION

Considering the foregoing, we affirm the March 16, 2016 judgment of the trial court in favor of the third-party defendants, Maria Odeh, Anthony Odeh, and Claims Consulting and Contracting, LLC. Costs of this appeal are assessed to the third-party plaintiff, Americas Insurance Company.

AFFIRMED.

Whipple, C.J. concurs.

      . Although Mr. Jones was identified as "Bennie" in the petition in this matter, the record indicates that his first name is actually "Benny.”

      . Maria Odeh is the wife of Anthony Odeh, the sole officer and manager of CCC.

      . In connection with several exceptions filed by the third-party defendants, Mr. and Mrs. Odeh each submitted an affidavit attesting that they did not place any endorsement for Magee on the check and that the funds deposited by CCC were for work performed in fixing and repairing Mr. Jones’s home.

      .Americas averred and admitted in its third-party demand that the funds were returned to Americas.

      . Louisiana Code of Civil Procedure Article 931 provides, in pertinent part:
      On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.

      . The appellant bears the burden of furnishing the appellate court with a record of the proceedings below. When the record lacks a transcript that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant. Byrd v. Pulmonary Care Specialists, Inc., 16-0485 (La.App. 1 Cir. 12/22/16), 209 So.3d 192, 196; Carter v. Barber Bros. Contracting Co., Inc., 623 So.2d 8, 10 (La.App. 1 Cir.), writ denied. 629 So.2d 1180 (La. 1993).

      . Louisiana Revised Statutes 10:1-103, titled “Construction of Uniform Commercial Code to promote its purposes and policies; applicability of supplemental principles of law,” sets forth the purpose of the UCC and provides:
      (a) This Title shall be liberally construed and applied to promote its underlying purposes and policies, which are;
      (1)to simplify, clarify, and modernize the law governing commercial transactions;
      (2) to permit the continued expansion of commercial practicés through custom, usage, and agreement of the parties; and
      (3) to promote uniformity of the law among the various jurisdictions.
      (b) Unless displaced by the particular provisions of this Title, the other laws of Louisiana supplement its provisions.

      . Louisiana Code of Civil Procedure Article 934 provides:
      When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

      . Our decision on the exception of no right of action pretermits our consideration of Americas’s second assignment of error.


author: McClendon, j. WHIPPLE, C.J.,

text:
    Brendan SHARP, Ray Sharp and Christine Andrews v. MORGAN CITY
    2016 CA 1673
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: AUGUST 16, 2017

      Stephen M. Irving, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees Brendan Sharp, Ray Sharp and Christine Andrews
    James C. Rather, Jr., Charles E. Sutton, Jr., Mandeville, Louisiana, Counsel for Defendant/Appellant The City of Morgan City
    Stephen E. Broyles, Baton Rouge, Louisiana, Counsel for Third-Party Defendant/Appellee Redlron Construction, LLC
    Andre C. Gaudin, Ralph T. Rabalais, Metairie, Louisiana, Counsel for Third-Party Defendant/Appellee Legacy Construction Services
    David T. Butler, Jr., Baton Rouge, Louisiana, Counsel for the Intervenor/Appellee Bridgefield Casualty Insurance Company
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

|2In this personal injury suit, a defendant/third-party plaintiff appeals a trial court’s grant of two motions for summary judgment in favor of two third-party defendants. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 1, 2014, Brendan Sharp, a 17-year-old employee of Redlron Construction, LLC (Redlron), was injured when a steel panel he was handling came into contact with, or in close proximity to, an overhead power line owned and operated by The City of Morgan City (Morgan City). Redlron was the subcontractor of Legacy Construction Services (Legacy). Legacy had been hired to build a commercial structure for Cummins Mid-South Diesel in Morgan City. Legacy subcontracted with Redlron to frame the building and install metal sheeting on the exterior.

On November 14, 2014, Brendan and his parents, Ray Sharp and Christine Andrews, filed a petition for damages, naming Morgan City as the sole defendant. Thereafter, Morgan City filed a third-party demand against Legacy and Redlron, seeking complete indemnity from Legacy and Redlron for their failure to follow Louisiana’s Overhead Power Line Safety Act (OPLSA), LSA-R.S. 45:141, et seq. In response, Legacy and Redlron each filed motions for summary judgment, arguing that all provisions of the OPLSA were complied with. Morgan City opposed the motions, asserting that issues of material fact existed as to whether Legacy and Redlron negotiated satisfactory mutual safety arrangements with Morgan City in connection with the work they were performing as required by the OPLSA.

The trial court heard arguments on July 29, 2016, and took the matter under advisement. On August 10, 2016, the trial court issued written Reasons for Judgment, finding that Legacy and Redlron were in full compliance with the OPLSA and that Morgan City was not entitled to indemnity for any damages or costs incurred as a result of the accident involving Brendan Sharp. On September 14, 2016, the trial court signed a judgment, granting the motions for summary judgment and dismissing Legacy and Redlron from the litigation. Morgan City then appealed.

1 «SUMMARY JUDGMENT

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, is favored, and shall be construed to accomplish these ends. LSA-C.C.P. art. 966A(2) (as amended by 2015 La. Acts, No. 422). 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. LSA-C.C.P. art. 966A(3) (as amended by 2015 La. Acts, No. 422).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him 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. 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. LSA-C.C.P. art. 966D(1) (as amended by 2015 La. Acts, No. 422). When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleading, but his response must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967B.

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765-66.

Further, in determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60, Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Jackson v. City of New Orleans, 12-2742 (La. 1/28/14), 144 So.3d 876, 882, cert. denied, — U.S. -, 135 S.Ct. 197, 190 L.Ed.2d 130 (2014).

DISCUSSION

The OPLSA sets forth clear statutory guidelines for persons working in the vicinity of high voltagé power lines. Louisiana Revised Statutes 45:142 prohibits anyone from working within ten feet of any high voltage overhead line and provides:

No person shall, individually .or through an agent or employee, perform any function or activity upon any land, building, highway, waterway, or other premises, if at any time during the performance of any function or activity it is possible that the person performing the function or activity shall move or be 'placed within ten feet of any high voltage overhead line, or if it is-possible for any part of any tool, equipment, machinery, or material used, handled, or stored by such person to be brought within ten feet of any high voltage overhead line or conductor during .the performance of such function or activity,

An exception to this prohibition is found in LSA-R.S. 45:143, which provides, in pertinent part:

A. When any person desires to temporarily carry on any function,- activity, work, or operation in closer proximity to any high voltage overhead line than permitted by this Chapter, the. person or persons responsible for the work, to be done shall promptly notify, the owner or operator of the high voltage overhead line prior to the scheduled commencement of the work. Such notice shall be reasonable, considering the work to be done; however, the notice shall not be less than forty-eight | ¡¡hours prior to the scheduled commencement of the work, exclusive of holidays and weekends, except' in emergéncy situations that include police, fire, and rescue emergencies, in which case the noticé shall be made as soon as possible.
B. The work shall be performed only after satisfactory mutual arrangements have been negotiated between the owner or operator of the high voltage overhead lines and the person or persons responsible for the work to be done. The owner or operator of the lines shall initiate the agreed upon saféty arrangements within three working days and shall complete the work promptly, subject to emergency weather conditions. Arrangements may include placement of temporary mechanical barriers separating and preventing contact between material, equipment, or persons and high voltage overhead lines; temporary deenergization and grounding; temporary location or raising of the lines; or by other means deemed appropriate by the owner or operator of the lines.

Additionally, LSA-R.S. 45:144A provides the liability for damages when there is a violation of the OPLSA:

If a violation of this Chapter results in physical or electrical contact with any high voltage overhead line, the person violating this Chapter shall be liable to the owner or operator of the high voltage overhead line for all damages, costs, or expenses incurred by the owner or operator as a result of the contact. .

The Louisiana Supreme Court has held that when a party is injured in an accident involving electrical power lines, the utility company that owns or operates the power lines may seek indemnification, even for the utility company’s own negligence, from violators of the OPLSA. Moreno v. Entergy Corp., 12-0097 (La. 12/4/12), 105 So.3d 40, 50.

In support of its motion for summary judgment, Legacy offered the deposition of Mark Broussard, the senior lineman for Morgan City. Redlron also submitted Mr. Broussard’s deposition, as well as excerpts from Brendan’s deposition.

Mr. Broussard testified that in May 2014 he got a call from the utilities director for Morgan City, Bill Cefalu, to meet with the contractor to discuss his concerns about the power line that was close to the commercial building being erected in Morgan City. Mr. Broussard stated that the contractor was ready to set the beams for the metal structure at the corner close to the high voltage overhead line, and the contractor was concerned that the power would jump to the building. Mr. Broussard testified that when he went out to the site, he got in the bucket lift and looked at the corner. Mr. Broussard then went through various options with the contractor. He stated that del «energizing the building was not feasible as there were too many customers that would be affected. Mr. Broussard testified that there were two options available, which were either “line hose” or “guy guards.” He did not think that a line hose, used to insulate the power line, would work because the weight of the hose would pull the line down so that it would make contact with the building. Mr. Broussard testified that he explained that there was a seven foot, eleven inch vertical clearance and four foot horizontal clearance from the corner of the building to the overhead line. He further stated that it would take 34,000 volts of electricity to jump one centimeter and that the power line at issue was 7,620 volts. Mr. Brous-sard testified that he therefore made the decision not to use line hose, opting instead to use guy guards that were bright yellow, very visible eight foot long streamers hanging from the power line to give an indication of how far the line was from the building. Mr. Broussard testified that the contractor agreed with the guy guards and said he was okay with the seven foot, eleven inch clearance.

|7Mr. Broussard testified that once the agreement was reached, he installed the guy guards and used his bucket truck to raise up the line while the steel beams were installed at the corner in question. Brendan also testified that the “streamers” were on the wire at the time of his accident.

We find that the evidence presented by Legacy and Redlron sufficiently pointed out the absence of factual support for an element essential to Morgan City’s claim, and the burden then shifted to Morgan City to produce factual support to establish the existence of a genuine issue of material fact. Morgan City would have the burden at trial to prove the existence of an OPLSA violation by Legacy and Redlron, which would obligate them to indemnify Morgan City for any damages, costs, or expenses payable to the plaintiff. In trying to establish a violation of the OPLSA, Morgan City introduced excerpts from the depositions of Brendan Sharp; Justin Waller, Redlron’s corporate representative and owner; Mr. Broussard; John Bracey, Herin, Legacy’s owner; and Dwayne Sis-trunk, Legacy’s superintendent.

Mr. Herin testified that when Redlron raised the issue of the high voltage overhead line to Legacy, he called Morgan City and was given Mr. Cefalu’s telephone number. Mr. Sistrunk told him that one corner of the building appeared to be close to the power line. Mr. Herin stated that he met with Mr. Broussard and Mr. Sistrunk at the building site. Mr. Broussard informed them that they could not do a line hose and assured them that power jumping to the building was not an issue. Mr. Herin stated that Mr. Sistrunk was not happy with the statement about the power not jumping and “didn’t feel safe.” That was when Mr. Broussard offered to help finish putting up the beams in the corner of the building, and after installing the guy guards, he used his bucket truck to lift the wire. When Mr. Broussard was asked if he discussed with the contractor the steel panels to be put on the exterior of the building after the completion of the framing, Mr. Broussard replied that the contractor did not talk about the panels.

lsMorgan City maintains that the language of LSA-R.S. 45:143 is clear and does not state that arrangements must be satisfactory only to the power line owner. Rather, it argues that the OPLSA contemplates a bilateral, collaborative process between contractors and power line owners, and power line owners are not required to issue unilateral edicts to contractors dictating how their work must be performed. Morgan City contends that neither Legacy nor Redlron took any steps whatsoever to ensure that the safety arrangements offered by Morgan City were satisfactory. It asserts it presented sufficient evidence in opposition to the motions for summary judgment to establish numerous issues of material fact as to whether Legacy and Redlron “negotiated” “satisfactory mutual arrangements” with Morgan City prior to beginning the sheet metal siding work.

To the contrary, Legacy and Redlron argue that the OPLSA was complied with and Morgan City is not entitled to indemnity for any damages, costs, or expenses. They assert that Morgan City was notified prior to beginning any work within ten feet of the overhead power line and that no work was performed until after satisfactory mutual arrangements were negotiated and implemented. Thus, Legacy and Redl-ron contend that no material facts are in dispute, and Morgan City’s third-party demands were properly dismissed.

The issue presented in this appeal is whether Morgan City presented sufficient evidence to establish genuine issues of material fact as to whether a violation of the OPLSA occurred in this matter. In this regard, Morgan City averred that Legacy and Redlron failed to adequately inform Morgan City of the work to be performed, including the means and methods of construction and what equipment would be used; that Legacy and Redlron never consulted their own experts to determine whether the safety arrangement made was satisfactory; that Mr. Sistrunk gave conflicting- statements regarding his meeting with Mr. Broussard and the number of times he met with Mr.- Broussard; and that Redlron failed to follow its own safety procedures when hanging the metal sheeting on the exterior of the building. While Morgan City raised certain inconsistencies, we find that those issues of fact are not material. The inconsistencies |3and issues of fact asserted by Morgan City are not determinative of whether there was compliance with the OPLSA.

What the material facts do show is that Mr. Cefalu, the utilities director for Morgan City, was timely notified about the project prior to any work being done within ten feet of the high voltage overhead line, and he sent his senior lineman, Mr. Broussard, to work out arrangements with Legacy and Redlron. See LSA-R.S. 45:143A. Although the representatives of Legacy and Redlron, Mr. Herin and Mr. Sistrunk, questioned the use of the guy guards, they agreed to the arrangement deemed appropriate by Mr. Broussard. See LSA-R.S. 45:143B. Mr. Broussard installed the guy guards and work proceeded on the project. The guy guards were in place when the accident occurred and Brendan was injured.

The evidence presented by Morgan City fails to create a genuine issue of material fact as to whether an OPLSA violation occurred, an essential element of its claim. Therefore, upon our de novo review and based on the record before us, Legacy and Redlron were entitled to summary judgment as a matter of law.

CONCLUSION

' For the foregoing reasons, the trial court’s September 14, 2016 judgment granting the motions for summary judgment filed by the third-party defendants, Legacy Construction Services and Redl-ron Construction, LLC, is affirmed. Costs of this appeal in the amount of $2,727.50 are assessed to the defendant and third-party plaintiff, City of Morgan City.

AFFIRMED.

Whipple, C.J. dissents for reasons assigned.

WHIPPLE, C.J.,

dissenting.

It The majority concludes that summary judgment was appropriate because the inconsistencies and issues of fact as raised by Morgan City in opposition to the motion for summary judgment are not determinative of whether there was compliance with OPLSA. I respectfully disagree.

Specifically, I find that the inconsistencies and issues of fact relate directly to the issue of whether or not the notice was reasonable. OPLSA does not only provide that notice must be given; the Act also provides that notice must be reasonable. See LSA-R.S. 45:143 (“such notice shall be reasonable, considering the work to be done.”) Issues that' require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case canndt ordinarily be disposed of by summary judgment. Biggs v. Cancienne, 2012-0187 (La. App. 1st Cir. 9/21/12), 111 So.3d 6, 10.

As noted by the majority, Morgan City has raised issues of fact as to the sufficiency of the May notice, specifically, as to whether Morgan City was adequately informed of the construction work to be performed, the means and methods of construction, and what equipment would be used. These issues are clearly related to the reasonableness of the notice.

Moreover, it is undisputed that while notice was given in May and arrangements were made at this time, including the tying of “line guards” and the City using its bucket Truck to raise the power line while steel beams were installed at one corner of the building, this accident occurred in July, approximately two months after the notice, as steel panels were being installed on the outside of the ^building. Thus, on these bases ,-alone, inconsistencies and issues of fact remain as to whether or not there were subsequent notices and safety arrangements made between May and the subject incident in July. Without knowing the scope of the notice and/or.when such notice(s) were given, there is no record basis to detérmine the- “reasonableness” of the “notice.”

Accordingly, I respectfully disagree with the majority and conclude that the trial court erred in granting summary judgment and dismissing the claims against third-party defendants, • Legacy Construction Services and Redlron Construction, LLC. Thus, on the record as it presently exists, I would reverse the Trial court judgment and remand the matter to the trial court.

      .Legacy filed its motion for summary judgment on December 21, 2015, and it is therefore governed by the version of LSA-C.C.P. art. 966 in effect after its amendment by 2014 La. Acts, No. 187. Article 966 was later amended by 2015 La. Acts, No, 422, and the provisions of Act No. 422 do not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the act, January 1, 2016, See 2015 La. Acts, No. 422, § 2; Bouquet v. Williams, 16-0134 (La. App. 1 Cir. 10/28/16), 206 So.3d 232, 239 n.3, writs denied, 16-2077, 16-2082 (La. 1/9/17), 214 So.3d 871, 871. Redlron filed its motion for summary judgment on March 11, 2016, and it is governed by 2015 La. Acts No. 422.

      . The 2015 Comments to LSA-C.C.P. art. 966 provide that subparagraphs A(2) and A(3) do not change the law.

      . The 2015 Comments to LSA-C.C.P. art. 966 provide that subparagraph D(l) does not change the law.

      . "High voltage” means a voltage in excess of six hundred volts between conductors, or between any conductor and the ground. LSA-R.S. 45:141(2).

      . Mr. Broussard testified that line hose was put on the power line after the accident in this matter.

      . When asked about the line hose Mr. Brous-sard stated:
      A. Yeah. If they had called back and asked for it, yes, sir, it would have been done.
      Q. You say it would have been done. But you had made the decision when you first went out there not to put line hose on it. Correct?
      A. After talking with the contractor and he said he was okay with that, yes, sir.
      Q. So ya’ll reached an agreement—
      A. Yes.
      Q. —after discussing what was going to be done as to what would be appropriate to be done or not done?
      A. Yes, sir,
      * ⅜ ⅜
      Q. So the clearance was seven .feet, six inches? Is that—
      A. Eleven. Seven feet eleven inches.
      Q. And that's from the building itself, correct?
      A. Yes, sir.
      Q. When you looked at that and discussed it with the contractor did you have any concern that even though there’s that much clearance from the building itself because there was going to be work with piece[s] of iron or whatever is involved with the construction of this building, the potential for such items could be closer to the power line than seven feet, eleven inches?
      A. He acknowledged that he had seven foot, eleven inches of clearance and said he was good with that.
      Q. And you were good with the fact that he was good with that?
      A. Yes, sir.

      . Mr. Broussard identified himself in a photograph, marked May 30, 2014, taken by another employee of Morgan City, showing him elevated in the basket of his bucket truck helping Redlron install the steel framing on the comer of the building closest to the power line.


author: SAUNDERS, Judge.

text:
    TROUTH AIR CONDITIONING & SHEET METAL, INC. v. BAY ELECTRIC CO., INC., and LA Creole Hospitality 1, LLC
    17-529
    Court of Appeal of Louisiana, Third Circuit.
    08/23/2017

      Henry R. Liles, 940, Ryan Street, Lake Charles, LA 70601, (337) 433-8529, COUNSEL FOR PLAINTIFF/RESPONDENT: Trouth Air Conditioning & Sheet Metal, Inc.
    Jeffrey N. Boudreaux, John C. Funder-burk, Joshua J. Coleman, Thomas D. Bourgeois, Kean Miller LLP, P.O. Box 3513, Baton Rouge, LA 70802, (225) 387-0999, COUNSEL FOR DEFENDANT/APPLICANT: LA Creole Hospitality 1, LLC
    Court composed of John D. Saunders, Shannon J. Gremillion and John E. Conery, Judges.
   SAUNDERS, Judge.

11 Defendant-Relator, LA Creole Hospitality 1, LLC, seeks supervisory writs from the judgment of the Fourteenth Judicial District Court, Parish of Calcasieu, the Honorable Robert L. Wyatt presiding, which denied Relator’s declinatory exception of lis pendens.

STATEMENT OF THE CASE

The instant litigation and the connected litigation giving rise to the lis pendens issue arise out of a construction project (project) in which Relator, as owner, contracted with Bay Electric Company, Inc. (Bay Electric), as general contractor, to construct a Marriot Residence Inn in Lake Charles. Bay Electric then entered into a subcontract with plaintiff, Trouth Air Conditioning and Sheet Metal, to complete the HVAC work for the hotel. After completion, the project began experiencing severe water intrusion and leaks. On June 23, 2016, Relator filed suit against Bay Electric, plaintiff, several other subcontractors, and their various insurers, for the damages to its property under theories of breach of contract, breach of warranty, negligence, gross negligence, and failure to warn (original suit). Therein, Relator specifically alleged plaintiffs breach of its subcontract with Bay Electric. Plaintiff answered the original suit but did not include any reconventional demands against Relator. Thereafter, on January 12, 2017, plaintiff filed the present suit for Breach of Contract and to Enforce Lien against Bay Electric and Relator, alleging that Bay Electric breached its subcontract with plaintiff by not paying the full amount due (second suit). Relevant herein, plaintiff only alleged a Private Works Act lien claim against Relator, in its capacity as owner of the property subject to the lien. After the lien |2was filed, Bay Electric, pursuant to its construction contract with Relator, purchased a bond, which has now taken the place of the lien on the property. In response, Relator filed its declinatory exception of lis pendens, claiming both suits arise out of the same construction project for breach of the same subcontract. After hearing arguments, the trial court denied the exception, explaining:

Based on the information that has been presented to the court, based on the statement and clarification of [plaintiffs counsel] of the suit for breach of contract and to enforce lien, ... the exception of lis pendens is denied at this time.
It’s ... splitting hairs, I recognize .... There are some similarities. It’s likely that in the [original] suit ... that all of these matters will be addressed. I understand that; but for basic—just for purposes of what [plaintiff] has sued in the [second] lawsuit against Bay Electric and LA Creole, your ... exception is denied at this time.

Relator now seeks review of the trial court’s judgment.

SUPERVISORY RELIEF

“The proper procedural vehicle to contest an interlocutory judgment that does not cause irreparable harm is an application for supervisory writs. See La. C.C.P. arts. 2087 and 2201.” Brown v. Sanders, 06-1171, p. 2 (La.App. 1 Cir. 3/23/07), 960 So.2d 931, 933. But see La. Code Civ.P. art. 2083, comment (b), “Irreparable injury continues to be an important (but not exclusive) ingredient in an application for supervisory writs.” (Citation omitted.) A court of appeal has plenary power to exercise supervisory jurisdiction over trial courts and may do so at any time, according to the discretion of the court. When the trial court’s ruling is arguably incorrect, a reversal will terminate the litigation, and there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictate that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial Ison the merits. Herlitz Const. Co., Inc. v. Hotel Inv’rs of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam).

ON THE MERITS

Louisiana Code of Civil Procedure Article 531 sets forth the rudiments of lis pendens:

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 of any of the suits, but the first final judgment rendered shall be conclusive of all.

In Aisola v. LA Citizens Prop. Ins. Corp., 14-1708, p. 4 (La. 10/14/15), 180 So.3d 266, 269, the supreme court instructed:

The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. For lis pendens to apply, La.Code Civ. Proc. art. 531 requires that (1) two or more suits are pending in a Louisiana court or courts; (2) on the same transaction or occurrence; and (3) between the same parties in the same capacities. The “test” established to determine if an exception of lis pendens should be sustained is the same as that for res judica-ta-, thus, an exception of lis pendens should be sustained if “a final judgment in the first suit would be res judicata in the subsequently filed suit.”

“[0]ur law states that lis pendens is stricti juris and ‘any doubt concerning the application of lis pendens must be resolved against its application.’ ” Rayner v. Evangeline Bank and Trust Co., 17-75, p. 4 (La.App. 3 Cir. 5/10/17), 219 So.3d 1122 (quoting Robbins v. Delta Wire Rope, Inc., 15-1757, p. 7 (La.App. 1 Cir. 6/3/16), 196 So.3d 700, 705). The determination of whether to stay a proceeding under the doctrine of lis pendens rests within the trial court’s sound discretion, and its decision should not be overturned absent a clear abuse of that discretion. Rivers v. Bo Ezernack Hauling Contractor, LEG, 09-1495 (La.App. 3 Cir. 5/5/10), 37 So.3d 1088.

URelator argues the trial court erred in denying its exception, as the two lawsuits at issue meet all three elements required to sustain the exception: (1) both actions are pending in Louisiana courts; (2) both involve the same exact parties in the same capacities—owner and subcontractor; and (3) both arise from the same transaction or occurrence in that the damage claims arise out of (a) the same prime construction contract of which the subcontract is a portion, and (b) the same construction project, which forms the operative set of facts underlying both suits. Moreover, Relator points out that, pursuant to La.Code Civ.P. art. 1061, plaintiff is required to'file its compulsory reconventional demands against Relator in.the original suit, and La.Code Civ.P. art, 425 likewise provides that plaintiff had to assert therein all causes of action arising out the transaction that is the subject matter of the original suit, ie., the construction project.

Next, Relator claims the trial court abused its discretion in denying the exception based upon a distinction between (a) the contract and tort claims asserted in the original suit, and (b) the Private Works Act claims asserted in the second- suit. However, Relator claims such a distinction is immaterial because the proper focus of the analysis should be on the set of facts giving rise to the suits—the factual subject matter—not on the nature of the claims. Relator concludes by arguing that practical considerations weigh in -favor, of granting its exception, given the likely potential for differing results and relief, which would have res judicata effect, in these identical, parallel suits, creating needless confusion and extra costs to all parties.

Although both suits are pending in Louisiana courts, plaintiff, in its opposition, argues that neither of the other two elements for lis pendens apply. Plaintiff explains that the suits do not arise out of the same transaction or occurrence in that the transaction or occurrence in the original suit is plaintiffs ^alleged failure to perform its construction obligations, while the,transaction or occurrence in the second suit, is the contractor’s failure to pay plaintiff for its services, giving rise to the now-bonded lien on Relator’s property. And, though the parties are the same, plaintiff asserts that they are not sued in the same capacity, given that (1) in the original suit, Relator filed its claim for damages in its capacity as tort yictim against plaintiff in its capacity as tortfea-sor, but (2) in the second suit, plaintiff, in its capacity as materialman and laborman, sued Relator, in its capacity as owner of the property subject to the lien. Moreover, according, to plaintiff, its success in enforcing its lien rights against the property would have no. res judicata effect on Relator’s suit for damages. Further, plaintiff states that- it has no contractual relationship with Relator and, now, no right to proceed against the real property in light of the bond, Thus, plaintiff avers that it has no- reconventional demand claim to assert against’Relator, so a lis pendens claim is meaningless. Simply put, plaintiffs argument is that, while both parties had some indirect-relationship to the construction .of a hotel, this is not sufficient for a successful judgment of lis pendens.

Ultimately, the issue in this writ application comes down to whether the trial court abused its discretion in denying the exception. And given that the lien—the sole basis upon which plaintiff brought suit against Relator—has been bonded by the general contractor, the trial court did not abuse its discretion in denying the exception. This is because it follows that Relator’s exception has now essentially been rendered moot in that (1) plaintiff will have to move against the bond, not the property or its owner, for the materials and labor it provided to the project, and (2) plaintiff has made it abundantly clear it is not seeking payment from Relator. ■ Because any doubt must be resolved against the application of the discretionary doctrine of lis pendens, this writ is denied: •

j WRIT DENIED. We find no error in the trial court’s judgment.

      . Relator several times throughout its application states that plaintiff sought to collect its full payment from both Bay Electric and Relator; however, it is clear from the transcript that plaintiff was only pursuing its lien claim against Relator as owner of the property subject to the lien, which Relator does ultimately concede.


author: GREMILLION, Judge.

text:
    Lionel LEWIS v. OLD REPUBLIC INSURANCE COMPANY, et al.
    2017-456
    Court of Appeal of Louisiana, Third Circuit.
    08/23/2017
    Bret Christopher Beyer, Sr., Attorney at Law, P.O. Box 53006, Lafayette, LA 70505, (337) 232-9733, COUNSEL FOR DEFENDANTS/RESPONDENTS: Old Republic Insurance Company, BFI Waste Services, LLC, Dustin Mason
    Keith P. Saltzman, Anderson <& Dozier, P.O. Box 82008, Lafayette, LA 70598-2008, (337) 233-3366, COUNSEL FOR PLAINTIFF/RELATOR: Lionel Lewis
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

_JjFrom the denial of his motion for summary judgment on the issue of liability, Plaintiff/Relator, Mr. Lionel Lewis, has applied to this court for supervisory relief. We granted Relator’s application. For the reasons that follow, we reverse and render judgment in favor of Relator.

PROCEDURAL HISTORY

This case arises from a motor vehicle accident that occurred on September 10, 2013, in Lafayette Parish. Mr. Lewis was operating a tractor trailer in the course of his employment with Reinhart Transportation. He stopped at a red traffic signal and was hit from behind by a garbage truck driven by Mr. Dustin Mason, who was employed by BFI Waste Services, L.L.C.

Mr. Lewis sued Mr. Mason, BFI Waste Services, L.L.C., and their insurer, Old Republic Insurance Company (Respondents), in August 2014. In February 2017, Mr. Lewis filed motions for summary judgment on the issues of liability and insurance coverage. The motions were set for hearing on March 27, 2017. The defendants filed their opposition to the motions on March 17, 2017, and included in their opposition an objection to the inclusion by Mr. Lewis of the Uniform Motor Vehicle Accident Report. On March 22, 2017, Relator filed a motion to strike the defendants’ untimely opposition.

The trial court granted Mr. Lewis’s motion for summary judgment on the issue of insurance coverage. Although the trial court stated on the record that the Respondents’ late submissions were not considered, it denied Mr. Lewis’s motion on the issue of liability. From the denial of this motion, Mr. Lewis sought this court’s exercise of its supervisory jurisdiction, which was granted.

| ¡ANALYSIS

A denial of a motion for summary judgment is interlocutory, and the only remedy available is to seek supervisory relief. Breaux v. Cozy Cottages, LLC, 14-486 (La.App. 3 Cir. 11/12/14), 151 So.3d 183.

Motions for summary judgment are governed by La.Code Civ.P. arts. 966 and 967. These articles have been extensively amended by the legislature since 1996, when the legislature first pronounced that summary judgment procedure is favored. See 1996 La.Acts 1st Ex.Sess. No. 9, § 1. The most recent amendment to Article 966(B) altered the deadlines for filing motions for summary judgment and oppositions thereto. 2015 La.Acts No. 422. Paragraph (B) now provides:

Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.

The standard of review applicable to summary judgment is well known:

Courts of appeal review summary judgments de novo applying the same analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides | athat while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on thé matter that is before the court on the motion for summary judgment, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out 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 he will be able to satisfy his eviden-tiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606.

Berard v. Home State County Mut. Ins. Co., 11-1372, p. 2 (La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471-72.

■ In support of his motion, Mr. Lewis attached his own affidavit, in which he attested that he was stopped at a red traffic signal and was struck from behind by a truck driven' by Dustin Mason. He also attached a copy of the police accident report, which the trial court properly struck. Proving liability is Mr. Lewis’s burden at trial

Respondents’ opposition to the motion was untimely under La.Code Civ.P. art. 966(B)(2). They argue, though, that the trial court had discretion under the article to allow their late submission. We disagree. As amended, Article 966(B) allows a trial court to extend the deadline with the agreement of all parties. This condition clearly was not fulfilled; Relator objected to the late filing of the opposition. The trial court, therefore, had-no discretion to allow this late filing. The refusal of the trial court to entertain Respondents’ late filings was mandated by La.Code Civ.P. art. 966.

A motion for summary judgment can be granted on the presumption that a following motorist who strikes a leading motorist is negligent, See, e.g., Leblanc v. Bouzon, 14-1041 (La.App. 3 Cir. 3/4/15), 159 So.3d 1144. Mr. Lewis attested that he was operating the 2006 White Preightliner vehicle owned by Reinhardt |/Transportation north-bound on Evangeline Thruway in Lafayette and came to a stop at the red traffic signal at the intersection with -Kaliste Saloom Road. He was thereafter struck from behind by a 2006 Mack 40000 driven by Mr. Mason. These facts are sufficient to invoke the presumption of fault. It thereafter falls upon Mr. Mason to exonerate himself of fault or establish facts sufficient to demonstrate comparative fault of Mr. Lewis. Id. Because Respondents’ submissions were untimely filed and disregarded by the trial court, they failed to establish any facts that would exonerate Mr. Mason or demonstrate any fault on Mr. Lewis’s part. Accordingly, the trial court erred in denying Mr. Lewis’s motion for summary judgment on the issue of liability.

The judgment of the trial court is reversed, and judgment entered in favor of Mr. Lionel Lewis and against Mr. Dustin Mason, his employer, BFI Waste Services, LLC, and their liability insurer, Old Republic Insurance Company, assessing them with 100% fault in this matter. All costs of this supervisory review are taxed as costs to Respondents.

REVERSED AND RENDERED.