text:
    Steven TRAHAN, et al. v. BP AMERICA PRODUCTION COMPANY, et al.
    16-267
    Court of Appeal of Louisiana, Third Circuit.
    12/7/2016

      Victor L. Marcello, Donald T. Car-mouche, John H. Carmouche, William R. Coenen, III, Brian T. Carmouche, Todd J. Wimberley, Ross Donnes, D. Adele Owen, Leah C. Poole, Caroline H. Martin, Talbot, Carmouche & Marzullo, 17405 Perkins Road, Baton Rouge, Louisiana 70810, (225) 400-9991, Counsel for Plaintiffs/Appellants: Steven Trahan, et al.
    Chad E. Mudd, David P. Brucchaus, M. Keith Prudhomme, Matthew P. Keating, Mudd & Bruchhaus, LLC, 410 East College Street, Lake Charles, Louisiana 70605, (337) 562-2327, Counsel for Plaintiffs/Appellants: Steven Trahan, et al.
    Lawrence G. Gettys, Heard Robins Cloud LLP, 9191 Siegen Lane, Building 7, Baton Rouge, Louisiana 70810, (866) 517-9520, Counsel for Plaintiffs/Appellants: Steven Trahan, et al.
    Stephen Taggart, Stephen Taggart & Associates, 3532 Highway 365, Nederland, Texas 77627, (409) 722-3375, Counsel for Plaintiffs/Appellants: Steven Trahan, et al.
    George Arceneaux, III, Lawrence P. Simon, Jr., Penny L. Malbrew, George H. Robinson, Jr., William E. Kellner, Brittan Bush, Liskow & Lewis, Post Office Box 52008, Lafayette, Louisiana 70505, (337) 232-7424, Counsel for Defendant/Appellee: BP America Production Company
    Katherine Seegers Roth, Kathryn Z Gonski, Kelly B. Becker, Liskow & Lewis, 701 Poydras Street, Suite 5000, New Orleans, Louisiana 70139-5099, (504) 581-7979, Counsel for Defendant/Appellee: BP America Production Company
    Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

PIaintiffs/landowners in this legacy litigation appeal a judgment granting a motion for summary judgment based on prescription filed by defendant, BP America Production Company (BP), and dismissing their claims against it. Finding that numerous genuine issues of material fact remain, we reverse.

FACTS AND PROCEDURAL HISTORY

According to a Petition for Damages filed on March 3, 2011, Plaintiffs own property in Cameron Parish, Louisiana, (hereinafter referred to as “the property”), which had sustained both surface and subsurface contamination as a result of the historical oil and gas exploration and production activities of four named defendants, including BP, or their predecessors in interest. Plaintiffs sought remediation and other damages based on causes of action sounding in tort and in breach of contract and/or the Mineral Code.

Several months before a jury trial that was scheduled to take place in the fall of 2015, BP filed a motion for summary judgment seeking to have Plaintiffs’ claims against it dismissed on the basis of prescription. Plaintiffs opposed the motion, asserting that they lacked actual or constructive knowledge of their causes of action until less than a year before they filed suit. Following a hearing, the trial court issued written reasons for judgment, and later a Final Judgment, granting |2BP’s motion for summary judgment, dismissing Plaintiffs’ claims against it, and designating the judgment as final and appealable under La.Code Civ.P. Art. 1915(A). Plaintiffs timely appealed.

DISCUSSION

Law

Summary judgment “shall be rendered ... if the pleadings, depositions, answers to interrogatories, and admission, together with the affidavits, if any, admitted for purpose of the motion for summary judgment, show that there is no genuine issue as to any material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. Art. 966(B)(2). “A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” Smitko v. Gulf S. Shrimp, Inc., 11-2566, p. 7 (La. 7/2/12), 94 So.3d 750, 755.

As noted in La.Code Civ.P. Art. 966(A)(2), “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action .... The procedure is favored and shall be construed to accomplish these ends.” Nevertheless:

[t]he burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’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 that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his [sevidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. Art. 966(C)(2).

The Louisiana Supreme Court has held that “[s]ummary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 28 (La. 7/5/94), 639 So.2d 730, 751. In Jagneaux v. Frohn, 11-461, p. 6 (La.App. 3 Cir. 10/5/11), 74 So.3d 309, 313 (quoting Johnson v. Gov’t Emps. Ins. Co., 05-476, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454), upon appellate review of a trial court’s grant of summary judgment, this court held that “it is not the function of the trial court to determine or inquire into the merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.”

“Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment.” Hogg v. Chevron USA, Inc., 09-2632, 09-2635, p. 6 (La. 7/6/10), 45 So.3d 991, 997. “When prescription is raised by motion for summary judgment, review is de novo, using the same criteria used by the district court in determining whether summary judgment is appropriate.” Id. In Labbe Service Garage, Inc. v. LBM Distributors, Inc., 94-1043, pp. 10-11 (La.App. 3 Cir. 2/1/95), 650 So.2d 824, 829 (citation omitted), this court noted:

[T]he filing of a motion for summary judgment based on the plea of prescription practically subjects the movers to a higher burden of proof than if the movers had filed only the peremptory exception of prescription. The burden of proof on the movers for summary judgment ... is particularly exacting in that they are required to prove, based solely on documentary evidence and without the benefit of | ¿testimony at a hearing, that there is no genuine material factual issue in dispute regarding the day upon which plaintiff acquired or should have acquired knowledge of the damage. On the other hand, pleading prescription alone subjects the exceptor to proving, by a preponderance of the evidence, that the plaintiffs claim has prescribed. Additionally, if on the face of the petition it appears that prescription has run, the burden shifts to the plaintiff to prove an interruption or suspension of the prescriptive period. At a hearing on the exception of prescription, the parties are allowed to call witnesses to testify and the factfinder is allowed to weigh credibility. On summary judgment, this is prohibited.

See also, Hogg, 45 So.3d 991. “Damage is sustained, within the meaning of prescription, only when it has manifested itself with sufficient certainty to support the accrual of a cause of action. Cole v. Celotex Corporation, 620 So.2d 1154 (La.1993). The damages suffered must at least be actual and appreciable in quality.” Labbe, 650 So.2d at 829.

In this case, Plaintiffs’ claims that derive from contracts or mineral leases fall under the ten-year liberative prescriptive period applicable to personal actions found in La. Civ.Code Art. 3499. Plaintiffs’ tori claims are governed by La.Civ.Code Art. 3493, which provides that “when damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.”

“[T]he ultimate issue in determining whether a plaintiff had constructive knowledge sufficient to commence a prescriptive period is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant’s conduct.” Marin, 48 So.3d at 246. In Hogg, 45 So.3d at 997-98, the supreme court noted:

Constructive knowledge has been defined by our courts as whatever notice is enough to excite attention and put the injured party on guard or call for inquiry. Campo v. Correa, 01-2707, p. 12 (La.6/21/02), 828 So.2d 502, 510-511. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry Rmight lead, and such information or knowledge as ought to reasonably put the injured party on inquiry is sufficient to start the running of prescription. Id. In assessing whether an injured party possessed constructive knowledge sufficient to commence the running of prescription, this court’s ultimate consideration is the reasonableness of the injured party’s action or inaction in light of the surrounding circumstances.
In Labbe, 650 So.2d at 829-30, we explained:
The doctrine of contra non valentem agere nulla currit praescriptio prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff. Often, it is difficult to identify the precise time at which the claimant becomes aware of sufficient facts to begin the running of prescription.

The supreme court elaborated in Marin, 48 So.3d at 245, (footnote omitted):

In cases involving property damage, the fourth category of contra non valentem, otherwise known as the “discovery rule,” is encompassed in the prescriptive period proscribed by La. C.C. Art. 3493, as both essentially suspend prescription until the plaintiff knew, or reasonably should have known of the damage. While the contra non valentem “discovery rule” is only to be applied in extreme circumstances, and prescriptive statutes are to be interpreted broadly in favor of maintaining a party’s claim, the substantive analysis is the same under both La. C.C. Art. 3493 and the discovery rule of contra non valentem.

If the defendant establishes that the plaintiffs case has prescribed, the plaintiff who “assert[s] the benefit of contra non valentum” bears “the burden of proof of its requisite elements and applicability.” Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 7 (La.App. 1 Cir. 6/6/08), 992 So.2d 527, 531, writ denied, 08-1478 (La. 10/3/08), 992 So.2d 1018.

Plaintiffs’ Assignments of Error

Plaintiffs assert the following assignments of error (footnote omitted):

1. The trial court committed error in dismissing the claims of the plaintiffs against BP on grounds of prescription.
2. The trial court committed error by imposing the burden of proof of prescription on the plaintiffs.
[fi3. The trial court erroneously applied the procedural rules governing summary judgment.
4. The trial court committed error in its interpretation of the “discovery rule” component of contra non valentum and in its interpretation of the “discovery rule” as expressed in Civil Code article 3493.
5. The trial court committed error in making an equitable determination on summary judgment.
6. The trial court committed error in finding that the “plaintiffs have made no showing that they discovered any new information within one year of filing suit that triggered a new awareness on the part of the landowners.”
7. The trial court committed error in finding that the plaintiffs’ lack of knowledge was attributable to their own “wilfulness and neglect.”
8. The trial court committed error to the extent it imputed the knowledge of one or more co-owners to the remaining co-owners of the same tract.

ANALYSIS

Burden of Proof

At the outset, we note that the general premise of BP’s motion for summary judgment was that Plaintiffs’ claims against it had prescribed on the face of the petition, and thus, the burden of proof shifted to Plaintiffs to prove that prescription was suspended by the application, of contra non valentum. That premise is fundamentally flawed. Because BP chose- to file a motion for summary judgment based on prescription rather than an exception of prescription, no such shifting of the burden of proof to the non-movant occurred. See Hogg, 45 So.3d 991; Labbe, 650 So.2d 824. Instead, as the mover on. summary judgment, BP was “required to prove, based solely on documentary evidence and without the benefit of testimony at a hearing, that there is no genuine material factual issue in dispute regarding the |7date upon which plaintiffs acquired actual or constructive knowledge of the damage.” Hogg, 45 So.3d at 998 (citing Labbe, 650 So.2d 824).

As evidenced in its reasons for judgment, the trial court in this case found that BP produced evidence that its operations on the property ceased more than “forty-five years” ago and that Plaintiffs’ deposition testimony revealed that they had “not learned anything new within one year of filing suit.” Thereafter, citing La.Code Civ.P. Art. 966(C)(2), the trial court stated that because BP had “come forward with some evidence to point out to the court that there is an absence of factual support for one or more elements essential to the [Plaintiffs’ claims, the [Pjlaintiffs must produce factual support sufficient to establish that they will be able to satisfy their evidentiary burden of proof at trial.” (Emphasis added). As the aforementioned quote from Hogg dictates, however, BP bore the burden of proof at the trial of its motion for summary judgment based on prescription, which burden required it to prove “that there is no genuine material factual issue in dispute regarding the date upon which plaintiffs acquired actual or constructive knowledge of the damage.” Hogg, 45 So.3d at 998. Thus, the trial court should not have applied the “pointing] out” provision of Article 966(C)(2) upon finding that BP produced “some evidence” that Plaintiffs lacked factual support for their claims, as “some evidence” does not equate to proving that no genuine issues of material fact remained. The reasons for judgment further revealed that upon determining that Plaintiffs’ claims were'facially prescribed, the trial court shifted the burden of proof to Plaintiffs to prove the applicability of contra non valentum without first requiring that BP meet the “particularly exacting” burden of proving | sthe date Plaintiffs knew or should have known of the damage BP caused to the property. Labbe, 650 So.2d at 829. In both instances, the trial court erred in shifting the burden of proof to Plaintiffs. As such, we find merit to Plaintiffs’ second assignment of error.

BP’s Motion for Summary Judgment

BP’s memorandum in support of its motion for summary judgment contained a fifty-six item Statement of Undisputed Material Facts (SUMF) upon which it based its argument that Plaintiffs’ claims were prescribed. BP asserted that the presence of a “White Sandy Area” that lacked vegetation on two of the nine tracts that make up the property provided all Plaintiffs and/or their ancestors in title with actual or constructive knowledge of damage to the property that was open and obvious and which should have prompted them to investigate further to ascertain the cause and extent of the contamination upon which this suit is based. BP attached to its motion historical and current aerial photography which show a sandy area that was evident since the 1940s. Historical well files were also attached to BP’s motion which showed that most of the wells operated on the property by BPs predecessors were plugged and abandoned in the 1930s, with the last well having been plugged and abandoned in 1951. BP made the following statements in its SUMF with regard to Plaintiffs’ knowledge of the white sandy area, which were supported by references to four Plaintiffs’ depositions (footnotes omitted):

45, Although unsure if he saw the White Sandy Area, Plaintiff Raymond Reeds testified that he saw an area that lacked vegetation while rabbit hunting when he was about fifteen or sixteen years old.
46. Plaintiff Shanna Vincent Gilbert saw the White Sandy Area on the property and testified that is [sic] has been there for “quite some time.”
47. Plaintiff Ernest Lowery has seen the White Sandy Area from the nearby roadway and testified it’s been there for a good while.
48. Plaintiff Craig Vincent testified that the White Sandy Area had been there all his life — since September of 1951.
49. Mr. Vincent helped his father clean up the Property in the 1960s. During the cleanup, they picked up leftover boards, pipes, sucker rods and part of a tank.
50. Mr. Vincent worked in the oil and gas industry for approximately forty years. He remember[s] that grass would die if someone spilled produced water on the ground. The White Sandy Area on the property is consistent with produced water spills he observed while working in the oil and gas industry.

BP submitted that those six so-called undisputed material facts proved that the four Plaintiffs who had seen the white sandy area had actual knowledge of damages sufficient to commence the running of prescription. While it noted in its SUMF that deposition testimony from seventeen of the twenty-six Plaintiffs revealed that most of them had rarely, if ever, been to the property, BP argued that any lack of knowledge of their potential claims against it was caused by their neglect in failing to exercise any diligence, much less reasonable diligence, to observe and ascertain the condition of the property. Thus, BP claimed that those Plaintiffs had constructive knowledge of damages sufficient to commence the running of prescription. Based upon the length of time between the cessation of “any alleged damage-causing act or omission attributable to BP” and the date upon which Plaintiffs filed their petition, BP alleged that every Plaintiffs claims against it prescribed decades before they filed this suit on March 3,2011.

Plaintiffs’ Memorandum in Opposition to BP s Motion for Summary Judgment

In opposition to BP’s claim that there was no genuine issue of material fact regarding their knowledge of their cause of action, and/or the timing of any such knowledge, Plaintiffs pointed to paragraph fourteen of their original petition wherein they asserted:

Plaintiffs did not have actual or constructive knowledge of the pollution described in this petition until less than a year prior to filing of this suit. Plaintiffs did not have knowledge of the causal connection between the defendants’ fault, negligence and breach of contract and the pollution at issue until less than one year prior to the filing of this suit. Plaintiffs did not have knowledge of the causal connection between the defendants’ fault, negligence and breach of contract and the pollution at issue until less than a year prior to the filing of this suit.

While Plaintiffs did not specifically contest the underlying facts which BP claimed were undisputed, they vehemently disagreed with the conclusions that BP drew from those facts, and they insisted that the following material facts remained in dispute (footnote omitted):

1. Whether plaintiff-landowners or their ancestors-in-title had any actual or constructive knowledge more than one year prior to filing this lawsuit of a potential cause of action against defendants for damage to their property as a result of oil and gas operations.
2. Whether plaintiff-landowners or their ancestors-in-title had any actual or constructive knowledge more than one year prior to filing of this lawsuit that defendants’ conduct caused or contributed to damage to the subject property.
3. Whether plaintiff-landowners or their ancestors-in-title had any actual or constructive knowledge that the subject property was adversely affected in some way.
4.Whether plaintiff-landowners or their ancestors-in-title had any actual or constructive knowledge that the property damage, which is the subject of this lawsuit, if any, was caused by defendants’ oil and gas exploration and production operations.
In5. Whether plaintiff-landowners or their ancestors-in-title possess any actual or constructive knowledge of the damages described in the original petition until less than a year . prior to filing suit.

Plaintiffs cited Winterrowd v. Travelers Indemnity Co., 462 So.2d 639 (La.1985) in opposition to BP’s contention that their claims were prescribed by the mere fact that their petition was filed sixty years after BP’s predecessors’ last operations on the property. The plaintiff in that case was injured in 1976 by a malfunctioning punch press that was manufactured in 1907. The undisputed facts established a causal connection between the plaintiffs injuries and the manufacturer’s failure to warn of a danger which it knew about since the time it built the punch press. The supreme court affirmed a judgment in favor of the plaintiff after finding that the manufacturer of the press violated its duty to warn “of any danger inherent in the normal use of its product which is not within the knowledge of an ordinary user.” Id. at 642. While they acknowledged that Winterrowd was not a prescription case, Plaintiffs nonetheless argued that it stands for the proposition that “[ljong delays between the actions of a defendant and the litigation of claims based on such actions are commonplace.”

In support of their denial that they had actual knowledge that BP’s actions may have contaminated the property, Plaintiffs’ opposition referenced excerpts from sixteen of their depositions, including the four Plaintiffs whose knowledge of the white sandy area, according to BP, should be imputed to all Plaintiffs. Although one of those Plaintiffs, Craig Vincent, acknowledged in his deposition that the white sandy area resembled areas where he had seen produced water spills during his career in the oil and gas industry, he explained that such bare areas do not necessarily indicate contamination, and he stated that he had no reason to believe the property was contaminated until he was contacted by his attorney. He|12noted that cows had grazed on the property for many years without ever getting sick as a result. Mr. Vincent also stated that if an oil company had contaminated a property, he would expect the oil company and the state to address the problem. Deposition testimony from the remaining three Plaintiffs who were aware of the white sandy area indicated that they never saw signs of oil and gas operations on the property, and they never saw signs that the property may have been contaminated. In addition, both Shanna Gilbert and Raymond Reeds knew the property had been used for cattle grazing, and Ernest Lowery and Mr. Reeds knew of dirt from the property being sold. The deposition excerpts from the other twelve Plaintiffs that were submitted in opposition to BP’s motion were somewhat formulaic but revealed that they were generally unaware of any oilfield equipment on the property or of any signs that the property was damaged or contaminated. Two of those Plaintiffs, knew, however, that the property had been used for cattle grazing, and two others recalled that topsoil from the property had been sold in the past. The deposition excerpts revealed that most Plaintiffs learned about the condition of the property from legal counsel or family members shortly before or after suit was filed. Affidavits from eight Plaintiffs were also attached to their opposition memorandum. While none of the affiants had been on all of the property, they each stated that the entire property was rural. Each affiant stated that none of their relatives or ancestors in title ever complained to them of any pollution or damage to the property as a result of oil and gas exploration and production activities that had taken place on the property. In addition, the affiants stated that they were never contacted by an oil company or state agency regarding the possibility of the property being contaminated as a result of any past oil and gas operations. Each of the affiants stated that they “joined this lawsuit as a result of 11sbecoming aware of litigation involving nearby property and the possibility of environmental damage associated with oil and gas operations on that property after this suit was filed.”

With regard to BP’s claim that they or their ancestors in title should be deemed to have constructive knowledge of the property’s condition, Plaintiffs asserted in their opposition memorandum that their “education, intelligence and background vis-a-vis oil and gas operations, industry standards, rules and regulation, normal wear and tear, excessive use and excee-dances pales in comparison to that of defendants and their predecessors-in-interest.” In specific reference to BP’s assertion that the white sandy area should have put them on constructive notice of any contamination, Plaintiffs submitted that their deposition and affidavit testimony reflected that none of the physical characteristics of the area gave them reason to relate the area to oil and gas operations or to know that the area was caused by toxic chemicals coming from those operations. They further asserted that they had no suspicion that BP’s operations were excessive or improper. Finally, Plaintiffs' claimed that they “required the evidence of oilfield damage in the same vicinity of their property to connect the dots” and prompt them to investigate further.

Relevant Caselaw Regarding Actual and Constructive Knowledge

Two cases rendered by the Louisiana Supreme Court in 2010 provide us with guidance in determining when a plaintiff should be deemed to have actual or constructive knowledge sufficient to commence prescription in a property damage case. In Hogg, 45 So.3d 991, the supreme court reversed the trial court’s denial of 114the defendants’ motion for summary judgment based on prescription in a case brought by five plaintiffs who alleged that their immovable property had been contaminated from three formerly leaking underground gasoline storage tanks at a Chevron service station operating on neighboring property. After the tanks were replaced in 1997, the plaintiffs received two letters from the Louisiana Department of Environmental Quality (LDEQ) informing them that environmental contamination had been detected near the Chevron station and that they may later be asked for permission for access to their property for testing purposes. A December 20, 2001 letter told the plaintiffs that “water samples collected from [an] unnamed stream” on their property “indicated ‘the presence of chemicals commonly found in gasoline.’ ” Hogg, 45 So.3d at 995. The letter “specifically explained: ‘Due to the direction of groundwater flow, there is a possibility that gasoline may have migrated underground from the Burt’s Chevron site to your property or that such migration may occur in the future.’ ” Id. In a second letter dated April 26, 2002, the LDEQ informed the plaintiffs that due to the results of air sampling at a stream near Burt’s Chevron, some of which sampling was taken on their property, they should limit the time spent in that area.

On September 12, 2006, a company hired by the LDEQ sent correspondence to the plaintiffs seeking to access their property to perform remediation. The plaintiffs filed suit on September 6, 2007, against the owners of the neighboring property, the operator of the service station, and Chevron U.S.A,'provider of the tanks and the gasoline stored in them. The defendants responded by filing a motion for summary judgment in which they claimed that the plaintiffs’ claims were prescribed because they “acquired, or should have acquired, knowledge of the contamination and damage to their property with the receipt of the 2001 and 2002 h .¡letters from LDEQ, but failed to file suit until 2007.” Id. at 966. In opposing the motion, the plaintiffs asserted that they did not interpret the letters as putting them on notice that the defendants’ conduct had damaged their property. The trial court denied the defendants’ motion, finding that genuine issues of material fact remained “regarding whether the LDEQ letters of 2001 and 2002 provided constructive knowledge of tortious conduct and damage sufficient to commence the running of prescription.” Id. After the appellate court declined to exercise supervisory jurisdiction, the supreme court granted certiorari, and framed the issue before it as follows:

[T]he dispute in this case centers around whether the information conveyed in the letters was sufficient to commence the running of prescription. Thus, while the question of subjective knowledge is ordinarily inappropriate for resolution by summary judgment, such a question is not presented here. In this case, there is no question as to what the plaintiffs knew and when. Plaintiffs’ knowledge is contained in the letters. The question presented, is whether this knowledge constitutes actual or constructive knowledge sufficient to commence the running of prescription. Because there are no factual conflicts presented, only conflicting conclusions based on the facts (the LDEQ letters), this question is one appropriate for resolution by summary judgment.

Id. at 999 (footnotes omitted). On the merits, the supreme court concluded that the information contained in the LDEQ letters “was sufficient to excite attention and put a reasonable person on guard to call for inquiry, which is the essence of constructive knowledge,” and that “plaintiffs’ inaction in light of such action was unreasonable.” Id. at 1001. Ultimately, the Hogg court found that “[wjith the receipt of the second letter from LDEQ in 2002, the plaintiffs acquired constructive knowledge of the damage to their immovable property sufficient to commence the running of prescription.” Id.

Marin, 48 So.3d 234, came before the supreme court after a trial on the merits, but it is nonetheless instructive regarding when the prescriptive period starts to run and when the discovery rule of contra non valentum should apply in a legacy case. The matter concerned two pieces of property. The first, known as the “Marin Property,” was owned by three siblings and the second, known as the “Breaux Property,” was owned by one of the siblings and her husband. Pursuant to mineral and surface leases entered into in the 1930s, Exxon Mobil Corporation, or its predecessors, conducted oil and gas operations on the two properties and built open and unlined pits where contaminants from those operations accumulated. Waste byproducts from the pits were released into a bayou on the property. The evidence showed that sugarcane farmers on the Marin Property knew by 1958 that their crops near the pit areas would not properly grow, and by the 1980s, the plaintiffs had the same concerns. Plaintiff Clyde Breaux, serving as a “family representative,” made several demands on Exxon between 1988 and 1990 that it clean their properties and rid them of contamination so they could resume their farming activities. Id. at 240. By 1991, Exxon had closed all of the pits on the plaintiffs’ properties and had assured them, via regular communication with Breaux, that it had remediated those areas in compliance with mandated. state standards. The plaintiffs filed suit against Exxon in November of 2003 “for remediation of the soil and groundwater and other damages” after an environmental assessment conducted several months earlier revealed “significant contamination” on both properties. Id. at 241. After a trial on the merits, the trial court found that the plaintiffs’ tort claims were suspended by contra non valentum. On writs, the supreme court disagreed, finding:

|17[The evidence is clear that plaintiffs knew by 1991 that sugarcane would not grow properly in the pit areas and had made demand on Exxon to clean and close the pits so that they could grow sugarcane. They knew that some of the pits were closed with sludge remaining at the bottom of the pits after the first attempt at closure, and they kept samples of the contents of this sludge. They knew that the pits contained some oilfield wastes (barites/drilling mud). They knew that certain of the pit areas were not stable enough to support farm equipment. They knew that Exxon was having trouble cleaning and closing the pits sufficiently to meet the applicable statewide standards. Although Exxon assured plaintiffs that they were in compliance in 1991, they remained suspicious of Exxon’s assurances that the pits were remediated to statewide regulatory standards. After the attempted remediation in 1991, plaintiffs had the opportunity to observe that a healthy sugarcane crop was still not growing in spite of Exxon’s efforts. Further, no new damage became apparent that was not already apparent in 1991; in fact, the pit areas still will not support healthy cane growth.

Id. at 248. The supreme court further held:

[The plaintiffs] had knowledge of damage that was apparent, i.e., dying sugarcane. Even though the damage they discovered later was more extensive, the sugarcane -damage was an outward sign of “actual and appreciable damage,” and was sufficient information to excite attention and put plaintiffs on guard and call for inquiry. We acknowledge that sugarcane takes some time to grow and by 1991, they would not have known whether the attempts at remediation were successful. In fact, Breaux testified it would take about 4 years to know if the sugarcane was going to be healthy. However, Breaux also testified that the sugarcane never did grow in some of the pit areas and has still not grown there today. We find that at least by 1995, plaintiffs had sufficient information to excite their attention and they should have investigated further at that time. Therefore, it was unreasonable to wait until 2003 to file suit.

Id. at 249-50.

Analysis

As the mover on summary judgment, BP was “required to prove, based solely on documentary evidence and without the benefit of testimony at a hearing, that there is no genuine material factual issue in dispute regarding the date upon which plaintiffs acquired actual or constructive knowledge of the damage.” Hogg, 45 So.3d at 998. After having completed a de novo review of the evidence 11ssubmitted in favor of and against BP’s motion for summary judgment, we conclude that BP is not entitled to summary judgment in its favor because many genuine issues of material fact remain in dispute.

BP contends that a white sandy area on two of the nine tracts that make up the property, and of which it offered evidence that only four Plaintiffs had seen, provided all Plaintiffs and/or their ancestors in title with actual or constructive knowledge of damage that was open and obvious and which should have prompted them to investigate further to ascertain the cause and extent of the contamination upon which this suit is based.

In order to prevail on its motion for summary judgment, BP first had to prove that no genuine issue of material fact remained regarding whether Plaintiffs sustained “actual and appreciable” damage to the property so as to excite their attention and lead them to delve further into the source and extent of that damage. Labbe, 650 So.2d at 829. BP provided only scant evidence of the characteristics of the white sandy area, simply describing it as an area that lacked vegetation and that had been observable by air since the 1940s. Relying on the deposition testimony of Craig Vincent, one of the four Plaintiffs who had actually seen the white sandy area, BP asserted that the following statements were undisputed material facts: “Mr. Vincent worked in the oil and gas industry for approximately forty years. He remember[s] that grass would die if someone spilled produced water on the ground. The White Sandy Area on the property is consistent with produced water spills he observed while working in the oil and gas industry.” In its memorandum in support of summary judgment, BP argued that “[l]ike the damaged sugar cane in Marin, the White Sandy Area provided Plaintiffs with constructive knowledge of actual and appreciable damage” and gave them “sufficient information to excite hstheir attention[,] and they should have investigated further.” We disagree. In this case, there were no crops whose growth was affected by an entity that was known to have contaminated the property and that had assured the landowners that it was remediating the property to state standards. Marin, 48 So.3d 234. In addition, Plaintiffs herein produced evidence that the property was entirely rural and that it had historically been used for eattle grazing and topsoil excavation. While an argument could be made that Craig Vincent should have recognized that the white sandy area evidenced actual and substantial damage attributable to oil and gas operations, his deposition testimony revealed that he did not suspect that the area was contaminated. Thus, we would have to make a determination as to his subjective knowledge of whether the white sandy area indicated damage that should have prompted him to investigate further, a task that the supreme court has said is “ordinarily inappropriate for resolution by summary judgment” See Hogg, 45 So.3d at 999; Smith, 639 So.2d 730. Moreover, BP produced no evidence that any of the twenty-five other Plaintiffs or their ancestors in title had any, or enough, experience in the oil and gas industry to even remotely suggest that they should have recognized that the white sandy area indicated “actual and appreciable” damage. Labbe, 650 So.2d at 829. In addition, because BP alleged that the current and historical aerial photographs attached to its motion showed that the characteristics of the property are the same now as they were in the 1940s, it has not shown that Plaintiffs’ ancestors in title would have seen damage that was more actual and substantial than the damage that currently exists. Based on the evidence presented, we conclude that genuine issues of material fact remain regarding whether Plaintiffs’ property had sustained “actual and appreciable” damage so as |20to start the running of prescription against them or their ancestors in title. Labbe, 650 So.2d at 829.

Even if we were to conclude that BP had met its burden of proving that the white sandy area was damaged enough to begin the tolling of prescription, BP would also have to prove that Plaintiffs or their ancestors in title acquired or should have acquired knowledge of the damage and the date they acquired or should have acquired such knowledge. BP would have this court find that all twenty-six Plaintiffs acquired or should have acquired knowledge of the damage to their property, even though the evidence it produced showed that only four Plaintiffs had actually seen the white sandy area, because aerial photographs dating back to 1940 evidenced the same white sandy area that is depicted in current aerial photos. With regard to the Plaintiffs who admittedly rarely or never visited the property, BP argued that they should be deemed to have constructive knowledge of the damage because any lack of knowledge was due to their collective neglect of the property. As evidenced by its reasons for judgment, the trial court agreed with BP’s argument, finding that it was “unreasonable for a plaintiff to have never stepped foot on his/her property” and that “plaintiffs’ lack of knowledge about their property is attributable to their own willfulness and neglect.”

Plaintiffs opposed BP’s attempt to lump them together to determine their actual or constructive knowledge as to their damages, arguing that BP must prove what knowledge each individual Plaintiff had or should have had. Given their “education, intelligence, and the nature of [BP’s] conduct,” Plaintiffs argue that none of them had any reason to know that the property may have been damaged by BP or its predecessors. See Marin, 48 So.3d at 246. Moreover, as evidenced in the eight affidavits submitted by Plaintiffs in opposition to BPs motion, each denied |⅞1 having received any notice from their ancestors in title or any other source informing them of actual contamination to their property caused by an identified entity. As such, Plaintiffs submit that this case is distinguishable from Marin, where one of the four plaintiffs acted as a “family representative” and the plaintiffs’ case was filed approximately twelve years after they were found to have actual knowledge that Exxon had contaminated their property. See Marin, 48 So.3d at 240.

The property at issue in this case is rural and consists of nine separate tracts owned by twenty-six Plaintiffs, some, but not all, of whom are related. .The white sandy area was located only on tracts seven and nine. However, as shown in BP’s SUMF, each tract has up to seven owners, and while tracts five, six, and seven have the same seven owners, the remaining tracts do not have overlapping ownership. Unlike the five plaintiffs in Hogg, 45 So.3d 991, the Plaintiffs herein do not co-own the same tract of property, and there is no evidence that they or their ancestors in title were ever told that actual contamination had been detected nearby and could migrate to their property. BP has offered no evidence to prove each tract of the property was accessible to the owners, of the remaining tracts. On the other hand, each of the affiants in the eight affidavits attached to Plaintiffs’ opposition stated that they had never traversed the entire property. We find it unreasonable to expect the owner of a rural tract of property to visit and inspect nearby tracts of property. We, likewise, find it unreasonable to expect that a property owner would be aware óf current or historical aerial images of its property and that of its neighbors or that such property owner would understand what was depicted in such images had they seen them. Accordingly, we conclude that BP failed to prove that 122there are no genuine issues of material fact regarding whether any Plaintiff or their ancestors in title had actual or constructive knowledge of their damages.

Finally, BP offered no evidence as to the date Plaintiffs acquired actual or constructive knowledge of any such damages. Instead, it made the conclusory argument that because the last oil and gas operations of its predecessors on the property occurred in 1951 and because aerial photographs dating back to 1940 evidenced the same white sandy area that can still be seen in current aerial photos, Plaintiffs’ claims prescribed before the filing of their petition on March 3, 2011. In obvious contradiction to that argument, however, BP asserted that the following statements were undisputed material facts (footnotes omitted):

.51. Plaintiffs Natalie Martinez, Raymond Reeds, Ernest Lowery, Jr., Howard Romero, Craig Vincent, and Leon Currie first heard about the alleged contamination from their attorneys.
52. Plaintiffs James Pratt, on behalf of Cám-Pratt, LLC, David Currie and Kathy Melancon testified that they do not know how they found out about the alleged contamination.
53. Plaintiff Brian Walker first learned ' about the potential contamination when his uncle told him about this lawsuit. Plaintiff James Walker first learned about the alleged contamination from his brother, Brian Walker.
54. Plaintiff Leonidas Pittman first found out about the alleged contamination from Leon “Larry” Cur-rie.
55. Plaintiff Daniel Lowery first realized about the possibility of contamination of the property when he heard about this lawsuit being filed.
56. Plaintiffs neither testified nor offered any other proof of why Plaintiffs chose to file suit [ ] in 2010 — as opposed to any other point after the cessation of oil and gas operations on the Property.

1 ¡^Plaintiffs cite La.Civ.Code Art. 3493 in support of their claim that prescription in tort property damage cases begins to run when a plaintiff acquires actual or constructive knowledge of the damage, regardless of when the damaging conduct ceases. Plaintiffs also provided documentary evidence wherein they asserted that they did not receive knowledge of their claims or of the facts upon which those claims were based until being notified by family members or others less than one year before this suit was filed.

In Hogg, the supreme court found that the defendants proved the plaintiffs had constructive knowledge of their property damage upon the receipt of a letter from the LDEQ on April 26, 2002. Hogg, 45 So.3d at 999. In Marin, while the supreme court did not specify the exact date the plaintiffs had actual knowledge of damage, it found that “at least by 1995, plaintiffs had sufficient information to excite their attention[,] and they should have investigated further at that time.” Marin, 48 So.3d at 250.

In the instant matter, BP did not attempt to point to the date, or even the year, that Plaintiffs or their ancestors in title acquired actual or constructive knowledge of their damages, nor did it offer any statutory or jurisprudential authority to support its argument that the mere passage of time starts the tolling of prescription. In addition, BP’s SUMF contains statements which support Plaintiffs’ claims that they lacked the knowledge upon which their suit was based until less than one year before they filed suit. Accordingly, we find that BP failed “to prove, based solely on documentary evidence and without the benefit of testimony at a hearing, that there is no genuine material factual issue in dispute regarding the date upon which plaintiffs acquired actual or constructive knowledge of the damage.” Hogg, 45 So.3d at 998. Thus, we find merit to Plaintiffs’ first assignment of error. As a |24result, Plaintiffs’ remaining assignments of error are moot and need not be addressed.

CONCLUSION

As noted previously, BP’s burden on summary judgment was “to prove, based solely on documentary evidence and without the benefit of testimony at a hearing, that there is no genuine material factual issue in dispute regarding the date upon which plaintiffs acquired actual or constructive knowledge of the damage.” Hogg, 45 So.3d at 998. Our de novo review of the evidence offered in support of and against BP’s motion for summary judgment reveals the presence of several genuine issues of material fact which preclude the grant of summary judgment in its favor. Accordingly, the trial court erred in finding that Plaintiffs’ claims were prescribed, and its judgment must be reversed.

DECREE

For the foregoing reasons, the judgment of the trial court granting the motion for summary judgment based on prescription filed by defendant, BP America Production Company (BP), and-dismissing their claims against it, is reversed and the matter is remanded. All costs of this appeal are assessed against BP.

REVERSED AND REMANDED.

      . In Marin v. Exxon Mobil Corp., 09-2368, 09-2371, p. 1 (La. 10/19/10), 48 So.3d 234, 238, n.1, the Louisiana Supreme Court explained:
      "Legacy litigation” refers to hundreds of cases filed by landowners seeking damages from oil and gas exploration companies for alleged environmental damage in the wake of this Court’s decision in Corbello v. Iowa Production, 02-0826 (La. 2/25/03), 850 So.2d 686. These types of actions are known as "legacy litigation” because they often arise from operations conducted many decades ago, leaving an unwanted "legacy” in the form of actual or alleged contamination. Loulan Pitre, Jr., "Legacy Litigation" and Act 312 of 2006, 20 Tul. Envt. L.J. 347, 34 (Summer 2007).

      . Louisiana Code of Civil Procedure 966 was amended by 2015 La. Acts No. 422, § 1, effective January 1, 2016. Accordingly, we refer to the version of the article that was in place when BP’s motion for summary judgment was heard on September 28, 2015.

      ; We note that the Hogg court was applying the discovery rule of La.Civ.Code Art. 3493 rather than the doctrine of contra non valen-tum.

      . Because Mr. Vincent was born in 1951, the implication that he had knowledge of the sandy area that dated back to his birth is wrong.

      . One of the affiants, plaintiff Donna Lynn Pitre Istre, stated that her mother had joined this lawsuit and that she inherited the property after her mother died in 2013.

      . BP’s argument that contra non valentum should not apply in this case was based on these statements. Nonetheless, we find them extremely relevant to the issue of when Plaintiffs acquired knowledge of their damages,


source: Caselaw Access Project

author: HIGGINBOTHAM, J.

license: Public Domain

text:
    MARQUEE ACQUISITIONS, LLC v. T & L GROCERY, LLC, Louisiana Department of Revenue, Louisiana Department of Labor Office of Regulatory Services, U.I. Tax Chief Michael Delafosse, Louisiana Department of Environmental Quality, Parish of East Baton Rouge City of Baton Rouge Department of Finance, Louisiana Safety Association of Timbermen, and Clerk of Court and Ex-Officio Recorder of Mortgages for the Parish of East Baton Rouge
    NO. 2016 CA 0239
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 22, 2016

      Cynthia N. Reed, Baton Rouge, LA, Attorney for Defendant-Appellee, T & L Grocery, LLC
    Dustin G. Flint, Baton Rouge, LA, Attorney for Plaintiff-Appellant, Marquee Acquisitions, LLC
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

|aThis appeal involves the trial court’s dismissal of a petition to confirm tax title concerning a tract of immovable property located in Baker, Louisiana.

BACKGROUND

The property at issue, Lot 3 of the Stringer Subdivision at 1006 Main Street in Baker, was first acquired by defendant, T & L Grocery, LLC, on July 25, 2000, along with Lots 1 and 2 in the same subdivision. T & L Grocery’s principal place of business was described in the Act of Cash Sale as “930 E. Mount Pleasant Road, Zachary, Louisiana 70791,” which also happened to be the home address for T & L Grocery’s managing member and registered agent, Herbert L. Breaux, Jr., who had executed the act of sale on T & L Grocery’s behalf. The sale was recorded in the East Baton Rouge Parish conveyance records on August 2, 2000.

T & L Grocery failed to pay the ad valorem property taxes that were due on the property for the 2001 tax year. The tax delinquency resulted in the June 12, 2002 tax sale of Lot 3 to tax sale purchaser, Munitax Fund, LLC. The tax sale deed was recorded in the conveyance records of East Baton Rouge Parish on June 28, 2002. Eventually, through a series of quitclaim deeds executed over several years following the tax sale, plaintiff, Marquee Acquisitions, LLC, acquired title to Lot 3 on September 27, 2012. The quitclaim deed conveying the interest in Lot 3 to Marquee Acquisitions was recorded in the East Baton Rouge Parish conveyance records on October 31,2012.

Marquee Acquisitions filed suit against T & L Grocery on January 9, 2013, seeking to have its sole ownership interest and title to Lot 3 confirmed and quieted in accordance with La. Const, art. VII, sec. 25, and La. R.S. 47:2266. In its petition, Marquee Acquisitions alleged that more than five years had passed since the ^recordation of the 2002 tax sale deed, and that the property had not been redeemed. After T & L Grocery answered the lawsuit, the case proceeded to trial in due course. At trial, T & L Grocery sought nullification of the 2002 tax sale on the basis that it had never been provided proper notice of the 2001 tax delinquency or 2002 tax sale as required by law. Additionally, T & L Grocery attempted to prove that its registered agent, Mr. Breaux, had actually redeemed the disputed property on July 12, 2012, when he paid the taxes that were due and owing after Munitax Fund failed to pay taxes that were due for the years 2007 to 2011, resulting in the property being adjudicated to the state. The main issue at the October 6, 2015 bench trial concerned the disputed ownership of Lot 8.

At trial, Marquee Acquisitions relied solely upon exhibits, emphasizing the recorded 2002 tax sale deed as prima facie proof that the initial tax sale was valid, and pointing to a series of quitclaim deeds wherein it acquired ownership of Lot 3. Marquee Acquisitions also urged the trial court to decide the validity of the 2002 tax sale before looking at the effect of Mr. Breaux’s attempted redemption in 2012. Similarly, T & L Grocery offered exhibits at trial as evidence that it was the record owner of the disputed property and that Mr. Breaux had redeemed the property in 2012. T & L Grocery also offered the testimony by Mr. Breaux that he was the registered agent for T & L Grocery and that he had never received notice concerning the 2002 tax sale.

Neither party offered any evidence of the actual notification letter that was allegedly sent to T & L Grocery. Marquee Acquisition offered a copy of a return receipt “green card” with the purported signature of Mr. Breaux’s wife, which was admitted into evidence; however, the green card did not reference Mr. Breaux’s name anywhere and there was no indication of the date that the green card was factually signed or when the alleged notification letter was delivered. Mr. Breaux testified that his home address had always been the proper location for sending a notice to T & L Grocery. He denied, however, that his wife had any authority to receive service of notices concerning T & L Grocery. Mr. Breaux also stated that his "wife never gave him any letter notifying him of the 2002 tax sale.

At the conclusion of the trial, the trial court ruled that T & L Grocery had not been properly notified of the 2002 tax sale, finding that the notice should have been sent to Mr. Breaux as T & L Grocery’s managing member or legal representative. A judgment was signed in accordance with that reasoning on December 1, 2015. The judgment denied Marquee Acquisition’s petition to confirm tax title and dismissed the entire matter with prejudice. In the judgment, the trial court specifically held that proper notification of a limited liability company’s delinquent taxes under La. R.S. 47:2180 requires notice to be sent to the managing member or legal representative of the limited liability company, which was not done in this case. Marquee Acquisition appeals.

DISCUSSION

It is well settled that the sale of property for nonpayment of taxes is an action affecting a property right that is protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 2 of the Louisiana Constitution. See Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983); Smitko v. Gulf South Shrimp, Inc., 2011-2566 (La. 7/2/12), 94 So.3d 750, 755-56. Due process requires notice that is “reasonably calculated under all circumstances” to apprise interested parties of the pendency of the action and afford them an opportunity to present their | ^objections. Smitko, 94 So.3d at 756 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)).

Article VII, Section 25(A) of the Louisiana Constitution requires the tax collector (in this case, the Sheriff of East Baton Rouge Parish) to provide notice of a tax delinquency and the tax sale to all owners of record of any interest in the property. Smitko, 94 So.3d at 756. In former La. R.S. 47:2180, which was in effect at the time of the initial 2002 tax sale in this case, the legislature set forth the manner by which notice of delinquencies in immovable property taxes must be provided in compliance with La. Const. art. VII, sec. 25. Smitko, 94 So.3d at 756. Former La. R.S. 47:2180, titled “Immovable property, notice of delinquency,” provided in pertinent part, with emphasis added:

A. (1)(a) On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes which have been assessed to him on immovable property or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
$ ‡ ⅜
B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certi- ■ fled notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 'of the .Constitution of Louisiana and the provisions of this Section by advertising the tax debtor’s property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxés due and how the service of notice was made.
* * *

| sin summary, the law in effect at the time of the 2002 tax sale required the tax collector to provide each taxpayer with written notice, sent by certified mail return receipt requested or personal or domiciliary service, alerting each record owner of the immovable property that the owner’s failure to pay the taxes within twenty days would result in the sale of the property. The evidence in this case clearly reveals that T & L Grocery was the record owner of the property in dispute at the time of the 2002 tax sale. However, the record is void of any evidence that notice was sent to T & L Grocery by certified mail or by personal or domiciliary service at the address of its registered agent for service of process, which was readily ascertainable from the public records. Moreover, the return receipt green card evidence was not attached to any written notice and the delivery date that was written on the green card is not legible and is incomplete in that no year is listed. Additionally, absent from the record is proof of a properly executed and filed proces verbal that would indicate that the tax collector complied with the tax sale notice requirements of former La. R.S. 47:2180. Without the proces verbal, there essentially is no evidence in the record that the tax collector properly gave notice of the 2002 tax sale to the record owner, T & L Grocery. See Jamie Land Co., Inc. v. Jones, 2005-1471 (La.App. 1 Cir. 6/9/06), 938 So.2d 738, 740, writ denied, 2006-1735 (La. 10/6/06), 938 So.2d 86.

The jurisprudence in this state emphasizes the principle that “notice is a constitutional requirement, and want of notice is fatal to a tax sale.” Smitko, 94 So.3d at 757 (quoting Lewis v. Succession of Johnson, 2005-1192 (La. 4/4/06), 925 So.2d 1172, 1177). Pursuant to La. Const. art. VII, sec. 25(A), a tax deed issued by a tax collector is prima facie evidence that a valid sale was made, but that presumption may be rebutted by the record owner’s showing that the required notice was not sent. See Smitko, 94 So.3d at 757-58. See also Cressionnie v. Intrepid, Inc., 2003-1714 (La.App. 1 Cir. 5/14/04), 879 So.2d 736, 739. Mr. Breaux clearly 17testified that T & L Grocery never received notice of the 2002 tax sale. At that point, it became Marquee Acquisition’s burden to prove that all requisites for a valid tax sale were complied with. See Cressionnie, 879 So.2d at 739. Further, in the absence of a proces verbal, Marquee Acquisition had the burden to show by clear and convincing evidence that the necessary notice was conveyed to T & L Grocery. See Jamie Land Co., 938 So.2d at 740. Marquee Acquisition’s exhibits do not prove anything related to the required notice; thus, we find that Marquee Acquisition’s petition to confirm tax title was properly dismissed.

We further note that the portion of the trial court’s judgment declaring what proper notice should have been sent to T & L Grocery was unnecessary since there is absolutely no evidence in the record that T & L Grocery was ever provided any written notice by the tax collector. Thus, it is irrelevant whether the required notice should have been sent by certified mail with return receipt requested or by personal or domiciliary service of the notice to T & L Grocery’s registered agent for service of process. That portion of the trial court’s judgment is purely orbiter dicta and is not binding nor does it have any effect on the ultimate dismissal of Marquee Acquisition’s petition to confirm tax title. See Meaux v. Wendy’s Intern., Inc., 2010-2613 (La. 5/13/11), 69 So.3d 412, 413 (per curiam on rehearing); Boyd v. Wackenhut Corp., 2008-1388 (La. 10/24/08), 993 So.2d 216, 217 (per curiam). We emphasize that T & L Grocery, as the record owner of the property at issue, was entitled to sufficient written notice before the 2002 tax sale and any failure to comply with the due process notice requirement renders the tax sale an absolute nullity. See Smitko, 94 So.3d at 759.

Additionally, because the trial court’s judgment did not actually decree that the 2002 tax sale was a nullity, we hereby amend the judgment to decree that the 2002 tax sale was an absolute nullity for lack of the required notice. However, pursuant to La. Const. art. VII, sec. 25(C), “[n]o judgment annulling a tax sale shall | shave effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the [tax sale] purehaser[.]” See Mooring Tax Asset Group, L.L.C. v. James, 2014-0109 (La. 12/9/14), 156 So.3d 1143, 1148 (“the judgment of nullity cannot be effective until the tax purchaser is reimbursed taxes, costs, and interest”). A declaration of absolute nullity of a tax sale does not entitle the delinquent taxpayer to the immediate cancellation of the tax sale deed. See Id., 156 So.3d at 1148-50. In order for the nullity to be effected through a cancellation of the tax sale deed, the tax sale purchaser must be restored to the situation that existed before the tax sale. See Id., 156 So.3d at 1150.

The record before us does not contain evidence of the amount that must be reimbursed to the tax sale purchaser in order for T & L Grocery to obtain a cancellation of the 2002 tax sale. Because that determination must be made by the trial court, we remand to the trial court for a hearing to determine the reimbursement owed so that T & L Grocery may obtain a cancellation of the tax sale. See Surcouf v. Darling, 2015-0278 (La. App. 4th Cir. 10/21/15), 177 So.3d 1085, 1095. Accord Robertson v. Stonecreek Builders, LLC, 50,798 (La. App. 2 Cir. 8/10/16), 200 So.3d 851, 866; Cititax Group, LLC v. Gibert, 2015-0371 (La. App. 4th Cir. 9/23/15), 176 So.3d 625, 631.

DECREE

For the assigned reasons, we amend the trial court’s judgment to reflect that the 2002 tax sale of T & L Grocery, LLC’s immovable property is an absolute nullity for want of notice required by due process of law. As amended, we affirm the trial court’s judgment dismissing Marquee Acquisitions, LLC’s petition seeking to confirm tax title; and we remand for further proceedings consistent with this opinion. All costs of this appeal are assessed to Marquee Acquisitions, LLC.

AMENDED AND, AS AMENDED, AFFIRMED; REMANDED.

      . Additionally, Marquee Acquisitions named several lienholders as defendants, along with the East Baton Rouge Parish Clerk of Court, but withheld service on those other defendants. This appeal concerns only the ownership interests of Marquee Acquisitions and T & L Grocery.

      . The date of delivery on the return receipt green card admitted into evidence is indecipherable and incomplete. It appears to be either "9-2” or "1-2" with no indication of the year of the delivery.

      . Louisiana Revised Statute 47:2180 was repealed by 2008 La. Acts, No. 819, § 2, effective January 1, 2009. Section 1 of Act No. 819 enacted current La. R.S, 47:2153(A) and (B), which generally reproduce the substance of the former statute with certain modifications. See La. R.S. 47:2153, Comments-2008(a). See also Smitko, 94 So.3d at 756, n.6.


text:
    Shannon COOPER v. William CLARK in his Capacity as East Baton Rouge Parish Coroner
    NO. 2016 CA 0410
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 22, 2016

      Lea Anne Batson, Dawn N. Guillot, Baton Rouge, LA, Attorneys for Defendants Appellee, William Clark in his Capacity as East Baton Rouge Parish Coroner
    J. Arthur Smith, III, Justin M. De-Laune, Baton Rouge, LA, Attorneys for Plaintiff-Appellant, Shannon Cooper
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

| ¡¿Plaintiff, Dr. Shannon Cooper, appeals the judgment of the district court granted in favor of the defendant, William Clark in his capacity as East Baton Rouge Coroner, that dismissed his petition seeking payment for unused sick leave as of the date of his retirement as the East Baton Rouge Parish Coroner.

PACTS AND PROCEDURAL HISTORY

In October 2003, Dr. Shannon Cooper was elected as Coroner for the Parish of East Baton Rouge. He served in that capacity until around March 13, 2012. After his employment with the Coroner’s Office ended, Dr, Cooper began the process of retiring and was paid for his unused accrued vacation leave. He also requested payment of his unused sick leave from the Coroner’s Office. The Coroner’s Office denied his request, stating that sick leave is only payable as severance pursuant to an established policy, and the Coroner’s Office did not have such a policy.

As a result of the Coroner’s Office’s response, Dr. Cooper filed a petition under the Louisiana Wage Payment Act, La. R.S. 23:631 et. seq. seeking payment of 678.47 hours of unused sick leave. In his petition, Dr. Cooper contended that he accrued sick leave in accordance with the policy of East Baton Rouge City Parish (the City-Parish), which allowed its employees to accumulate unused sick leave to be paid upon retirement or as a result of a change in administration. Dr. William Clark, in his capacity as the East Baton Rouge Coroner, answered Dr. Cooper’s petition and requested that Dr. Cooper’s claims be dismissed.

On April 28,2015, this matter came before the district court for trial. After trial, the district court concluded that it appeared Dr. Cooper, as an officer elected by the people under the City-Parish plan of government, was an unclassified employee, and therefore, the City-Parish ordinances regarding accrued sick leave applied to him. However, the district court determined that Dr. Cooper did not meet his burden of proving what he was entitled to, and thus dismissed Dr. Cooper’s | spetition. A judgment was signed in conformity with the district court’s ruling on June 1, 2015. Subsequently, Dr. Cooper filed a motion for new trial which the district court denied by judgment signed on December 8, 2015. It is from this judgment that Dr. Cooper appeals contending that the district court erred in dismissing his wage claim based on its finding that there was no evidence in this case representing the amount Dr. Cooper was entitled to for his unpaid sick leave.

STANDARD OF REVIEW

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Under the manifest error standard, in order to reverse a trial court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La. 1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 882-83; Morris v. Norco Construction Company, 632 So.2d 332, 335 (La. App. 1st Cir. 1993), writ denied, 94-0591 (La. 4/22/94), 637 So.2d 163.

| 4Appellate review of questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Medline Industries, Inc. v. All-Med Supply & Equipment, 94-1504 (La.App. 1st Cir. 4/7/95), 653 So.2d 830, 832.

LAW AND ANALYSIS

Upon the discharge of any employee, an employer has a duty to pay the amount then due under the terms of employment not later than fifteen days following the date of discharge. La. R.S. 23:631(A)(1)(a). Any employer who fails or refuses to comply with the provisions of La. R.S. 23:631 shall be liable to the employee either for (1) ninety days wages at the employee’s daily rate of pay, or (2) full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. La. R.S. 23:632. To recover penalty wages, the claimant must show that (1) wages were due and owing; (2) demand for payment thereof was made where the employee was customarily paid; and (3) the employer did not pay upon demand. Richard v. Vidrine Automotive Services, Inc., 98-1020 (La.App. 1st Cir. 4/1/99), 729 So.2d 1174, 1177.

Louisiana Revised Statute 23:631(D) provides that vacation pay will be considered an amount due, if, in accordance with the stated vacation policy of the person employing such employee, the employee is deemed eligible for and has accrued the right to take vacation time and if the employee has not taken or been compensated for the vacation time. However, unlike vacation pay that is considered wages for purposes of La. R.S. 23:631(D), unless stated otherwise by policy, sick leave is not considered wages. La. Op. Att. Gen No.99-329. Thus, it is Dr. Cooper’s burden to prove that wages were due and owing to him for his unused accrued sick leave under a specific policy applicable to him in his capacity as the East Baton Rouge Parish Coroner.

In support of his position that he was entitled to sick leave, Dr. Cooper cites to section 1:231 of the Code of Ordinances of the City of Baton Rouge and East Baton Rouge Parish (City-Parish Ordinances) which, at the time he retired, stated in pertinent part “Unclassified employees shall not receive payment for accrued but unused sick leave for the purpose of severance pay unless they: (1) Retire; or (2) Are terminated without cause and as a result of a change of administration or appointing authority.” Dr. Cooper pointed out that he was an unclassified employee that was retiring and was therefore entitled to his accrued, but unused sick leave. In support of his wage claim, Dr. Cooper introduced a paycheck stub from his last pay period which stated that he had accrued 678.47 hours in sick leave.

Section 1:231 of the City-Parish Ordinances, which Dr. Cooper relied on to prove his entitlement to sick leave, provides that sick leave with pay shall be granted to all full time unclassified employees in the same manner as provided for employees in the classified service as set forth in Rule IX, Section 4.5, of the Personnel Rules. Rule IX of the Rules Governing Employees in the Classified Service of the City-Parish (Personnel Rules), titled “Hours of Work, Vacation Time, and Leaves of Absence” in section 4.5, provides the procedures for payment of sick leave when an employee retires and has accrued but unused sick leave. Section 4.5 provides in pertinent part:

A. For purposes of determining payment for accrued but unused sick leave upon retirement, death, or layoff, the following rules shall apply:
1. Employees who have not yet entered the Deferred Retirement Option Plan (D.R.O.P.) and those in D.R.O.P. who elected the 2:1 option, shall accrue sick leave in accordance with the schedule set forth in subsection 2.1(b) of Rule IX.
1,2. Employees in D.R.O.P. who elected the 1:1 option shall accrue sick leave at the rate of 33.33 percent of the rate set forth in subsection 2.1(b) or Rule IX for 15 plus year employees.
* ⅜ *
4. All sick leave actually used (i.e., all time the employee actually takes off with pay under sick leave rules) shall be deducted from accrued sick leave for purposes of determining the amount to be paid upon retirement ...
5. Payment of sick leave accrued under this Subsection 4.5(a) is subject to the limitations set forth in Subsection (b) ... below.
B. When an employee ... retires, the employee shall be paid as severance pay for some or all unused sick leave days in accordance with the following formula: 120 8-hour days minus accumulated vacation days for which he is paid on layoff, discharge or retirement equals maximum days of unused sick leave for which payment may be made.
E. Employees shall not be entitled to pay for accrued but unused sick leave except as provided in subsection 4.5(a), (b), and (c) above.

It was under this rule that Dr. Cooper bore the burden of proving what wages, if any, he was due and owing. The Coroner’s Office used a private payroll company to assist with its payroll, and the City-Parish provided the funding. The evidence was clear that Dr. Cooper, who was accruing leave at a rate of 3.07 hours per biweekly pay period, was not accruing sick leave in accordance with the sick/vacation accrual policy in table D of the City-Parish Personnel Rules. Because Dr. Cooper’s pays-tub showed an accrual of sick leave based on a wholly different accrual rate than the rate set out by the City-Parish Personnel Rules, the sick leave balance noted on his paystub was not accurate for a determination of the sick leave he may be entitled to under the City-Parish policy.

Dr. Cooper testified that he did not have “fixed hours” and never used any sick leave, but he did not testify whether he was required to document or request 17sick leave in accordance with the sick leave rules provided for in Rule IX, Section 4.5A of the City-Parish Personnel Rules. Dr. Cooper did not present any evidence of how his leave should be calculated under Rule IX. Specifically, neither Dr. Cooper’s specific start date of employment nor his exact salary was evident from the record. Additionally, Dr. Cooper’s status regarding D.R.O.P. and whether he was under subsection l(the 2:1 option) or 2 (the 1:1 option) of section 4.5A was not in evidence.

The district court determined that although Dr. Cooper, as an unclassified employee of East Baton Rouge Parish, may have been owed something for his unused sick leave, he presented no evidence to prove what he would have been entitled to under the relevant and existing rules and regulations, specifically Rule IX of the City-Parish Personnel Rules. After thorough review of the record, we are unable to conclude that the district court was manifestly erroneous or clearly wrong in its conclusion that Dr. Cooper did not meet his burden of proving what wages, if any, were “due and owing” at the time of his retirement. Therefore, we find no error in the district court judgment dismissing Dr. Cooper’s petition.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to Dr. Shannon Cooper.

AFFIRMED.

      . An appeal from the order denying a new trial, rather than from the judgment from which the new trial is sought, is improper. However, when the motion for appeal refers to a specific judgment denying a motion for new trial, yet the appellant exhibits a clear intention to appeal instead the judgment on the merits, then the appeal should be considered. This view conforms to the mandate of La. Code Civ. P. art. 865 to construe every pleading so "as to do substantial justice." See also Thomas v. Comfort Center of Monroe, LA, Inc., 2010-0494 (La.App. 1st Cir. 10/29/10), 48 So.3d 1228, 1233 (it is established practice for the appellate courts to treat the appeal of a motion for new trial as an appeal of the judgment on the merits when appellant’s brief demonstrates this is what he clearly intended to do).

      . The district court determined that Dr. Cooper was an unclassified employee of the city parish based on his position as an "officer elected by the people” as designated in section 9.05 of the Plan of Government for East Baton Rouge Parish which states "The Unclassified Service shall comprise: (a) officers elected by the people.” Additionally, the Coroner was listed as an unclassified employee of the City-Parish under Section 1:233 under the City-Parish Ordinances.

      . Table D provides for the sick and vacation accrual rates of a City-Parish employee working a 40 hour work week.

      . Dr. Cooper testified that his salary "was $100,000 a year, plus or minus a little bit.”


text:
    Robert D. BYRD v. PULMONARY CARE SPECIALISTS, INC.
    NO. 2016 CA 0485
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 22, 2016

      George R. Tucker, Hammond, LA, Attorney for Plaintiff-Appellant, Sonia Maria Casnave, as Substitute for Decedent, Robert D. Byrd
    Lisa A. McLachlan, Therésa S. Anderson, New Orleans, LA, Attorneys for Defendant-Appellee, Pulmonary Care Specialists, Inc.
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

12This is an appeal from a district court’s grant of summary judgment, dismissing the plaintiffs suit that arose out of an alleged malfunction of a home-based oxygen machine that was provided by the defendant.

BACKGROUND

The defendant in this case, Pulmonary Care Specialists, Inc. (“PCS”), provided a home-based oxygen machine to the plaintiff, Robert D. Byrd. Byrd filed suit against PCS on February 18, 2011, seeking damages stemming from his respiratory failure and subsequent hospitalization caused by an alleged malfunction of the oxygen machine. Byrd claimed that PCS was negligent in that it had contracted to provide maintenance, supplies, and repairs of the oxygen machine, but then refused or neglected to perform those services after being contacted on several occasions. Byrd further alleged that PCS breached a duty to provide safe equipment for his use, failed to take proper precautions or actions to rid the equipment of injurious conditions, and failed to timely inspect the equipment for defects and hazards.

PCS denied all allegations and eventually filed a motion for summary judgment, asserting that Byrd had “provided no evidence, expert or otherwise, demonstrating the appropriate standard of care of PCS, any breach of the applicable standard of care or demonstrating any problem with the machine at issue at the time of the incident.” PCS further asserted that the evidence revealed no witness who could testify as to what actually occurred at the time of Byrd’s respiratory failure or whether Byrd’s condition was related to a malfunction in the oxygen machine. In support of its motion, PCS relied on excerpts of the deposition testimony of Byrd hand his mother. While Byrd had no actual recollection of the day of the alleged incident, his mother, Ethel Vernon (also referred to as Jewell in the record), testified that the oxygen machine was operating prior to and at the time that she found her son unconscious. Byrd’s mother admitted that there was no inspection or testing made of the oxygen machine before she put it out with the garbage, and Byrd testified that he had no knowledge of the whereabouts of the oxygen machine.

Byrd filed a late (actually after the hearing itself) opposition to PCS’s motion for summary judgment, relying on excerpts of the deposition testimony of PCS’s corporate representative, Staci Warner, who stated that PCS was not providing services to Byrd at the time of the incident, as well as the testimony of PCS’s employee, Jennifer Truax, who documented a phone call from Byrd’s mother requesting service the day before the incident. Byrd argues that these statements show that genuine issues of material fact exist as to whether PCS knew of the malfunctioning oxygen machine and whether PCS breached a duty to service the oxygen machine. Byrd did not provide any evidence to support his allegations that the oxygen machine actually malfunctioned in some way and caused his respiratory failure.

Byrd’s counsel was not present at the hearing on PCS’s motion for summary judgment on February 9, 2015, and the record reflects that he did not file a motion for continuance. After considering the pleadings, evidence, law, and arguments, the trial court signed a final judgment on March 10, 2015, granting PCS’s motion for summary judgment and dismissing all claims against PCS. Byrd timely filed a motion for new trial, stating in his motion that the “judgment is contrary to the law and the evidence” and “not appropriate under the facts of this particular case,” without any memorandum in support. PCS opposed the motion for new trial, pointing out that Byrd had not filed an opposition to its motion for summary | ¿judgment at the time of the hearing on the motion. After a hearing concerning the new trial motion, where Byrd questioned whether the trial court had considered his late-filed opposition to PCS’s summary judgment, the trial court denied Byrd’s motion for new trial on June 5, 2015. Thereafter, Byrd filed a motion for appeal “from the final judgment rendered on the 8th day of June 2015[,]” which was actually the date of notice of the new trial denial. On appeal, Byrd contends that the trial court erred in granting PCS’s motion for summary judgment and raises no assignment of error concerning the denial of his motion for new trial.

LAW AND ANALYSIS

Judgment Appealed

At the outset, we note the ambiguity of Byrd’s motion for appeal, in which he appears to appeal the denial of his motion for new trial, rather than the granting of PCS’s motion for summary judgment. A judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See La. Code Civ. P. art. 2083(C). However, when a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. See Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826, 828-829 (1969). See also Thomas v. Comfort Center of Monroe, LA, Inc., 2010-0494 (La. App. 1st Cir. 10/29/10), 48 So.3d 1228, 1233; Dural v. City of Morgan City, 449 So.2d 1047, 1048 (La. App. 1st Cir. 1984). In this case, it is clear from the sole assignment of error that Byrd sought to appeal from the final judgment that granted summary judgment in favor of PCS and dismissed all claims against PCS. Byrd’s mistake in listing the date of the wrong judgment in his motion for appeal is insufficient grounds for the dismissal of his appeal, particularly since appeals are favored and will be ^dismissed only when the grounds are free from doubt. Dural, 449 So.2d at 1049. Thus, the merits of the summary judgment of March 10, 2015, are properly before us.

Motion to Strike Brief

In another preliminary matter, we must address PCS’s pending motion to strike Byrd’s appellate brief for nonconfor-mance. PCS protests Byrd’s late service of his appellate brief, his failure to attach the trial court’s transcribed oral reasons for judgment to his appellate brief, and the lack of record citations in his appellate brief. PCS further points out that the appellate record is missing a transcription of the hearing on the motion for summary judgment, which this court requires for consideration on the merits of Byrd’s appeal. PCS cites multiple Uniform Rules— Courts of Appeal violations, and asks this court to strike Byrd’s appellate brief in whole or in part. Our review of Byrd’s rules violations are not of such significance that it compels us to strike his brief. The sanction permitted to be imposed for a nonconforming brief is left to our discretion. NorthShore Regional Medical Center, L.L.C. v. Dill, 2011-2271 (La.App. 1st Cir. 6/8/12), 94 So.3d 155, 160, writ denied, 2012-1494 (La. 10/8/12), 98 So.3d 862.

When reviewing the trial court’s conclusion, we must render any judgment that is just, legal, and proper upon the record on appeal. See La. Code Civ. P. art. 2164. The record on appeal is that which is sent by the' trial court to the appellate court and includes pleadings, court minutes, transcripts, judgments and other rulings unless otherwise designated. La. Code Civ. P. arts. 2127, 2128, and Official Revision Comment (d) for Article 2127; Willis v. Letulle, 597 So.2d 456, 464 (La. App. 1st Cir. 1992). The briefs or memoranda of the parties and the attachments thereto are not part of the record on appeal when they have not been filed in evidence. See Tranum v. Hebert, 581 So.2d 1023, 1026-1027 (La. App. 1st Cir.), writ denied, 584 So.2d 1169 (La. 1991). The appellant bears the burden of furnishing the appellate court with a record of the proceedings below. Gay v. C & D of Shreveport, 25,319 (La. App. 2d Cir. 10/26/94), 645 So.2d 280, 282. When the record lacks a transcript that is pertinent to an issue raised on appeal, the inadequacy of the record is attributable to the appellant. Id. See also Carter v. Barber Bros. Contracting Co., Inc., 623 So.2d 8, 10 (La. App. 1st Cir.), writ denied, 629 So.2d 1180 (La. 1993). If a transcript, exhibits or other documentation are missing and the appellant fails to act, there is no basis for the appellate court to determine that the trial court erred and the judgment is affirmed because a judgment is presumed correct. State in Interest of Solomon, 95-0638 (La. App. 4th Cir. 3/27/96), 672 So.2d 1039, 1043; Werner Enterprises v. Westend Dev. Co., 563 So.2d 540, 543 (La. App. 5th Cir. 1990).

Under the circumstances of this case, we find that striking Byrd’s brief or portions of the brief would be unreasonably harsh. Accordingly, we deny PCS’s motion to strike. Furthermore, while we note the inadequacy of the record in that it is missing the transcript of the hearing on PCS’s motion for summary judgment, the appellate record does contain pleadings and Byrd’s late-filed opposition memorandum with attachments. A trial court’s consideration of a late-filed opposition to a motion for summary judgment will not be disturbed upon appeal absent an abuse of discretion. See Smith v. Rapides Healthcare System, L.L.C., 2013-1172 (La.App. 3d Cir. 3/5/14), 134 So.3d 122, 126-27, writ denied, 2014-0734 (La. 5/23/14), 140 So.3d 728. While Byrd’s opposition clearly was filed untimely, we are not in a position to second-guess the trial court’s discretion in considering the opposition and supporting documents in its summary judgment determination, because the trial court’s reasons for its determination are not in the appellate record. Therefore, we will consider the merits of Byrd’s sole assignment |7of error: whether the trial court erred in granting summary judgment in favor of PCS. However, we will not consider any attachments to Byrd’s opposition because the attachments, while filed in the trial court, were not introduced into evidence and are not part of the record on appeal. Tranum, 581 So.2d at 1027.

Motion for Summary Judgment

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Richard v. Hall, 2003-1488 (La. 4/23/04), 874 So.2d 181, 137. On a motion for summary judgment, the burden of proof is on the mover. If the moving party will not bear the burden of proof at trial on the matter, that party’s burden on a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact, and the mover is entitled to summary judgment. The adverse party may not rest on the mere allegations or denials of his pleading. His response, by affidavits or otherwise provided by law, must set forth specific facts showing that there is a genuine issue for trial. See La. Code Civ. P. art. 966; La. Code Civ. P. art. 967; Robles v. Exxon-Mobile, 2002-0864 (La.App. 1st Cir. 3/28/03), 844 So.2d 339, 341. If the adverse party does not so respond, summary judgment, if appropriate, will be rendered against him. Robles, 844 So.2d at 341.

We have thoroughly reviewed the evidence in the record and agree with the trial court’s conclusion that summary judgment in favor of PCS was appropriate in lathis case. In support of its motion for summary judgment, PCS submitted evidence showing a lack of factual support for an essential element of Byrd’s negligence claim, i.e., that the oxygen machine somehow malfunctioned and caused Byrd’s respiratory failure. PCS also cites Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 883-884, arguing that Byrd failed to produce expert medical testimony regarding the applicable standard of care, the breach of that standard, and a causal connection between the breach and the resulting harm, which are all elements that are required in an action sounding in medical malpractice. However, we decline consideration of this argument since there is no indication in the record that PCS is a qualified health care provider entitled to the limited liability protection of the Louisiana Medical Malpractice Act (“MMA”). None of Byrd’s allegations are treatment related or related to a dereliction of professional skill by a health care provider. The tenor of Byrd’s allegations present an action for ordinary negligence that do not require expert medical evidence to determine whether a standard of care was breached. Expert medical testimony is not needed to determine if an oxygen machine malfunctioned. Byrd’s allegations do not involve the assessment of his medical condition, but rather involve the negligent maintenance of medical equipment.

After PCS submitted evidence showing the lack of factual support for Byrd’s claims that the oxygen machine provided by PCS somehow malfunctioned and caused Byrd’s respiratory failure, Byrd was required to come forward with evidence to support his allegations. Byrd failed to bring forth any evidence to show that the oxygen machine malfunctioned or that the alleged malfunction caused him injury. Thus, Byrd has not shown that he would be able to satisfy his evidentiary burden of |aproof at trial. His unsubstantiated arguments and conclusory allegations to the contrary are without merit.

CONCLUSION

For all of the assigned reasons, PCS’s motion to strike portions or the entirety of Byrd’s brief is denied. The trial court’s judgment granting summary judgment in favor of PCS and dismissing all claims against PCS is hereby affirmed. All costs of this appeal are assessed to the plaintiff/appellant, Robert D. Byrd, and/or the substituted plaintiff/appellant, Sonia Maria Casnave,

MOTION TO STRIKE DENIED; JUDGMENT AFFIRMED.

      . Byrd died on August 2, 2014. Sonia Maria Casnave, the mother of Byrd's two minor children and sole heirs, was later substituted as the plaintiff in this action. For purposes of this appeal, we will continue to refer to Byrd as the plaintiff.

      . Louisiana Code of Civil Procedure article 966 was amended by La. Acts 2015, No, 422, § 1, effective January 1, 2016. However, 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 Article 966 in this case, See La. Acts 2015, No. 422 §§ 2 and 3.

      . Under the MMA, all malpractice claims against a health care provider must go before a Medical Review Panel before a suit can be filed against the health care provider. See former La. R.S. 40:1299.47(A)(1)(a) and (B)(l)(a)(I).