author: WHIPPLE, C.J.

text:
    Wilfred ROBINSON, III v. MIGHTY ONE, LLC, Michael R. Chamberlain and Keller Williams Realty
    NUMBER 2017 CA 0051
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017 Rehearing Denied February 8, 2018
    Sarabeth T. Bradley, William M. Magee, Covington, LA, Counsel for Plaintiff/Appellant, Wilfred Robinson, III
    Shawn W. Rogers, Louis M. Butler, Mandeville, LA, Counsel for Defendants/Appellees, Mighty One, LLC & Michael Chamberlain
    Michael P. Bienvenu, Baton Rouge, LA, Counsel for Defendant/Appellee, Group Integrity, LLC d/b/a Keller Williams Realty Services
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   WHIPPLE, C.J.

This matter is before us on appeal by plaintiff, Wilfred Robinson, III, from a judgment of the trial court granting Robinson's motion for partial summary judgment against defendant, Mighty One, LLC ("Mighty One"). For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In June of 2013, Robinson contacted Keller Williams Realty ("Keller Williams") for assistance in purchasing undeveloped property on which to build a home. With the assistance of his agent, Lance Williams, Robinson ultimately entered into a "Louisiana Residential Agreement to Buy or Sell" ("the agreement" or "the contract") with Mighty One for the purchase of land and construction of a new home in Covington, Louisiana.

The agreement, dated December 13, 2013, provided that Mighty One would build a home for Robinson at a location to be determined at a later date, that upon acceptance, the parties would be bound to the terms of the agreement, and that upon acceptance, Robinson would provide a deposit in the amount of $9,000.00. The agreement, which was signed (initialed) by Robinson and Mighty One, also contained default provisions that would apply in the event of a default by either party, which set forth that the buyer or the seller suffering a default by the other party had the option to either declare the agreement null and void "with no further demand" or to demand and/or sue for: (1) termination of the agreement; (2) specific performance; or (3) termination of the agreement and an amount equal to 10% of the sales price as stipulated damages, and return or retention of the deposit. The default provisions further provided that the prevailing party to any litigation brought to enforce provisions of the agreement "shall be awarded attorney fees and costs." By its terms, the initial offer made in the December 13, 2013 agreement to buy or sell was made binding and irrevocable until December 17, 2013, at 5:00 p.m.

Thereafter, with regard to a final sales price for construction of the home, which was to be determined after Robinson chose his lot, Mighty One subsequently proposed the following counter offer on December 17, 2013, at 3:20 p.m.:

The final sales price will be determined after Purchaser chooses lot location, house plans/specs and a new cost estimate is completed by the Seller. Both parties must agree to sign the new cost estimate and agree that estimate will be the sales price. From that point forward any additions, changes, [or] alterations must be made in writing, signed by both parties and paid for upfront by Purchaser and such payment shall be [nonrefundable]. The completion of the house must be within 180 days of the slab being poured. [Emphasis added.]

All other terms and conditions of the prior agreement were to remain in effect and the "Counter Offer" would be void if not accepted in writing by 5:00 p.m. on December 18, 2013. On December 18, 2013, at 10:19 a.m., Robinson responded to the counter offer extended by Mighty One by replacing it with a new counter offer, which was accepted and agreed upon by both Robinson and Mighty One respectively on December 19, 2013 and December 20, 2013, and provided as follows:

Buyers Deposit shall be refunded and the contract declared Null and Void in the event that a suitable property cannot be acquired by the Seller.
The Buyers Deposit Shall be refunded and the contract shall be Null and Void in the event that the total cost of the home exceeds $242,148.45 unless all parties agree prior to finalizing final cost estimate.
Deposit shall become nonrefundable once the lot to be built on is purchased by Seller/Builder. [Emphasis added.]

Pursuant to the above agreement ultimately accepted by the parties on December 20, 2013, Robinson then tendered a check in the amount of $9,000.00 to Mighty One as a deposit under the contract to purchase the lot he had chosen. On that same date, Mighty One, in turn, entered into an agreement to purchase with the listing agent, Gardner Realtors, to purchase the lot for $25,000.00. Mighty One then tendered a deposit check, using Robinson's funds, to Gardner Realtors in the amount of $9,000.00, with the closing on the lot scheduled for later in February.

However, according to Robinson, on February 6, 2014, Robinson's agent informed him that Mighty One had decided to unilaterally terminate and cancel the contract. After being informed of this development, on February 7, 2014, Robinson requested that Mighty One return his deposit and provide him with a written cancellation "in order to move forward toward some resolution" as to his possible purchase of the property, all to no avail. Instead, after purportedly being unable to obtain a return of the deposit it had paid on the lot from Gardner Realtors, Mighty One then proceeded to complete, in its name, the purchase of the lot previously selected by Robinson, and on February 14, 2014, Mighty One closed on its purchase of the lot.

After the passage of several months without receiving the return of his deposit, on August 25, 2014, Robinson filed a "Petition for Breach of Contract and Fiduciary Duty" against: Mighty One; its owner and manager, Michael R. Chamberlain; and Keller Williams. Therein, Robinson sought a judgment against Mighty One and Chamberlain ordering them to either specifically perform under the terms of the contract or, pursuant to the default provision of the agreement, return his deposit, along with ten percent of the sale price as liquidated damages, plus attorney's fees and costs associated with filing the petition, and "all damages allowed under the law." Robinson further sought damages against Keller Williams for its negligent misrepresentation and/or breach of a fiduciary duty and attorney's fees and costs.

On July 24, 2015, Robinson filed a motion for partial summary judgment as to his claims against Mighty One setting forth: that Mighty One had defaulted and cancelled the agreement before it purchased the lot upon which the home was to be built; that he had requested a refund of his deposit on February 7, 2014; that Mighty One had refused to refund the deposit; and that Mighty One thereafter proceeded to purchase the lot on February 14, 2014, after the agreement was cancelled. Thus, pursuant to the default provision of the agreement between Robinson and Mighty One, Robinson sought judgment for a refund of his $9,000.00 deposit, stipulated damages under the contract in the amount of $24,215.00 representing ten percent of the purchase price, and attorney's fees and costs in the amount of $10,000.00 incurred by Robinson to litigate this matter.

In response, Mighty One opposed the motion for summary judgment, initially contending that the contract was cancelled on the basis of a lack of funding because funding in the amount of $242,150.00 was approved for the purchase of the lot and building of Robinson's home, Robinson had refused to stay within the agreed amount, and Mighty One had accordingly cancelled the contract. Mighty One further contended that the deposit paid by Robinson became nonrefundable once the lot was purchased by Mighty One as builder, and also contended that the contract became "null and void once [Robinson] exceeded the estimated building costs and therefore defaulted on [the] agreement." (Emphasis added.)

In a supplemental opposition memorandum, Mighty One reiterated its previous arguments, but claimed that while the contract contemplated a maximum total cost or amount not to exceed $242,148.45, Robinson wanted to make changes bringing the total cost above $282,000.00. In this supplemental opposition, however, Mighty One changed its earlier position and specifically denied ever cancelling the agreement, instead contending that "Keller Williams [had] declared the contract null and void" and that "the contract in fact was cancelled by Lance Williams of Keller Williams." (Emphasis added.) Mighty One further argued that, despite its requests, Keller Williams had refused to facilitate the return of the deposit check from Gardner Realtors once Keller Williams declared the contract null and void, contending that the deposit was nonrefundable.

Following a hearing, the trial court denied Robinson's motion for partial summary judgment, finding that there were unresolved material issues of fact as to whether the parties had actually modified the contract by a subsequent agreement that rendered the deposit non-refundable as to Robinson. The trial court also found that there were unresolved material issues of fact as to the common intent of the parties, which precluded the grant of summary judgment.

However, after taking Chamberlain's deposition, Robinson re-urged his motion for partial summary judgment regarding his claims against Mighty One on June 26, 2016. Specifically, Robinson contended that while "opposing counsel [had] indicated that there was a subsequent agreement between the parties modifying the terms of the original contract," Chamberlain had admitted in his deposition testimony that there was, in fact, a binding agreement that had been reached by the parties in December 2013, and that he was not aware of any separate agreements with Robinson that modified the original contract. Accordingly, in view of this testimony, Robinson contended he was entitled to summary judgment in his favor for an award of damages, refunds, attorney's fees and costs in the amount of $47,690.85 for Mighty One's default under the terms of the agreement.

Following a hearing, the trial court issued reasons for judgment, finding that: (1) under the agreement, where the deposit would become non-refundable only after the lot chosen for construction was purchased by Mighty One and the undisputed evidence established that Robinson's request for refund of the deposit was made prior to Mighty One's purchase of the lot on February 14, 2014, Robinson was entitled to the return of his deposit; and (2) as the party asserting modification of the contract, Mighty One had the burden of proving a modification, and had failed to produce sufficient evidence to support its claim that there was such an oral modification of the agreement. However, the court then ruled that because Robinson and Mighty One had failed to agree to a final sales price in excess of $242,148.45, the agreement was subject to a resolutory condition, which, upon occurring, rendered the agreement null and void such that no rights would flow to either party. The trial court thus determined that Robinson was not entitled to attorney's fees or stipulated damages as provided for in the agreement. On September 16, 2016, the trial court signed a judgment in favor of Robinson and against Mighty One, in the amount of $9,000.00, representing a return of the deposit, plus legal interest from the date of judicial demand and all court costs, and dismissed "[a]ll other claims" against Mighty One with prejudice.

Robinson now appeals, contending that the trial court erred in: (1) finding that there was a failure by the parties to agree to a final sales price, which constituted a resolutory condition that would result in the contract being null and void with no rights flowing to either party; and (2) failing to find that Mighty One had breached the contract, and in refusing to apply the remedies in favor of Robinson as provided for in the contract.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern a district court's consideration of whether summary judgment is appropriate. Greemon v. City of Bossier, 2010-2828 (La. 7/1/11), 65 So.3d 1263, 1267. In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Hines v. Garrett, 876 So.2d at 765-766.

A party may move for a summary judgment for all or part of the relief for which he has prayed. LSA-C.C.P. art. 966(A)(1). A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case as to that party or parties. LSA-C.C.P. art. 966(E). However, a summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. LSA-C.C.P. art. 966(F).

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1). The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. LSA-C.C.P. art. 966(D)(2).

When a motion for summary judgment is made and supported as provided in LSA-C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in LSA-C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B). Whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Larson v. XYZ Insurance Company, 2016-0745 (La. 5/3/17), 226 So.3d 412, 417.

DISCUSSION

Contracts have the effect of law between the parties. LSA-C.C. art. 1983. Although summary judgment is generally not appropriate to establish the intent of contracting parties, where the words of a contract are clear, explicit and lead to no absurd consequences, the meaning and intent of the parties must be sought within the four comers of the instrument and cannot be explained or contradicted by parol evidence. See LSA-C.C. art. 2046 ; Claitor v. Brooks, 2013-0178 (La. App. 1st Cir. 12/27/13), 137 So.3d 638, 644-645, writ denied, 2014-0198 (La. 4/4/14), 135 So.3d 1182. Under such circumstances, the interpretation of the contract is a matter of law and summary judgment is appropriate. H & E Equipment Services, Inc. v. Sugar & Power International, LLC, 2016-1070 (La. App. 1st Cir. 2/17/17), 215 So.3d 446, 449.

The interpretation of ambiguous terms in a contract requires construction against the contract's drafter. See LSA-C.C. art. 2056 ; Campbell v. Melton, 2001-2578 (La. 5/14/02), 817 So.2d 69, 75. Moreover, as pertinent to this appeal, parties may stipulate the damages to be recovered in case of nonperformance, defective performance, or delay in performance of an obligation. That stipulation gives rise to a secondary obligation for the purpose of enforcing the principal one. LSA-C.C. art. 2005.

In this case, the record demonstrates there was a contract entered into by the parties, and the contract was an "agreement to buy or sell" involving the construction of Robinson's home after the final price was calculated. Moreover, Mighty One has not appealed or answered this appeal, and therefore has not challenged the portion of the summary judgment awarding Robinson $9,000.00, representing a return of his deposit, plus legal interest from the date of judicial demand and all court costs in the proceeding below. Therefore, the propriety of this ruling is not at issue, and this portion of the trial court's judgment is affirmed.

As to the trial court's dismissal of Robinson's remaining claims against Mighty One for penalties pursuant to the default provision of the agreement, we note that, with respect to default by the seller , the agreement provided as follows:

DEFAULT OF AGREEMENT BY SELLER : In the event of any other default of this Agreement by SELLER except as set forth in lines 124 through 141 or lines 237 through 240, BUYER shall at BUYER'S option have the right to declare the Agreement null and void with no further demand, or to demand and/or sue for any of the
following: (1) Termination of this Agreement; (2) Specific performance; (3) Termination of this Agreement and an amount equal to 10% of the Sale Price as stipulated damages.
Further, BUYER shall be entitled to the return of the Deposit. The prevailing party to any litigation brought to enforce any provision of this Agreement shall be awarded their attorney fees and costs. The SELLER may also be liable for Broker fees.

Thus, in accordance with these provisions, Robinson contends he is entitled to the return of his deposit, 10% of the purchase price in stipulated damages in the amount of $24,215.00, attorney's fees, and costs due to Mighty One's unilateral decision to cancel the agreement. In support Robinson relies on the following attachments to his motion for summary judgment: (1) Robinson's affidavit; (2) the agreement and counter offer addendums; (3) a copy of Robinson's deposit check; (4) February 7, 2014 email correspondence between Lance Williams and Robinson; (5) the February 14, 2014 Act of Cash Sale in which Mighty One purchased the lot (and thereby acquired ownership of it); (6) Mighty One's answers to Robinson's requests for admissions of fact, interrogatories, and requests for production of documents; (7) invoices for Robinson's attorney's fees; and (8) Chamberlain's April 5, 2016 deposition testimony.

In opposition to Robinson's motion for partial summary judgment, Mighty One relies on: (1) the agreement and counter offer addendums; (2) a copy of Robinson's deposit check; (3) email correspondence between Keller Williams representatives and Robinson; (4) a copy of Mighty One's $9,000.00 deposit check to Gardner Realtors; (5) a copy of the cash sale of the lot to Mighty One; (6) written correspondence from the Louisiana Real Estate Commission; and (7) the affidavit of Chamberlain.

Error in Rendering Summary Judgment with No Evidentiary Basis

(Assignment of Error Number One)

In his first assignment of error on appeal, Robinson contends that the trial court erred in its ruling by finding, on the evidence before it, that the parties failed to reach an agreement on the final sales price in excess of $242,148.45, and thus, that a resolutory condition of the agreement was established such that the contract was rendered null and void on this basis and no rights would flow to either party from the agreement. Based on our de novo review of the record, we agree that the trial court erred by ruling based on this premise.

The agreement herein specifically provided (and the parties do not dispute) that "The Buyers Deposit Shall be refunded and the contract shall be Null and Void in the event that the total cost of the home exceeds $242,148.45 unless all parties agree prior to finalizing the final cost estimate." (Emphasis added.)

Robinson contends that the only evidence presented on this issue shows that he and Mighty One agreed that the price of the home would not exceed $242,148.45, unless agreed to by both parties, that the final sales price would be determined after Robinson chose the lot and house plans, and a new cost estimate was completed by Mighty One. Robinson further contends that not only did he and Mighty One agree on a maximum price in the initial sales agreement, they also specified the method by which the price would eventually and ultimately be determined. However, before the house plans and a new cost estimate were ever completed so that a final price determination could be made or finalized, Mighty One instead advised him, through their respective real estate agents, that "it would not be building the house" for Robinson, then kept the deposit, and purchased the lot using Robinson's deposit. Robinson notes that the reason the record is utterly devoid of any evidence that the parties failed to agree to the price is because the contract was rescinded prematurely by Mighty One and, more importantly, any purported failure to agree to a price was not placed at issue in his motion for summary judgment. Robinson concludes that because the parties had agreed to a maximum price and/or a method by which the actual price would be determined, the contract was perfected and resulted in a valid contract to buy or sell that should be enforced in accordance with the terms contained therein. Robinson contends that, on summary judgment, no evidence, competent or otherwise, was set forth to establish or otherwise support the trial court's stated finding and conclusion that the contract was void and no rights would flow therefrom, because the parties had failed to agree on a purchase price. We agree that the record does not support this conclusion.

Although Mighty One offered an email from Robinson, which purports to set forth itemized costs, including a potential total cost figure of $282,358.09, neither the recipient, date, nor time of the email are identified. Moreover, the record contains no corroborating testimony or affidavit by either the unidentified recipient or sender of the email explaining the contents, purpose, and intent of this email. Importantly, the record contains no evidence to establish as an undisputed material fact that the parties ever agreed to this (or any other) total price, nor does it undisputedly show they failed to agree to a final price. Finally, for the purposes of summary judgment, this email also fails to establish that Robinson failed or refused to stay within the agreed amount as alleged by Mighty One in defense of its refusal to return the deposit until after suit was filed.

Because the evidence set forth is insufficient to establish or resolve whether the parties ever agreed (or failed to agree) to a price in excess of $242,148.45, the trial court erred in finding from the evidence before it that the parties failed to agree to a price. Thus, we find merit to this assignment of error.

Error in Failing to Enforce Contractual Remedies

(Assignment of Error Number Two)

In his second assignment of error, Robinson contends that the trial court erred in failing to find that Mighty One breached the contract and, as such, in failing to apply the remedies for the breach provided for in the parties' contractual agreement. In support, Robinson contends that the evidence of record shows that he was notified that Mighty One was not going to be building his home on February 6, 2014; that on that same date, he requested a refund of his deposit before the closing date on the lot where the home was to be built; and that Mighty One refused to build the home or return his deposit, thereby defaulting on the agreement. Robinson further points out that Mighty One proceeded to purchase the lot on February 14, 2014, although it was aware that construction would not commence.

As noted above, on the record before us, we are unable to determine whether Mighty One or some other third party actually breached the agreement, as the evidence before us does not establish as an undisputed material fact who cancelled the agreement. In his affidavit, Robinson contends that Chamberlain of Mighty One cancelled the contract, and Robinson's email correspondence to Lance Williams tends to support Robinson's claim that at no point did he wish to cancel the agreement.

However, in Chamberlain's version of these events, in Chamberlain's deposition testimony, he stated that the contract was cancelled when they couldn't agree on the "final, final, final price because things were changing so much," but, when later asked if Mighty One wanted to cancel the contract, Chamberlain replied, "No. Mighty One never wanted to cancel this contract. We were not going there. We were trying to find a way to make it happen." Notably, Chamberlain further testified that the agreement was not cancelled by Mighty One or Robinson at any time in writing, and then testified that the contract was cancelled by Linda Larocca of Keller Williams, claiming that all communication with Robinson went through their respective agents. Thus, the evidence set forth on summary judgment is replete with contested issues of material fact as to who, in fact, cancelled this agreement and the actual circumstances giving rise to its cancellation or breach.

In sum, after a thorough review of the evidence presented before us on summary judgment, we are unable to determine whether Mighty One breached the agreement giving rise to damages where material facts as to how and who cancelled the agreement are unresolved in the record and remain in dispute. Accordingly, we are constrained to find that the trial court also erred in dismissing, with prejudice, Robinson's remaining claims for other awards that may potentially apply under the terms of the contract.

CONCLUSION

Based on the foregoing reasons, the portion of the September 16, 2016 judgment of the trial court, ordering Mighty One to return of Robinson's deposit, with interest, is hereby affirmed. The portion of the judgment granting summary judgment in favor of Mighty One, and dismissing all other claims against Mighty One, with prejudice, is hereby reversed, and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed against the appellees/defendants, Mighty One, LLC, and Michael Chamberlain.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Chutz, J., concurs.

      In his deposition testimony, Michael R. Chamberlain, the owner and manager of Mighty One, admitted that Mighty One had accepted Robinson's counteroffer and conceded that there was a binding contract between them as of December 19, 2013.

      Chamberlain filed exceptions of no right and/or no cause of action seeking dismissal of Robinson's claims against him in his individual capacity. In response, Robinson filed a supplemental and amending petition alleging additional facts in support of maintaining Chamberlain as a defendant. Chamberlain's exceptions were ultimately denied by the trial court.

      Because the judgment dismissed all of Robinson's remaining claims against Mighty One, the judgment is a partial final judgment subject to immediate appeal pursuant to LSA-C.C.P. art. 1915(A)(1) without the necessity of the trial court's certification as such.

      As Robinson's motion to re-urge summary judgment was filed on June 26, 2016, we apply the version of LSA-C.C.P. art. 966, as amended by Acts 2015, No. 422, § 1, effective January 1, 2016.

      Considering our conclusion that the trial court erred in finding that the evidence submitted established that the parties failed to agree to a price, we do not reach the issue of whether any such failure constitutes a resolutory condition. We do note however, that to the extent that the trial court relied on Williams v. Enmon, 380 So.2d 144, 146 (La. App. 1st Cir. 1979), writ denied., 383 So.2d 12 (La. 1980), in determining that the contract is null and void and no rights can flow to either party from such an agreement, the Williams case involved the nonfulfillment of a suspensive condition, not a resolutory condition.
      Moreover, we note the issues Robinson presented to the court for consideration on summary judgment were his claims that "Mighty One cancelled the agreement before it purchased the lot," then refused to refund Robinson's deposit, thereby defaulting on the agreement. Notably, Mighty One did not file its own motion for summary judgment.
      Under the strict mandates of LSA-C.C.P. art. 966, "A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." LSA-C.C.P. art. 966(F). As, Robinson notes in his reply brief:
      There is no evidence in the record that the parties failed to agree to the price. Since price was not at issue [in] Robinson's Motion for Summary Judgment, the emails that Wilfred Robinson has to prove that the parties agreed to a price were not submitted to the trial court.

      Although Keller Williams filed an appeal brief, it is not actually a party to these proceedings on appeal. Thus, we decline to assess costs against it.


source: Caselaw Access Project

author: WHIPPLE, C.J. CHUTZ, J., concurring.

license: Public Domain

text:
    Travis HIGGINS v. WILLIAMS ENERGY PARTNERS, L.P.; Williams Olefins, L.L.C.; The Williams Company, Inc.; XYZ Insurance Company; Chicago Bridge and Iron Company; and X Insurance Company
    Kelvin Marrell York, Sr and Tracy Denise York v. The Williams Companies, Inc., Williams Partners L.P.; Williams Olefins, L.L.C; Lummus Technology, Inc.; CB & I, Inc. of Texas and/or CB & I, Inc.; Turner Industries Group, L.L.C.; Turner Industrial Maintenance, L.L.C.; Delta Tech Service, Inc.; Industrial Specialty Services, L.L.C.; Geo Heat Exchangers, L.L.C.; Geo Field Services, L.L.C.; Honeywell International, Inc.; Union Texas Petrochemicals Corporation; Union Texas Products Corporation ; Union Texas Petroleum Corporation ; Union Texas Petroleum Holdings, Inc.
    Ken Haydel v. The Williams Companies, Inc.; Williams Partners L.P., Williams Partners GP, L.L.C. ; Williams Olefins, L.L.C.; Lummus Technology, Inc.; Turner Industries Group, L.L.C.; Turner Industrial Maintenance, L.L.C.; Delta Tech Service, Inc.; Industrial Specialty Services, L.L.C.; Geo Heat Exchangers, L.L.C; Geo Field Services, L.L.C.; Honeywell International, Inc.; Union Texas Petrochemicals Corporation; Union Texas Products Corporation ; Union Texas Petroleum Corporation ; Union Texas Petroleum Holdings, Inc.; and Brock Services, LLC.
    NUMBER 2017 CA 0390 NUMBER 2017 CA 0391 NUMBER 2017 CA 0392
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017 Rehearing Denied February 21, 2018
    Craig P. Hart, Tammy L. Karas, Covington, Louisiana, Counsel for Plaintiff/Appellee, Travis Higgins
    Edward J. Walters, Jr., J.E. Cullens, Jr., Darrel J. Papillion, Monica Vela-Vick, Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee Emily Paige Green
    Michael C. Palmintier, Jonathan E. Mitchell, Neal deGravelles, John W. deGravelles, Stephanie B. Hullet, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellants, Kelvin Marred York, Sr., Tracy Denise York, J. and Ken Haydel
    Keith P. Richards, Steve C. Thompson, Stephanie E. Robin, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, Gail Sterling, Robert Reed, and David Noble
    Ron A. Austin, Jeffrey P. Green, Harvey, Louisiana, Counsel for Plaintiff/Appellee, Dian Davis
    Carlton Jones III, Counsel for Defendants/Appellees
    Thomas E. Balhoff, Judith R. Atkinson, Baton Rouge, Louisiana, Turner Industries Group, LLC, Turner Industrial Maintenance, LLC
    Katie D. Bell, David K. Nelson, Glenn M. Farnet, Lana D. Crump, Amanda M. Collura, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, William Olefins LLC, Williams Companies Inc., and Williams Partners LP
    Tobin J. Eason, Gregory C. Weiss, Mandeville, Louisiana, Counsel for Defendants/Appellees, Lummus Technology Inc., CB & I Inc. of Texas, and CB & I, Inc.
    Tracy C. Rotharmel, Mark D. Latham, New Orleans, Louisiana, Counsel for Defendants/Appellees, Industrial Specialty Services, LLC, Brand Energy Solutions, LLC
    Catherine M. Landry, Edward G. Preis Jr., Lafayette, Louisiana, Counsel for Defendants/Appellees, Geo Heat Exchangers LLC, Geo Field Services LLC
    Andrew Blanchfield, Brian T. Butler, Richard W. Wolff, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, Brock Services, LLC
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   WHIPPLE, C.J.

Plaintiff, Ken Haydel, appeals a judgment of the trial court granting summary judgment in favor of defendants, CB & I, Inc., CB & I, Inc. of Texas, and Chicago Bridge and Iron Company (hereinafter collectively referred to as "CB & I"), and dismissing with prejudice his claims against these defendants. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

This litigation arises out of a June 13, 2013 chemical explosion at the Williams Olefins chemical plant near Geismar, Louisiana. Following the explosion, numerous plaintiffs filed suit against various defendants for injuries sustained as a result of the explosion. The trial court consolidated the various suits for discovery and motion purposes and transferred all of the suits to division "D" of the trial court to be joined with the suit captioned, "Travis Higgins v. Williams Energy Partners, L.P. et al., Suit No. 109,244. "

At the time of the explosion, CB & I was working at the Williams Olefins chemical plant pursuant to a contract, entered into in 2012, wherein CB & I contracted with Williams Olefins to expand the ethylene capacity at the plant. Haydel was hired by CB & I and was working as a fuel truck operator inside the gates of the William's Olefins plant when the explosion occurred. As a result of the explosion, Haydel filed a petition for damages naming multiple defendants, but initially not including CB & I Haydel alleged that in the aftermath of the explosion, as he was assisting other plant employees, he was pushed down and trampled by workers as they were rushing to the gates of the chemical plant, resulting in his injuries.

Haydel filed several amending petitions; however, he did not name CB & I as an additional defendant until the filing of his third amended petition on March 3, 2016, wherein he alleged in paragraph 9c that CB & I was vicariously liable for his injuries as a result of CB & I's employees' intentional acts within the meaning of LSA-R.S. 23:1032(B). Specifically, Haydel alleged that after the plant explosion, as he was assisting other plant employees, including many employees of CB & I, he was pushed down and trampled by workers of CB & I as they rushed to avoid the disaster.

On April 22, 2016, CB & I and Lummus Technology Inc. ("Lummus") filed a joint motion for summary judgment, seeking a dismissal of various plaintiffs' claims asserted against them, including Haydel's claims. CB & I and Lummus contended that the claims against them arising out of the Williams Olefins plant explosion should be dismissed because: (1) the claims against Lummus were perempted pursuant to LSA-R.S. 9:2772, as Lummus has not been associated with the Williams Olefins plant since 1991; (2) CB & I, in performing ethylene expansion work at the plant in question at the time of the accident, had nothing to do with the propylene fractionation system which brought about the accident in question; (3) CB & I cannot be vicariously liable for its employees actions in intentionally causing injuries that occurred as these CB & I personnel ran from the fire; and (4) neither Lummus nor CB & I had any maintenance obligations associated with the chemical plant.

Pertinent to the instant appeal, Haydel filed an opposition under seal to the motion for summary judgment, contending that "CB & I's employees' actions in injuring Haydel were reasonably consequent to the performance of their duties to CB & I, were reasonably anticipated by CB & I, and [therefore,] CB & I may be held vicariously liable for those acts."

Following a hearing on CB & I and Lummus's motion for summary judgment, the trial court rendered a judgment on July 12, 2016, granting the motion and dismissing with prejudice various plaintiffs'

claims against CB & I and Lummus, including Haydel's claims, Haydel then filed the instant appeal.

On appeal, Haydel recognizes that in the subject motion for summary judgment, "CB & I made two challenges to [his] claims. The first [challenge was] a factual challenge regarding its responsibility for the explosion[, and the second] was a purely legal challenge to its vicarious liability for the employees who injured Mr. Haydel." However, Mr. Haydel assigns error only to the trial court's ruling dismissing CB & I in its capacity as a vicariously liable employer. Specifically, Haydel assigns the following as error:

(1) The trial court erred in finding that the actions of CB & I employees who were evacuating the Williams Facility due to an explosion were purely personal actions outside of the course and scope of their employment.
(2) The trial court erred in failing to find that the risk of a sudden emergency occurring at a chemical plant at which CB & I employed workers was not a risk of harm fairly attributable to CB & I's business.
(3) The trial [court] ruled in contradiction to established jurisprudence and failed to properly apply the course and scope analysis to the actions of CB & I employees when it held that CB & I could not be held vicariously liable for the above actions of its employees.

Accordingly, while additional issues were raised and addressed by the trial court in the subject motion for summary judgment, including the dismissal of all claims against Lummus, and the lack of CB & I and Lummus's responsibility for the explosion itself, Haydel does not assign error herein as to the trial court's findings on these additional issues. Therefore, the only issue for review that is properly before this court in the instant appeal is whether the trial court properly dismissed Haydel's tort claims founded on allegations of the vicarious liability of CB & I's employees, after finding that CB & I was not vicariously liable for the alleged intentional acts that resulted in Haydel's injuries.

SUMMARY JUDGMENT

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3).

The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).

Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Bouquet v. Williams, 2016-0134 (La. App. 1st Cir. 10/28/16), 206 So.3d 232, 237, writs denied, 2016-2077 (La. 1/9/17), 214 So. 3d 870, 2016-2082 (La. 1/9/17), 214 So.3d 871. Thus, appellate courts ask the same questions that the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750.

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Brassette v. Exnicios, 2011-1439 (La. App. 1st Cir. 5/14/12), 92 So.3d 1077, 1081, writ denied, 2012-1583 (La. 11/9/12), 100 So.3d 831.

ANALYSIS

As noted above, generally an employee's exclusive remedy against his employer for an on-the-job injury is workers' compensation; however, an exception is made for intentional acts, LSA-R.S. 23:1032(B). This court recently summarized the well-established principles governing an employer's vicarious liability for intentional acts of its employees, stating as follows:

An employer is not vicariously liable, however, merely because his employee commits an intentional tort on the business premises during working hours. Vicarious liability will attach in such a case only if the employee who commits the intentional act does so within the ambit of his assigned duties and in furtherance of his employer's objective. The intentional tortious conduct of the employee must be so closely connected in time, place, and causation to his employment duties as to be regarded as a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests. [Citations omitted, emphasis added.]

Boudreaux v. Papa Bear's Pizza, LLC, 2016-1173 (La. App. 1st Cir. 4/26/17), 220 So.3d 84, 89.

In determining whether an employee's intentional tortious conduct is sufficiently connected to his employment duties as to impose vicarious liability on his employer for such conduct, Louisiana courts have used the following four factors: (1) whether the tortious act was primarily employment rooted, (2) whether the violence was reasonably incidental to the performance of the employee's duties, (3) whether the act occurred on the employer's premises, and (4) whether the conduct occurred during the hours of employment. Boudreaux, 220 So.3d at 90.

In support of its motion for summary judgment, CB & I avers that while Haydel alleged that various unidentified CB & I personnel (and other statutory employees of CB & I) acted intentionally in trampling him while running away from the fire, Haydel will not be able to prove or establish who these certain individuals are, and further, that Haydel has failed to establish that these individuals were acting in furtherance of CB & I's business interests at the time of his injuries. Accordingly, CB & I contends that, as a matter of law, it cannot be held vicariously liable for these alleged intentional acts of unnamed personnel, including its own, in running from this fire, and thus, summary judgment dismissing Haydel's claims against it is proper. We agree.

In ruling that CB & I could not be vicariously liable for the intentional acts alleged by Haydel, the trial court reasoned as follows:

[P]laintiff, Ken Haydel, further alleges the vicarious liability of CB & I personnel causing injury when they ran away from the fire. La. Civil Code Article 2320 provides for an employer's liability for the tortious acts of its servants and overseers in the exercise of the functions in which they are employed. The employer is liable for a tort committed by an employee if, at the time, the employee was acting within the course and scope of his employment. The course of employment refers to time and place. The scope of employment test examines the employment related risk of injury.
Allen v. Payne &Keller Co. , 710 So.2d 1138 (La. App. 1 Cir. 1998). The Louisiana Supreme Court has held that vicarious liability will only attach if employees are acting within the ambit of their assigned duties and acting in furtherance of the employer's objective. The inquiry requires the trier of fact to determine whether the employee's tortious conduct was so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer's business, as compared to conduct motivated by purely personal considerations entirely extraneous to the employer's interests. Russell v. Noullet , 721 So.2d 868 (La. 1998). In this case, the unidentified employees of CB & I who trampled upon Mr. Haydel were in the same position as he was. They were all running for safety, their lives in danger. This human response cannot be said to be fairly attributable to the employer's business. As unfortunate as the situation was, CB & I is not vicariously responsible for the actions of its employees in running from danger and, in the process, trampling upon other workers.

In the instant case, the alleged "intentional" tortious acts (trampling) undisputedly did occur during business hours. Moreover, while the acts did not occur on CB & I's premises, they did occur on a job site where CB & I was working pursuant to a contract. However, we agree with CB & I that there is an absence of factual support for the first and second factors of the vicarious liability analysis, i.e., that the tortious acts as alleged were primarily employment rooted and reasonably incidental to the performance of the employee's duties. See Boudreaux, 220 So.3d at 90.

As stated above, Haydel has not assigned error to the trial court's factual finding pertaining to CB & I's lack of responsibility for the explosion itself, and therefore, the propriety of this factual finding is not an issue for review before this court. However, given this undisputed finding of the trial court that these defendants did not cause the chemical explosion, we are unable to find that the acts alleged herein, namely the act of "intentional trampling" of one employee by another in attempting to escape or run from an explosion, constitute "a risk of harm fairly attributable to the employer's business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer's interests." Boudreaux, 220 So.3d at 89.

Safety is, undoubtedly, an integral part of every employer's business. However, the acts alleged by Haydel as resulting in his injuries were not the direct result of a safety decision or any directive of CB & I. Cf. Menson v. Taylor, 2002-1457 (La. App. 1st Cir. 6/27/03), 849 So.2d 836 (employer vicariously liable where an altercation ensued between employee and employer after employer informed employee that he must drive an additional bus route); LeBrane v. Lewis, 292 So.2d 216 (La. 1974) (altercation occurred after supervisor fired employee; employer was liable for supervisor's stabbing of the discharged employee); Cowart v. Lakewood Quarters Limited Partnership, 2006-1530 (La. App. 1st Cir. 5/4/07), 961 So.2d 1212 (employer vicariously liable for injuries sustained by assistant director of nursing home, after employee attacked the assistant director upon learning that she was to be terminated). Additionally, Haydel's injuries did not result from a work-related dispute between two employees. Cf. Benoit v. Capitol Manufacturing Company, 617 So.2d 477 (La. 1993) (employer vicariously liable where an altercation ensued between two employees after disputing whether the rear-door to the work place should be open or closed). Haydel's alleged injuries resulted from individuals, some of whom were alleged, but not proven, to be CB & I's employees, taking action in an emergency situation in the interests of their own personal safety. Indeed, even if the acts of the various employees were intentional, the alleged intentional trampling of an employee by others in their attempt to escape the explosion is conduct that is "motivated by purely personal considerations entirely extraneous to the employer's interests." See Boudreaux, 220 So.3d at 89.

Accordingly, on the record before us, we are unable to find that Haydel's injuries, resulting from CB & I's employees purportedly pushing him down and trampling on him while running to safety from a chemical plant explosion that was caused by a third-party, are so closely connected in time, place, and causation as to constitute a risk of harm attributable to CB & I's business. Cf. Cowart, 961 So.2d at 1215.

Moreover, Haydel has failed to come forward with any evidence to show that the alleged offenders were CB & I's employees. In support of its motion for summary judgment, CB & I sets forth that it was entitled to summary judgment in that Haydel will not be able to prove at trial who the certain individuals are who allegedly "intentionally" trampled on him while running away from the fire. We agree that there is a complete lack of evidence on the record before us establishing that, among the numerous employees evacuating the chemical plant in the aftermath of the explosion, it was indeed CB & I's employees who pushed down and trampled Haydel, as he alleges. This failure of Haydel to come forward with any evidence to make the requisite showing that CB & I's personnel were the persons who committed these acts is a sufficient basis alone to support the dismissal of his claims against CB & I. See Boudreaux, 220 So.3d at 90 ("Boudreaux failed to sufficiently prove that Evans was the person who punched him. No evidence was offered of any other conduct by Evans, so the present record contains no basis for imposing vicarious liability on Mike's Bar for [Evans's] actions.").

Herein, CB & I has demonstrated a lack of factual support for one or more of the elements of Haydel's vicarious liability claim against it. Haydel has failed, thereafter, to come forward with factual support sufficient to establish a genuine issue of material fact or that CB & I was not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1). Thus, we find no error by the trial court in dismissing Haydel's claims against CB & I, which are based solely on CB & I's alleged vicarious liability for intentional acts of its employees.

CONCLUSION

For the above and foregoing reasons, the July 12, 2016 judgment of the trial court, dismissing Ken Haydel's remaining claims against CB & I, Inc., with prejudice, is hereby affirmed. Costs of this appeal are assessed against plaintiff, Ken Haydel.

AFFIRMED.

Chutz J. concurs for reasons to be assigned.

CHUTZ, J., concurring.

I concur in the result reached by the majority since Mr. Haydel failed to come forward with evidence showing he was injured by employees of CB&I, which is an essential element of his claim. Nevertheless, I vehemently disagree with the majority's conclusion that even if CB&I employees had trampled Mr. Haydel, CB&I still would not be vicariously liable for their actions. The majority reasons that the actions of the fleeing individuals were "motivated by purely personal considerations entirely extraneous to the employer's interests," i.e., to protect their personal safety. Assuming agruendo that these individuals were CB&I employees, this rationale discounts the fact that they were performing work-related duties for CB&I, at a time and place directed by CB&I, when the explosion necessitating their evacuation occurred. The employees' actions in fleeing from the aftermath of the explosion were clearly incidental to the performance of their employment duties for CB&I The safety of its employees, as well as their response to an emergency arising at their worksite, even if the emergency is not created by CB&I, are matters of vital interest to the operation of CB&I' s business. I cannot agree with the majority's conclusion that under these circumstances, the actions of CB&I' s employees, in fleeing from their worksite where an explosion had occurred, was a matter "entirely extraneous" to CB&I's interests. To the contrary, the actions of the employees were so closely connected in time and place to the performance of their duties for CB&I as to be regarded as an employment-rooted risk of harm fairly attributable to CB&I's business.

      Louisiana Revised Statute 23:1032 sets forth that as against his employer, the rights and remedies granted to an employee or his dependent on account of an accident or sickness for which he is entitled to compensation is limited to recovery of benefits exclusively as provided in the Louisiana Workers' Compensation act, subject to the following exception:
      B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.

      Shortly after the filing of this third amended petition, Haydel voluntarily dismissed all of his claims and causes of action against defendants, Williams Olefins, L.L.C.; The Williams Companies, Inc.; Williams Partners GP, LLC; and Williams Partners, L.P. (the "Williams Companies") Prior to this voluntary dismissal, the Williams Companies filed a motion for summary judgment, seeking a dismissal of multiple plaintiffs' claims against them, including Haydel's claims, on the basis that the Williams Companies were the statutory employer of plaintiffs and entitled to the exclusivity provision of the Louisiana Workers' Compensation statutes.
      Haydel's claims against Turner Industries Group, L.L.C., Turner Industrial Maintenance, L.L.C., and Industrial Specialty Services were also dismissed, pursuant to motions for summary judgment filed by these defendants.

      CB & I and Lummus share the same parent company, namely, Chicago Bridge & Iron Company, and both were named as defendants in various lawsuits arising out of the subject chemical explosion.

      The notice of appeal was filed on behalf of Haydel and plaintiffs, Kelvin York and Tracy Denise York ("the York plaintiffs"), as Haydel and the Yorks are represented by the same counsel. However, counsel conceded at oral argument that the instant appeal pertains only to the dismissal of Haydel's claims and clarified that there should not have been "any mention of the York plaintiffs in the brief or notice of appeal."


author: WELCH, J.

text:
    SPINKS CONSTRUCTION, INC. v. QUAD STATES CONSTRUCTION, LLC, et al.
    NUMBER 2017 CA 0580
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Russel W. Wray, Jacob A. Altmyer, St. Francisville, LA and Craig J. Robichaux, Mandeville, LA, Attorneys for Appellant Plaintiff-Spinks Construction, Inc.
    Douglas T. Curet, Hammond, LA, Attorney for Appellees, Defendants-Dale Lancaster, James Richard Lancaster and Kris Ainsworth
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

The plaintiff/appellant, Spinks Construction, Inc., appeals a district court judgment sustaining a peremptory exception raising the objection of no cause of action filed by the defendants/appellees, Dale Lancaster, James Richard Lancaster, and Kris Ainsworth. For reasons that follow, we affirm in part, reverse in part, and remand the matter to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Spinks Construction, Inc. ("Spinks") entered into a subcontract agreement with Quad States Construction, LLC ("Quad States") on June 2, 2008, to furnish labor, materials, equipment, and services in connection with Belvedeere Estates located in Kentwood, Louisiana. Belvedeere Estates was a new construction project of twenty-four single family homes and an office structure. On March 9, 2010, the owner of Belvedeere Estates filed an "Affidavit of Substantial Completion and Termination of Work" in the Tangipahoa Parish mortgage records.

On March 5, 2015, Spinks filed a petition for damages, naming as defendants Quad States, Dale Lancaster, James Richard Lancaster, and Kris Ainsworth. The petition sought recovery of sums allegedly due under the subcontract agreement. Spinks alleged that in reliance of the plans, specifications, estimated quantities, and contract documents provided by Quad States, it submitted a proposal to perform work and provide materials in May of 2008 in accordance with the contract documents. As per the subcontract agreement, Spinks agreed to perform site work for an initial subcontract price of $587,000.00. The petition alleged that a notice to proceed was issued on June 30, 2008, and that various change orders and deductions were issued on the project, which resulted in an increase in the subcontract total. Spinks averred that it performed all work contemplated by the subcontract, as well as additional work "necessary to proper completion" of the project. The petition alleged that Quad States continued to pay Spinks in accordance with the applications for payment until March 20, 2009. Spinks asserted that it submitted applications for payment totaling $606,043.80 and that Quad States paid only $510,843.60 of the amount due, leaving a balance of $162,597.40, including retainage. Spinks prayed for payment on the balance owed by Quad States to Spinks, all other sums due, plus interest, attorney fees, and all costs of the proceedings.

As to the individual defendants, Dale Lancaster, James Richard Lancaster, and Kris Ainsworth, the petition made no factual assertions regarding alleged actions performed by these defendants. Instead, the petition asserted only that Dale Lancaster was the "sole manager" of Quad States and that James Richard Lancaster and Kris Ainsworth were "qualifying parties" for the company. Attached as exhibits to the petition were the following documents: (1) the June 2, 2008 subcontract agreement between Spinks and Quad States, (2) Spinks' itemized proposals dated May 6, 2008, and (3) a copy of the "Affidavit of Substantial Competition and Termination of Work" executed by the owner and evidence of its filing in the public records on March 9, 2010.

All four of the defendants answered the petition, and in October of 2015, the individual defendants filed a peremptory exception raising the objection of no cause of action. In their exception, the individual defendants argued that the petition asserted a cause of action against only Quad States to recover sums owed under the subcontract agreement. Further, the exception averred that under La. R.S. 12:1320, members, managers, employees, and agents of limited liability companies are not personally liable for the debts and obligations of the company; therefore, there was no legal basis for a claim against either Dale Lancaster in his capacity as a member of Quad States, or against Kris Ainsworth in his capacity an employee. With regard to James Richard Lancaster, the defendants maintained that he was not an employee, member, or manager of the company at the time of the events at issue in the suit. At the March 21, 2016 hearing on the exception before the district court, Spinks argued that its cause of action against the individual defendants arose under La. R.S. 9:4814, which provided it a direct cause of action against the agents of a contractor for knowingly failing to apply money received on a construction contract to settle the claims of a seller of movables or laborer.

In a judgment signed on May 9, 2016, the district court sustained the exception of no cause of action and dismissed with prejudice the claims against the individual defendants. In written reasons for judgment, the district court found that a cause of action under La. R.S. 9:4814 was subject to the requirements of the Louisiana Private Works Act ("LPWA"). In particular, the district court's written reasons found that the requirements for filing a claim or privilege under the LPWA under La. R.S. 9:4822, as well as the attendant one-year prescriptive period under La. R.S. 9:4823(A)(2) for filing an action to enforce a claim or privilege, were applicable to a claim brought under La. R.S 9:4814. On that basis the district court held that the suit against the individual defendants was prescribed because Spinks had not filed an action to enforce its claim within the applicable prescriptive period. Furthermore, the district court did not grant Spinks an opportunity to amend its petition under La. C.C.P. art. 934. Spinks filed a motion for new trial, which was denied by the trial court in a judgment signed on September 28, 2016. Spinks timely filed the instant devolutive appeal.

ISSUES ON REVIEW

Spinks assigns three errors to the district court's judgment. The first and second assignments of error relate to that portion of the district court's written reasons for judgment indicating that Spinks claims against the individual defendants were prescribed. First, Spinks contends that the district court erred in conditioning an action under La. R.S. 9:4814 upon the filing and enforcement of a lien under the LPWA, and thereby applying the one-year prescriptive period contained in La. R.S. 9:4823. Second, Spinks argues that the district court improperly supplied an objection of prescription sua sponte. In its third assignment of error, Spinks challenges the district court's ruling, sustaining the exception of no cause of action and dismissing the action against the individual defendants with prejudice without first allowing Spinks the opportunity to amend.

The reviewing court conducts a de novo review of a district court's ruling sustaining an exception of no cause of action, because the exception raises a question of law, and the lower court's decision is based only on the sufficiency of the petition. Adams v. Owens-Corning Fiberglas Corp., 2004-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 976, writ denied, 2005-2501 (La. 4/17/06), 926 So.2d 514. With regard to Spinks' first and second assignments of error, we note that appellate courts review judgments, not reasons for judgment. Wooley v. Lucksinger, 2009-0571 (La. 4/1/11), 61 So.3d 507, 572. Further, judgments are often upheld on appeal for reasons different than those assigned by the district court. Id. Because we conclude the judgment correctly sustained the exception of no cause of action filed by the individual defendants, we need not address the district court's findings regarding prescription. Thus, we decline to consider the issues raised in Spinks' first and second assignments of error, and consider only the propriety of the district court's decision to sustain the exception of no cause of action and to not allow amendment of the petition under La. C.C.P. art. 934.

LAW AND DISCUSSION

No Cause of Action

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to Spinks' right to judicially assert the action against the defendants. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1238 (La. 1993). The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 118. All facts pled in the petition must be accepted as true. Rebardi v. Crewboats, Inc., 2004-0641 (La. App. 1st Cir. 2/11/05), 906 So.2d 455, 457. Further, the facts shown in any annexed documents must also be accepted as true. B & C Electric, Inc. v. East Baton Rouge Parish School Bd., 2002-1578 (La. App. 1st Cir. 5/9/03), 849 So.2d 616, 619 ; Cardinale v. Stanga, 2001-1443 (La. App. 1st Cir. 9/27/02), 835 So.2d 576, 578. Other than the documents annexed to the petition, no evidence may be introduced to support or controvert the exception raising the objection of no cause of action. See La. C.C.P. art. 931.

In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Livingston Parish Sewer Dist. No. 2 v. Millers Mut. Fire Ins. Co. of Texas, 99-1728 (La. App. 1st Cir. 9/22/00), 767 So.2d 949, 952, writ denied, 2000-2887 (La. 12/8/00), 776 So.2d 1175.

The statute under consideration herein, La. R.S. 9:4814, allows for the recovery of civil penalties, in addition to the sums due, attorney fees, and costs. Statutes creating liens or privileges or providing for penalties and attorney fees must be given strict construction. Cosman v. Cabrera, 2009-0265 (La. App. 1st Cir. 10/23/09), 28 So.3d 1075, 1082, n.7 ; Craig v. Bantek West, Inc., 2004-0229 (La. App. 1st Cir. 9/17/04), 885 So.2d 1241, 1245. Further, the law recognizes that although the LPWA must be strictly construed as being in derogation of general contract law, courts should not overlook the clear legislative intent, which is to protect contractors, laborers, materialmen, and subcontractors engaged in construction and repair projects. Burdette v. Drushell, 2001-2494 (La. App. 1st Cir. 12/20/02), 837 So.2d 54, 68, writ denied, 2003-0682 (La. 5/16/03), 843 So.2d 1132.

At issue in the instant appeal is whether Spinks' petition states a cause of action against the individual defendants under La. R.S. 9:4814. Louisiana Revised Statutes 9:4814 provides as follows:

A. No contractor, subcontractor, or agent of a contractor or subcontractor, who has received money on account of a contract for the construction, erection, or repair of a building, structure, or other improvement, including contracts and mortgages for interim financing, shall knowingly fail to apply the money received as necessary to settle claims to sellers of movables or laborers due for the construction or under the contract. Any seller of movables or laborer whose claims have not been settled may file an action for the amount due, including reasonable attorney fees and court costs, and for civil penalties as provided in this Section.
B. When the amount misapplied is one thousand dollars or less, the civil penalties shall be not less than two hundred fifty dollars nor more than seven hundred fifty dollars.
C. When the amount misapplied is greater than one thousand dollars, the civil penalties shall be not less than five hundred dollars nor more than one thousand dollars, for each one thousand dollars in misapplied funds.
D. A contractor, subcontractor, or agent of a contractor or subcontractor who is found by the court to have knowingly failed to apply construction contract payments as required in Subsection A shall be ordered by the court to pay to plaintiff the penalties provided in Subsection B or C, as may be applicable, and the amount due to settle the claim, including reasonable attorney fees and court costs.

Relevant to the instant facts, La. R.S. 9:4814 creates a cause of action against the agent of a contractor where money is received by the agent on account of a construction contract, but the contractor's agent knowingly fails to apply the money received to settle the claims of sellers of movables or laborers. After reviewing and strictly construing the statutory language, we find that Spinks' petition fails to state a cause of action against the individual defendants under La. R.S. 9:4814 for the reasons set forth below.

First, the petition fails to allege any facts, which if accepted as true, demonstrate that the three individual defendants are agents of Quad States. As to James Richard Lancaster and Kris Ainsworth, the petition alleges only their domicile, status, and that each is "a qualifying party" for Quad States. On appeal, Spinks argues that James Richard Lancaster and Kris Ainsworth are qualifying parties for Quad States for purposes of complying with the requirements of the State Licensing Board for Contractors, and as such are agents for the contractor under La. R.S. 9:4814. We disagree.

A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary or agent, to transact one or more affairs for the principal. See La. C.C. art. 2989 ; see also McLin v. Hi Ho, Inc., 2012-1702 (La. App. 1st Cir. 6/7/13), 118 So.3d 462, 467-468. A mandatary's power or authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct. Boulos v. Morrison, 503 So.2d 1, 3 (La. 1987) An actual agency is a contract between the principal and agent created either expressly or by implication. AAA Tire & Export, Inc. v. Big Chief Truck Lines, Inc., 385 So.2d 426, 429 (La. App. 1st Cir.1980). Agency is created expressly by the oral or written agreements of the parties. Id. It is created by implication when, from the nature of the principal's business and the position of the agent within the business, the agent is deemed to have permission from the principal to undertake certain acts which are reasonably related and necessary concomitants of the agent's express authorization. Id.

In contrast, a "qualifying party" under La. R.S. 37:2150.1(10) is statutorily defined as "a natural person designated by the contractor to represent the contractor for the purpose of complying with the provisions of this Chapter including without limitation meeting the requirements for the initial license and/or any continuation thereof." (Emphasis added.) The above-quoted definition of "qualifying party" is located in Chapter 24 of Title 37, which establishes the State Licensing Board for Contractors and the licensing requirements associated therewith. See La. R.S. 37:2151 and 37:2156.1. Clearly, the scope of representation granted a "qualifying person" as defined in La. R.S. 37:2150.1(10) is limited to that individual's interactions with the State Licensing Board for Contractors and in connection with the issuance and maintenance of a contractor license. See also La. R.S. 37:2156.1(D)(1).

In the absence of any other factual allegations regarding James Richard Lancaster or Kris Ainsworth and Quad States, we find the petition lacks any factual allegation, which if accepted as true would establish an agency contract expressly or by implication between James Richard Lancaster or Kris Ainsworth and Quad States. Further, the petition lacks the necessary factual allegations that these defendants had express or implied authority to transact the affairs of Quad State in a manner that would give rise to a cause of action under La. R.S. 9:4814.

As to the allegations regarding Dale Lancaster, the petition alleges only that he was the "sole member" of Quad States. Spinks maintains that under La. R.S. 12:1311 and 12:1317, the allegation that Dale Lancaster is the sole member of Quad States is sufficient to plead that he is an agent of the company for purposes of La. R.S. 9:4814. According to Spinks, La. R.S. 12:1311 and 12:1317 establish "default" rules for management and agency by members, which effectively give rise to a presumption that a sole member of a limited liability company is also an agent thereof. This assertion is not borne out by review of the law on this issue.

Louisiana Revised Statutes 12:1311 provides:

Except as otherwise provided in the articles of organization, the business of the limited liability company shall be managed by the members, subject to any provision in a written operating agreement restricting or enlarging the management rights and duties of any member or group or class of members. [Emphasis added]

Louisiana Revised Statutes 12:1317 states:

A. Each member, if management is reserved to the members, or manager, if management is vested in one or more managers pursuant to R.S. 12:1312, is a mandatary of the limited liability company for all matters in the ordinary course of its business other than the alienation, lease, or encumbrance of its immovables, unless such mandate is restricted or enlarged in the articles of organization or unless such member or manager lacks the authority to act for the limited liability company and the person with whom he is dealing has knowledge of the fact that he lacks such authority.
B. Persons dealing with a member, if management is reserved to the members, or manager, if management is vested in one or more managers pursuant to R.S. 12:1312, of the limited liability company shall be deemed to have knowledge of restrictions on the authority of such a member or manager contained in a written operating agreement if the articles of organization of the limited liability company contain a statement that such restrictions exist.
C. Persons dealing with a limited liability company may rely upon a certificate of any person named in the statement provided for in R.S. 12:1305(C)(5) , or, if no such person or persons are so named, upon a certificate of one or more managers or members, to establish the
membership of any member, the authenticity of any records of the limited liability company, or the authority of any person to act on behalf of the limited liability company, including but not limited to the authority to take actions referred to in R.S. 12:1318(B). [Emphasis added.]

Review of La. R.S. 12:1311 and 12:1317 demonstrate that rather than establishing a "default rule" that a sole member of a limited liability company is an agent of the company, both statutes instead require a party dealing with a member to refer to the articles of organization and/or written operating agreement, if applicable, to determine whether the member is an agent, and if so, the scope of that agency. As such, we find the lone factual assertion in Spinks' petition that Dale Lancaster is the sole member of Quad States is insufficient to support a legal assertion that he is an agent of the company for purposes of La. R.S. 9:4814.

Second, in addition to the failure to allege agency, the petition lacks the critical factual allegation that the individual defendants "received money on account of a contract for construction, erection, or repair of a building, structure, or other improvement" but "knowingly" failed to apply the money received as necessary to settle the claims of the plaintiff due for the construction or under the contract. See La. R.S. 9:4814(A) ; see also Cosman, 28 So.3d at 1082.

Based on the above findings, we find that Spinks has failed to state a cause of action against the individual defendants under La. R.S. 9:4814 and affirm the district court's ruling sustaining the exception of no cause of action; however, we find merit in Spinks' contention that the district court erred in dismissing the petition with prejudice before allowing Spinks an opportunity to amend the petition pursuant to La. C.C.P. art. 934.

Amendment of the Petition

Louisiana Civil Code of Procedure art. 934 mandates that when the grounds pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order amendment of the petition within a delay set out by the court. Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 2011-2254 (La. App. 1st Cir. 7/10/12), 97 So.3d 595, 600 ; Leboeuf v. Wal-Mart Stores, Inc., 2004-2260 (La. App. 1st Cir. 4/5/06), 934 So.2d 790, 796, writ denied, 2006-1070 (La. 6/23/06), 930 So.2d 987. In the instant case, where the allegations of the petition are conclusory as to the individual defendants and fail to specify the acts that establish a cause of action under La. R.S. 9:4814, there is a possibility that the grounds for the exception of no cause of action could be removed by amendment. See Id. Therefore, that portion of the district court's judgment dismissing Dale Lancaster, James Richard Lancaster, and Kris Ainsworth from the suit with prejudice must be reversed and this matter remanded to allow Spinks an opportunity to amend its petition. See La. C.C.P. art. 934 ; Charming Charlie, Inc., 97 So.3d at 600 ; and Leboeuf, 934 So.2d at 797.

CONCLUSION

For the above reasons, that portion of the district court's judgment sustaining the peremptory exception raising the objection of no cause of action as to the claims against Dale Lancaster, James Richard Lancaster, and Kris Ainsworth is affirmed. That portion of the judgment dismissing Dale Lancaster, James Richard Lancaster, and Kris Ainsworth from this suit with prejudice is reversed. Further, this matter is remanded to the district court with instructions that the court issue an order to Spinks Construction, Inc. to amend its petition, if possible, to state a cause of action against Dale Lancaster, James Richard Lancaster, and Kris Ainsworth within a reasonable time delay pursuant to La. C.C.P. art. 934, consistent with the views expressed herein. All costs of this appeal are assessed to Spinks Construction, Inc.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

      Spinks initially opposed the exception at the district court level arguing that the petition stated a cause of action against the individual defendants under La. R.S. 9:4814, 9:2784, and 12:1320(D). However, as noted above, by the time of the March 2016 hearing, Spinks had correctly acknowledged that it did not have a claim against the individual defendants under La. R.S. 9:2784 and 12:1320(D). First, La. R.S. 9:2784, provides only a cause of action against contractors or subcontractors, not their agents, for failure to promptly pay subcontractors, sub-subcontractors, and suppliers following receipt of payment from the owner. Therefore, it cannot provide a basis for recovery against parties alleged to be "agents" such as the individual defendants herein. Second, prior to the hearing on the exception, the Louisiana Supreme Court issued its decision in Nunez v. Pinnacle Homes, L.L.C., 2015-0087 (La. 10/14/15), 180 So.3d 285, 290, which expressly held that a licensed contractor was not a "professional" subject to the personal liability exception contained in La. R.S. 12:1320(D), which renders individual members and managers of a limited liability company liable for fraud, breach of professional duty, or other negligent and wrongful acts by such a person.

      This court issued a rule to show cause order to the parties as to the timeliness of this appeal, noting that the motion for new trial appeared to be filed late, and, thus, did not extend the delay for seeking an appeal. Spinks filed a response demonstrating that the motion for new trial was timely and supplemented the record to support its position. On September 6, 2017, this court issued an order maintaining the appeal. See Spinks Construction, Inc. v. Quad States Construction, LLC, et al., 2017-0580 (La. App. 1st Cir. 9/6/17) (unpublished).

      Louisiana Revised Statutes 12:1305(C)(5) provides:
      The articles of organization may set forth the following:
      * * * *
      (5) A statement that persons dealing with the limited liability company may rely upon a certificate of one or more managers, members, or other certifying officials, whose names are included in the statement, to establish the membership of any member, the authenticity of any records of the limited liability company, or the authority of any person to act on behalf of the limited liability company, including but not limited to the authority to take the actions referred to in R.S. 12:1318(B), unless otherwise provided in the articles of organization.


author: HIGGINBOTHAM, J.

text:
    Chris SCHOUEST d/b/a Schouest Homebuilders v. Brennan VOCLAIN
    NO. 2017 CA 0706
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017
    Joseph J. Weigand, Jr. Houma, LA, Attorney for Defendant-Appellant, Brennan Voclain
    Randall M. Alfred, Houma, LA, Attorney for Plaintiff-Appellee, Chris Schouest d/b/a Schouest Homebuilders
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

In this appeal, a property owner challenges the trial judgment that upheld a portion of a lien on his property in favor of a licensed contractor pursuant to La. R.S. 9:4801, and that dismissed his reconventional demand for damages and attorney's fees pursuant to La. R.S. 9:4855.

BACKGROUND

Defendant-appellant, Brennan Voclain, is the owner of the property described as 504 Dax's Place in Thibodaux, Louisiana. Plaintiff-appellee, Chris Schouest, D/B/A Schouest Homebuilders (Mr. Schouest) is a licensed contractor. Mr. Schouest and Mr. Voclain entered into an oral contract for the construction of a home on Mr. Voclain's property for a total construction cost of $177,475.46. On June 20, 2015, Mr. Schouest signed a written contract prepared by Ann Storm, Mr. Voclain's agent and mother, outlining the terms of the agreement, but the written contract was never signed by Mr. Voclain. Under the terms of the written contract, Mr. Schouest was to be paid 10% of the total construction cost estimated to be approximately $17,747.55 for his work.

During construction of the home, Mr. Schouest was paid on four separate occasions an average of $3,200.00, for a total payment of $12,800.00. Mr. Schouest received his last payment on September 25, 2015. After becoming unsatisfied with Mr. Schouest's attention to the construction project, on October 30, 2015, through an email, Mr. Voclain terminated his contract with Mr. Schouest. At this time, the house was not complete but nearing completion.

On November 30, 2015, Mr. Schouest sent a Notice of Nonpayment and Statement of Lien Rights to Mr. Voclain, along with an invoice that requested payment in the amount of $6,200.00. The notice was received by Mr. Voclain on December 7, 2015. Mr. Voclain did not remit any payments to Mr. Schouest after he received the notice.

Mr. Schouest then filed a Statement of Lien and Privilege in Lafourche Parish on January 8, 2016, and a Petition for Recognition of Lien and Money Damages in the 32nd Judicial District Court on January 15, 2016. Mr. Voclain answered Mr. Schouest's petition and filed a reconventional demand contending that Mr. Schouest's lien failed to comply with La. R.S. 9:4801 and that the statements in the lien were falsified in violation of La. R.S. 9:4855, entitling him to damages and attorney fees.

A trial was held on October 19, 2016. After trial, the trial court in detailed written reasons, found based on the testimony and evidence, that Mr. Schouest was a contractor for the construction of Mr. Voclain's house for the purposes of La. R.S. 9:4801, and the lien placed on Mr. Voclain's property was proper and should be recognized as bearing against Mr. Voclain's property. The trial court pointed out that Mr. Schouest's lien for $6,200.00 included a $1,300.00 balance owed to painters which was paid by Mr. Voclain, and a $1,700.00 charge for a final walk through which was never conducted due to Mr. Schouest's termination prior to the house's completion. Therefore, the trial court reduced the amount owed to Mr. Schouest to $3,200.00. The trial court also concluded that Mr. Voclain's reconventional demand should be denied.

On January 26, 2017, a judgment in conformity with the trial court's written reasons was signed in favor of Mr. Schouest, and against Mr. Voclain, in the sum of $3,200.00 as well as $300.00 for the cost of filing the lien and interest. The judgment also recognized the lien filed by Mr. Schouest on January 8, 2016, encumbering Mr. Voclain's property located at 504 Dax's Place, and dismissed Mr. Voclain's reconventional demand with prejudice.

It is from this judgment that Mr. Voclain appeals, assigning error to the validity of the lien, rather than Mr. Schouest's underlying claim for money owed. Specifically, Mr. Voclain claims that the trial court erred in: (1) concluding that the oral contract to recommend and supervise subcontractors, and not pay for materials or subcontractors, created a lien right pursuant to La. R.S. 9:4801 ; and (2) failing to find that Mr. Schouest willfully, knowingly, and unlawfully falsified the lien affidavit entitling him to an award of damages and attorney's fees pursuant to La. R.S. 9:4855.

DISCUSSION

In his first assignment of error, Mr. Voclain contends that the oral agreement entered into by him and Mr. Schouest, in which Mr. Schouest was to recommend and supervise subcontracts for the construction of 504 Dax Place, but not pay for materials or subcontractors, did not create a right to a lien on his property pursuant to La. R.S. 9:4801.

Louisiana Revised Statute 9:4801 creates a privilege, or lien right, on an immovable for "Contractors, for the price of their work." The definition of the term "contractor" is found in La. R.S. 37:2150.1, which provides in pertinent part:

(4)(a) "Contractor" means any person who undertakes to, attempts to, or submits a price or bid or offers to construct, supervise, superintend, oversee, direct, or in any manner assume charge of the construction, alteration, repair, improvement, movement, demolition, putting up, tearing down, or furnishing labor, or furnishing labor together with material or equipment, or installing the same for any building, ... housing, or housing development, improvement ... (b) The term "contractor" includes general contractors, subcontractors, architects, and engineers who receive an additional fee for the employment or direction of labor, or any other work beyond the normal architectural or engineering services.
(Emphasis added.)

Mr. Voclain, testified that he and Ms. Storm "hired Mr. Schouest to be a supervisor for this job." Ms. Storm testified that "[Mr. Schouest] was used as a supervisor, on the job, providing names, sources of [subcontractors], and to ultimately supervise the entire job." This testimony, when viewed in light of the definition of a contractor in La. R.S. 37:2150.1, establishes that Mr. Schouest was a contractor for the construction of Mr. Voclain's home, and he is entitled to the privilege recognized in La. R.S. 9:4801.

Additionally, this court has recognized that an oral contract, as opposed to a written contract, can create the privilege or lien right. See Burdette v. Drushell, 2001-2494 (La. App. 1st Cir. 12/20/02), 837 So.2d 54, 69, writ denied, 2003-0682 (La. 5/16/03), 843 So.2d 1132. Under these circumstances, Louisiana Revised Statutes 9:4801 and 37:2150.1 do not require the agreement to be in a specific form. "Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent." La. Civ. Code art. 1927. Louisiana Revised Statute 9:4801 does not stipulate a specific type of agreement between owner and the listed person(s). The definition of "contractor" in La. R.S. 37:2150.1 includes with emphasis added "any person who undertakes to, attempts to, or submits a price or bid or offers to" supervise the construction for any building or housing. Mr. Schouest offered to undertake the role of supervisor for the construction of Mr. Voclain's home. Mr. Schouest made a formal offer by signing the contract presented to him by Ms. Storm. Mr. Voclain implicitly accepted the offer by allowing Mr. Schouest to work as supervisor and paying Mr. Schouest a total of $12,800.00 prior to the termination of the contract. Mr. Voclain's actions and inactions are clearly indicative of consent to the contract. Thus, the parties had a contract, and Mr. Schouest, who was hired as a contractor to supervise the construction, was entitled to the privilege described in La. R.S. 9:4801.

In his second assignment of error, Mr. Voclain contends that the trial court erred in failing to find the verified lien signed by Mr. Schouest was willfully, knowingly, and unlawfully falsified, entitling him to attorney fees under La. R.S. 9:4855. Specifically, Mr. Voclain contends that in the lien, Mr. Schouest swore that there was a written contract, and that he paid for labor and materials in the construction of 504 Dax's Place, and then at trial, admitted he had not paid for labor and materials.

Upon examination of the sworn lien affidavit, Mr. Schouest did not state under oath that a written contract existed. Further, the lien affidavit says that Mr. Voclain is "indebted unto affiant for labor and/or materials supplied by affiant in the construction." (Emphasis added.) Mr. Schouest testified that he was referring to his own labor as supervisor when signing this sworn statement. No evidence was presented to prove that Mr. Schouest's assertion is untrue.

We find no error in the trial court's conclusion that Mr. Schouest did not willfully, knowingly, and unlawfully falsify any statements when filing his lien. Thus, Mr. Voclain's request for damages and attorney's fees pursuant to La. R.S. 9:4855 was properly denied.

CONCLUSION

After a careful review of the record and for the stated reasons, we affirm the trial court's judgment in favor of Chris Schouest d/b/a Schouest Homebuilders and against Brennan Voclain. We also affirm the dismissal of the reconventional demand.

All costs of this appeal are assessed to plaintiff-appellant, Brennan Voclain.

AFFIRMED.

Holdridge J. concurs

Penzato, J. concurs

      Louisiana Revised Statute 9:4801 states, in pertinent part: "The following persons have a privilege on an immovable to secure the following obligations of the owner arising out of a work on the immovable: (1) Contractors, for the price of their work. (2) Laborers or employees of the owner, for the price of work performed at the site of the immovable."

      Louisiana Revised Statute 9:4855 states in pertinent part:
      In the event any liens are perfected under the provisions of this Part against any immovable property for work or improvements covered under the provisions of this Subpart and the contractor has failed to comply with the provisions of this Subpart, or, if having technically complied with this Subpart, has willfully, knowingly, and unlawfully falsified any statements or fraudulently obtained the signature of the owner or his agent, such owner shall have a civil cause of action therefor, and shall be entitled to reasonable damages and attorney fees.


text:
    Anthony J. MONTECINO v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS
    NO. 2017 CA 0735
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: DECEMBER 21, 2017 Rehearing Denied January 4, 2018 Rehearing Denied January 23, 2018
    Anthony J. Montecino, Homer, LA, Plaintiff-Appellant, In Proper Person
    Susan Wall Griffin, Baton Rouge, LA, Attorney for Defendant-Appellee, Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

Anthony J. Montecino, an inmate in the custody of the Louisiana Department of Public Safety and Corrections (DPSC), appeals a Nineteenth Judicial District Court judgment that dismissed his suit on March 30, 2017, with prejudice, and at his cost. The district court judgment was rendered after de novo review of the record and adoption of a Commissioner's Report and Recommendation indicating that Montecino's petition for relief should be denied. The Commissioner's report noted that Montecino's diminution of sentence was calculated under 1995 La. Acts, No. 1099, which amended La. R.S. 15:571.3, so that Montecino was deemed to have earned all good time to which he is entitled at the beginning of his sentence, per DPSC regulations. His earned good time was forfeited due to disciplinary infractions; thus, Montecino no longer has any remaining good time credits.

According to the record, Montecino filed a motion for appeal in proper person, and was granted pauper status. Montecino's pro se appellate brief fails to comply with the applicable Uniform Rules-Courts of Appeal, Rule 2-12.4. The brief does not contain any assignments of error or issues for review, no record references, no briefing of arguments confined to the issues on appeal, no district court rulings, and no jurisdictional statement. While the sanction to be imposed for a non-conforming brief is discretionary, this Court routinely considers non-compliant briefs when filed by pro se parties. See Sheridan v. Pride & Hope Ministry Family Support Services , 2013-1666 (La. App. 1st Cir. 5/2/14), 147 So.3d 717, 719 ; Williams v. Fischer , 439 So.2d 1111, 1112 (La. App. 1st Cir. 1983). Thus, in light of Montecino's pro se status wherein he is representing himself in this case, we will attempt to determine the substance of his arguments and treat them as though properly raised.

Apparently, Montecino is dissatisfied with the Commissioner's report and recommendation that the DPSC had the authority to institute a policy that credits and deems earned all good time to which an offender is entitled at the beginning of his sentence, as opposed to an older procedure of calculating the amount earned and/or forfeited each month. Montecino also believes that the decision in Cao v. Stalder , 2004-0650 (La. App. 1st Cir. 5/6/05), 915 So.2d 851, 857-58, is controlling and mandates that his good time credits cannot be forfeited.

As explained by the Commissioner, however, the legislature sets the rates for earning diminution of sentence, and DPSC determines the procedures for earning and forfeiting good time, pursuant to statutory authority provided by La. R.S. 15:821. Montecino's good time is calculated under Act 1099, which was effective on January 1, 1997, and amended La. R.S. 15:571.3(B), by providing that an offender convicted for a crime of violence for the first time could earn diminution of sentence at a rate of 3 days for every 17 days in actual custody. We note that the date of the commission of the offense controls the computation of the diminution of sentence. See State ex rel. Bickman v. Dees , 367 So.2d 283, 287 (La. 1978).

Since Montecino is serving a 20-year sentence for manslaughter, a crime of violence as defined by La. R.S. 14:2(B), that was committed on August 18, 2010, and his sentencing date was on August 6, 2012, he is not entitled to earn diminution of sentence at an increased rate (as provided in the older version of the statute). Nothing in the record indicates an error in the computation of Motecino's good time credits by DPSC. "[A] strict construction of the statute mandates the conclusion that unless good time has been earned by an inmate, it cannot be forfeited. Therefore, forfeiture of prospective or future good time is not authorized by the statute, and the imposition of such a penalty is excessive." [Emphasis in original.] Cao , 915 So.2d at 857-58. However, the interpretation expressed in Cao and relied on by Montecino, does not apply to his forfeiture of good time credits.

DPSC instituted a policy that was effective August 1, 2012, where an offender is credited with and deemed to have earned all good time to which the offender is entitled at the beginning of his sentence; thus, Montecino's good time is not prospective or future as he asserts. Due to DPSC's policy, all of his 1,096 days earned at the rate of 3 days for every 17 days served for his 20-year sentence for manslaughter, are considered earned at the start of his sentence and can be forfeited. According to the record and the Commissioner's report, Montecino has lost or forfeited 1,245 days of good time for disciplinary infractions that were not appealed. Consequently, Montecino's forfeitures clearly outnumbered his credits at the time of his appeal.

The policy in question was operative within the statutory mandates and authority given to DPSC by La. R.S. 15:821. Moreover, La. R.S. 15:571.4 provides for the forfeiture of diminution of sentence, as follows:

A. Determination shall be made by the secretary as to whether good time or credits toward the reduction of the projected good time parole supervision date has been earned by inmates in [DPSC's] custody. Good time, or credits toward the reduction of the projected good time parole supervision date, which has been earned by inmates in the custody of [DPSC] ..., shall not be forfeited except as provided in Subsection D of this Section.
* * *
D. [DPSC] shall adopt rules to govern the imposition of the forfeiture of good time or credits toward the reduction of the projected good time parole supervision date for the causes enumerated in Subsection B of this Section and the restoration of good time or credits toward the reduction of the projected good time parole supervision date under the conditions enumerated in Subsection C of this Section....

This statute establishes that DPSC, and its secretary, have the authority and discretion to regulate how good time is both earned and forfeited; thus, DPSC's policy crediting all good time at the beginning of an offender's sentence is valid under both La. R.S. 15:821 and La. R.S. 15:571.4.

After a thorough review of the record and the Commissioner's report, we find no error in the district court's judgment that adopted the Commissioner's recommendation. For these reasons, we affirm the district court's judgment dismissing Montecino's petition. We issue this summary disposition in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.2(A)(2), (4), (5), and (6). All costs associated with this appeal are assessed against plaintiff-appellant Anthony J. Montecino.

AFFIRMED.

Holdridge J., concurs in the result.

      Louisiana Revised Statute 15:821 provides, in pertinent part, "The functions of [DPSC] shall comprise administrative functions of the state now or hereafter authorized by law to be exercised in relation to the administration, management and operation of all state institutions for the care, custody and correction of persons sentenced for felonies or misdemeanors."

      Although Montecino filed this appeal in forma pauperis, since we find no merit in his appeal, the appellate costs may be assessed against him. See Richardson v. North Oaks Hospital , 2011-1258 (La. App. 1st Cir. 2/13/12), 91 So.3d 361, 365 n.5.