author: PETTIGREW, J.

text:
    Scott C. FRANK v. LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS
    NO. 2016 CA 0994
    Court of Appeal of Louisiana, First Circuit.
    February 17, 2017.

      GEORGE R. KNOX, LAFAYETTE, LA, ATTORNEY FOR, PLAINTIFF-AP-PELLEE, SCOTT C. FRANK
    GEORGE M. PAPALE, HAMMOND, LA, ATTORNEY FOR, DEFENDANT-APPELLANT, LOUISIANA STATE BOARD OF, PRIVATE INVESTIGATORS, EXAMINERS
    BEFORE: PETTIGREW AND McDonald, jj„ and calloway, j. Pro Tem.

      . Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PETTIGREW, J.

|2The Louisiana State Board of Private Investigator Examiners (“LBPI” or “board”) appeals a June 16, 2016 district court judgment that granted Scott C. Frank’s (Frank) Application for Judicial Review of the board’s Adjudicative Decision, and reversed the revocation of Frank’s personal private investigator’s license and the license of Frank’s agency. After a de novo review of the entire record, including the proceedings before the LBPI, we find the license revocations were supported thereby and should have been affirmed by the district court. We reverse the decision of the district court and reinstate the board’s Adjudicative Decision.

PERTINENT FACTUAL HISTORY

At all times pertinent to this appeal, Frank, a private investigator, and his agency Scott Frank Investigations, held licenses issued by the board in 2007. In October or November 2008, Frank was hired by either Michael Landry (Landry) or his then eighteen-year-old adopted son, Christopher, to seek the identity of Christopher’s biological mother. Christopher met Frank on October 15, 2008, to discuss the services to be rendered by Frank. Aso in October, Frank emailed, and Landry signed and emailed back, the contract for investigative services to be provided by Frank. A few days later, Landry also emailed Frank a copy of a letter from Christopher’s psychologist approving Christopher’s participation in the investigative search for his biological mother. In this email, Landry Instated that he would mail a check for Frank’s $2,500.00 retainer, which he did a few days later.

On January 12, 2009, approximately three months after their first meeting, Christopher again met with Frank during which Frank shared with him the contents and status of his investigation. Frank revealed to Christopher that he had narrowed the list of the potential prospects to approximately four individuals; however, he did not reveal the identities of those four women to Christopher. Frank also informed Christopher that he could continue his investigation, but that, first, he would require the payment of an additional retainer. Christopher declined to pursue the search. According to Landry, Christopher had expressed to him that he was disappointed in Frank’s findings as he considered Frank’s narrowed list of four were “dead end” possibilities and he did not wish the investigation to continue.

Tragically, Christopher ended his own life on September 30, 2012. In the months that followed, Landry contemplated resuming a search for Christopher’s birth mother as well as the possibility of informing her of Christopher’s death. He testified that he ultimately decided to “take up where Christopher left off.” Landry initially contacted Catholic Social Services in Lafayette where Christopher had been adopted as an infant. Because the adoption had been a “closed adoption,” Catholic Charities was unable to provide Landry with any helpful information.

Landry then contacted Frank and stated that he wished to continue the search for Christopher’s biological mother that Frank had begun. Frank indicated that he had given 14 Christopher some of the items in his file and further informed Landry that as a general rule, all of his files are destroyed at the end of three years following the termination of the investigation. Frank told Landry that meant that the file had probably been destroyed and the investigation would have to “start over from scratch” and would require the payment to Frank of $5,000.00, as an additional retainer fee before beginning a new investigation.

Landry testified that he felt Frank’s inability to provide him with the file information created during Frank’s investigation for Christopher and for which Landry had paid $2,500.00, and Frank’s offer to “reopen” the investigation for an additional $5,000.00, was “inappropriate,” so he contacted the board seeking assistance. Landry ultimately lodged a complaint against Frank with the board. That complaint led to the administrative proceedings and decision of the board to revoke Frank’s licenses. Frank filed a petition for judicial review of the board’s decision in the Nineteenth Judicial District Court; the district court reversed that decision, and the board filed this appeal.

APPLICABLE LAW

The profession of private investigator, a field in which unqualified individuals may injure the public, has been deemed by the Legislature to require licensing and regulation. La. R.S. 37:3501. The Private Investigators Law (PIL) was enacted to require and develop qualifying criteria from applicants in an effort to promote the safety, health, and welfare of the people of Louisiana. La. R.S. 37:3501(B); La. R.S. 37:3502; see La. R.S. 37:3501, et seq. The PIL created the LBPI to examine and issue and regulate the licensure of qualifying applicants, to provide training, and to adopt rules and regulations to govern the practice of all licensed entities and individuals. La. R.S. 37:3504; 3505; 3507; 3509; 3515.

The following statutory provisions and rule and regulations are particularly relevant to the issues presented in this appeal. The causes for non-issuance, suspension, revocation, or restrictions; fines; reinstatement concerning private investigator licenses are provided in La. R.S. 37:3519, as follows:

A. The board may refuse to issue or may suspend, revoke, or impose probationary or other restrictions on any license issued under this Chapter for good cause shown which shall include the following:
Ib(1) Conviction of a felony or entry of a plea of guilty or nolo contendere to a felony charge under the laws of the United States or of any state.
(2) Deceit or perjury in obtaining any certificate or license issued under this Chapter.
(3) Providing false testimony before the board.
(4) Efforts to deceive or defraud the public.
(5) Professional incompetency or gross negligence.
(6) Rendering, submitting, subscribing, or verifying false, deceptive, misleading, or unfounded opinions or reports.
(7) The refusal of the licensing authority of another state to issue or renew a license, permit, or certificate to practice in that state, or the revocation of, suspension of, or other restriction imposed on a license, permit, or certificate issued by such licensing authority.
(8) Aiding or abetting a person to evade the provisions of this Chapter or knowingly combining or conspiring with an unlicensed person, or acting as an agent, partner, associate, or otherwise, of an unlicensed person with intent to evade provisions of this Chapter.
(9) Violation of any provision of this Chapter or any rules or regulations of the board or rules of professional conduct promulgated by the board.

Additionally, La. R.S. 37:3520, declares as illegal the following acts by private investigators:

A. It shall be unlawful for any person knowingly to commit any of the following acts:
(1) Provide contract or private investigator service without possessing a valid license.
(2) Employ an individual to perform the duties of a private investigator who is not the holder of a valid registration card.
(3) Designate an individual as other than a private investigator to circumvent the requirements of this Chapter.
(4) Knowingly make any false statement or material omission in any application filed with the board.
(5) Falsely represent that a person is the holder of a valid license or registration.
(6) Violate any provision of this Chapter or any rule or regulation of the board.
B. It shall be unlawful for any private investigator knowingly to commit any of the following:
|fi(l) Make any statement which would reasonably cause another person to believe that the private investigator functions as a sworn peace officer or other official of the state or of any of its political subdivisions, or an agency of the federal government.
(2) Fail to comply with the regulations issued by the board, or with any other requirements under the provisions of this Chapter.
(3) Divulge to anyone, other than his employer, or to such persons as his employer may direct, or as may be required by law, any information acquired during such employment that may compromise the employer or assignment to which he has been assigned by such employer.
(4) Possess a license or registration card issued to another person.

Whoever willfully violates any provisions of the law, shall be fined not less than two thousand dollars nor more than ten thousand dollars, or imprisoned not less than three months nor more than one year, or both. La. R.S. 37:3521(B).

Finally, the following rules and regulations promulgated by the board are also applicable herein:

LAC 46:LVIL111 Complaints
A. Any complaint to the board must be in writing, signed by the individual making said complaint, and include an appropriate means by which to contact said individual for investigative purposes.
LAC 46:LVII707 Communication
A. An investigator shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests] for information.
B. The investigator shall give the client sufficient information to participate intelligently in decisions concerning the objectives or the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.
LAC 46:LVII.725 Professional ■ Misconduct
A. It is professional misconduct for an investigator to:
1. violate or attempt to violate the rules of professional conduct or to knowingly assist or induce another to do so, or do so through the acts of another;
2. commit a criminal act or any other act that reflects adversely on the investigator’s honesty, trustworthiness, or fitness as an investigator in other respects;
3. engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation.

^ADMINISTRATIVE PROCEDURAL HISTORY

As noted earlier herein, Frank and his agency were providing private investigative services under valid licenses originally issued in 2007. In letters to Frank and his counsel of record, dated December 19, 2013, the board advised that allegations of professional misconduct had been asserted against Frank and that the board would be holding an adjudicatory hearing, pursuant to La. R.S. 37:3500-3525 and the rules and regulations adopted by the board pursuant to La. R.S. 49:950, the Administrative Procedure Act, to determine the validity of those allegations and determine if they include possible statutory and rule violations by Frank.

The facts underlying those allegations and the particular violations alleged were specified in the Administrative Complaint attached to those letters. The letter stated that Frank’s conduct, as alleged, would constitute cause for which the board may order a suspension or revocation of his and his agency’s licenses if proven. Those violations were listed as follows:

a) La. R.S. 37:3519(A)(4): Efforts to deceive or defraud the public.
b) La. R.S. 37:3519(A)(5): Professional incompetency or gross negligence.
c) La. R.S. 37:3519(A)(6): Rendering, submitting, subscribing, or verifying false, deceptive, misleading, unfounded opinions or reports.
d) La. R.S. 37:3519(A)(9): Violation of any provision of this Chapter or any rules and regulations of the board or rules of professional conduct promulgated by the board.
e) La. R.S. 37:3520(B)(2): Failure] to comply with regulations issued by the board, or with any other requirements under the provisions of the Chapter.
f) Failure to keep a client reasonably informed about the status of a matter and promptly comply with a reasonable request for information in violation of § 705(A) of the Board’s Rules and Regulations.
g) Committing a criminal act or any other act that reflects adversely on the investigator’s honesty, trustworthiness[,] or fitness as an investigator in other respects in violation of § 725(2) of the Board’s Rules and Regulations!)]
h) By engaging in conduct involving dishonesty, fraud, deceit[,] or misrepresentation in violation of § 725(3) of the Board’s Rules and Regulations.

It appears from the record that Frank did not file a response to the Administrative Complaint. An adjudicatory hearing was held on March 18, 2014, and resumed on August 27, 2014, during which witnesses were called to testify and evidence was presented. The record reveals that Frank and his counsel attended the hearing on March 18, but neither |8of them attended the resumed meeting on August 27. The record also indicates that Frank voluntarily relinquished his license to the board on August 25, two days prior to the continuation of the hearing.

Following the continued hearing, on November 18, 2014, LBPI issued an opinion and order signed on its behalf by Glen Peterson, the presiding officer of the hearing panel. The board found as a matter of fact that a contract for services existed between Frank and Landry and that Landry was the client. The board found further that Frank failed to communicate with Landry regarding the investigative process; Frank failed to produce the investigative file regarding Christopher’s birth mother when requested by Landry in December 2012; Frank still possessed the file at the time that request was made; and, it was within Frank’s ability to find the file and produce it to Landry when requested.

The LBPI also found, as conclusions of law, that an individual or agency licensee: (1) that fails to produce records to a client of their investigation despite retaining them, demonstrates an effort to deceive the public in violation of La. R.S. 37:3519(A)(4); (2) that fails to communicate with their client after retaining services and receiving a fee, demonstrates professional incompetency in violation of La. R.S. 37:3519(A)(5); (3) that informs a client that he did not retain a record of the investigation, but can then produce it years later, demonstrates rendering false reports in violation of La. R.S. 37:3519(A)(6); (4) that fails to maintain a competent professional relationship with a client, demonstrates a violation of the rules of professional conduct and La. R.S. 37:3519(A)(9); (5) professional incompetence and gross negligence constitute “good cause” as required for the board to have the authority to suspend, revoke, or impose probationary or other restrictions on a license issued by the board, pursuant to La. R.S. 3519(A)(5); (6) that fails to acknowledge an individual, who paid the retainer fee for private investigative services and signed a private investigation contract as the client, demonstrates a failure to comply with the rules and regulations issued by the board in violation of La. R.S. 37:3520(B)(2); (7) fails to keep a client reasonably informed about the status of a matter and fails to promptly comply with a reasonable request for information, demonstrates a Rfailure to act with reasonable diligence and promptness in representing a client in violation of LAC 46:LVII.705(A); (8) that misinforms a client that the investigative report no longer exists reflects adversely on the investigator’s honesty and fitness as an investigator, demonstrates professional misconduct pursuant to LAC 46:LVII.725(2); and (9) that informs a client that the record of the investigation was turned over to his son, Christopher Landry, and not retained by the individual licensee or agency licensee, demonstrates professional misconduct, a violation of LAC 46:LVII.725(3).

Finally, the board noted that although Frank surrendered his agency and individual licenses to the board prior to the second day of the hearing, it was choosing to take action against Frank, who was licensed by the board at the time the violations occurred. The board ordered Frank’s individual and agency licenses revoked; and ordered Frank to pay a $5,000.00 fine, $2,500.00 in restitution; and the costs of the proceedings in the amount of $14,329.52. The board further ordered Frank to pay the total amount, $21,829.52, within two years from November 18, 2014, the date the order was signed.

Frank filed an application for judicial review of the board’s decision with the Nineteenth Judicial District Court on December 22, .2014. A hearing was held on September 28, 2015. Prior to a judgment being rendered, the parties entered into a joint stipulation that amended the board’s order, making the fines and costs of the judgment a condition to Frank seeking reinstatement of the license(s) revoked by the order.

On June 10, 2016, the district court rendered the judgment that is before us on appeal, reversing the decision and order of the board. That judgment is based on a May 10, 2016 minute entry filed into the district court record stating the board had no authority to revoke the licenses of Frank and his agency inasmuch as “they were only required to keep copies of the investigative file for a period of three years.” The court also found that the last contact between Frank and Christopher was on January 12, 2009, and thus, more than three years had passed, following which Frank was no longer required to keep his investigative file. On that basis, the decision of the board was reversed. This appeal by the board followed.

I ASSIGNMENT OF ERROR/ANALYSIS AND DISCUSSION

The board argues in a sole assignment of error that the district court’s finding— that the board lacked authority to revoke Frank’s licenses—and its subsequent decision to reverse the decision of the board have no basis in law and must be reversed. The board maintains that its adjudicatory decision against Frank was based on numerous findings of violations by Frank of statutory provisions and the board’s own rules and regulations that were supported by the evidence presented to the board, and had nothing to do with the rule, or absence thereof, designed to preserve a file for a particular length of time. For the following reasons, we agree.

There is no provision, statutory or otherwise, that addresses the client files of a private investigator. Thus, the district court’s finding that Frank was mandated by law to keep the investigation file in this matter for a period of three years is not supported by law, and renders erroneous the court’s decision that the board lacked the authority to revoke Frank’s licenses. Although the law and regulations are silent as to a private investigator’s files, the board, pursuant to its authority granted by La. R.S. 37:3505(3) promulgated Rule 717 in LAC 46:LVII, Chapter 7. Rule 717 governs a private investigator’s contracts for professional services rendered and provides a list of the information that is required to be part of those contracts, including names and addresses of the parties, the schedule of fees to be charged, the purpose and scope of the investigation, the signatures of the client and two witnesses, and the date the agreement was signed. The last item on the list provides that contracts shall be made in duplicate, one copy for the client and “one copy shall be retained in the investigative case file for a period of three years.”

The district court’s ruling is a usurpation of the statutory authority granted to the board. The judgment impermissibly creates a three year prescriptive period (effectively limiting a private investigator’s potential liability) in an area of the private investigation profession (the retention of investigative files) that was neither imposed by statute nor by the board under its rule-making authority. For this reason, the district court’s judgment must be reversed.

\„DE NOVO REVIEW

When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. Once a final judgment is rendered by the district court, an aggrieved party may seek review of same by appeal to the appropriate appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Maraist v. Alton Ochsner Medical Foundation, 2002-2677 (La.App. 1 Cir. 5/26/04), 879 So.2d 815, 817. Accordingly, we review the matter de novo. In performing judicial review of the board’s adjudication, we are guided by La. R.S. 49:964, in pertinent part, as follows:

G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the •witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

We have reviewed the record in its entirety, including the transcripts of the adjudicatory hearings by the board, and find that the revocation of Frank’s licenses was based on findings that Frank was in violation of numerous statutes and regulations, none of which were reviewed by the district court. Further, our review of the record reveals ample evidence supporting the revocation of Frank’s licenses.

| ^Initially, Frank’s testimony was notably difficult to elicit. As to most of the significant and material facts, Frank was unable to recall and did not answer the majority of questions. As to the evidence Frank was able to recall, his answers and testimony were inconsistent with either his own actions (see n.2, supra), his own contradictory or illogical testimony, or the documentary evidence together with the testimony of other witnesses (see n.3, supra.) This level of uncooperativeness in the giving of testimony and providing necessary information creates a serious and legitimate doubt regarding Frank’s credibility both in these proceedings and in conducting himself throughout the matter at issue. Initially we note Frank never affirmatively stated or recalled destroying the specific file at issue. First, his testimony established simply that because he was only required to keep the file for three years, albeit erroneous, he assumed that it had been destroyed. He did not provide any specifics regarding the actual destruction of the file, or of a set procedure by which he conducts such destruction of files after the three year period. Later, he represented, for the first time, that he had given the file materials to Christopher to make copies thereof, and that Christopher failed to return it. Finally, while he was able to provide some of the file’s contents by resorting to earlier emails, he was unable to explain why he was only able to access, some, but not all of the email attachments.

As noted earlier, the adjudicatory hearing was held on two separate days—March 18, 2014 and August 27, 2014. Although Frank and his counsel were present at the hearing on March 18, neither of them, despite having received notice thereof, was present for the second day of the hearing on August 27. However, on August 25, two days prior to the continuation of the hearing, Frank, by letter hand-delivered and sent by certified mail, informed the board that effective immediately (the date of the letter) he was ceasing to do business individually and as an investigations agency. He wrote that he was unable physically to surrender his current license, as he no longer had it, but also explained that his license was set to expire on November 20, 2014, and that he had not applied for a renewal thereof. In that letter, Frank made no mention of the ongoing adjudicatory hearing at which revocation of said licenses was being considered. We find the timing of the “voluntary” ceasing to do business and non-renewal of the licenses by | iaFrank, being that it fell during the pendency of the adjudicatory hearing considering revocation, together with Frank and his counsel being absent from the second day of the hearing, suspect. The letter casts doubt as to Frank’s intentions by ceasing to provide services when his licenses to do so validly was in the process of being adjudicated. Moreover, Frank’s absence at the continued hearing additionally reflects Frank’s persistent refusal to cooperate with the board in obtaining the truth regarding the allegations of wrongdoing by Frank being considered by the board.

Moreover, we find the record overwhelmingly reflects a level of incompetence and dishonesty in violation of law and sanctionable pursuant to the board’s authority. The record evidencing Frank’s almost complete lack of recall, not only of specifics regarding this particular matter, but also about his general mode of investigations, is also significant. We need not determine whether Frank was being intentionally dishonest. Either he was untruthful, which is actionable in and of itself, or he was not dishonest, in which case that same evidence establishes an unacceptable and actionable level of incompetence. From the very inception, of his testimony, Frank displayed an immediate lack of recall. He maintained from the start that he was not obligated to keep the file for longer than three years, and that, therefore, the file must have been destroyed. He could not, however, recall when, how, or any other specifics regarding said destruction of the file. After being unable to explain why he could not “re-create” the information in the file by referring back to computer activity in connection therewith, such as letters he may have written in an effort to find the identity of Christopher’s birth mother, Frank finally admitted that such work would have been done on a computer. However, he quickly added (referring to the computer), “Oh, that thing is gone.” In further responding to questions, Frank stated that he had “destroyed” all of his computers; however, he was unable to recall whether he attempted to save any of the data on those computers, how, where, or why the computers were destroyed, or where, if anywhere, the data hád been saved. At this point in time, the testimony that revealed Frank had no knowledge regarding any of the data that was destroyed in conjunction with the destruction of his computers prompted one of the board members (a Mr. Landry) to remark:

114I’m just asking my own question as a board member here and as a private investigator who operates an agency. I just find it, personally, in my opinion, appalling that somebody who has an investigative agency and allows their investigative files and, more so, their actual contract with the client, no matter who the client was, that you don’t retain that for your records....

That same board member noted on the record that Frank’s recollection was very “selective” and that everything he (the board member) had heard at the hearing reflected “incompetence.” We too, find much of the evidence regarding Frank’s general practice and procedure for performing investigations and dealing with clients appalling, particularly given that the nature of the profession centers around the collection and keeping of factual evidence. When the questioning of Frank failed to reveal any recollection of the specifics regarding the matter at issue and also revealed an apparent lack of diligence in retaining investigative information, the board members took to questioning Frank about his practice in general. Again, Frank was unable to answer questions. For example, he was asked roughly how many adoption cases he had worked on prior to the one at issue. Frank answered “I don’t recall” to questions referring to adoption cases he handled ten times in two pages of the transcript.

Frank was also questioned about the particular steps that he took in this particular investigation to acquire the information that he was able to narrow to four potential prospects. Again, Frank could remember nothing, explaining that he could not do so “without the file.” When asked, what steps, in general, he would take to begin an investigation, he was again, unable to answer satisfactorily. He finally responded that he performs “skip tracing”, but when asked which ones, his response was simply “different ones, several different ones.” When asked what he did in attempts to locate Christopher’s biological mother, he responded “[tjhrough research.” Pressed further, to answer that question in the general sense, he stated he would normally first contact the adoption agency. When asked what happened next, he was unable to respond. Then, he stated that he took a lot of the information from adoption papers provided to him by Christopher, the purported client. Questioned even further, he finally responded that he did research on “numerous of (sic) websites and databases,” but he was unable to provide or recall |lswhat information, if any, was gleaned from these numerous resources. Instead, he continuously explained that he could not answer without having the file in front of him. Thus, he could not answer how many people he spoke with during the investigation, how many hours he put into the investigation, or whether or not he contacted any public agencies or looked in any public records. When questioned what public agencies he generally contacted when investigating adoptions, he responded, “I would go online and find out what public agencies there were.” He could not name any of the agencies off the top of his head.

The foregoing references to the transcript and evidence presented are illustrative only. The transcript as a whole fully supports a finding by the board that Frank’s conduct and behavior in conducting the investigation at issue and communicating with his clients was violative of at least one (incompetence) if not, several other standards impbsed upon him by law. In any event, the revocation of Frank’s licenses was not arbitrary or capricious or characterized by an abuse of discretion (La. R.S. 49:964(G)(5)), and it was supported and sustainable by a preponderance of the evidence in the record (La. R.S. 49:964(G)(6)).

CONCLUSION

For all of the foregoing reasons, we reverse the June 10, 2016 judgment of the district court that reversed the findings of the board and the revocation of Frank’s licenses. Further, we hereby reinstate the opinion and order of the board, dated November 18, 2014, revoking said licenses based on numerous violations by Frank of statutory and regulatory provisions. All costs of this appeal are assessed to Scott C. Frank.

DISTRICT COURT JUDGMENT DATED JUNE 10, 2016, REVERSED; LOUISIANA STATE BOARD OF PRIVATE INVESTIGATOR EXAMINERS OPINION AND ORDER DATED NOVEMBER 18, 2014, REVOKING THE LICENSES OF SCOTT C. FRANK AND SCOTT FRANK INVESTIGATIONS, REINSTATED.

      . The parties dispute whether Landry or Christopher was the actual "client” for purposes of the contract for investigative services entered into with Frank, For the reasons further expounded in this opinion, we find that factual determination unnecessary for the ultimate resolution of the issues presented in this appeal. We note, however, that Frank takes incompatible positions with regard to this issue. Throughout this litigation, Frank has maintained that Christopher, not Landry, was his client. He bolsters that position by pointing out that the adoption proceeding had been a closed one in which the adopting parents have no rights to obtain otherwise confidential information regarding the adoption. However, in addition to establishing that the $2,500.00 retained for Frank's services was paid by Landry, and received by Frank, the record reveals that Frank did not raise this issue when he was contacted by Landry following Christopher’s death in September 2012. In fact, because he claimed to have destroyed the investigative file, he offered to begin a new investigation from scratch, for Landry but would need an additional $5,000.00 retainer fee. Finally, Frank "did not recall” and was unable to explain a contract for his professional services introduced into evidence by Landry, which had been emailed by Frank to Landry, and signed and returned by Landry. Although resolving who the “client” was is unnecessary to our ultimate finding in this decision, we find Frank's inap-posite position on this fact supportive of the lack of Frank’s credibility, which forms one of the bases for our ultimate conclusion herein.

      .Frank initially denied having a copy of the contract; however, Landry introduced into evidence a copy of a contract for Frank’s professional services that he had signed and then returned to Frank. Landry also produced the email to which Frank attached and sent the contract, asking him to sign and giving information about where Landry should remit his payment of the retainer fee. Frank testified he did not recall possessing any such contract. In a letter written by Frank’s counsel in response to the preliminary complaint notification sent to Frank by the board, Frank asserts that Christopher signed a contract with him and paid him a retainer during their first meeting in October 2008, but Frank did not offer proof of any documentary proof of either. (He attached to the letter an unsigned "form" of a contract allegedly signed by Christopher that varies greatly from the contract produced by Landry.) Additionally, at the adjudicatory hearing, Frank introduced into evidence the letter from Christopher’s psychologist, but could not answer why he was able to access and produce the letter attachment to the email, but was unable to produce the contract, which he represented must have been destroyed with the rest of the file after the passage of three years. Again, while resolution of the contract issue is not necessary to our decision in this matter, this evidence is supportive of that decision insofar as it raises doubt as to Frank’s credibility and/or competence.

      . We note that our reinstatement encompasses the amendments to the board’s opinion and order that were affected by the joint stipulation entered into the record concerning the fines imposed and attorney fees awarded, providing that those fines and award become payable only, and if and when Frank proceeds with attempts to reinstate or reapply for a license.


source: Caselaw Access Project

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

license: Public Domain

text:
    Virginia STAFFORD v. EXXON MOBILE CORPORATION, ABC Insurance Company, Lard Oil Company and Federated Insurance Company
    NUMBER 2016 CA 1067
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: February 17, 2017

      Daniel A. Meyer, Joseph Michael Bruno, New Orleans, LA, Counsel for PlaintiffyAp-pellee, Virginia Stafford
    Gregory McDonald, New Orleans, LA, Counsel for Intervenor/Appellee, New Hampshire Insurance Company
    J. Harrison Henderson, New Orleans, LA, Counsel for Plaintiff/Appellee, Guste, Barnett, Schlesinger, Henderson & Al-paugh, LLP
    Steven Judice, Chad A. Sullivan, C. Reynolds LeBlanc, Baton Rouge, LA, Counsel for Defendants/Appellants, Exx-onMobil Corporation, Lard Oil Company, Federated Mutual ' Insurance Company, Jiffy Mart, Inc., C-Store Properties, LLC
    Ernest Geiger, Megan C. Saporito, William A. Barousse, New Orleans, LA, Counsel for Defendant/Appellee, Hotard Coaches, Inc., Barranco Hotard Coaches, Inc.
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   WHIPPLE, C.J.

12This matter is before us on appeal by defendants, Lard Oil Company (“Lard”), Federated Mutual Insurance Company (“Federated Mutual”), C-Store Properties, L.L.C., and Jiffy Mart, Inc. (collectively “defendants”), from a summary judgment of the trial court, dismissing plaintiffs claims against Hotard Coaches, Inc. (“Ho-tard”), with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 30, 2012, plaintiff, Virginia Stafford, was working as an “extra” on a movie set as contracted by Talent Associates, Inc. Plaintiff was transported in one of two Hotard buses hired by Hazardous Productions, LLC to transport the movie extras from the AMC Elmwood Palace 20 movie theater parking lot in Harahan, Louisiana, to a movie filming location in Hammond, Louisiana. While exiting the bus in the Exxon “On The Run” service station parking lot at 200 South Gate Street in Hammond to proceed to a “holding spot,” plaintiff tripped and fell in what she contends was a hole with broken concrete and exposed rebar, resulting in an injury to her right ankle.

As a result of this accident, plaintiff filed suit against Lard and its insurer, Federated Mutual, Jiffy Mart, Inc., Hotard, and C-Store Properties, L.L.C. On December 23, 2015, Hotard filed a motion for summary judgment contending that it had fulfilled its duty to transport plaintiff safely and that it owed no legal duty to protect plaintiff from hazards at the point of dis-embarkment that were unknown to Ho-tard. Hotard contended that because plaintiff cannot prove this essential element of liability, her claims against Hotard should be dismissed.

|Jn support of its motion for summary judgment, Hotard attached: its charter instructions and itinerary; deposition excerpts of driver Charles Bretz; plaintiffs petitions for damages; a copy of a photograph of the parking lot; excerpts of plaintiffs June 17, 2013 deposition; excerpts of plaintiffs January 8, 2014 deposition; and interrogatory answers and requests for production of documents filed by defendants, Lard Oil and Federated Mutual.

In support of their opposition to Ho-tard’s motion for summary judgment, defendants attached: plaintiffs medical records from North Oaks Medical Center; deposition excerpts of driver Charles Bretz; plaintiffs medical records from the Bone and Joint Center of Metairie; excerpts of plaintiffs January 8, 2014 deposition; plaintiffs petitions for damages; plaintiffs medical records from Advanced Rehabilitation of Metairie; plaintiffs medical records from the Orthopedic Center for Sports Medicine and Reconstructive Surgery; plaintiffs medical records from Louisiana Pain Specialists; plaintiffs medical records from Jefferson Neurobehavioral Group; and deposition excerpts of Jiffy Mart’s representative, Johnny Milazzo.

In support of her opposition to Hotard’s motion for summary judgment, plaintiff attached her own affidavit, as well as: Ho-tard’s charter instructions and itinerary; a location parking agreement; photographs of the Exxon “On The Run” service station and parking lot; photographs of the exposed rebar; an audio recording of plaintiffs interview; excerpts of her June 17, 2013 deposition; excerpts of her January 8, 2014 deposition; deposition excerpts of driver Charles Bretz; and her medical records.

Hotard’s motion for summary judgment was heard by the trial court on January 25, 2016. At the hearing, counsel for Ho-tard objected to the introduction of plaintiffs medical records by plaintiff (Exhibit 3) and the defendants (Exhibits A, C, F, G, H, and I) in support of their oppositions to summary judgment. RHotard’s objection was sustained by the trial court. Following the hearing, the trial court signed a judgment on February 19, 2016, sustaining Hotard’s objections to the introduction of excerpts of plaintiffs certified medical records, granting Hotard’s motion for summary judgment, and dismissing plaintiffs claims against Hotard with prejudice.

Defendants filed the instant appeal of the trial court’s February 19, 2016 judgment, contending that the trial court’s judgment should be reversed. On appeal, the defendants contend that the trial court erred in:

1. Excluding plaintiffs certified medical records and failing to consider them in connection with its ruling;
2. Ignoring the negligence test outlined in Louisiana jurisprudence for carriers such as Hotard and holding that Hotard had no duty herein;
3. Failing to recognize that Hotard assumed a duty to inspect the premises for potential defects and that issues of material fact exist regarding whether this duty was assumed and whether Hotard negligently breached that duty; and
4, Granting summary judgment where issues of material fact exist regarding where the subject accident occurred and whether Hotard provided plaintiff with an exit from the bus that was reasonably safe.

SUMMARY JUDGMENT

A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is [r,entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B)(2). 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. Willig v. Pinnacle Entertainment, Inc., 2015-1998 (La.App. 1st Cir. 9/16/16), 202 So.3d 1169, 1172.

The burden of proof is on the mover. See LSA-C.C.P. art. 966(C)(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. LSA-C.C.P. art. 966(C)(2); Temple v. Morgan, 2015-1159 (La.App. 1st Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889.

Whether a particular fact in dispute is material for purposes of summary judgment can be seen only in light of the substantive law applicable to the case. Gaspard v. Graves, 2005-1042 (La.App. 1st Cir. 3/29/06), 934 So.2d 158, 160, writs denied, 2006-0882, 2006-0958 (La. 6/16/06), 929 So.2d 1286, 1289.

In the instant case, plaintiff contends that Hotard is liable for her injuries herein. Accordingly, we look to the duty-risk analysis adopted by Louisiana courts in determining whether liability exists under the facts of a particular case. Brewed6 v. J.B. Hunt Transport, Inc., 2009-1408, 2009-1428 (La. 3/16/10), 35 So. 3d 230, 240. In order for liability to attach under a duty-risk analysis, a plaintiff must prove: (1) duty; (2) breach; (3) causation; and (4) damages. Roberts v. Rudzis, 2013-0538 (La.App. 1st Cir. 5/28/14), 146 So.3d 602, 608-609, writ, denied, 2014-1369 (La. 10/3/14), 149 So.3d 797. The existence of a legal duty and a breach of that duty are prerequisites to any determination of fault. Seals v. Morris, 410 So.2d 715, 718 (La. 1981)(on rehearing). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability, Mathieu v. Imperial Toy Corporation, 94-0952 (La. 11/30/94), 646 So.2d 318, 326.

Although the determination of whether to assign a legal duty is fact-specific, the issue of whether there is a duty ultimately is a question of law. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 2002-1376 (La.App. 1st Cir. 5/9/03), 849 So.2d 622, 627, writ denied, 2003-1579 (La. 10/3/03), 855 So.2d 315. The inquiry is whether plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support her claim. Fredericks v. Daiquiris & Creams of Mandeville, L.L.C., 2004-0567 (La.App. 1st Cir. 3/24/05), 906 So.2d 636, 639, writ denied, 2005-1047 (La. 6/17/05), 904 So.2d 706.

DISCUSSION

At the outset, we note that when a judgment dismisses one of several cumulated claims by the plaintiff, the plaintiff must appeal that adverse judgment to obtain affirmative relief. Nunez v. Commercial Union Insurance Company, 2000-3062 (La. 2/16/01), 780 So.2d 348, 349 (per curiam). When plaintiffs fail to appeal the dismissal of their action, the judgment of dismissal acquires thej7 authority of a thing adjudged. Nunez v. Commercial Union Insurance Company, 780 So.2d at 349. In such cases, the filing of an appeal from the judgment of the trial court by another party only brings up on appeal the portions of the judgment that were adverse to that party. Nunez v. Commercial Union Insurance Company, 780 So.2d at 349.

In the instant case, where plaintiff did not appeal the trial court’s judgment dismissing her claims against Hotard, nor did plaintiff answer the defendants’ appeal, the summary judgment dismissing plaintiffs claims against Hotard acquired the authority of a thing adjudged, is now final between the parties, and is not subject to reversal by this court. See Grimes v. Louisiana Medical Mutual Insurance Company, 2010-0039 (La. 5/28/10), 36 So.3d 215, 217 (per curiam); Bethley v. Sheybani, 2010-0713, p. 5 (La.App. 1st Cir. 10/29/10), 56 So.3d 466 (unpublished). Nevertheless, while Hotard cannot be cast in judgment on plaintiffs main demand, by the filing of a successful appeal, the remaining defendants may reduce their liability to plaintiff, based upon the principles of comparative fault set forth in LSA-C.C. art. 2323(A), by establishing the fault, negligence or breach of care by Hotard. See Grimes v. Louisiana Medical Mutual Insurance Company, 36 So.3d at 217; Bethley v. Sheybani, 2010-0713 at p. 5, 56 So.3d 466; Cotton v. Kennedy, 2015-1391 (La. App. 1st Cir. 9/19/16), 2016 WL 5061113(unpublished).

Assignment of Error Number One

In their first assignment- of error, defendants contend that the trial court erred in sustaining Hotard’s objection to the admission of plaintiffs certified medical records after finding that the medical records were not relevant to the issue raised in- Hotard’s motion for summary judgment, Le., whether' or not Hotard had a legal duty to plaintiff herein. In support of their opposition to Hotard’s motion for summary judgment, defendants attached copies of plaintiffs certified medical| s records, which they contend include statements regarding where the incident occurred, and as such, are relevant to whether Hotard may bear any liability herein.

Hotard contends that plaintiffs medical records are not relevant to the determination of the purely legal question presented of whether Hotard had a legal duty to protect plaintiff from defects on property it did not own, when it is uncontested that Hotard had no knowledge of the alleged defect. Hotard further counters that the version of LSA-C.C.P. art. 966 in effect at the time of the filing of Hotard’s motion for summary judgment did not provide for the filing of medical records in support of or in opposition to summary judgment. On review, we agree.

As set forth above, at the time of the filing of Hotard’s motion for summary judgment, LSA-C.C.P. art. 966(B)(2) provided that a motion for summary judgment shall be granted only “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” (Emphasis added.) Because plaintiffs medical records do not fall within any of the categories set forth in Articles 966 and 967 as evidence properly considered on a motion for summary judgment, we conclude that they could not be relied on to support defendants’ motion for summary judgment. See also Gooding v. Merrigan, 2015-200 (La. App. 5th Cir. 11/19/15), 180 So.3d 578, 582-584 (where the court found that any details plaintiff may have given medical providers about the accident, which were contained in his medical records, were properly excluded as hearsay on summary judgment).

| ¡Accordingly, we find the trial court properly excluded plaintiffs medical records, and thereby find no merit to this assignment of error.

Assignments of Error Numbers Two and Four

In these assignments of error, defendants contend that the trial court erred in finding that Hotard had no legal duty herein and in granting Hotard’s motion for summary judgment. In the proceedings below, Hotard argued, and the trial court agreed, that it had no “duty to protect the [pjlaintiff from unknown alleged defects on third party property.” In granting summary judgment, the trial court found that Hotard had “no legal duty to protect plaintiff from [an] unknown point of disembarkment” and that there was no “basis in law for holding [Hotard] liable for possible defects in premises it did not own.” In finding no duty was owed, the trial court noted that the area at issue “was owned by other people. In fact, [Hotard] did not have any kind of ownership in it. Couldn’t police it. Couldn’t see if there were defects there, any possible defects. The bus driver '... was a driver. Not a parking lot inspector.” The trial court further stated that neither the plaintiff nor the other defendants presented the court “with any law showing Hotard had a duty outside the ordinary duty of a common carrier” and that as such, Hotard “didn’t have any duty to protect the plaintiff from [an] unknown alleged defect on third party property.”

While the trial court framed Hotard’s duty, or lack thereof, from a premises liability or ownership perspective, in our view, the more appropriate inquiry is whether Hotard had a duty to provide passengers with a reasonably safe place to exit, and if so, whether there was any evidence to show that the duty was breached.

As reflected in the jurisprudence, a public common carrier is held to the highest degree of care, diligence, and skill in receiving passengers, conveying them to their destination and setting them down safely as the means and character of the conveyance and circumstances will permit. Deason v. Greyhound Corporation, 106 So.2d 348, 360 (La. App. 1st Cir. 1958); Luckette v. Bart’s on the Lake, Limited, 602 So.2d 108, 110-111 (La. App. 4th Cir.), writ denied, 608 So.2d 178 (La. 1992). Once a plaintiff sets forth a case of prima facie liability, the burden then shifts to the public common carrier to exculpate itself from liability. See Whitley v. Regional Transit Authority, 2005-0433 (La. App. 4th Cir. 7/20/05), 913 So.2d 169, 172; Munar v. State Farm Insurance Company, 2007-611 (La. App. 3rd Cir. 12/19/07), 972 So.2d 1273, 1276.

Moreover, once a passenger freely disembarks at his chosen destination free from harm, his status as a passenger, and the public carrier’s contract to transport for hire, ceases. Ricks v. City of Monroe, 44,811 (La. App. 2nd Cir. 12/9/09), 26 So.3d 858, 862, writ denied, 2010-0391 (La. 5/28/10), 36 So.3d 247. At that point, the public carrier only owes such person the duty of ordinary care, and is under no duty to warn the former passenger of a danger which is apparent, obvious, and known to every person in good mind and sense. Ricks v. City of Monroe, 26 So.3d at 862; see also Deason v. Greyhound Corporation, 106 So.2d at 361.

Here, however, Hotard is a private common carrier, not a public common carrier. See Luckette v. Bart’s on the Lake, Limited, 602 So.2d at 110. Thus, the above-noted heightened duty applicable to public common carriers is not applicable to Hotard herein. As explained by our brethren in the Fourth Circuit, the critical difference between public and private common carriers such as Hotard is:

[Hotard] leases its buses for private transportation function rather than making its buses available for public transportation purposes. Hotard operates a business whereby it provides a qualified driver, as well as insurance, for a specific time and function for a fee. Thus, a different standard from that imposed on public common carriers applies to Ho-tard.

Luckette v. Bart’s on the Lake, Limited, 602 So.2d at 110-111.

_JjjWhere the heightened duty applicable to public common carriers is not applicable, a standard of general negligence has been applied. See Whitley v. Regional Transit Authority, 913 So.2d at 172 and Manuel v. Regional Transit Authority, 2009-1256 (La. App. 4th Cir. 5/12/10), 36 So.3d 1131, 1134; see also Ellis v. Louisiana-I Gaming, 2005-993 (La. App. 5th Cir. 4/25/06), 930 So.2d 186, 189. Thus, as a private common carrier, Hotard was required to meet the general standard of care, as opposed to the heightened standard for public common carriers. The general negligence test involves whether the place the passenger is compelled to exit is reasonably safe. Whitley v. Regional Transit Authority, 913 So.2d at 172. Thus, on review, to the extent that defendants contend that Hotard owed, a duty to provide a reasonably safe place to exit, we agree.

Having so found, we must next determine whether defendants established that material issues of fact exist regarding whether Hotard breached this duty.

In support of its motion for summary judgment, Hotard presented evidence establishing that the bus plaintiff was traveling on was one of two buses chartered by Hazard Productions to transport movie extras from Elmwood Boulevard in Harahan to Hammond. According to the charter itinerary, Hotard was to deliver the extras at the Columbia Theater at 220 East Thomas Street in Hammond. According to the deposition testimony of its driver, Charles Bretz, also introduced in support of Hotard’s motion for summary judgment, when the buses arrived inlia Hammond, they were only able to get about a half a block from the theater, which was barricaded off due to filming. At that point, a Hazard Production representative who was on the bus directed Bretz to drive two blocks away to wait on standby. After waiting for approximately an hour, Bretz was then directed to an empty parking lot next to a service station to drop off the movie extras. According to Bretz, it was customary for him to get out of the bus and inspect the area around the bus for any kind of hazard. He further testified that facilitating or assisting with the disembarkation of passengers was part of his job.

Bretz testified that by the time they began offloading, it was around 7:00 a.m. Bretz testified that as he exited the bus to open the external storage bins, he did not encounter any rough surfaces or anything that would cause him concern about the ability of his passengers to safely exit the bus and traverse the parking lot. Bretz further stated that he would have surveyed the area to determine if he could offload passengers safely and that he identified no hazards that alerted him to the possibility that somebody- could have a problem safely traversing the parking lot. Bretz testified that while he was opening the luggage bins on the side of the bus, plaintiff, who was one of the first passengers to get off of the bus, twisted her ankle. According to Bretz, plaintiff was attended to by production company personnel. Bretz further stated that based on his observations, the other passengers offloaded with no difficulty. Bretz - testified that during the entire time he was off of the bus, and then as he went back onto the bus, which was approximately ten minutes, he did not see any defects in the parking lot that would have created a hazard. Bretz stated that when he got back on the bus, he had to step in the same area that plaintiff stepped in when she twisted her ankle and fell, and that he dkh not notice any holes or defects at that specific location that would have created a hazard for her or any other passenger.

• 11sHotard also introduced excerpts of plaintiffs deposition testimony in support of its motion for summary judgment. In a deposition taken on June 17, 2013, plaintiff testified that they were let off of the bus and were lined up to head to the holding area. She stated that she “got off of the bus, took a couple of steps and hit the ground.” When asked if she saw a hole before she fell, plaintiff replied, “No, sir it was still dark out, night, and I was looking at the person in front of me instead of looking down.” Plaintiff was further questioned in a subsequent deposition taken on January 8, 2014, about how far she was from the bus when she fell, in the following colloquy:

Q. Okay. I want to be sure that I understand your rendition of how the fall occurred. Was—was it your first step off of the bus?
A. No.
Q. All right. How many steps did you take?
A. I don’t know.
Q. How far from the bus were you when you fell?
A. Not very far at all.
Q. Can you give me an estimate in feet?
A. No. I—I wasn’t—it didn’t occur to me to pay attention. I just was off the bus walking pretty quickly. After I was on the bus, I was on the ground.
Q. Okay. What you told me earlier is that you stepped down and you felt this pain in your ankle. You were actually walking when—
A. I was walking. When I say I stepped down, the ground was different when I put my foot down because of the broken concrete and the rebar sticking out.
Q. Did you actually see the broken concrete and the rebar sticking out?
A. No, not until I was already in it and on the ground.

With reference to the location of the “hole,” plaintiff testified that it “wasn’t right immediately outside of the bus, but it wasn’t far from the bus, if that makes Jásense.” In her testimony, plaintiff agreed that she successfully got off of the bus, began walking toward the holding area for cast, and in less than five steps she put her foot down, felt pain in her ankle, and fell. Based on the evidence set forth, Hotard contends that it complied with any duty it may have owed to plaintiff to provide a reasonably safe place to exit.

In response to Hotard’s showing on summary judgment, the defendants cited excerpts. of the deposition testimony of Charles Bretz; excerpts of plaintiffs January 8, 2014 deposition; plaintiffs petition for damages; and deposition excerpts of Jiffy Mart’s representative, Johnny Milaz-zo. In addition, plaintiff relied on her affidavit; Hotard’s charter instructions and itinerary; the location parking agreement; photographs of the Exxon “On The Run” station and parking lot; photographs of the exposed rebar; an audio recording of plaintiffs interview; excerpts of her June 17, 2013 deposition; excerpts of her January 8, 2014 deposition; and excerpts of the deposition of Bretz.

Under the general negligence standard applicable herein, Hotard was required to provide plaintiff with a reasonably safe place to exit the bus. See Whitley v. Regional Transit Authority, 913 So.2d at 172. By plaintiffs own admission, she had exited the bus and was “walking pretty quickly” when she fell. In her deposition testimony, she clearly stated that she did not fall on her first step off of the bus. In her affidavit, she attested that she had taken “between two and five steps” before stepping into a hole created by the broken concrete. Further, in her recorded interview, she stated that she was walking in a line looking at the back of the guy in front of her when she fell and that she had only taken “a few” steps off of the bus, no more than five.

On review of the evidence properly set forth in opposition, we find that defendants failed to provide any evidence to create an issue of material fact as to whether Hotard breached its duty herein. Even applying the heightened standard] of care for public common carriers, ha, once a passenger freely disembarks at his chosen destination free from harm, his status as a passenger, and the public carrier’s contract to transport for hire ceases, we find there has been no showing that Hotard breached its duty herein. See Ricks v. City of Monroe, 26 So.3d at 862; Deason v. Greyhound Corporation, 106 So.2d at 363 (where this court held that Greyhound had completely discharged its duty as a common carrier when it “safely unloaded Deason on the west side of the Scenic Highway” before Deason was struck by a truck while attempting to cross Scenic Highway).

On de novo review of the record, we conclude that the evidence before us shows that, by her own admission, plaintiff had exited the bus and was walking in a line following other movie extras, as led by the production crew, to a holding area at the time she fell. We further conclude that defendants failed to counter with any evidence to show that they can establish at trial that Hotard breached its duty to plaintiff herein or to create an issue of material fact regarding the negligence of Hotard. Otherwise stated, the evidence set forth in opposition to Hotard’s motion for summary judgment failed to create an issue of material fact regarding the breach of any duty owed by Hotard to plaintiff. See Whitley v. Regional Transit Authority, 913 So.2d at 172.

Accordingly, we agree that on the record before us, Hotard was entitled to summary judgment in its favor as a matter of law. Thus, we find no merit to these assignments of error.

CONCLUSION

For the above and foregoing reasons, the trial court’s February 19, 2016 judgment is hereby affirmed. Costs of this appeal are assessed to the defendants/appellants, Lard Oil Company, Federated Mutual Insurance Company, C-Store Properties, L.L.C., and Jiffy Mart, Inc.

AFFIRMED.

McClendon, J., concurs and assigns reasons.

McClendon, J.,

concurring.

hi concur with the result reached by the majority.

      . Plaintiff filed an original and five supplemental and amending petitions naming the various defendants. While ExxonMobil Corporation was named as a defendant in plaintiff’s original petition, it filed a motion for sum-maty judgment contending that pursuant to its franchise agreement with its distributor, Lard Oil Company, its distributor assumed all responsibility for maintaining all real property in connection with its operations and that ExxonMobil exercised no control over the premises, particularly the parking lot. By judgment signed on April 22, 2014, the trial court granted ExxonMobil’s motion for summary judgment, dismissing plaintiffs claims against ExxonMobil.

      . Although plaintiff opposed Hotard’s motion for summary judgment in the proceedings below, plaintiff did not appeal the trial court’s dismissal of her claims against Hotard, nor did plaintiff answer the defendants’ appeal.

      . Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article as applicable in this case. See Acts 2015, No. 422, §§ 2 and 3.

      . More specifically stated, a plaintiff must establish that: (1) the defendant had a duty to conform his conduct to a specific standard (the duty element): (2) the defendant failed to conform his 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 (S) actual damages (the damages element). Roberts v. Rudzis, 2013-0538 (La.App. 1st Cir. 5/28/14), 146 So.3d 602, 608-609, writ denied, 2014-1369 (La. 10/3/14), 149 So.3d 797.

      . In so ruling, we acknowledge that, as amended, the current version of LSA-C.C.P. art. 966, applicable to all motions for summary judgment filed after January 1, 2016, provides that certified medical records may be filed in support of or in opposition to a motion for summary judgment. See LSA-C.C.P. art. 966(A)(4) and Acts 2015, No. 422, §§ 1-3. Notwithstanding the amendment, we pretermit the issue of whether these records would be relevant and admissible under the current version of the article.

      . In Whitley v. Regional Transit Authority, 913 So.2d at 172, and Manuel v. Regional Transit Authority, 36 So.3d at 1134, the courts determined that the proper standard was general negligence where the Regional Transit Authority was statutorily precluded from being held to the heightened standard of care.

      . In Ellis v. Louisiana-I Gaming, 930 So.2d at 189, the court discussed the distinction between casino and hotel shuttle buses from common carriers that offer transportation for hire to the public generally or indiscriminately, and found that a shuttle bus owed an ordinary standard of care in general negligence to its passengers, not a heightened duty that applied to fare-paying passengers.

      . Given our finding concerning Hotard’s duty herein, we pretermit discussion of the defendants’ third assignment of error concerning whether Hotard assumed a duty.

      . Approximately forty-five movie extras were on each bus.