author: Judge Joy Cossich Lobrano

text:
    Jordy ROUSSE v. UNITED TUGS, INC.
    NO. 2017-CA-0585
    Court of Appeal of Louisiana, Fourth Circuit.
    December 20, 2017

      Timothy J. Young, Megan C. Misko, Tammy D. Harris, THE YOUNG FIRM, 400 Poydras Street, Suite 2090, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    William B. Schwartz, Alex S. Aughtry, BALDWIN HASPEL BURKE & MAYER, L.L.C., 1100 Poydras Street, Suite 3600, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)
   Judge Joy Cossich Lobrano

hln this' maritime personal injury' case, plaintiff/appellant, Jordy Rousse (“Rousse”), appeals the district court’s April 19, 2017 judgment granting the motion for partial summary judgment filed by defendant/appellee, United Tugs, Inc. (“United”), and dismissing Rousse’s claims for maintenance and cure. For the reasons that follow, we convert the appeal to an application for supervisory writ, grant the writ application, and deny relief.

On May 15, 2014, Rousse injured his back in a work-related accident while performing his duties' as a deckhand aboard' a vessel owned by United, his employer. On September 19, 2014, Rousse filed a petition for damages .against United, alleging claims arising under thé Jones Act, General Maritime Law, and the saving to suitors clause. United paid Rousse. maintenance and cure following his accident, during which time Rousse underwent two lumbar spine surgeries.

On February 14, 2017, United filed a motion for partial summary judgment raising a McCorpen defense. United argued that, pursuant to McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968), Rousse is precluded from receiving maintenance and cure because he concealed from his. employer .a preexisting medical condition. United contended that, on ■ October 10, 2013, prior to hiring Rousse, United required Rousse to undergo a pre-employment physical and complete a prior medical history questionnaire form. When completing the form, | PRousse failed, to disclose prior back injuries and medical treatment for prior back complaints.

On April 19, 2017, the district court granted partial summary judgment and dismissed Rousse’s claims against United for maintenance and cure. This appeal followed. Rousse sets forth a single assignment of error on appeal, contending that the district court erred in granting partial summary, judgment.

Before we discuss the judgment in question, we must first address whether this court has appellate jurisdiction to review this matter. The district court judgment dismissed some, but not all, of Rousse’s claims against United. Specifically, the judgment only dismissed Rousse’s claims for maintenance and cure, but certain other claims against United, including claims of negligence and unseaworthiness, remain set for trial on the merits. Accordingly, the April 19, 2017 judgment is a partial judgment within the ambit of La. C.C.P. art. 1915(B), which provides:

(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, re-conventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

|sThe district court did not designate the judgment as final for the purpose of an immediate appeal; thus, this is not a final, appealable judgment, and this Court lacks appellate jurisdiction to review the judgment.

“The proper procedural vehicle to seek review of an interlocutory judgment that is not immediately appealable is an application for supervisory writ,” Delahoussaye v. Tulane Univ. Hosp. & Clinic, 2012-0906, 12-0907, p. 4 (La. App. 4 Cir. 2/20/13), 155 So.3d 560, 562 citing La. C.C.P. art. 2201. “[T]he difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right.” Livingston Downs Racing Ass’n, Inc. v. La. State Racing Comm’n, 96-1215, p. 3 (La. App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216.

When confronted with a judgment in an appellate context that is not final and appealable, this Court is authorized to exercise its discretion to convert that appeal to an application for supervisory review. See Stelluto v. Stelluto, 2005-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39 (“the decision to convert an appeal to an application for supervisory writs is within the discretion of the appellate courts”). This Court has in similar circumstances ordinarily but not necessarily “converted ‘appeals’ of non-ap-pealable judgments to applications for supervisory writs in those cases in which the motions for appeal were filed within the thirty-day period allowed for the filing of applications for supervisory writs.” Favrot v. Favrot, 2010-0986, p. 6 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1104. See also Uniform Rules, Courts of Appeal, Rule 4-3.

LHere, the judgment was signed on April 19, 2017, and the motion for appeal was filed on May 2, 2017, which is within the thirty-day time period allowed for the filing of an application for supervisory writ. We thus exercise our discretion and convert the instant appeal to an application for supervisory writ. See, e.g., Zeigler v. Hous. Auth. of New Orleans (HANO), 2015-0626, pp. 3-4 (La. App. 4 Cir. 3/23/16), 192 So.3d 175, 178.

Courts of appeal 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, 2005-1418, p. 25 (La. 7/10/06), 935 So.2d 669, 686 (citations omitted). The summary judgment procedure is favored in Louisiana. La. C.C.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, C.C.P. art. 966(A)(3). Regarding the burden of proof on summary judgment, La. C.C.P. art. 966(D)(1) states:

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.

lsThe Louisiana Supreme Court has explained our state courts’ “concurrent” subject matter jurisdiction in maritime cases as follows:

As a general proposition, maritime law in the United States is federal law. This proposition is based upon Article III, § 2, cl. 1 of the United States Constitution, which provides that the federal judicial power “shall extend ... to all Cases of admiralty and maritime Juris-' diction.”
Notwithstanding, federal-court jurisdiction over maritime cases has not been entirely exclusive. Section 1333(1) of Ti-tie 28 of the United States Code, which is the successor to the Judiciary Act of 1789, bestows upon the federal district courts “original jurisdiction, exclusive of the courts of the States,” of admiralty and maritime cases, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” The emphasized language, commonly referred to as the “saving to suitors” clause, has been interpreted as giving states the concurrent power to hear in personam admiralty cases. Thus, a maritime plaintiff may elect to pursue his in personam action in either state or federal court. Generally, state courts exercising concurrent maritime jurisdiction are bound to apply substantive federal maritime statutory law and. to follow United States Supreme Court maritime jurisprudence. [footnote omitted] However, they may adopt such remedies, and attach to them such incidents as they see fit, so long as they do not attempt to make changes in the substantive maritime law. [footnote omitted]

Milstead v. Diamond M Offshore, Inc., 95-2446, pp. 6-7 (La. 7/2/96), 676 So.2d 89, 93-94 (internal citations omitted)(emphasis in original).

The matter before this Court requires us to determine .whether Rousse has forfeited his entitlement to receive maintenance and cure. “A claim for maintenance and cure concerns the vessel owner’s obligation to provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis & Clark Marine Inc., 531 U.S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). In McCorpen, the U.S. Fifth Circuit Court of Appeals held that an employer’s obligation to pay maintenance and cure is eliminated if a seaman intentionally conceals or fails to disclose past |fiillness or injury to an employer who required the seaman to submit to a pre-hiring medical examination or interview. 396 F.2d at 548-49. We recognize that the McCorpen defense arises from jurisprudence of the U.S. Fifth Circuit, which has neither been adopted nor rejected by the U.S. Supreme Court and has not been codified in a federal statute.

“In matters involving federal law, state courts are bound only by decisions of the United States Supreme Court. Federal appellate court decisions are persuasive only.” Shell Oil Co. v. Sec’y, Revenue & Taxation, 96-0929, p. 9, n. 11 (La. 11/25/96), 683 So.2d 1204, 1210 (citations omitted). “Federal appellate decisions will not be followed in the face of positive jurisprudence of the Supreme Court of Louisiana to the contrary.” Id.; 96-0929 at p. 9, 683 So.2d at 1210. Nonetheless, as federal appellate decisions are persuasive authority, “we review those opinions carefully to see if they provide further guid-anee for our analysis.” FIA Card Servs., N.A. v. Weaver, 2010-1372, p. 7 (La. 3/15/11), 62 So.3d 709, 714. Likewise, federal district court decisions are not binding on this Court, but we may find their “rationale persuasive and concur with [their] conclusions.” Houston v. Avondale Shipyards, Inc., 506 So.2d 149, 150 (La. App. 4th Cir. 1987).

|7The Louisiana Supreme Court has never addressed the question of whether the McCorpen defense is viable in Louisiana. •The only reported case, in which the Louisiana Fourth Circuit .specifically examined and applied the McCorpen defense, was reversed by the Louisiana Supreme Court, which summarily found that the district court was “not clearly wrong” and reinstated the district court’s judgment, without ascribing further reasons. See Pichon v. Ocean Drilling & Expl. Co., 617 So.2d 38 (La. App. 4th Cir. 1993), writ granted, judgment rev’d, 619 So.2d 536 (La. 1993). Most recently, in Cotton v. Delta Queen Steamboat Co., 2009-0736, pp. 11-12 (La. App. 4 Cir. 1/6/10), 36 So.3d 262, 270, this Court found no. cause of action for an employer seeking 'restitution of maintenance. and cure already paid to a seaman, where the district court .denied cure as to certain physicians, finding that partial summary judgment was “supported by the McCorpen decision.”

Regarding other Louisiana state courts of appeal, the Louisiana Fifth Circuit has adopted and applied the McCorpen defense, See, e.g., Hernandez, v. Bunge Corp., 2001-1201 (La. App. 5 Cir. 4/10/02), 814 So.2d 783, writ denied, 2002-1551 (La. 9/30/02), 825 So.2d 1193. The First and Third Circuits have considered and examined the McCorpen defense, though in the particular cases at bar, those courts found the respective employers had not met their burdens of proof under the defense. See, e.g., Folse v. Gulf Tran, Inc., 2003-0758 (La. App. 1 Cir. 2/23/04), 873 So.2d 718; Greaud v. Acadian Towboats, Inc., 628 So.2d 52 (La. App. 1st Cir. 1993); LaPrarie v. Hercules Offshore Corp., 2001-1193 (La. App. 3 Cir. 2/6/02), 8817 So.2d 149. We have found no reported case of this State specifically rejecting or declining to follow McCorpen in any maritime 'Claim filed in a Louisiana state court. Accordingly, we find McCorpen persuasive authority. We now address the merits of United’s McCorpen defense.

The U.S. Fifth Circuit set forth three elements an employer or shipowner must prove to establish a McCorpen defense: (1) the seaman intentionally misrepresented or concealed facts; (2) the omitted facts were material to the employer’s hiring decision; and (3) a causal connection between the prior injury or ailment and the present injury in the complaint. 396 F.2d at 548-49. See also Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 174 (5th Cir. 2005).

Rousse argues that the district court erred in granting summary judgment, as he disputes that any of the elements of'the McCorpen defense were satisfied. He contends that genuine issues of material fact exist as to whether his non-disclosure of prior back complaints was intentional; whether the non-disclosed back, complaints were material to United’s hiring decision; and whether there is any link between his prior back complaints and his current injury.

With respect to the first element of intentional concealment, Rousse argues that his subjective intent and language contained in United’s pre-employment medical questionnaire form create factual disputes for trial. Specifically, Rousse contends that, at the time he completed the form, he had no current back pain and did not think that ány of his prior injuries were “significant,” The form at issue contained the following instruction:

| .ATTENTION; YOU MUST ANSWER TRUTHFULLY REGARDING THE BELOW MEDICAL CONDITIONS. FAILURE TO ANSWER TRUTHFULLY WILL RESULT IN IMMEDIATE TERMINATION AND FORFEITURE OF WORKERS COMPENSATION BENEFITS AND FORFEITURE OF MAINTENANCE AND CURE.
Circle Y.for YES and N for NO if you currently have the following symptoms or have significantly in the past. Describe any “yes” at bottom.

(Emphasis added). Below' the instruction, the form listed a series of medical conditions. There is no dispute that Rousse completed the form and answered N to' all conditions, inclüding “Injured back/back pain,” “Recurrent neck/back pain,” “Ruptured/herniated' disc,” “Difficulty walking/climbing,” “Sciatica or nerve pain,” “Numbnéss/parálysis,” “MRI, CT scan, discogram or myelogram,”, and “Injury or illness which required loss time from work.” There is also no dispute that United required Rousse to submit to a pre-hiring medical examination and to complete the medical questionnaire form at issue.

In its reasons for judgment, the district court provided a summary of the medical records introduced by United, documenting Rousse’s prior lower back complaints, as follows:

Medical records produced, by United show that plaintiff [Rousse] underwent lumbar spine x-rays at age 16 in November, 2002 when he experienced lower back pain. At that time he was diagnosed with “probable spondylolisthesis of L5 on SI.” On November 18, 2004, while working as a stock clerk, plaintiff visited an emergency room following a work related injury. On that occasion plaintiff reported to hospital staff that he had attempted to catch a co-worker who fell off of a ladder. He described pain in his lower back and numbness in his legs. Plaintiff further reported that his medical history included a “bulging L5-birth defect-sacral fracture.” Following an automobile accident in November, 2004, plaintiff was treated at an emergency room for injuries to his head, right shoulder, and low back. He told hospital staff that he had lost consciousness at the time of the collision. As part of his medical history he reported a fracture of his |inlower back. On that occasion plaintiff underwent a CT scan of his head and x-rays of his neck and low back. The radiologist’s notes read “loss of normal lordosis with straightening and kyphosis of the .[cervical] spine, nonspecific.” For the lumbar spine, the radiologist noted, “Grade I anterolisthe-sis of ,L5 on SI likely congenital as this is similar to September 18th of 2004.” In September, 2006, plaintiff was treated, at an emergency room following a physical altercation. He reported to hospital staff that he sometimes took Xanax and Lor-tab for back problems.
On three separate dates in July, 2012, while working for another towing company, plaintiff sought treatment at Complete Occupational Health Services for low back pain that" radiated' to his legs. He reported that he felt a pull in his back while lifting a box. This was the same medical facility where plaintiff would later undergo his pre-employment physical for United. On July 24, 2012, plaintiff completed a form listing 88 medical conditions. He was instructed to circle the symptoms he had experienced. He indicated yes to injured hip; back surgery/injury; recurrent neck/back pain; difficulty walking/climbing; numbness/paralysis; and MRI, CT scan, dis-cogram or myelogram. Plaintiff noted that “[a]ll my yes answers started 8 days ago.” Plaintiff reported that he was taking “Hydroco/APAP” and that he used the medication for pain. He related that he experienced this type of back pain two to three times a year, and it normally resolved within two to three days. The diagnosis on this occasion was acute myofascial strain, acute low back pain, and sciatica. The clinic released plaintiff to return to work on July 30, 2012.
When plaintiff returned to Complete Occupational Health Service on October 10, 2013 for his pre-employment examination, he was given the same type of form as the one he had completed in July, 2012. This time he did not note any of his prior back problems. But when he was treated at Terrebonne General Medical Center on May 15, 2014 for alleged injuries sustained in the accident that is the subject of the instant lawsuit, plaintiff told medical staff that for five weeks he had suffered left low back pain radiating down his left leg, and that the pain worsened that day when he stepped off of a barge at work. Plaintiff reported that he had suffered similar episodes in the past.

The McCorpen decision explained that in “cases involving a pre-existing illness or other disability, the courts have made a distinction'between nondisclosure and concealment.” 396 F.2d at 548. “Where the shipowner does not require a pre-em-ployment medical examination or interview, the rule is that a |nseaman must disclose a past illness or injury only when in his own opinion the shipowner would consider it a matter of importance.” Id. at 548-49. “On the other hand, where the shipowner requires a seaman to submit to a pre-hiring medical examination or interview and the seaman intentionally misrepresents or conceals material medical facts, the disclosure of which is plainly desired, then he is not entitled to an award of maintenance, and cure.” Id. at 549.

The U.S. Fifth Circuit in Brown v. Parker Drilling Offshore Corp. held that “[t]he ‘intentional concealment’ element does not require a finding of subjective intent.” 410 F.3d at 174 (quoting Vitcovich v. Ocean Rover O.N., No. 94-35047, 106 F.3d 411, 1997 WL 21205, at *3 (9th Cir. Jan. 14, 1997)). “Rather, it refers to the rule that a seaman may be denied maintenance and cure for failure to disclose a medical condition only if he has been asked to reveal it.” Id. “Failure to disclose medical information in an interview or questionnaire that is obviously designed to elicit such information therefore satisfies the ‘intentional concealment’ requirement.” Id. The Brown court rejected an injured seaman’s argument that he did not consider any prior back strain or muscle pulls to be “back injuries” when confronted with the question on an employment application. 410 F.3d at 175.

In Wimberly v. Harvey Gulf Int’l Marine, LLC, 126 F.Supp.3d 725, 732 (E.D. La. 2015), the federal district court for the Eastern District of Louisiana considered a pre-employment medical history form containing the same instruction, using the “significantly” language of which Rousse complains. Relying on Brown, the Wimberly court rejected the seaman’s argument and found that | iasubjective intent was not material to the “intentional concealment” element. Id. at 731-32. The court found that the plaintiff downplayed his past medical history and that this was evidence of objective intent'to conceal. Id. at 732. See also Ladnier v. REC Marine Logistics, L.L.C., No. 14-1278, 2015 WL 3824382, at *4 (E.D. La. June 19, 2015)(addressing the same instruction and adopting Brown’s holding that intentional cbnéealment does not require a finding of subjective intent). We are persuaded by the reasoning in these cases. Here,' the record is clear that Rousse complained of lower back pain and sought medical treatment for those complaints dating back to 2002; he did not, however, disclose this medical information to United on the medical questionnaire form that United required him to complete. Thus, we find that the intentional concealment element is satisfied, and Rousse’s argument without merit.

We next turn to the second element of materiality. In Broim, the U.S. Fifth Circuit held that “[t]he fact that an employer asks a specific medical question on an application, and that the inquiry is rationally related to the applicant’s physical ability to perform his job duties, renders the information material for the purpose of this analysis.” 410 F.3d at 175..

Rousse argues that' United failed to establish that any concealed facts were material to United’s hiring decision. United supplied an affidavit 'of its president, Emmett Michel Eymard, who attested that if Rousse had accurately disclosed his pri- or medical-history of back problems, United would not have hired Rousse' without further medical evaluation, medical records review, and functional testing |1sto determine whether Rousse could perform the duties of a deckhand. Eymard attested that, as president, he. set forth hiring policies and procedures relating to Rousse. Eymard further attested that United requires all prospective employees to com-píete the medical questionnaire form, and United uses the form “to have prospective employees disclose medical conditions and facts material to the ultimate decision whether or not to hire an employee.” According to the affidavit, the form was “designed to fo.rm part of an overall assessment whether Jordy Rousse was physically capable of performing work of a deckhand on ocean going tugs operated by United Tugs,” The affidavit stated that the “job of a deckhand at United Tugs is not a sedentary job and requires a certain level of physical activity” and listed numerous physical job duties of a deckhand. Rousse did not submit any evidence to refute the affidavit.

Rousse contends that Eymard’s affidavit is, insufficient because Eymard failed to attest that Rousse would not have .been hired had United known about the prior back complaints. Rousse cites to Cal Dive Int'l, Inc. v. Grant, No. 11-1657, 142013 WL 1099157, at *5 (E.D. La. March 15, 2013), in which the court found genuine issues of material fact as to the materiality prong where the employer submitted an affidavit that disclosure would have “materially affected Cal Dive’s decision to hire hér”; that the plaintiff “would have been sent for further evaluation and testing” and “[bjased on the results of that testing, a determination on providing reasonable accommodations to allow her to perform the essential functions of her position safely would b,e made”; and that “[i]f no rear sonable accommodations can be made, then she would not have been hired.”

In Rousse’s case, however, Eymard’s affidavit contains no attestation that any reasonable accommodations were available to afford Rousse’s potential hiring, in the event that Rousse had disclosed his prior back condition to United. We find Ey-mard’s affidavit more similar to the employer’s “declaration” discussed in Dennis v. ESS Support Servs. Worldwide, No. 15-690, 2016 WL 3689999, at *5 (E.D. La. July 12, 2016), In Dennis, the employer set forth a list of job requirements of the position and attested that had the plaintiff disclosed his prior injury, the employer would-have required the plaintiff to produce additional medical records and undergo further testing and evaluation before reaching a decision to hire him. Id. The court rejected the plaintiffs argument that the employer would have hired him regardless and provided him with reasonable accommodations, and the court found no genuine issues of material fact as to the materiality prong. Id. We are persuaded by the reasoning provided in Dennis and Brown. Importantly, here, Rousse has not produced any evidence to refute 11BEymard’s affidavit. We find the materiality element is met, and Rousse’s argument is without merit.

Lastly, we turn to the third element, causal connection. Rousse argues that his pre-accident and post-accident injuries are not similar and that no connection between these injuries exists. He also contends that his pre-injury medical records show no previous injury at the L3-4 or L4-5 levels of the spine; a post-accident lumbar MRI, however, showed a disc bulge at L3-4 and herniation at L4-5. United argues that the link between the prior injuries and present injury is satisfied because the prior and new injury affected the same body part — the lower back — and Rousse complained of the same symptoms, namely, low back pain radiating into his legs with numbness and tingling. Brown stated:

... [The employer] need not prove that the prior injuries are the sole causes of the herniation. It need only show a causal relationship between the prior injuries and the herniation. “[T]here is no requirement that a present injury be identical to a previous injury. All that is required is a causal link between the pre-existing disability that was concealed and the disability incurred during the voyage.” Quiming v. Int’l Pac. Enters., Ltd., 773 F.Supp. 230, 236 (D.Haw. 1990) (citing McCorpen, 396 F.2d at 549.)

410 F.3d at 176 (emphasis in original). “ ‘[W]here plaintiff claims an injury in the exact same area of the back as was previously injured, the causal connection is clear.’” Id. (quoting Weatherford v. Nabors Offshore Corp., No. 03-0478, 2004 WL 414948, at *3 (E.D. La. March 3, 2004)).

In Brown, the plaintiffs expert witness acknowledged that .plaintiffs prior back strains were in the same lumbar spine region as his current back condition, a | ir,herniated disc. 410 F.3d at 176. The fact that the injuries were in the same location was considered sufficient for a causal connection. Id. The Brown court cited to Weatherford, 2004 WL 414948 at *3, which found an “obvious causal connection” between the plaintiffs previous and current injuries because the plaintiff had admitted to concealing a prior injury to his lower back, and his current claim included,an allegation of a “sharp, stabbing pain” in his lower back. .

Likewise, in Wimberly, 126 F.Supp.3d at 734-35, the plaintiff complained of a current injury of “‘moderate degenerative disc disease and spondylosis at the L4-5 and L5-S1 levels with central annular tear at both levels ... [and], chronic-appearing moderate T12 compression [fracture]... ’ ” Prior to this injury, the plaintiffs history of back problems consisted of complaints of ‘dower back pain,” “back pain,” “back sprain,”= “lower back sprain,” and diagnosis of an “LI vertebral body wedge, compression fracture of unknown age.” Id. at 734. Relying on Brown, the court found that “[w]hile the compression fracture and the reports of back strains are not ‘identical’ to Wimberly’s current disc injury, the location of his past issues of back pain and injuries coincide the previous injuries to the lower back area. The prior compression fracture and muscle sprains need not be the sole cause of the disc herniation to establish the causal link.”. Id. at 734-35 (citing Brown, 410 F.3d at 176). Rather,, a “causal relationship exists when the prior injury is located on the same body part as the present injury.” Id. at 735. See also LeBlanc v. LA Carriers, LLC, No. 15-1657, 2016 WL 1268342, at *7-9 (E.D. La. Mar. 31, 2016)(collecting cases)(finding no genuine issue of material fact as to causal 117connection and rejecting plaintiffs argument that “the conditions need to be identical or at least cause similar symptoms”).

In contrast, Dennis demonstrated that a genuine issue of material fact-existed as to a caudal link between a prior “high ankle” fracture and a subsequent work-related “low ankle” injury. 2016 WL 3689999 at *5. There, physicians testified to conflicting opinions of whether the subsequent injury aggravated the prior injury, and the court determined that the existence of a causal connection was an issue for trial in order to weigh credibility of expert witnesses. Id.

In the matter before us, Rousse has not ■introduced evidence of any physician’s opinion that his prior and current back conditions are unrelated. Rather, Rousse comes forward with his interpretation of his medical records to argue that his old and new injuries are not similar. Nevertheless, there is no question that Rousse’s prior injuries, as well as the injury in litigation, are to the lower back. Under the standard set out in Brown, Weatherford, and Wimberly, the causal connection element is met by the fact that all injuries were to the same body part. Again, we find these cases persuasive. We are not guided by Dennis with respect to the causal connection element because the record herein lacks any conflicting physician opinions as to the relationship between Rousse’s current and past back complaints. Thus, we find the causal connection element satisfied, and we find Rousse’s position without merit.

[ isFor the reasons stated above, we find that the district court properly granted partial summaxy judgment in favor of United, dismissing Rousse’s claims for maintenance and cure. Accordingly, we convert the instant appeal to a writ application, exercise our supervisory juiisdiction to grant the writ application, and deny relief from the April 19, 2017 judgment of the district court.

|13APPEAL CONVERTED TO WRIT; WRIT GRANTED; RELIEF DENIED

      . As discussed in this opinion, under McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 548 (5th Cir. 1968), an injured seaman is not entitled to maintenance and cure where he knowingly or fraudulently conceals his preexisting illness from his employer and there is a causal link between the preexisting disability that was concealed’ and the disability incurred during the voyage.

      . There is a split among the federal circuit courts of appeal as to what non-disclosures regarding prior injuries result in a seaman's forfeiture of maintenance and cure. The U.S. Third, Fourth, Eighth, and Ninth Circuits each apply a standard similar to the McCorpen defense. See Deisler v. McCormack Aggregates Co., 54 F.3d 1074, 1081 (3d Cir. 1995); Evans v. Blidberg Rothchild Co., 382 F.2d 637 (4th Cir. 1967); Wactor v. Spartan Transportation Corp., 27 F.3d 347, 352 (8th Cir. 1994); Tawada v. United States, 162 F.2d 615 (9th Cir. 1947). The U.S. Second Circuit has rejected the McCorpen defense, holding that a seaman "who believes himself fit for duty and signs on without any fraudulent concealment, is entitled to maintenance and cure, notwithstanding a previous condition of ill health.” Sammon v. Cent. Gulf S. S. Corp., 442 F.2d 1028, 1029 (2d Cir. 1971)(quoting Ahmed v. United States, 177 F.2d 898, 900 (2d Cir. 1949)).

      . The prior judgment of the district court, which relied had on McCorpen, was not reviewed on appeal and was not before the Court. Id., 2009-0736 at p. 11, n. 9, 36 So.3d at 270.

      . According to Eymard’s affidavit, the duties of a deckhand at United include:
      a, “Making up the tow”
      b, "Dropping, spotting and switching barges at docks”
      c. "Assisting the vessel and tow in malting ! locks”
      d. "Standing lookout, or riding the head of the two as a lookout”
      e. "Performing the various tasks necessary to carry out the above, such as malting a coupling, operating winches and , ratchets, and line handling, including splicing and throwing lines”
      f. "Chipping and painting vessel”
      g. "Other equipment maintenance as needed”
      h. "Cleaning or scouring the boat”
      i. "Cleaning quarters, including personal quarters”
      j. "Cleaning the wheelhouse and galley”
      k. "Cleaning the heads and companionways”
      l. "Maintaining the barge, grease winches, dogs on hatch covers, etc.”
      m. "Dewatering the barge as necessary; and”
      n. "Performing other cleaning chores as directed by the Master”.

      . Parker v. Jackup Boat Serv., LLC, 542 F.Supp.2d 481 (E.D. La. 2008), cited by Rousse, is distinguishable because the employer therein failed to submit any medical evidence of prior or current treatment for plaintiff's neck injury in support of its motion summary judgment. Jenkins v. Aries Marine Corp., 590 F.Supp.2d 807 (E.D. La. 2008) is likewise distinguishable because no evidence of medical treatment for a prior head injury was introduced in support of the employer’s motion for summary judgment. Johnson v. Cenac Towing, Inc., 599 F.Supp.2d 721, 734 (E.D. La. 2009) is also not instructive as the particular issue before the district court, on remand from the U.S. Fifth Circuit, was whether the plaintiff was contributorily negligent. Rousse acknowledges in his brief that the remaining cases he cites regarding the causal connection element are those in which the employer prevailed on that issue.


source: Caselaw Access Project

author: Judge Terri F. Love

license: Public Domain

text:
    Benjamin F. CROSBY and Bentex Associates, Inc. v. SAHUQUE REALTY COMPANY, INC., Latter & Blum Property Management, Inc., ABC Insurance Company and XYZ Insurance Company
    NO. 2017-CA-0424
    Court of Appeal of Louisiana, Fourth Circuit.
    December 28, 2017

      Andrew R. Lee, Samantha M. Schott, JONES WALKER LLP, 201 St. Charles Avenue, 51st Floor, New Orleans, LA 70170-1700, COUNSEL FOR- PLAINTIFFS/APPELLANTS
    Peter J. Wanek, Lynda A. Tafaro, Elizabeth B. McDermott, McCRANIE, SIS-TRUNK, ANZELMO, HARDY, MAXWELL, mcdaniel & welch, pc, 909 Poydras Street, Suite 1000, New Orleans, LA 70112, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins)
   Judge Terri F. Love

11 This appeal involves a landlord-tenant dispute over damages to movable property allegedly due to' water intrusion in the leased property. Plaintiffs Benjamin Crosby (“Mr. Crosby”) and Bentex Associates, Inc. (“Bentex”), seek review of the trial court’s November 2016 ruling granting summary judgment in favor of defendant Sahuque Realty Company, Inc. (“Sa-huque”). We find no error in the trial court’s ruling partially granting Sahuque’s exception of prescription, finding Mr. Crosby’s pre-2008 claims have prescribed. Additionally, pursuant to our de novo, review, we find genuine issues of material fact exist, precluding summary judgment. Therefore, we reverse the trial court’s judgment in- favor of Sahuque and remand for further proceedings.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

Mr. Crosby, an interior designer, founded his company Bentex, through which Mr. Crosby purchased textiles that Bentex would convert into draperies, rugs, upholstery, bedding, wall covering, and other furnishings. Bentex would then sell the finished products to hotels, cruise ships, and other buyers nationwide.

Mr. - Crosby leased three apartments owned by Sahuque, and later managed by Latter & Blum Property Management, Inc. (“Latter & Blum”) (collectively “Defendants”), at 708 Orleans Avenue in the New Orleans French Quarter. Mr. Crosby, whose primary residence is in Florida, used two of the apartments as his -second home until September 2008. Bentex leased the third apartment for use as |2a decorated showroom.

Mr. Crosby and Bentex initially entered into written lease contracts for the, apartments. A provision included in the leases waived Sahuque’s liability for “any injury or damages .to any property or to any person on or about the leased premises or for any injury or damage to any property of lessee.” The leases further stated that, if the property suffered partial but reparable destruction, the lessor could choose to cancel the lease or instead repair the damage after notification to the lessee. The leases also contained a provision that purported to release Sahuque of any responsibility for water damage “unless same is caused by lessor’s failure to comply with any obligations expressly assumed in this lease.” After the leases expired on December 31, 2004, Mr. Crosby and Bentex continued leasing the properties pursuant to an oral agreement on a mqnth-to-month basis.

Sahuque admitted that on at least five occasions between 1995 and 2000, rain events caused water to flow into the apartments and cause damage to plaintiffs’ property. During plaintiffs’ occupancy, from the mid-1990s until June 2009, plaintiffs experiencéd. water intrusion into the apartments that damaged plaintiffs’ movable property, including interior furnishings, draperies, and artwork. There is a factual dispute over the last date of water intrusion that caused damages to .Mr. Crosby’s belongings.

Plaintiffs filed their original petition in October 26, 2009, alleging that defendants breached duties they owed pursuant to the lease contracts and under [Jaw. Plaintiffs alleged that despite repeated notice, defendants failed, to make necessary repairs to weatherproof the leased property. Plaintiffs averred that the units became infested with mold, causing Mr. Crosby to seek medical treatment. The original petition sought damages for Mr. Crosby’s personal injuries, medical expenses, and for mold contamination and resulting damages to personal property.

Plaintiffs filed a petition for damages, claiming defendants failed to properly weatherproof and make necessary repairs to the leased property constituting a continuing tort, because the operating cause of the injury was ongoing and gave rise to successive damages. Defendants disputed plaintiffs’ claims, arguing that the alleged damages resulted from .the separate weather-related occurrences of water intrusion into the units, rather than from defendants’ continuous tortious conduct. Defendants filed an exception of prescription, which the trial court granted; however, this Court reversed on appeal.

Sahuque reasserted its exception of prescription on remand. The trial court found that because plaintiffs filed suit in October 2009, plaintiffs’ claim regarding the January 2009 rain event was within the one-year liberative prescription period. The trial court also found that plaintiffs claim based on the August 2008 rain event was not prescribed. The trial court determined in light of the parties’ January 2009 agreement, which Mr. Crosby memorialized, defendants had lulled plaintiffs into inaction, as contemplated by the doctrine of contra non valentum. Therefore, on April 2, 2014, the trial court partially granted the exception, concluding that only [¿plaintiffs’ claims relating to the August 2008 and January 2009 rain events were not prescribed.

In July 2015, shortly after Sahuque filed a motion to compel discovery, plaintiffs’ counsel withdrew from the case. The trial court allowed plaintiffs an opportunity to obtain new counsel. Subsequently, Sa-huque moved to dismiss plaintiffs’ lawsuit, citing plaintiffs’ failure to enroll new counsel, to provide dates for Mr. Crosby’s deposition, and to respond to discovery. Mr. Crosby appeared pro se for himself and Bentex at the April 2016 hearing, explaining the delay in obtaining new counsel. The trial court nevertheless granted in part the motion to dismiss, dismissing with prejudice all of Bentex’s claims on the basi£ that Mr. Crosby could not represent the company pro se and ordered Mr. Crosby to respond to defendants’ discovery requests.

Thereafter, Sahuque filed , a motion for summary judgment. At the hearing, Sa-huque argued that Mr. Crosby failed to produce an expert witness to establish that the August 2008 and January 2009 water intrusion events were the cause-in-fact of Mr. Crosby’s damages. Mr. Crosby submitted an engineer report which he alleges established that the 2008 and 2009 water intrusion events caused the mold found in the units. Additionally, Mr. Crosby submitted a detailed, sworn affidavit, including specific statements that the August 2008 water intrusion event caused mold to propagate in the units, rendering his personal property toxic and unusable. Mr. Crosby also attached an inventory of the “personal property damaged by exterior water intrusion or mold infestation/contamination or both from August 21, |B2008 forward to June, 2009.”

The trial court found Mr. Crosby failed to establish what damages were caused by the non-prescribed August 2008 and January 2009 water intrusion events. The trial court also rejected Mr. Crosby’s affidavit as “self-serving” and determined that Mr. Crosby failed to corroborate his testimony with the testimony or affidavit of an independent eye-witness. The trial court granted summary judgment in November 2016, and dismissed Mr. Crosby’s remaining claims with prejudice. This appeal follows.

JURISDICTION

As an initial matter, we find Ben-tex’s claims are not before this Court. The trial court dismissed Bentex and its claims with prejudice on April 15, 2016. In that the judgment of dismissal was a final, ap-pealable judgment pursuant to La. C.C.P. art. 1915(A)(1), the delay for appealing the dismissal of its claims began to run on April 16, 2016, and expired in June 2016. Thus, the delays for appellate review have prescribed. See La. C.C. P. arts. 2123 and 2087 (delays for suspensive and devolutive appeals). Additionally, the January 13, 2017 motion and order for devolutive appeal was filed on behalf of Mr. Crosby only. Bentex never filed a motion for appeal, nor has Bentex obtained an order of appeal on any issue. This Court will consider the assigned errors only as they relate to Mr. Crosby in his individual capacity. '. ‘'

| fiMoreover, in its appellee brief, Sahuque asserts its own challenges to the trial court’s rulings as to prescription, amendment to the petition, and dismissal sanctions. Sahuque, however, did hot file an answer to Mr. Crosby’s appeal; nor did it file a cross-appeal. Therefore, this Court lacks jurisdiction to consider them on appeal. See La. C.C.P. arts. 2121 and 2133; Bd. of Sup’rs of La. State Univ. v. Dixie Brewing Co., Inc., 15-1053, p. 6-7 (La. App. 4 Cir. 9/1/16), 200 So.3d 977, 983; Prince v. Mattalino, 583 So.2d 541, 543 (La. App. 3rd Cir. 1991) (finding absent an order of appeal, or answer filed, appellate court lacked jurisdiction to consider appellee’s claims).

PRESCRIPTION

A trial court’s findings of-fact on the issue of prescription are subject to manifest error/clearly -wrong standard of review. Davis v. Hibernia Nat. Bank, 98-1164, p. 2 (La. App. 4 Cir. 2/24/99, 2), 732 So.2d 61, 63. (“When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred with its factual conclusions”); Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). In reviewing the trial court’s legal conclusions, however, the appellate court applies a de novo standard of review. Felix v. Safeway Ins. Co., 15-0701, p. 5-6 (La. App. 4 Cir. 12/16/15), 183 So.3d 627, 631.

In his first assigned error, Mr. Crosby avers that the trial court erroneously ruled that his pre-August 2008 damage claims had prescribed. He contends that [ 7his earlier damage claims are predicated on a breach of contract action which is subject to a ten-year prescriptive period, as opposed to a personal tort action subject to a one-year prescriptive period.

Sahüque argues, on the other hand, ¿hat Mr, Crosby only obtained an order of appeal from the trial court’s November 2016 ruling granting summary judgment and did not request or obtain an order of appeal on the ruling on prescription. We find no merit to Sahuque’s argument. A judgment that determines the merits in whole or in' part is a final judgment. La. C.C.P. art. 1841. An interlocutory judgment decides only preliminary matters in the course of the action. Sullivan v. Malta Park, 16-0875, p. 2 (La. App. 4 Cir. 1/31/17), 215 So.3d 705, 707. When a party obtains an order of appeal of a final judgment, the appellate- court obtains jurisdiction over interlocutory judgments that preceded it.

Alternatively,- Sahuque contends that Mr. Crosby claims for the first time on appeal that his damage claims are subject to a ten-year prescriptive period. “An appellate court generally finds it inappropriate to consider an issue raised for the first time on appeal- when that issue was not pled, urged, or addressed in the court below.” Jones v. Dep’t of Police, 11-0571, p. 8 (La. App. 4 Cir. 8/24/11), 72 So.3d 467, 472 (citing Graubarth v. French Market Corp., 07-0416, p. 5 (La. App. 4 Cir. 10/24/07), 970 So.2d 660, 664) (declining to address an issue raised for the first time on appeal). Counsel for plaintiffs argued that under the theory of continuous tort the pre-August 2008 claims had not prescribed. The assertion that his earlier damage claims are subject to a ten-year prescriptive period was never raised; thus, |8we decline to consider the issue on appeal.

Further, we find no error in the .trial court’s April 2014 ruling on the exception. Claims for damage to movable property are subjecfto one-year liberative prescription. La. C.C. art. 3492. The prescriptive period begins on the day the plaintiff knew or should have known that he has sustained damage. Id.; Carbo v. Hart, 459 So.2d 1228, 1230 (La. App. 1st Cir. 1984) (citing Dean v. Hercules, Inc., 328 So.2d 69, 73 (La. 1976)) (“prescription runs from the date' the damage becomes apparent"). Based on jurisprudence, repeated instances of flooding do not constitute a continuing tort and cannot serve to interrupt prescription of property damage claims. Roberts v. Murphy Oil Corp., 577 So.2d 308, 311 (La. App. 4th Cir. 1991) (finding “repeated instances of flooding caused by the negligent alteration of drainage are separate and distinct events which do not serve to interrupt prescription”); Carbo, 459 So.2d at 1231.

Neither party disputes that Mr. Crosby sustained property damage as a result of water intrusion .events beginning in the mid to late 1990s. Thus, prescription began to run on each property damage claim from the date the damage was sustained. Mr. Crosby filed .his petition on October 26, 2009, and therefore, the trial court properly dismissed Mr. Crosby’s pre-Au-gust 2008 damage claims as prescribed. Therefore, we find no error in the trial court’s partial granting of the exception of prescription, finding that while Mr. Crosby’s claims for damages allegedly suffered after August 2008 have not prescribed, his claims for damages allegedly suffered from 1995 to 2005 have. '

| SUMMARY judgment

Motions for summary judgment are subject to dé novo review. Garrett v. Adcock Const. Co., 13-0134, p. 3 (La. App. 4 Cir. 8/14/13), 122 So.3d 1134, 1138. This Court noted:

[The reviewing court uses] the same standard applied by the trial court in deciding the motion for summary judgment. Under this standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions' on file, together with the affidavits,' if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” Steinfelds v. Villarubia, 10-0975, p. 4 (La. App. 4 Cir. 12/15/10), 53 So.3d 1275, 1278-1279 (quoting Lingoni v. Hibernia Nat'l Bank, 09-0737, pp. 4-5 (La. App. 4 Cir. 3/3/10), 33 So.3d 372, 375.

Id., 13-0134, p. 4, 122 So.3d at 1138.

On a motion for summary judgment, the mover hap the burden of showing that there is no genuine issue of material fact. La. C.C.P. art. 966(D). When the mover does not bear the burden of proof at trial, 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.” Id. Conversely, a non-moving plaintiff need only show that a disputed material fact exists. Id.; Rosen v. United States Auto. Ass’n, 12-0284, p. 4 (La. App. 4 Cir. 11/14/12), 104 So.3d 633, 637. A plaintiff may use circumstantial evidence to defeat a motion for summary judgment. Balthazar v. Hensley R. Lee Contracting, Inc., 16-0920, p. 16 (La. App. 4 Cir. 3/15/17), 214 So.3d 1032, 1044, reh’g denied (3/28/17), writ denied, 17-0777 (La. 9/22/17), 228 So.3d 741 (citing Wood v. Becnel, 02-1730, p. 5 (La. App. 4 Cir. 2/26/03), 840 So.2d 1225, 1227). The Louisiana Supreme Court explained | mthe use of circumstantial evidence as follows:

In a civil case, the plaintiffs burden is to prove her case by a preponderance of the evidence. This burden may be met by direct or circumstantial evidence. If, as in this case, circumstantial evidence is relied'upon, that evidence,’taken as a whole, must exclude every other reasonable hypothesis with- a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.

Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162, 164 (La.1984) (emphasis in original); Wood, 02-1730, p. 5 (La. App. 4 Cir. 2/26/03), 840 So.2d at 1227.

To- prevail: on a claim under the lease provisions codified in La. C.C. art. 2696, et seq., plaintiff must prove that there was “a defect in the premises, which caused the damage.. .A defect is a dangerous condition reasonably -expected to cause injury to a prudent person using ordinary care under the circumstances.” Freeman v. Julia Place, 95-0243, p. 7 (La. App. 4 Cir. 10/26/95), 663 So.2d 515, 519. To the extent Mr. Crosby asserts that his claims are based on general negligence, the Louisiana Supreme Court explained:

a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and, (5) actual damages (the damages element).

Davis v. Witt, 02-3102, p. 11 (La. 7/2/03), 851 So.2d 1119, 1127.

Pursuant to La. C.C. art. 2696, “the lessor warrants the lessee .that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose.” Article 2697 extends such warranties to include vices or defects not known to the lessor. The warranty established by Inthese articles cannot be waived except by . clear and unambiguous written terms which are brought to the lessee’s attention. McKnight v. McCastle, 04-2437, p. 5 (La. App. 1 Cir. 12/22/05), 928 So.2d 45, 49; Walnut Equipment Leasing Co., Inc. v. Moreno, 26,004, p. 8 (La. App. 2 Cir. 9/21/94), 643 So.2d 327, 332. In its April 2014 ruling, the trial court found that Sa-huque had a duty to waterproof the building encompassing the three apartments rented by 'Mr. Crosby so as to render them suitable for their intended use.

Sahuque argues that it is entitled to summary judgment because the lease provisions excluded liability for property damage, and- under Section 19 of the lease, Mr. Crosby waived any right to recovery for water damage. An issue of material fact exists' as to the validity of the purported waiver. ■ Upon expiration of the written lease in December 2004, an oral lease governed the parties’ relationship. During that period, Mr. Crosby avers he did not give a written warranty waiver. Even if Section 19 of the written lease extended into the oral lease, a fact question remains as to whether Sahuque brought the provision to Mr. Crosby’s attention upon the assumption of the oral lease.

Mr. Crosby also contends summary judgment is precluded because there are genuine issues of material fact as to causation. Mr. Crosby contends that Sa-huque erroneously argued, at the summary judgment hearing, that it was necessary for Mr. Crosby to definitively prove that the August 2008 and January 2009 water intrusion events caused damages to his personal property as alleged in his petition. Mr. Crosby further asserts that the trial court erred when it adopted Sa-huque’s misplaced reasoning. In pertinent part, Mr, Crosby directs this Court to the trial court’s oral reasoning. The court stated on the record:

l T2[T]he problem that this Court is having is what would be likened to a causation problem in a personal injury case. Yes, the Gertler Brothers report states that there was mold effective as of the date that they came out and inspected which was November 1, 2008, but they don’t say that this mold wasn’t present before August or it doesn’t say that it was there as of August. They don’t say a [sic] causation for this particular claim that you have ftled.
Two... this Court has no idea as it sits here right now because it’s not been defeated properly in the attach- , menta to summary judgment whether or not the damages were the result of the 2008 water intrusion as indicated by Mr. Crosby, or if it preceded that,

(emphasis added).

The trial court concluded that based on the lack of direct evidence Mr." Crosby failed to connect the damage he allegedly sustained to the water intrusion events occurring in August 2008 and January 2009. Whether or not the August 2008 water intrusion caused the mold uncovered during the November inspection is a fact question that should be decided by the trier of fact. The only question for the trial court to decide on summary judgment is whether the evidence is sufficient that reasonable minds could disagree. “If reasonable minds could differ as to an issue of material fact, summary judgment is improper.” Prime Ins. Co. v. Imperial Fire & Cas. Ins. Co., 14-0323, p. 14 (La. App. 4 Cir. 10/1/14), 151 So.3d 670, 679; M.R. Pittman Grp., L.L.C. v. Plaquemines Par. Gov’t, 15-0860, p. 19 (La.App. 4 Cir. 12/2/15), 182 So.3d 312, 324. Mr. Crosby avers that the very fact that the trial court could not definitively say that the result of the 2008 and 2009 water intrusions did not cause the damages Mr. Crosby complains of is indicative of the existence of disputed issues of fact; and thus, summary judgment is improper. Additionally, requiring Mr. Crosby to prove his ease rather than demonstrate that genuine issues of material fact exist imposes an improper burden on him at the summary judgment stage.

11sIn this case, Mr. Crosby submitted his sworn affidavit, his deposition testimony, the engineer report establishing the presence of mold in the apartments, and an inventory of his personal property allegedly damaged by the water intrusion and/or mold contamination. The trial court rejected Mr. Crosby’s affidavit, finding it “contained self-serving statements” and because “there’s no independent witnesses” or statements to corroborate Mr. Crosby’s-sworn statements. Mr. Crosby argues that his affidavit sets forth uncontroverted evidence of Sahuque’s repeated failures to remedy the water intrusion ■ problem. Moreover, a review of Mr. Crosby’s testimony advances facts regarding the 2008 and 2009 water intrusion -events based on ■his own personal knowledge that would be admissible at trial.

Mr. Crosby testified that following' a rain event in August 2008, he was out of town at the time when he was contacted by a representative of Latter ⅛ Blum. The representative, requested access to the apartments in order to assess the impact of the recent rain event. The representative later informed Mr.. Crosby that the units did not sustain water intrusion. When Mr. Crosby returned to New Orleans, however, he discovered that Latter & Blum’s representations to him about the property’s condition were false. He testified that he found that extensive water damage had occurred, causing the kitchen cabinets to buckle and extensive water damage to his china cabinet and drapes. He also found that someone had placed drying fans in the units.

After the August 2008 event, Mr.' Crosby testified that he began withholding rent. Mr. Crosby wrote a letter to Sa-huque, detailing the August event and indicated his dissatisfaction with Sahuqqe and its property manager. The last | significant water intrusion occurred on January 3, 2009, the date of a severe rainstorm. On January 4, 2009, an agent for Mr. Crosby entered the apartments and discovered wet carpets, drapes, and floors. On January 6, 2009, Mr. Crosby sent a second letter advising defendants of the January 3, 2009 rain event and water intrusion. Mr. Crosby had occasion to personally assess the units during his annual January trip to New Orleans to attend a conference. Although he had stopped staying at his allegedly mold-infested apartment during his visits to New Orleans due to a sinus condition, Mr. Crosby had keys to the apartments, which he used to assess the damage to his personal property.

The evidence shows that Mr. Crosby made many attempts to give oral and written notice after each water intrusion event and the resulting property damage. On January 14, 2009, Mr. Joseph Pappalardo, an agent for Sahuque, sent a letter to Mr. Crosby, requesting to inspect the .apartments to determine the scope of the remediation work and the logistics for performing the remediation. Mr. Crosby replied with a best date and time for inspection. Mr. Crosby’s undisputed testimony indicátes that on January 20, 2009, a meeting was held to discuss the results of the inspection. Thereafter, Ms. Katherine Pre-chter, a representative of Mr. Crosby, negotiated'with Latter & Blum by phone and an agreehient was reached for Sahuque to weatherproof the building, clean the air conditioning ducts, and remediate the apartments of -mold. Mr. Crosby agreed that upon completion of the repairs, he would execute a waiver for any and all damage to personal property belonging to him, and Bentex, Sahuque promised to grant Mr. Crosby a five-year | please on the apartments at the existing rental rate. This phone conversation was memorialized by a letter Ms. Prechter sent to Mr. Pap-palardo dated January 30, 2009. Sahuque failed to object in writing to the memorialized version of the agreement. In fact, Sahuque acted in accordance with the agreement 'by securing permits to waterproof the building and informing Mr. Crosby of the projected start date and instructions for storing his property' during remediation. Months later, in May 2009, Sahuque reneged on this agreement, responding in writing'to the January 2009 letter and disputing its terms. In June, a month after Sahuque reneged on the agreement, Sahuque evicted Mr. Crosby and Bentex, giving them five days to vacate the leased property.

Sahuque argues summary judgment is warranted in this case because there-is no direct evidence from an independent witness to corroborate ■ Mr. Crosby’s sworn statements and deposition testimony. “[I]n ruling, on a motion for summary judgment, the court must generally accept an affiant’s testimony or affidavit as true.” State, Dep’t of Transp. & Dev. v. Cecil, 42,433, p. 4, (La. App. 2 Cir. 9/19/07), 966 So.2d 131, 134 (citing Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764). “The court may reject such evidence only when [the affiant’s testimony] ‘contains substantive contradictions or discrepancies that would ordinarily tend to call his credibility into doubt if presented to a fact-finder.’ ” Id., (citing Hines, 04-0896, p. 6, 876 So.2d at 769). Further, pursuant to La. C.C.P. art. 967, there is no requirement that Mr. .Crosby’s affidavit must be corroborated by an independent witness. Id., 42,433, p. 6, 966 So.2d at 135. La. C.C.P. art. 967(A) 16requires that affidavits submitted on summary judgment “shall be made ■ on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” The simple fact that Mr. Crosby is a plaintiff does not preclude him from submitting his own sworn testimony via an affidavit in opposition to summary judgment.

To the extent Sahuque argues that his affidavit is self-serving, Mr. Crosby contends there is no basis to disregard it in this case, particularly when the affidavit is not contradicted by counter-affidavits. As the moving party, Sahuque bears the burden on summary judgment to show there are no genuine issues of fact. Sahuque did not produce a1 counter-affidavit or other evidence demonstrating that the 2008 and 2009 water intrusions did not result in damage. Instead, at the hearing, defense counsel argued that Mr. Crosby and Ben-tex signed the new lease in 2003 with full knowledge that water intruded onto the property in significant rain events. As for the 2008 and 2009 water intrusions,. Sa-huque relied on the liability waiver in the 2003 lease and the assertion that the pre-2008 rain events had already destroyed Mr. Crosby’s property. The issues raised by these arguments present factual questions and, likewise, are insufficient to support summary judgment. Lacure v. Brookshire’s Stores, 38,627, p. 6 (La. App. 2 Cir. 6/23/04), 877 So.2d 264, 268 (finding argument alone is insufficient to support summary judgment); Succession of Harvey v. Dietzen, 97-2815, p. 16 (La. App. 4 Cir. 6/24/98), 716 So.2d 911, 919 (“[I]t is not the trial court’s function on motion 117for summary judgment to determine or even inquire into the merits of the issues raised”). Therefore, we find Sahuque has failed to demonstrate that there are ho genuine issues of material fact.

DECREE

Based on the foregoing, we find no error in the trial court’s partial granting of the exception of prescription, when it determined that Mr. Crosby’s pre-2008 claims have prescribed. Additionally, it is settled law that a plaintiff may overcome a motion for summary judgment by a preponderance of direct or circumstantial evidence. Considering the evidence presented, including Mr. Crosby’s deposition testimony, affidavit, and the engineer report, reasonable minds may disagree as to whether the 2008 and 2009 water intrusion events caused the alleged damage to Mr. Crosby’s movable property. Therefore, genuine issues of material fact exist which make summary judgment inappropriate. Accordingly, the trial court’s November 2016 judgment is reversed and remanded for further proceedings in line with this opinion.

REVERSED AND REMANDED

LOBRANO, J., CONCURS IN THE RESULT

      . Mr. Crosby was diagnosed with a sinus problem that he alleged was caused by exposure to mold, which allegedly grew on Mr. Crosby’s personal belongings after the 2008 water intrusion event. The personal injury claim was severed from his property damage claim and dismissed with prejudice on summary judgment on March 16, 2012, which Mr. Crosby did not appeal.

      . This Court found the trial court relied on evidence not properly introduced into the record. Crosby v. Sahuque Realty Co., Inc., 12-1537 (La. App. 4 Cir. 8/21/13), 122 So.3d 1197.

      . Plaintiffs filed a motion to dismiss Latter & Blum as an appellee, which this Court sübse-quently granted. This Court’s opinion addresses the appeal against Sahuque only.


author: Judge Paula A. Brown

text:
    Raedell O. REED and Edwina Brown Reed v. 7631 BURTHE STREET, LLC, and Jason A. Riggs
    NO. 2017-CA-0476
    Court of Appeal of Louisiana, Fourth Circuit.
    December 28, 2017

      Salvador I. Bivalacqua, Scott M. Ga-lante, Kenner, Lauren B. Griffin, GA-LANTE & BIVALACQUA LLC, 650 Poy-dras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR DEFENDANTS/PLAINTIFFS /APPELLEES
    Brian A. Dragon, 506 Robert Boulevard, Slidell, LA 70458, COUNSEL FOR THIRD-PARTY/ . DEFENDANTS/APPELLANTS
    (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore)
   Judge Paula A. Brown

_jjAppellants/Third-Party Defendants, Jesus Arguelles (“Mr. Arguelles”) and Austin Venture Properties,' LLC (collectively referred to as “Austin Venture”), seek review of the district court’s February 24, 2017 Judgment granting Appel-lees/Defendants/Plaintiffs-in-Reconvention, Jason A. Riggs (“Mr. Riggs”) and 7631 Burthe Street, LLC’s (collectively referred to as,“Burthe Street, LLC”) petition to enforce settlement. The settlement agreement (also referred to as a “compromise agreement”) was between Burthe Street, LLC and Edwina Brown Reed: (“Edwina”) and Raedell 0. Reed (“Raedell”). The Reeds did not submit a response brief.

For reasons discussed ■ below, we find Austin Venture lacks standing, and we dismiss the appeal.

PROCEDURAL HISTORY AND FACTS

The Reeds were co-owners of the property located at 7631 Burthe Street, New Orleans, Louisiana (“the Property”). Edwina acquired her undivided one-half interest in the Property by Judgment of Possession,-and Raedell, Edwina’s daughter, acquired hér undivided one-half interest by Quitclaim Deed. The Reeds failed to pay the taxes on the Property.

In December 2009, Mr. Riggs acquired a one percent (1%) interest in the Property through a tax sale deed, which was recorded in February 2010. In February 2014, Mr. Riggs, through 7631 Burthe Street, LLC acquired Edwina’s interest in the Property, by cash sale, for a payment of $3,000.00.

|aIn August 2014, Austin Venture entered into an agreement with Raedell to purchase one-hundred percent (100%) of the Property, although Raedell owned only fifty percent (50%) interest of the Property-

In October 2014, the Reeds filed in the district court a Petition to Rescind Sale and for Annulment of Tax Sale (“the Petition”), naming Burthe Street, LLC as Defendants. The Reeds were represented by John Davidson (“Mr. Davidson”), and the litigation was funded by.Austin Venture.

In the Petition, the Reeds asserted the tax sale of the Property was invalid, and the purchase of the Property by Burthe Street, LLC from Edwina was lesionary and subject to recession in accordance with La. C.C. art. 2663. In her supplemental petition, Edwina argued the sale of her interest in the Property to Burthe Street, LLC was vitiated when Mr. Riggs failed to disclose he was a real estate broker.

On December 22, 2015, the Reeds and Burthe Street, LLC through their attorneys, entered into a settlement agreement. Burthe Street, LLC agreed to pay the Reeds $80,000.00 to purchase Raedell’s fifty percent (50%) interest in the Property and for dismissal of the Reeds’ Petition.

On December 29, 2015, Austin Venture filed the purchase agreement between it and Raedell in the parish conveyance records.

When a problem arose in September 2016 with the enforcement of the agreement, Burthe Street, LLC filed a recon-ventional demand against the Reeds and a third-party demand against Austin Venture. Burthe Street, LLC, praying for enforcement of the settlement agreement with the Reeds or, in the alternative, a | ^partition by licitation and that the purchase agreement between Austin Venture and Raedell be declared a nullity.

On February 9, 2017, a trial was held.

Mr. Davidson testified he began representing. the Reeds when Mr. Arguelles funded the litigation to file the Petition. Mr. Davidson stated Mr. Arguelles had an interest in buying the property, and Mr.' Arguelles funded the ligation to clear the title to the Property. Notwithstanding, Mr. Davidson recalled an agreement between the Reeds and Mr. Riggs wherein Mr. Riggs agreed to pay $80,000.00 to settle the. lawsuit filed by the Reeds, , which included an- agreement, to purchase Raedell’s fifty (50%) interest in the Property.

Evidence of the settlement agreement— emails — were admitted into evidence. An email dated December 22, 2015, from Mr. Davidson to Mr. Riggs’ attorney stated, “The clients have agreed to accept $80,000.00 in settlement of them claim and will execute a dismissal of the suit and a sale from. Ms. Raedell- Reed of her interest. Please prepare the appropriate documentation.” Mr. Riggs’ attorney responded, .“Agreed that we have a settlement with a full release from all of your clients, motion to dismiss and transfer all remaining. interest and clear title to property,.,.”

Gn December 28, 2015, Mr. Davidson sent another email to Mr. Riggs’ attorney setting' forth how payment of the settlement should be made and it provided: “Please issue one check to Raedell Reed for $57,500 with an additional check for $2,500 payable to Raedell Reed and Austin Venture- Properties, LLC. UPlease issue one check to Edwina Brown Reed for $17,-500 with an additional check of $2,500 to Edwina Brown Reed and Austin Venture Properties, LLC.” Mr. Davidson testified he had authority from the Reeds to accept the offer, and he thought there was a settlement between the parties which was indicated in the December 28, 2015 email.

Mr. Davidson testified confusion arose about the terms of the settlement when he received an email on December 28, 2015, from Mr. Riggs’ attorney. The., email inquired about the Reeds- paying fifty percent (50%), of the city hens owed on the Property and the closing cost. Mr. Davidson continued Mr. Arguelles was discontent with his portion of the reimbursement from the settlement. Mr. Davidson expressed the. settlement with Mr. Arguelles was one of Raedell’s “predicates” for making the decision to settle. Mr. Davidson testified only Raedell was negotiating with Austin Venture as to the amount she and Edwina would pay for reimbursement of litigation costs. Mr.- Davidson explained he was not representing Austin Venture during the settlement negotiations. between the Reeds and Burthe Street, LLC.

Mr. Davidson testified Austin Venture had an interest in buying the Property, and Austin Venture funded the litigation for the Reeds to clear the title to the Property. According to Mr. Davidson, he was not representing Austin Venture during the settlement negotiation, and he stated in pertinent part: ..

[A]t a certain point when negotiation [sic] settlement offer was made, I thought it was unwise to actually negotiate anything about Austin Ventures [sic]. So I think my real representation was the two ladies, not Austin Ventures [sic]. I have no contract with Austin Ventures [sic]. My contract is with the two ladies. So that’s why I didn’t want to get in the middle of that. That’s why I suggested since she had to deal with Austin Ventures [sic], she negotiate repayment. I didn’t get involved in that. Austin Ventures [sic]wasn’t a party to the litigation.

IbMt. Davidson stated that the purchase agreement filed into the conveyance records between Raedell and Mr. Arguelles prevented the settlement from proceeding. As a result, the parties agreed to wait until the purchase agreement expired to see if Mr. Arguelles would enforce the agreement. In an email dated February 22, 2016, to Mr. Riggs’ attorney, Mr. Davidson wrote, “I have spoken to Ms. [Raedell] Reed and she is agreeable to just wait until May to see if Arguelles will attempt to enforce the contract. She is fine with the price proposed by your client....” At trial, Mr. Davidson was asked by the district court “Was the act of sale based on the purchase agreement ever executed?” and Mr. Davidson, responded, “Not that I know of.”

Raedell testified she signed a purchase agreement to sell her interest in the property to Mr. Arguelles. She acknowledged, although she owned 'fifty percent (50%) of the property, the purchase agreement was for one-hundred percent (100%) of the interest. Additionally, she admitted she did not have power of attorney for Edwina. Raedell acknowledged she gave Mr. Davidson authority to accept the settlement offer from Mr. Riggs, and she instructed Mr. Davidson to inform Mr. Riggs how to make the checks payable. She recalled when she left town for North Carolina on December 30, 2015, she thought there was an agreement and that the matter was settled.

Raedell stated she did not agree to pay the liens on the property and the closing costs. She discovered these additional costs were at issue in January, 2016, after she had arrived in North Carolina. Raedell explained she contacted Mr. Davidson to forward her the paperwork for the settle- ' ment, and he informed her about the extra costs and that the deal “fell apart.”

IflMr. Riggs, a real estate broker, testified he entered into a settlement with, the Reeds in December 2015. Mr. Riggs admitted there was confusion over the payment of liens on the Property and the closing costs. Mr. Riggs explained that he thought the parties -would split the liens and the closing costs fifty/fifty as was ‘“customary in transfers of real estate.” However, he decided to “eat those costs ... in order to move forward with the settlement.” Mr. Riggs recalled sometime after December 28, 2015, until the first days of January, 2016, he instructed his attorney to inform Mr. Davidson of his decision to pay all the costs associated with the sale of the property, which totaled around $3,000.00. According to Mr. Riggs, his attorney confirmed he did so.

At the conclusion of the hearing, the district court found there was an agreement and; as lagniappe, Mr. Riggs had agreed to pay the liens on the Property and the closing cost. The district court issued a Judgment which provided as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that the Plaintiffs’ Petition to Enforce Settlement be arid is hereby GRANTED.
IT IS FURTHER ORDERED that all claims by Raedell Reed and Edwina Reed against Jason Riggs and 7631 Burthe Street, LLC be and are hereby DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that that Raedell Reed is hereby Ordered to transfer her 50% interest in the property located at 7631 Burthe, Street, New Orleans, Louisiana to, 7631 Burthe Street, LLC.
IT IS FURTHER ORDERED that that the Louisiana Residential Agreement to Buy or Sell recorded in the Orleans Parish Land Records at Instrument # 2015-55337 is recognized as expired and shall in no way impede the full and final transfer of interest in the property located at 7631 Burthe Street, New Orleans, Louisiana to 7631 Burthe Street, LLC.
JilT IS FURTHER ORDERED that the Clerk of Court is instructed to cancel the recorded purchase agreement bearing Instrument # 2015-65337.
IT IS FURTHER ORDERED that 7631 Burthe Street, LLC pay $80,000 as follows: $57,500 to Raedell Reed; $2,500 to Raedell Reed and Austin Venture Properties; $17,500 to Edwina Reed; and $2,500 to Edwina Reed and Austin Venture Properties.

This appeal followed.

DISCUSSION

On appeal, Austin Venture assigns as its sole error that the district court erred in enforcing the settlement agreement regarding the sale of the Property.

In response to the appeal, Burthe Street, LLC filed a motion to dismiss the appeal, arguing Austin Venture lacked standing. Specifically, Burthe Street, LLC alleged (1) Austin Venture was not a party to the settlement agreement; (2) there was a full and final settlement of the case and any issue regarding the settlement is moot; and (3) Austin Venture had no basis for appeal as it offered no evidence, made no arguments, and failed to join issue in the case in the district court. This Court denied the motion.

Again, in its brief to this court, Burthe Street, LLC, argues Austin Venture lacks standing to challenge the district court’s judgment on appeal. Although this Court denied Burthe Street, LLC’s motion to dismiss appeal for lack of standing, we conclude the issue of standing is properly before this court. Thus, the issue of standing must be discussed before we address the merits of the case.

IsStanding

Louisiana Code of Civil Procedure article 2082 provides an “[ajppeal is the exercise of the right of a party to have a judgment of a district court revised, modified, set aside, or reversed by an appellate court.” Louisiana Code of Civil Procedure Article 2086 provides, “[a] person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” In this case, Austin Venture was named as third-party defendants by Burthe Street, LLC. While Austin Venture did not participate in the trial, Austin Venture had the right to appeal.

Although a party has a right to appeal, whether the party has standing depends on the specific statutory or constitutional claims the party presents and their relationship to those claims. In re Matter Under Investigation, 07-1853, p. 10 (La. 7/1/09), 15 So.3d 972, 981. The Supreme Court explained in pertinent part:

When addressing a litigant’s standing, we have found that the “predicate requirement of standing is satisfied if it can be said that the [litigant] has an interest at stake in litigation which can be legally protected.” In re: Melancon, 05-1702, p. 9 (La. 7/10/06), 935 So.2d 661, 668. Conversely, a litigant who is not asserting a substantial existing legal right is without standing in court. Melancon, 05-1702 at p. 8, 935 So.2d at 667. In addition, that a party has the legal capacity to appear in court does not alone define standing; rather, standing is gauged also by the specific statutory or constitutional claims that the party presents and the party’s relationship to those claims. Melancon, 05-1702 at p. 9, 935 So.2d at 668. The standing inquiry requires careful examination of whether a particular litigant is entitled to an adjudication of the particular claims it has asserted. Melancon, 05-1702 at p. 10, 935 So.2d at 668 (citing Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984)).

In re Matter, 07-1853, at p. 10, 15 So.3d at 981; See also, Jefferson Island Storage & Hub, LLC, 11-0882 at p. 10, 70 So.3d at 1040. In Jefferson, the court opined that “[sjtanding exists only if a party has a sufficient interest at stake in the [¡¡litigation that can be legally protected.” Id. (emphasis added). The Jefferson court continued that “standing may exist for a portion of a party’s claim, but be lacking for a different portion of the same claim. Id. (citing In re Melancon, 05-1702 at p. 9, 935 So.2d at 668)

In re Matter, the court explained, “[wjhen ruling on standing, it is both appropriate and necessary to look to the substantive issues to- determine whether there is a logical nexus between the status, asserted and the claim sought to be adjudicated.” On appeal, Austin Venture asserts the district court erred in enforcing the settlement agreement between the Reeds and Burthe Street, LLC regarding the sale of the Property. Austin Venture contends the full terms of the settlement agreement were never agreed upon between the Reeds and Burthe Street, LLC and never reduced to writing. Moreover, Austin Venture complains the district court erred in finding Mr. Riggs’ offer at trial- to pay the liens and closing cost for the Property was an enforceable agreement — as opposed to a change in the settlement terms that would invalidate the settlement agreement. IVe find there is no logical nexus between the status asserted by Austin Venture, and the claims it asserts on appeal.

At trial, there was no evidence or testimony introduced to establish Austin Venture was a party to the settlement. To the contrary, Mr. Davidson testified he was not representing Austin Venture during the settlement negotiation. -Mr. Davidson explained only Raedell was negotiating with Austin Venture as to the amount she and Edwina owed for reimbursement of | ¡¡¡litigation costs. Mr. Davidson stated his understanding of Mr. Arguelles’ participation was an' interest in buying the property, and Mr. Agruelles funded the litigation to clear the title. Austin Venture presented no evidence or testimony that the settlement agreement between the Reeds and Burthe Street, LLC, was invalid because the parties lacked Austin Venture’s consent to the settlement; and on appeal, it does not challenge the validity of the agreement for lack of consent.

Further, there was no evidence or testimony introduced to show that Austin Venture had a legally protected interest in reimbursement for litigation costs nor did it dispute that the amount designated to it by Raedell from the settlement fund was insufficient to satisfy payment for litigation costs.

The purchase agreement between Austin Venture and Raedell was not introduced into evidence, and the district court found'the purchase agreement had expired and ordered it be cancelled in the conveyance records. On appeal, Austin Venture does not challenge the settlement agreement on these grounds. Austin Venture fails to prove it has a sufficient interest at stake in the litigation that is legally protected.

Accordingly, we find Austin Vénture lacks standing to challenge the district court’s judgment.

Enforcement of the Settlement Agreement

Now addressing the merits, we find the district court did not err in enforcing the settlement between Burthe Street, LLC and the Reeds.

The standard of review of a motion to enforce a settlement or compromise agreement is manifest error/clearly wrong standard. Davis v. Garrison Prop. & 11Cas. Ins. Co., 12-1673, p. 3 (La.App. 4 Cir. 6/19/13), 119 So.3d 927, 929; Morris, Lee & Bayle, LLC v. Macquet, 14-1080, p. 14 (La.App. 4 Cir. 3/23/16), 192 So.3d 198, 208. In Morris, this Court explained the applicable law for reviewing enforcement of a compromise agreement, writing in pertinent part:

[T]he trial court’s judgment determining the existence, validity and'scope of a compromise agreement depends on a finding of the parties’ intent, which is an inherently factual finding. Feingerts [v. State Farm Mut. Auto. Ins. Co.], 12-1598, 117 So.3d [1294] at 1297 [ (La.App. 4 Cir. 2013) ]; see generally, Stobart v. State, Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).
' Under Louisiana law, “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.” La. C. C. art. 3071; see Feingerts, 12-1598, p. 10, 117 So.3d at 1300-1301. Louisiana law requires that “[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.” La. C.C. art. 3072; see Feingerts, 12-1598, p. 11, 117 So.3d at 1301... Notably, Louisiana law does not-require that a compromise be reduced to writing in =any specific form or in a judgment. See Feingerts, 12-1598, p. 11, 117 So.3d at 1301 (citing Elder v. Elder & Elder Enterprises, Ltd., 06-0703, p. 4 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, 351.)

“The meaning and intent of the parties to the written contract when the woi’ds of the contract are clear, explicit, and lead to no absurd consequences must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence, (citations omitted).” Olivier v. Xavier Univ., 553 So.2d 1004, 1008 (La. App. 4 Cir. 1989). Louisiana courts have recognized where a writing and/or a-signature is required to form a contract, an' email will satisfy such requirement. La. R.S. 9:2607; Klebanoff v. Haberle, 43-102, pp. 5-12 12(La.App. 2 Cir. 3/19/08), 978 So.2d 598, 601-05; See also, Preston Law Firm, L.L.C. v. Mariner Health Care Mgmt. Co., 622 F.3d 384, 390 (5th Cir. 2010).

Reviewing the four corners of the emailed documents supports the district court’s finding that the Reeds and Burthe Street LLC intended to enter a compromise agreement. The December 22, 2015, email reflects Mr. Davidson accepted, on behalf of the Reeds, the offer of Burthe Street LLC to pay the Reeds $80,000.00 to purchase Raedell’s fifty percent (50%) interest in the Property and for dismissal of the Reeds’ Petition. In response, Mr. Riggs’, attorney wrote, “Agreed that we have a settlement with a full release from your clients, motion to disndiss and transfer all remaining interest and clear title to property....” The offer and acceptance was reflected by Mr. Davidson’s email advising Burthe Street LLC’s attorney of Raedell’s instructions on distribution of the $80,000.00 settlement amount. We find the incidental issue — payment of the costs which was resolved in favor of the Reeds— did not alter the district court’s ruling that the compromise' agreement was perfected between Burthe Street LLC and the Reeds.

CONCLUSION

For the reasons set forth above, the Judgment of the district court is final.

APPEAL DISMISSED

      . Collectively, Edwina and Raedell will be referred to as "the Reeds.”

      . At the hearing, this agreement, Instrument # 2015-55337, was not introduced into evidence.

      . The transcript of the trial provided in pertinent part: (1) Edwina was represented by counsel, but Edwina was not present; (2) Mr. Riggs was present and represented by counsel; (3) Raedell was present but not represented by counsel; and (4) Austin Venture and their counsel were not present. However, the Judgment states 'Mr. Arguelles appeared in proper person,

      . A party may re-urge a peremptory exception after a denial of the exception. La. C.C. P. art. 927; Landry v. Blaise, Inc., 02-0822, p. 3 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664. See also, Bank One, Nat. Ass’n v. Velten, 04-2001 at pp. 6-7 (La.App. 4 Cir. 2005), 917 So.2d 454, 458-59 (citing Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1094, 262 So.2d 328, 332-33 [La. 1972]); Jefferson Island Storage & Hub, LLC v. Louisiana Tax Comm'n, 11-0882, p.11 (La.App. 1 Cir. 7/15/11), 70 So.3d 1034, 1041, fn.4 (citing Chrysler First Fin. Servs. Corp. v. ZIA Corp., 542 So.2d 87, 89 (La. App. 1 Cir. 1989) (noting that “a party’s lack of standing (no right of action) may be noticed by an appellate court on its own motion.”).

      . See also, Int’l Marine Carriers, Inc. v. Pearl River Navigation, Inc., 11-1258 (La. App. 4 Cir. 2/15/12), 2012 WL 4754160 (unpublished), writ denied, 12-0837 (La. 5/25/12), 90 So.3d 418, 419.

      . 07-1853 at p. 12, 15 So.3d at 982 (citing Chicago Tribune Co. v. Mauffray, 08-522, pp. 7-8. (La.App. 3 Cir. 11/5/08), 996 So.2d 1273, 1279, citing Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)).

      . 14-108, pp. 14-15 (La.App. 4 Cir. 3/23/16), 192 So.3d 198, 208-09.

      . La. R.S. 9:2607 provides:
      A,A record or signature may not be denied legal effect or enforceability' solely because it is in electronic form.
      B. A ■ contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.
      C. If a law requires a record to be in writing, an electronic record satisfies the law.
      D. If a law requires a signature, an electronic signature satisfies the law.