author: CHAISSON, J.

text:
    Tracy Ray LOMONT v. Michelle MYER-BENNETT and XYZ Insurance Company
    NO. 16-CA-436
    Court of Appeal of Louisiana, Fifth Circuit.
    December 14, 2016

      COUNSEL FOR PLAINTIFF/APPEL-LEE, TRACY RAY LOMONT, Frank W. Lagarde, Jr., Melanie M. Licciardi
    COUNSEL FOR DEFENDANT/APPELLANT, MICHELLE MYER-BEN-NETT, Andrew T. Lilly
    Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Robert M. Murphy
   CHAISSON, J.

hln this legal malpractice action, attorney Michelle Myer-Bennett appeals a judgment of the district court which sustained Tracy Lomont’s exceptions of lack of subject matter jurisdiction and res judi-cata, dismissed with prejudice her claims and affirmative defenses as they relate to fraud and/or non-conformity of the petition, and granted Ms. Lomont’s motion for sanctions. For the reasons that follow, we affirm the judgment insofar as it dismisses with prejudice Ms. Myer-Bennett’s claims and affirmative defenses as they relate to non-conformity of the petition; we reverse the judgment insofar as it sustains the exceptions of lack of subject matter jurisdiction and res judicata, and remand to the district court with instructions that he conduct a hearing on those pleadings in accordance with the instructions contained in this opinion; we vacate the judgment as premature insofar as it grants sanctions against Ms. Myer-Bennett and dismisses with prejudice her claims and affirmative defenses as they relate to fraud. Further, we remand to the district court for consideration of Ms. Lomont’s motion for sanctions once it has appropriately considered Ms. Myer-Bennett’s re-urged exception of peremption applying a “law of the case” analysis.

FACTS AND PROCEDURAL HISTORY

This is the second time that this case comes before this Court on appeal. The facts regarding the alleged legal malpractice, and the early procedural history of the case, are set forth in the first appeal of this matter. See, Tracy Ray Lomont v. Michelle Myer-Bennett, 14-351 (La.App. 5 Cir. 10/29/14), 164 So.3d 843. Subsequent to Ms. Lomont filing her suit for legal malpractice, Ms. Myer-Bennett filed an exception of peremption on the basis that more than three years had passed since the date of the alleged malpractice. In response to Ms. Myer-Bennett’s exception of peremption, Ms. Lomont filed a supplemental and amending petition alleging that Ms. Myer-Bennett acted fraudulently in misrepresenting and/or ^suppressing the truth regarding the alleged malpractice. In a second supplemental and amending petition, Ms. Lomont alleged with particularity the acts of fraud allegedly committed by Ms. Myer-Bennett in order to conceal her malpractice. After a hearing on the matter, the district court sustained Ms. Myer-Ben-nett’s exception of peremption, specifically finding that her actions after the discovery of her alleged malpractice did not amount to fraud. On appeal, this Court found the district court was not manifestly erroneous in its factual finding regarding fraud and therefore affirmed the judgment dismissing Ms. Lomont’s suit. Lomont, 164 So.3d at 850. The Louisiana Supreme Court granted Ms. Lomont’s writ application to determine the correctness of the lower courts’ rulings, and thereafter reversed those rulings, finding that Ms. Myer-Bennett committed fraud within the meaning of La. R.S. 9:5605(E), and that the per-emptive periods contained in La. R.S. 9:5605 were therefore not applicable. Lomont v. Myer-Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620, 639.

Subsequent to a denial of a request for rehearing before the Supreme Court, Ms. Myer-Bennett filed in the district court a pleading titled “Exceptions, Affirmative Defenses, and Answer” in response to Ms. Lomont’s petitions. In that pleading, Ms. Myer-Bennett re-urges the exception of peremption, along with various other exceptions and defenses. Ms. Myer-Ben-nett’s re-urged exception of peremption has yet to be set for hearing by the district court. Initially, in response to the re-urged exception of peremption, Ms. Lomont filed a motion for an expedited status conference for the purpose of “simplification of the issues and the elimination of frivolous claims, exceptions or defenses;” however, Ms. Lomont later withdrew her request for a status conference. Ms. Lomont then filed exceptions of lack of subject matter jurisdiction and res judicata, and a motion for sanctions against Ms. Myer-Bennett for the filing of her re-urged exception. After a | shearing in which counsel for both parties presented argument to the district court on Ms. Lomont’s exceptions and motion for sanctions, but in which no evidence was taken, the court took the matter under advisement and later issued a judgment in which it sustained Ms. Lomont’s exceptions of lack of subject matter jurisdiction and res judicata, dismissed with prejudice her claims and affirmative defenses as they relate to fraud and/or non-conformity of the petition, and granted her motion for sanctions. It is from this judgment that Ms. Myer-Bennett now appeals.

ASSIGNMENTS OF ERROR

In this appeal, Ms. Myer-Bennett assigns the following five errors:

1) To the extent he considered Lomont’s April 12, 2016 (sic) under an exception standard rather than a motion to strike standard, the trial judge committed legal error.
2) The trial judge committed legal error (and if analyzed as a motion to strike, he abused his discretion) by sustaining a declinatory exception of lack of subject matter jurisdiction, apparently intending to preclude Myer-Ben-nett from maintaining certain defenses.
3) The trial judge committed legal error (and if analyzed as a motion to strike, he abused his discretion) sustaining a peremptory exception of res judicata, apparently intending to preclude Myer-Bennett from re-urging a peremptory exception of peremption.
4) The trial judge committed legal error (and if analyzed as a motion to strike, he abused his discretion) by “dismissing with prejudice” Myer-Bennett’s peremption and pleading nonconformity defenses.
5)The trial judge’s sanctions award, based on his determination that Myer-Bennett violated Article 863 of the Code of Civil Procedure, amounts to manifest error.

DISCUSSION

In Ms. Myer-Bennett’s first assignment of error she raises a procedural objection to the propriety of Ms. Lomont, as the plaintiff, responding to Ms. Myer-LBennett’s exceptions and affirmative defenses with exceptions of her own. She argues that exceptions are defensive pleadings, and that plaintiffs, like Ms. Lomont, cannot utilize exceptions to respond to pleadings of the defendant. She further maintains that the appropriate procedural device for a plaintiff to object to, and seek dismissal of, an allegedly improperly re-urged peremptory exception, is a motion to strike, and that the standard of review for this Court to apply to rulings on exceptions is “de novo”, whereas the standard of review to apply to a ruling on a motion to strike is “abuse of discretion”. Ms. Lomont does not directly address Ms. Myer-Ben-nett’s procedural argument, but instead argues that regardless of whether the issue raised is analyzed under an exception standard or a motion to strike standard, that the result would be the same, i.e., that Ms. Myer-Bennett’s exceptions and affirmative defenses as they relate to fraud and non-conformity of the petition were properly dismissed.

We agree with Ms. Myer-Bennett’s position on this procedural objection. La. C.C.P. art. 921 provides that:

An exception is a means of. defense, other than a denial or avoidance of the demand, used by the defendant, whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him. (emphasis added)

Ms. Lomont’s status as a respondent to Ms. Myer-Bennett’s exceptions of peremption and non-conformity does not render her a defendant, either in a principal demand or an incidental action, such that she is able to avail herself of any of the formal exceptions established by the Louisiana Code of Civil Procedure for defendants to respond. Ms. Myer-Bennett has not filed a reconventional demand, or any other action, against Ms. Lomont, but instead has only filed an exception seeking to have Ms. Lomont’s “action declared legally nonexistent, or barred by effect of law.” See, La. C.C.P. art. 923 (“The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by | ¡¡effect of law, and hence this exception tends to dismiss or defeat the action.”)(emphasis added). Therefore, although Ms. Lomont seeks a dismissal of Ms. Myer-Bennett’s re-urged exception of peremption as barred by effect of law, she does not seek to have any “action,” i.e., demand or claim, of Ms. Myer-Bennett dismissed as barred by effect of law. See, Leger v. Weinstein, 03-1497 (La.App. 3 Cir. 10/27/04), 885 So.2d 701, 707, writ denied, 04-2903 (La. 2/4/05), 893 So.2d 873 (legal malpractice plaintiff cannot use exception to advance res judicata theory; only defendants use exceptions; plaintiff required to prevail on res judicata issue by summary judgment motion).

We therefore find that exceptions of lack of subject matter jurisdiction and res judicata were not the proper procedural vehicle for Ms. Lomont to employ to obtain a dismissal of Ms. Myer-Ben-nett’s re-urged exception of peremption. However, in situations where a mistitled pleading clearly identifies the issue being raised, and adequately sets out the mover’s arguments on that issue and the relief requested, such that notice and due process requirements are sufficiently satisfied, this Court, in the interest of justice, will routinely look beyond the title of the pleading and address the merits of the issue raised. Under the particular facts of this case, upon, review of Ms. Lomont’s pleadings and Ms. Myer-Bennett’s responses thereto, we are convinced that Ms. Myer-Bennett is well aware that the issue raised by Ms. Lomont’s “exceptions,” is whether, in light of the Louisiana Supreme Court’s ruling in the first appeal of this matter, Ms. Myer-Bennett is precluded from re-urging her exception of peremption and also precluded from raising any affirmative defenses as they relate to Ms. Lomont’s fraud allegations. We therefore will exercise our discretion to review the substantive merits of the issues raised by Ms. Lomont’s “exceptions.”

Although both Ms. Lomont’s exception of lack of subject matter jurisdiction and her exception of res judicata seek the same relief, i.e., dismissal of Ms. Myer-LBennett’s re-urged exception of peremption and affirmative defenses related to fraud as a result of the Louisiana Supreme Court’s ruling in the first appeal, she advances separate and distinct grounds in each exception for the dismissal of Ms. Myer-Bennett’s exception and defenses.

Ms. Lomont’s exception of lack of subject matter jurisdiction, although raised as an issue related to the subject matter jurisdiction of the court, advances arguments regarding the hierarchy of the court system in Louisiana and the lack of authority of lower courts to “review” decisions of the Louisiana Supreme Court. Subject matter jurisdiction refers to the courts’ legal power and authoiity to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The constitutionally-established hierarchy of the court system, with the Louisiana Supreme Court established as the court of last resort with supervisory jurisdiction over all other courts, and lower courts having no authority to “review” rulings of the Louisiana Supreme Court or impede execution of its judgments, in no way implicates the subject matter jurisdiction of the lower courts to hear particular classes of action or types of cases. The subject matter jurisdiction of the district court is in no way defeated or affected by the fact that the Louisiana Supreme Court has issued an interlocutory ruling on Ms. Myer-Bennett’s initial exception of peremption, or by the possibility that after full consideration under the 17correct legal precepts, Ms. Myer-Bennett’s re-urged exception of peremption might be disallowed, or, if allowed, again overruled. Therefore, even if Ms. Myer-Bennett were urging the district court to “review” the ruling of the Louisiana Supreme Court, dismissal of that request on the basis that the district court lacks subject matter jurisdiction would be inappropriate. It was error for the district court to sustain the exception of lack of subject matter jurisdiction, and we are therefore compelled to reverse that portion of the judgment.

Unlike in her exception of lack of subject matter jurisdiction, in her exception of res judicata, Ms. Lomont correctly argues the state of the law as it relates to the doctrine of res judicata; however, the doctrine of res judicata is not the appropriate law to apply to the issue of whether Ms. Myer-Bennett may re-urge her exception of peremption. The appropriate doctrine to be applied is “law of the case.”

With respect to res judicata, La. R.S. 13:4231 provides in pertinent part, “Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties. The four prerequisites for the application of res judicata are: (1) the parties must be identical in both suits, or in privity; (2) the prior judgment must have been rendered by a court of competent jurisdiction; (3) there must be a final judgment on the merits; and (4) the same claim or cause of action must be involved in both cases. Muhammad v. Office of the DA for St. James, 16-9 (La.App. 5 Cir. 4/27/16), 191 So.3d 1149, 1155. The doctrine of res judicata is stricti juris, and any doubt concerning the application of res judicata must be resolved against its application. Id.

A judgment that determines the merits in whole or in part is a final judgment. La. C.C.P. art. 1841. A judgment that does not determine the merits but Uonly preliminary matters in the course of the action is an interlocutory judgment. Id. The denial of a peremptory exception is an interlocutory judgment, not a final judgment, and hence, the doctrine of res judi-cata does not apply. Eastin v. Entergy Corp., 07-212 (La.App. 5 Cir. 10/16/07), 971 So.2d 374, 379, writ denied, 07-2214 (La. 1/11/08), 972 So.2d 1167. While a litigant may be tempted to classify a judgment as final based upon its issuance by the court of last resort in Louisiana, it is not the court of issuance that determines the finality of a judgment, but rather the issue in the case that the judgment resolves that determines its finality. Therefore, while many judgments issued by the Louisiana Supreme Court are final judgments because they dispose of the merits of a case, judgments of the Supreme Court that only dispose of preliminary matters, such as the overruling of an exception of peremption, are interlocutory judgments and are subject to “law of the case” analysis in the event that the issue addressed in that judgment is re-urged. The judgment of the Louisiana Supreme Court in the first appeal of this matter, although not subject to “review” by any other Louisiana court, is nonetheless, by its nature of having overruled an exception of peremption, an interlocutory judgment subject to “law of the case” analysis now that Ms. Myer-Bennett has re-urged the exception in the district court. Consequently, the doctrine of res judicata is inapplicable to the Supreme Court’s ruling on Ms. Myer-Ben-nett’s exception of peremption, and it was therefore error for the district court to sustain the exception of res judicata. We are therefore compelled to also reverse that portion of the judgment.

Rather than dismiss Ms. Lomont’s exceptions, as previously stated, we will exercise our discretion to review the substantive merits of the issues raised by Ms. Lomont’s “exceptions,” i.e., whether, in light of the Louisiana Supreme Court’s |flruling in the first appeal of this matter, Ms. Myer-Bennett is precluded from re-urging her exception of peremption and also precluded from raising any affirmative defenses as they relate to Ms. Lomont’s fraud allegations.

La. C.C.P. art. 928(B) provides:

The peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision and may be filed with the declinatory exception or with the dilatory exception, or both.

La. C.C.P. art. 1152 provides, in pertinent part:

A defendant may amend his peremptory exception at any time and without leave of court, so as to either amplify an objection set forth or attempted to be set forth in the original exception, or to plead an objection not set forth therein.

The Louisiana Supreme Court has interpreted these articles to allow for the re-urging of a previously overruled peremptory exception under certain circumstances. “It is apparent that interlocutory orders overruling this and similar peremptory exceptions cannot be binding upon the trial court when it timely—but later—determines error of judgment based upon the matter as submitted or upon subsequent disclosures in the record which require a contrary holding. Art. 928, C.C.P., Comment (c).” Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1093, 262 So.2d 328, 332 (1972). In following this rule, appellate courts have recognized the right of a defendant to re-urge a peremptory exception, even after it has previously been overruled by an appellate decision. See, Herrera v. Gallegos, 14-935 (La.App. 5 Cir. 10/28/15), 178 So.3d 164; Landry v. Blaise, Inc., 02-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661. The ability of a defendant to re-urge a previously overruled peremptory exception is, however, not unrestricted, but rather is limited by the discretionary “law of the case” doctrine. Herrera, 178 So.3d at 168.

11flThe “law of the case” doc-tóre embodies the rule that an appellate court will not reconsider its own rulings of law in the same case. Id. “The doctrine is not applicable ‘in cases of palpable error or when, if the law of the case were applied, manifest injustice would occur.’ ” (citations omitted) Id. The terms “palpable error” and “manifest injustice” indicate to us that a court should exercise its discretion not to apply the “law of the case” doctrine only in instances where there is a compelling justification not to do so.

Because the codal authority to re-urge a peremptory exception is in derogation of the general principle that once an issue is litigated, it will not be re-litigated, this right must be limited, and a court should only allow it where a compelling justification to do so exists. A proper application of the “law of the case” doctrine will therefore disallow repeated litigation of the same issue using the same evidence and arguments, but will allow the re-urging of the exception where new, persuasive evidence presents a compelling justification to do so in order to prevent a manifest injustice. Furthermore, a litigant contemplating re-urging a previously overruled peremptory exception should weigh her confidence in the persuasiveness and compelling nature of her new evidence and arguments against the risk that article 863 sanctions might be imposed against her if her re-urged exception is found to be wholly frivolous.

In this case, Ms. Myer-Bennett argues that the “law of the case” doctrine should not preclude her from re-urging her exception of peremption or raising affirmative defenses related to Ms. Lomont’s fraud allegations for two reasons: first, she argues that at the hearing on her exception of peremption, both parties and the district court were under a mis-impression as to which party bore the burden of proof on Ms. Lomont’s fraud allegations, and that because of that mis-impression, she was precluded from introducing evidence at the hearing; and | T1 second, she argues that the evidence that she now wishes to produce would necessitate a contrary ruling on her exception of peremption.

Regarding the confusion over the party bearing the burden of proof on the fraud allegations, we note that the transcript of the hearing on Ms. Myer-Ben-nett’s exception of peremption makes clear, and Ms. Lomont conceded at oral argument before this Court, that both parties were under the impression that Ms. Lomont bore the burden of proof on her fraud allegations. Generally, a party alleging fraud has the burden to prove those allegations. Prior cases involving allegations of fraud under La. R.S. 9:3506(E) have placed the burden of proof on the plaintiff. See, Atkinson v. Lloyd J. LeBlanc, Jr., 03-365 (La.App. 5 Cir. 10/15/03), 860 So.2d 60, 65 (“The trial judge found that [plaintiff] did not established (sic) her fraud exception and we find no such proof either”).

In Garner v. Lizana, 13-427 (La.App. 5 Cir. 12/30/13), 131 So.3d 1105, writ denied, 14-0208 (La. 4/4/14), 135 So.3d 1183, this Court held for the first time, contrary to rulings in numerous prior appellate decisions, that post-malpractice concealment of legal malpractice constitutes fraud under La. R.S. 9:5605(E). The Court, however, did not discuss which party bore the burden of proof on the fraud allegations. In the case sub judice, the district court, in sustaining Ms. Myer-Bennett’s exception of peremption, explicitly relied upon this Court’s holding in Gamer. In the first appeal of this matter, the Louisiana Supreme Court, adopting the rationale of Gamer, held that “allegations of misrepresentation, suppression or concealment of malpractice can constitute fraud within the meaning of La. R.S. 9:5605(E),” and expressly overruled all cases holding to the contrary. Lomont, 172 So.3d at 628-29. The Court, in making its first pronounce-merit on the applicability of La. R.S. 9:5605(E) to allegations of post-malpractice misrepresentation, suppression or concealment of the malpractice, |12also found that the burden is on the defendant to prove La. R.S. 9:5605(E) is not applicable, meaning that Ms. Myer-Bennett was required to prove that she did not commit post-malpractice fraud. Lomont, 172 So.3d 628.

While we accept that there is a rational reason that the parties and the district court were under the wrong impression as to who bore the burden of proof on Ms. Lomont’s fraud allegations, we do not see this mis-impression as an impediment to Ms. Myer-Bennett’s ability to produce her evidence regarding fraud at the hearing. Rather, we see this as a tactical decision on Ms. Myer-Bennett’s part. Regardless, while the reason that a defendant failed to present evidence or failed to make a particular argument on the hearing of an initial peremptory exception may be a consideration for the district court in determining whether to apply the “law of the case” doctrine, especially where the initial ruling has received the judicial resources of full appellate review, in our review of prior cases engaged in “law of the ease” analyses, we do not find the primary focus of the courts to be on the reason the defendant failed to present her evidence, but rather on the strength and persuasiveness of the previously missing evidence. In our view, the primary focus of a “law of the case” analysis is the strength and persuasiveness of the previously missing evidence, because the goal of allowing an exception to application of “law of the case” is to prevent a manifest injustice from occurring where the new evidence or argument clearly indicates that a contrary result is warranted.

hsBecause Ms. Myer-Bennett’s “claims as well as the affirmative defenses, as they relate to fraud” were dismissed on procedurally improper and substantively merit-less “exceptions” filed by Ms. Lomont, without an evidentiary hearing on a proper motion to strike, the record is not sufficiently developed to enable us, on appeal, to evaluate the relative persuasiveness of Ms. Myer-Bennett’s new evidence to determine whether or not it is appropriate to allow an exception to the application of “law of the case.” We are therefore compelled to vacate as premature that portion of the judgment that dismisses Ms. Myer-Bennett’s claims as well as affirmative defenses as they relate to fraud, and to remand this matter to the district court, with instructions that he treat Ms. Lomont’s exceptions of lack of subject matter jurisdiction and res judicata as motions to strike Ms. Myer-Bennett’s re-urged exception of peremption and affirmative defenses as they relate to fraud, and to hold an evidentiary hearing on those motions applying a “law of the case” analysis.

Regarding the judgment on the motion for sanctions, having found that Ms. Lo-mont’s exceptions were improperly sustained without the district court conducting an appropriate hearing applying a “law of the case” analysis, we find that it was premature for the district court to consider the issue of sanctions. We therefore vacate that portion of the judgment that awards sanctions against Ms. Myer-Ben-nett, and we remand that motion to the district court for consideration after it has conducted the appropriate hearing on Ms. Lomont’s motions to strike.

Regarding that portion of the judgment that dismisses Ms. Myer-Ben-nett’s claims as well as affirmative defenses as they relate to non-conformity of the petition, for the following reasons, we affirm. Unlike the exception of peremption, which is a peremptory exception, the exception of non-conformity of the petition is a dilatory exception. La. C.C.P. art. 928(A) provides, in pertinent part: “The | udeclinatory exception and the dilatory exception shall be pleaded prior to or in the answer and, prior to or along with the filing of any pleading seeking relief other than [various listed exceptions] ...” None of the listed exceptions are applicable to this proceeding. Because Ms. Myer-Ben-nett previously filed her first exception of peremption, seeking dismissal of Ms. Lo-mont’s petition, without at the same time filing her dilatory exception of non-conformity of the petition, her attempt to now file that exception is untimely. We therefore find that the district court did not err in dismissing with prejudice Ms. Myer-Bennett’s “claims and the affirmative defenses, as they relate to ... non-conformity of the petition,” and we affirm that portion of the judgment.

DECREE

For the foregoing reasons, we affirm the judgment insofar as it dismisses with prejudice Ms. Myer-Bennett’s claims and affirmative defenses as they relate to nonconformity of the petition; we reverse the judgment insofar as it sustains the exceptions of lack of subject matter jurisdiction and res judicata, and remand to the district court with instructions that he conduct a hearing on those pleadings in accordance with the instructions contained in this opinion; we vacate the judgment as premature insofar as it grants sanctions against Ms. Myer-Bennett and dismisses with prejudice her claims and affirmative defenses as they relate to fraud. Further, we remand to the district court for consideration of Ms. Lomont’s motion for sanctions once it has appropriately considered Ms. Myer-Bennett’s re-urged exception of peremption applying a “law of the case” analysis.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; REMANDED

      . La. R.S. 9:5605(E) provides: "The peremp-tive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.”

      . The district court did not specify what sanctions were being imposed against Ms. Myer-Bennett, but at the conclusion of the hearing, counsel for Ms. Lomont indicated that she was reserving her "right to put on evidence of attorney fees in connection with our Motion for 863 Sanctions,” Neither counsel for Ms. Myer-Bennett nor the district court indicated any opposition to this proposed bifurcated procedure,

      . We note that Ms. Lomont, in her pleadings to the district court and this Court, has also taken an expansive position regarding the scope of the ruling of the Louisiana Supreme Court in the first appeal of this matter, arguing that its ruling has resolved the issue of Ms. Myer-Bennett’s liability for legal malpractice, and that the only issue left to be tried is the amount of Ms. Lomont's damages. We note that the only ruling issued by the Supreme Court is an interlocutory ruling on an exception of peremption, wherein the Court made a factual determination, based upon the evidence in the record before it at that time, regarding Ms. Myer-Bennett's fraudulent concealment of an act that is alleged to be legal malpractice. Ms. Lomont appears to erroneously fail to make a distinction between fraud in tire post-malpractice concealment of an act that is alleged to constitute legal malpractice, and the act of alleged legal malpractice itself. In the Supreme Court’s Lomont opinion, it succinctly discussed this distinction in analyzing whether the fraud exception in La. R.S. 9:5605(E) applies to fraudulent acts of post-malpractice concealment, or only where the fraudulent act itself constitutes the malpractice. We therefore note that there has been no trial on the merits of the alleged legal malpractice, no finding of fact as to the alleged legal malpractice (as distinguished from the Supreme Court's factual finding of subsequent fraudulent concealment of an act that is alleged to be legal malpractice), and no judgment rendered on Ms. Lomont's underlying legal malpractice claim.

      . We note that Ms. Myer-Bennett has made no request that the district court "review” the ruling of the Louisiana Supreme Court; rather, Ms. Myer-Bennett has sought to re-urge her exception of peremption under the authority of La. C.C.P. arts. 928(B) and 1152.

      . See also, Bank One, N.A. v. Velten, 04-2001 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458-59, writ denied, 06-40 (La. 4/28/06), 927 So.2d 283 (the law of the case doctrine is the proper procedural principle, as opposed to res judicata, for describing the relationship between prior judgments by trial and appellate courts rendered within the same case).

      . In the Herrera case, which involved an automobile accident, the district court considered the defendants’ exceptions of prescription on five different occasions, with the issue at each hearing being the date of the automobile accident, information which presumably was readily available by way of the accident report to all parties shortly after the accident. At the first hearing, and on rehearing, where no evidence was admitted, the district court overruled the exception, and this Court denied defendants’ writ application. At the third hearing, no evidence was admitted and the district court overruled the exception. At the fourth hearing, no evidence was admitted, but the district court sustained the exception based upon an affidavit of the Kenner police department that was referenced at the hearing. On appeal, this Court reversed based upon its finding that the district court considered documentation which had not formally been admitted into evidence. At the fifth hearing, held on the day of trial, the defendants finally produced the accident report showing the date of the accident, which was virtually irrefutable proof of the date of the accident and that plaintiff's lawsuit was filed more than one year later. The district court again sustained the exception of prescription. On appeal, it does not appear that the parties raised an issue as to the reasons that the defendants could not timely produce a presumably readily available accident report, and the opinion itself does not discuss this issue, yet this Court affirmed the ruling of the district court. Herrera, supra. In our opinion, this result was reached in order to prevent a manifest injustice where the newly provided evidence indicated that plaintiffs suit was clearly prescribed.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Mary HAZELETT v. LOUISIANA-1 GAMING, a Louisiana Partnership in Commendam, d/b/a Boomtown Belle Casino and/or Boomtown Belle Casino Westbank, and/or Boomtown Casino New Orleans, and ABC Insurance Co.
    NO. 16-CA-297
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, MARY HAZELETT, Donald J. Melancon
    COUNSEL FOR DEFENDANT/AP-PELLEE, LOUISIANA-1 GAMING, A LOUISIANA PARTNERSHIP IN COM-MENDAM, D/B/A BOOMTOWN BELLE CASINO AND/OR BOOMTOWN BELLE CASINO WESTBANK, AND/OR BOOM-TOWN CASINO NEW ORLEANS, AND ABC INSURANCE CO., Daryl A. Higgins, Gino R. Forte
    Panel composed of Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   WINDHORST, J.

11 Appellant, Mary Hazelett, appeals from the trial court’s judgment granting appellee’s, Louisiana-I Gaming, a Louisiana Partnership in Commendam, d/b/a Boomtown Casino New' Orleans’ (“Boomtown”), motion for summary judgment and dismissing Ms. Hazelett’s claims against Boomtown with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

On April 9, 2013, Ms. Hazelett and her sister, Sharon Lavigne, were patrons at Boomtown’s buffet restaurant. Prior to sitting at a booth at the back of the restaurant, Ms. Hazelett observed caution signs around the buffet area. Ms. Hazelett made three to four trips to and from the booth to the buffet area. The floor of the seating area is carpeted, and the buffet area is tile. After she finished eating, Ms. Hazelett walked across the carpeted area to the entrance/exit of the restaurant. As she was exiting, she stepped from the carpeted floor onto the scored concrete floor of the main hallway of the property and she slipped and fell. Ms. Hazelett filed a petition for damages contending that a foreign substance in a form of “food particles/grease” collected on her shoes from underneath the booth which [2ultimately caused her to slip and fall. She claimed the foreign substance underneath the booth presented an unreasonable risk of harm that was reasonably foreseeable to Boom-town and Boomtown failed to exercise reasonable care to keep the restaurant’s floor, especially underneath the booth, in a reasonably safe condition.

Boomtown filed an answer and affirmative defenses. On November 4, 2015, Boomtown filed its motion for summary judgment contending that Ms. Hazelett could not prove that: (1) any alleged grease created an unreasonable risk of harm that was reasonably foreseeable to Boomtown; (2) Boomtown had actual or constructive notice of the alleged grease; and (3) Boomtown failed to exercise reasonable care in correcting or warning of said condition. Ms. Hazelett filed an opposition and amended opposition to the motion contending that there were numerous genuine issues of material fact that precluded granting Boomtown’s motion for summary judgment. On January 20, 2016, the trial court granted Boomtown’s motion for summary judgment and the judgment was signed on January 26, 2016. This appeal followed.

Discussion

In her sole assignment of error, Ms. Hazelett contends the trial court erred in granting Boomtown’s motion for summary judgment. Ms. Hazelett argues she established a prima fade cause of action under La. R.S. 9:2800.6 because she provided sufficient evidence through her own testimony, verified responses to interrogatories provided by Boomtown, and sworn affidavits of individuals with personal knowledge of the facts to satisfy every element. She claims that Boomtown is not capable of rebutting her evidence because its evidence is unreliable. Ms. Hazelett further contends that Boomtown failed to satisfy its ^obligations under La. C.C.P. art. 966 as there are genuine issues of material fact which would be relevant in a trial on the merits.

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. C & C Energy, L.L.C. v. Cody Invs., L.L.C., 09-2160 (La. 7/6/10), 41 So.3d 1134, 1137; Samaha v. Rau, 07-1726 (La. 2/26/08), 977 So.2d 880, 883; Duncan v. U.S.A.A. Ins. Co., 06-363 (La. 11/29/06), 950 So.2d 544, 547; Rayfield v. Millet Motel, 15-496 (La.App. 5 Cir. 1/27/16), 185 So.3d 183, 185. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966B(2). The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966C(2). However, if the movant will not bear the burden of proof at trial, the movant’s burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the claim. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment should be granted. Id.

La. R.S. 9:2800.6 provides, in pertinent part:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition ^existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

Therefore, in a slip and fall case against a merchant, a plaintiff must prove the essential elements of a standard negligence claim in addition to the requirements under La. R.S. 9:2800.6. Burns v. Sedgwick Claims Mgmt. Servs., 14-421 (La.App. 5 Cir. 11/25/14), 165 So.3d 147, 152; Sheffie v. Wal-Mart Louisiana LLC, 13-792 (La.App. 5 Cir. 2/26/14), 134 So.3d 80, 83-84, writ denied, 14-0881 La. 6/20/14, 141 So.3d 813. The failure to prove any of the requirements enumerated in La. R.S. 9:2800.6 is fatal to a plaintiffs cause of action. Foster v. Pinnacle Entm’t, Inc., 16-8 (La.App. 5 Cir. 4/27/16), 193 So.3d 288, 295; Upton v. Rouse’s Enter., LLC, 15-484 (La.App. 5 Cir. 2/24/16), 186 So.3d 1195, 1199, writ denied, 16-0580 (La. 5/13/16), 191 So.3d 1057. The merchant does not have to make a positive showing of the absence of the existence of the condition prior to the fall. White v. Wal-Mart Stores, Inc., 97-0393 (La. 09/09/97), 699 So.2d 1081, 1086. There is no provision in La. R.S. 9:2800.6 that permits a shifting of the burden to the merchant. Id.

|fiTo determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856.

In addition to proving that the condition presented an unreasonable risk of harm that was reasonably foreseeable, the plaintiff must also prove that the merchant either created or had actual or constructive notice of the condition which caused the damage prior to the occurrence. Upton, 186 So.3d at 1200. When constructive notice is at issue, the claimant must come forward with positive evidence showing that the damage causing condition existed for some period of time, and that such time was sufficient to place the merchant on notice of its existence. Id., at 1200 (citing White v. Wal-Mart Stores, Inc., 97-393 (La. 09/09/97, 699 So.2d 1081, 1082).

Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Sears v. Home Depot, USA, Inc., 06-201 (La.App. 4 Cir. 10/18/06), 943 So.2d 1219, 1228, writ denied, 06-2747 (La. 1/26/07), 948 So.2d 168. Even if contained in a deposition, such inferences, allegations, and speculation are not sufficient to satisfy the opponent’s burden of proof. Id.

Our de novo review of the record reveals that Ms. Hazelett offered no factual support for her contention that the alleged grease, from an unspecified location, created an unreasonable risk of harm, and that the condition was reasonably foreseeable to Boomtown. Additionally, she failed to provide any positive evidence showing Boomtown had actual notice of the alleged grease, or ^alternatively, constructive notice of the alleged grease. Nor did she offer any evidence that the condition existed for such a “period of time that it would have been discovered if the merchant had exercised reasonable care.” La. R.S. 9:2800.6C(1).

Unreasonable risk of harm

In her affidavit, the buffet’s hostess, Antoinette Ellis, stated she saw Ms. Hazelett get up from the floor, leave Boomtown’s property, and return a few minutes later at which time she spoke to Boomtown’s staff about the incident and her complaints of pain. Ms. Ellis stated she could not see any substance on the floor in the area where Ms. Hazelett indicated, and she did not observe anyone else slip or make a complaint of a slippery condition on the day of Ms. Hazelett’s fall. Additionally, Boomtown’s security day supervisor, Lawrence Weatherstrand, stated in his affidavit that he arrived at the scene and saw Ms. Hazelett sitting with her sister at a table across from- the buffet. Ms. Hazel-ett said she fell in front of the entrance/exit to the buffet. He offered Ms. Hazelett medical assistance and she declined, stating her daughter made her an appointment with her own physician. Mr. Weatherstrand then walked over to the area near the entrance/exit of the buffet and did not see any foreign substance, such as water, grease, or food on the floor. Mr. Weatherstrand prepared the incident report, took photographs of the area, and gave both to Jeannine Richert, Boom-town’s Risk and Safety Manager. In her affidavit, Ms. Richeit stated that the incident report, witness statement, and other investigation related to Ms. Hazelett’s fall did not reveal the presence of food, grease, or other foreign substance on the floor of the buffet area.

In her petition, Ms. Hazelett stated grease collected on the bottom of her shoe from underneath the booth. In her deposition, Ms. Hazelett testified she knew grease collected on her shoe because the entire buffet area was “slicky” which caused her feet to slide throughout the buffet. However, Ms. Hazelett testified that 17she did not make any complaints to the buffet’s staff prior to her fall and she did not look at the bottom of her shoe after she fell in front of the entrance/exit of the buffet. She testified she did not see any food, drink, spills, or other foreign substances on the floor in the buffet area, on the carpet, or underneath the booth prior to her fall. She did not have any photographs to show a foreign substance was on the floor to contradict the photographs taken by Mr. Weatherstrand. In her affidavit, Ms. Lavigne stated that while helping her sister up, she noticed a smear mark, or some slippery substance, on the floor where her sister fell. While Mr. Weatherstrand was writing his report, she witnessed another lady almost fall in the same area her sister fell. Ms. Lavigne spoke to the lady, requested her information, and informed Mr. Weatherstrand of the other lady’s incident. Ms. Lavigne stated Mr. Weatherstrand requested a staff member to put up a cone and mop the area. Ms. Lavigne’s affidavit did not state that she saw food, drink, foreign substance, or spill on the floor in the buffet, underneath the table, or in the main hallway right outside of the exit for the buffet. She only states she saw a smear mark left by Ms. Hazelett’s shoe outside of the buffet.

As to her contention that Boomtown’s evidence is unreliable, Ms. Hazelett argues that Ms. Ellis’s affidavit is insufficient because in an unsworn witness statement Ms. Ellis said she saw Ms. Hazelett fall and her affidavit does not state she saw Ms. Hazelett fall. However, it is not disputed by the parties that Ms. Hazelett fell. Thus, whether Ms. Ellis saw Ms. Hazelett fall or whether she only saw her on the floor is not material. Ms. Hazelett also contends that Mr. Weatherstrand’s affidavit contradicts the surveillance video of the incident. While it is not disputed that there was surveillance video and it was referred to by Ms. Hazelett’s counsel in his amended opposition and his brief to this Court, the surveillance video was never introduced into evidence in the trial court. This Court only reviews evidence that was admitted and before the trial court; thus, the |ssurveillance video, and any argument made by Ms. Hazelett regarding the video, are not considered for purposes of this appeal.

Based on the evidence, Ms. Hazelett failed to present evidence of the existence of a foreign substance, (ie., grease) on the floor underneath the booth, in the buffet area, or in front of the buffet entrance/exit area by the main hallway. Boomtown established an absence of an essential element, ie., that Ms. Hazelett cannot show the alleged grease presented an unreasonable risk of harm and that the condition was reasonably foreseeable by Boomtown.

Actual or constructive notice

Even assuming that there was grease on the floor or underneath the booth that created an unreasonable risk of harm, Boomtown established that Ms. Ha-zelett failed to offer any positive evidence showing that Boomtown had actual notice of the alleged grease, or alternatively, constructive notice of the alleged grease and that the condition existed for such a “period of time that it would have been discovered if the merchant had exercised reasonable care.”

Ms. Hazelett argues the condition in question is the combination of greasy, Slippery buffet floors coupled with a carpeted floor to a smooth polished floor transition where patrons are supposed to walk upon exiting the buffet. She contends that the tracking of slippery grease from a slippery floor area to the smooth polished floor area is reasonably foreseeable, especially considering that the floor around the buffet area was slippery. Furthermore, Boom-town placed caution cones around the buffet area indicating the floor was slippery. Thus, Ms. Hazelett contends that considering the type of flooring Boomtown chose to use in the buffet area (ie., uncarpeted/tiled flooring), the area outside of the buffet where patrons sit (ie., carpeted flooring), and the area immediately outside the entrance/exit area of the buffet in the main hallway (ie., polished, smooth ^flooring), there is “more than mere speculation that Boomtown had at least constructive knowledge of the condition that caused Ms. Ha-zelett to slip and fall.”

Boomtown presented evidence through Ms. Richert’s affidavit that a yellow warning sign was placed on the floor at the buffet line to provide notice to customers of the potential for spilled food and drink items. Boomtown pointed out that there was no evidence, aside from Ms. Hazelett’s self-serving testimony, that the entire buffet floor was “slicky,” and that the tiled floor around the buffet line was slippery. Ms. Hazelett could not identify any spills, food, drink, or foreign substance on any particular area of the floor nor could she state how long the foreign substance had been in any area, despite the placement of a caution cone in the buffet line.

The record is void of any evidence presented by Ms. Hazelett that Boomtown had actual or constructive notice of the alleged grease, other than conclusory allegations and unsupported opinion which are not sufficient to satisfy the burden of proof that Boomtown had actual or constructive notice of the grease. See Sears, supra.

Based on the foregoing, and after a review of the record and exhibits, it is clear Boomtown provided evidence to show the absence of factual support for Ms. Hazel-ett’s claim that it had actual or constructive notice of the alleged grease prior to the occurrence. Thereafter, Ms. Hazelett failed to produce evidentiary factual support to show that she will be able to satisfy her burden. Ms. Hazelett’s allegations in this ease are nothing more than mere speculation as to the cause of the fall and notice by Boomtown. Mere speculation is not sufficient to meet the burden imposed on Ms. Hazelett pursuant to La. R.S. 9:2800.6. Frank v. Boomtown L.L.C., 12-382 (La.App. 5 Cir. 12/11/12), 106 So.3d 227, 232.

hnConcIusion

Accordingly, for the reasons set forth herein, we affirm the trial court’s judgment granting Boomtown’s motion for summary judgment.

AFFIRMED

      . A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. La. C.C.P. art. 1841. This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid, final judgment. Oregan v. Cashio, 15-612 (La. App. 5 Cir. 1/27/16), 185 So.3d 885, 887. A final judgment shall be identified as such by appropriate language. La. C.C.P. art. 1918.
      A valid judgment must be precise, definite, and certain. Blanke v. Duffy, 05-829 (La.App. 5 Cir. 3/28/06), 927 So.2d 540, 541. A final judgment must contain decretal language and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the specific relief that is granted or denied. Claiborne Medical Corp. v. Siddiqui, 12-759 (La.App. 5 Cir. 2/28/13), 113 So.3d 1109, 1112. The specific relief granted should be determinable without reference to an extrinsic source such as pleadings or reasons for judgment. Id.
      A trial court may, at its discretion and on its own motion, change the result of any interlocutory rulings it finds to be erroneous, prior to a final judgment. Vasalle v. Wal-Mart Stores, Inc., 01-0462 (La. 11/28/01), 801 So.2d 331. A judgment that does not contain decretal language cannot be considered as a final judgment. Johnson v. Mount Pilgrim Baptist Church, 05-0337 (La. App. 3 Cir. 03/24/06), 934 So.2d 66, 67. The first "Judgment” was rendered and signed on January 20, 2016, and does not contain the appropriate language to be a valid, final judgment. Thus, the January 20, 2016 judgment was not subject to the requirements of La. C.C.P. art. 1951 for amendments to final judgments. If not a definitive judgment, it is an interlocutory ruling, and as such is revisable by the trial court before a final adjudication. Id. at 335. A second "Amended Judgment” was thus, properly signed by the trial court on January 26, 2016, and contains the appropriate language. Accordingly, this appeal was properly taken from the January 26, 2016 judgment, and therefore, we will discuss the merits of this appeal.

      . According to the exhibits, the buffet restaurant is referred to as Bayou Market Express or Bayou Market Buffet.

      . Only one sworn, signed affidavit by Ms. Lavigne was before the trial court. The other affidavit by Eather Reynolds was not signed nor admitted into evidence and is not considered by this Court.


text:
    Jerilyn THOMAS v. HUNTING INGALLS, INC.
    NO. 16-CA-474
    Court of Appeal of Louisiana, Fifth Circuit.
    December 21, 2016

      COUNSEL FOR PLAINTIFF/APPELLANT, JERILYN THOMAS, Patrick H. Hufft
    COUNSEL FOR DEFENDANT/AP-PELLEE, HUNTING INGALLS, INC., Brian C. Bossier, Thomas G. Buck
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
   WINDHORST, J.

| Appellant, Jerilyn Thomas, seeks review of the trial court’s judgment granting appellee’s, Huntington Ingalls Incorporated’s, motion for summary judgment dismissing plaintiff’s claims against appellee with prejudice. For the reasons that follow, we affirm.

Facts and Procedural History

The following facts are undisputed for the purpose of the motion for summary judgment. Pinkerton Government Services, Inc, (“Pinkerton”) had a contract for security and related personnel services with appellee. Appellant was working as a Pinkerton security guard on board a U.S. Navy vessel, the LPD-23, which was under construction by appellee. Appellant’s duties included patrolling the vessel and “keying” in at various locations on the vessel with her “Detex Key Wand.” Appellant testified that they were shorthanded on January 16, 2012, and she had a limited amount of time to key her locations before she had to open Gate 38 at 11:00 P.M for the personnel shift change. She was walking from the upper deck to the second level when she noticed that the second level had no lights and was dark. She did not have a flashlight and her helmet did not have a light. Appellant had a radio with her but she did not radio her supervisor about the darkness on the second level because the radio “doesn’t work on the ship.” Nevertheless, appellant decided to go down the stairs to check in the various key locations on that level. When she was almost to the bottom of the stairs she “missed a step,” fell, and injured her head, back and knee. After she fell, she went up the stairs and to the back of the vessel where she was able to radio her supervisor and inform him about her fall.

Appellant filed this lawsuit against ap-pellee contending that there were no lights on the second level and the darkness caused her to miss a step and fall. She claimed that had appellee notified her of the areas that were dark, she would have |2avoided those areas. Appellee filed an answer and subsequently filed this motion for summary judgment. In the motion for summary judgment, appellee argued that darkness is an open and obvious condition; and therefore, appellee had no duty to warn appellant of the dark. Appellee further contended that it had no duty to warn appellant because under the contract between appellee and Pinkerton, appellant’s specific job duties included informing ap-pellee about any lighting problems aboard the vessel, and appellant was therefore required to carry a flashlight, which she failed to do. The trial court granted appel-lee’s motion. This appeal followed.

Discussion

Appellate courts review the granting of a summary judgment de novo using the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Duncan v. U.S.A.A. Ins. Co., 06-863 (La. 11/29/06), 950 So.2d 544, 547; Rayfield v. Millet Motel, 15-496 (La.App. 5 Cir. 01/27/16), 185 So.3d 183, 185; Bailey v. Exxon Mobil Corp., 15-225 (La.App. 5 Cir. 12/23/15), 184 So.3d 191, 198. A motion for summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966B(2). The party moving for summary judgment bears the burden of proof. La. C.C.P. art. 966C(2). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on a | ^motion for summary judgment does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the claim. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment should be granted. Id.

To establish liability for damages in a negligence case, the plaintiff is required to prove: (1) that the defendant had a duty to conform his conduct to a specific standard; (2) that the defendant’s conduct failed to conform to the appropriate standard; (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries; (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) proof of actual damages. La. C.C. art. 2315; Helwig v. H.P.B. Inc., 15-389 (La.App. 5 Cir. 12/23/15), 182 So.3d 1169, 1171 (citing Detraz v. Lee, 05-1263 (La. 01/17/07), 950 So.2d 557, 565).

La. C.C. art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Thus, to prove liability for an unreasonably dangerous defect, a plaintiff has the burden to show that the thing was in the custodian’s custody or control, it had a vice or defect that presented an unreasonable risk of harm, the defendant knew or should have known of the unreasonable risk of harm and the damage was caused by the defendant. La. C.C. art. 2317.1; Helwig, 182 So.3d at 1171.

To determine whether a condition is unreasonably dangerous, courts are required to consider the following factors in the risk-utility test: (1) the utility of the complained of condition, (2) the likelihood and magnitude of harm, including |4the obviousness and apparentness of the condition, (3) the cost to prevent the harm, and (4) the nature of the plaintiffs activities in terms of social utility or whether the activities were dangerous by nature. Bufkin v. Felipe’s La., LLC, 14-288 (La. 10/15/14), 171 So.3d 851, 856; Dauzat v. Curnest Guillot Logging Inc., 08-0528 (La. 12/02/08), 995 So.2d 1184, 1186-87 (per curiam).

The second prong of the risk-utility test focuses on whether the allegedly dangerous or defective condition was obvious and apparent, because a defendant generally does not have a duty to protect against that which is obvious and apparent. In order for an alleged hazard to be considered obvious and apparent, the hazard should be one that is open and obvious to everyone who may potentially encounter it. Bufkin, 171 So.3d at 856; Broussard v. State ex rel. Office of State Buildings, 12-1238 (La. 04/05/13), 113 So.3d 175, 184; Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La. 02/20/04), 866 So.2d 228, 234. If the facts of a particular case show that the. complained of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. Upton v. Rouse’s Enter., LLC, 15-484 (La. App. 5 Cir. 02/24/16), 186 So.3d 1195, 1200.

In her first assignment of error, appellant contends that the trial court erred in considering inadmissible evidence at the motion for summary judgment hearing. Appellant contends the trial court made improper and impermissible factual findings in ruling on the motion and improperly weighed evidence and testimony. Appellant argues the trial court improperly relied on appellee’s argument concerning the contract provisions between appel-lee and Pinkerton requiring appellant to report inadequate lighting and to have a flashlight. Appellant claims |fithe contract was not proper summary judgment evidence because it was not attached to an affidavit. She further contends that even if the tidal court was correct in considering the contract, appellee is not shielded from liability.

First, the trial court’s judgment does not contain written reasons and appellant did not request written reasons. Therefore, it is not certain that the trial court considered the contract in its ruling. Also, appellant did not object to the contract as inadmissible evidence in her opposition memorandum, in a motion to strike, or at the motion for summary judgment hearing. Further, the contract was discussed in the deposition of Mark Washington, appel-lee’s corporate representative, and in appellant’s deposition, both of which were attached to the motion and properly before the court.

It was incumbent on appellant to produce evidence that darkness was not open and obvious and/or that appellee knew of the defect (ie., the darkness on the second level) or that it existed for such a period of time that the appellee should have known of it. Appellant did not produce any such evidence. Therefore, we find no merit to appellant’s argument.

In her second assignment of error, appellant contends that the trial court erred in finding no issue of material fact concerning the negligence of appellee. Appellant contends (1) there is an issue of fact as to the duty owed by appellee to appellant; (2) the darkness was unreasonably dangerous under the circumstances; (3) appellee had a duty to warn appellant of the unreasonably dangerous condition; (4) the trial court erred in impermissibly apportioning fault; and (5) the open and obvious doctrine does not apply to the facts of this case.

| fiBased on the evidence and facts of this case, the darkness on the second level was open and obvious, and therefore appel-lee had no duty to warn appellant about the darkness. Despite having personal knowledge that there were no lights on the second level and it was dark, appellant made a conscious decision to descend the dark stairs without a flashlight or radioing her supervisor about the inadequate lighting, in violation of the contract between Pinkerton and appellee. Additionally, according to Mr. Washington, appellant had the option of not going into an area and reporting why she did not go into a particular area.

Even assuming the darkness on the second level was not open and obvious and appellee had a duty to warn appellant about the darkness, appellant failed to produce evidence that appellee knew or should have known about the dark condition prior to appellant’s accident. Mr. Washington testified that had he known about any dark condition prior to appellant’s patrol, he would have advised Pinkerton about the problem. However, “there was definitely nothing communicated to me of any lights or anything being out on that particular night.” Appellee could not warn of a condition of which it had no knowledge, and appellant put forth no evidence that appellee knew or should have known of the dark condition on the second level prior to her fall. Appellant’s specific job duties included notifying appellee about inadequate lighting and she failed to radio her supervisor when she had knowledge of the condition. Furthermore, Mr. Washington testified that Pinkerton employees were not required to go into areas that they believed were unsafe and were only required to generate a report stating why they did not go into an area. Appellant made a conscious decision to descend the dark stairs without notifying her supervisor and without a flashlight. Appellant therefore failed to sustain her burden of proof.

^Conclusion

For the reasons stated above, the trial court’s judgment granting appellee’s motion for summary judgment and dismissing appellant’s claims with prejudice is affirmed.

AFFIRMED

      . At the time the motion for summary judgment was filed, La. C.C.P. art. 966 F(2) and (3) provided:
      (2) Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with Sub-paragraph (3) of this Paragraph. Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion.
      (3) Only objections to evidence in support of or in opposition to a motion for summary judgment may be raised in memorandum or written motion to strike stating the specific grounds therefor.
      This motion for summary judgment was filed in 2015, set for hearing in 2015, continued and reset, and heard on January 12, 2016. A new summary judgment provision went into effect on January 1, 2016. According to the provisions of 2015 Act 422, § 2, the amendment of La. C.C.P. art. 966 "shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date.” Because this matter was pending adjudication on January 1, 2016, the effective date of the act, we apply the prior version.

      . The contract between Pinkerton and appel-lee provided:
      III. General Requirements—Functions and Duties
      1. Security Officers

        cr ct o'
      d. Operate patrol surveillance (clock)— systems within Huntington Ingalls facilities to ensure proper security rounds are being conduct. This shall include the reporting of hazardous and unsafe conditions, inadequate lighting, and improper security conditions for property or classified matter; other conditions detrimental to safe and efficient operation of the facility. [Footnote cont.]
      2. Equipment
      The following equipment will be supplied by the Seller [Pinkerton] to contract personnel assigned to Huntington Ingalls,
      or cr cr
      d. One flashlight and batteries (or rechargeable unit) available for each officer working during the hours of darkness.


author: GREMILLION, Judge.

text:
    Kirk A. SPARROW v. CITY OF JEANERETTE
    16-656
    Court of Appeal of Louisiana, Third Circuit.
    December 21, 2016

      Christopher R. Philipp, Attorney at Law, P.O. Box 2369, Lafayette, LA 70502, (337) 235-9478, COUNSEL FOR DE-FE NDANT/APPELLANT: City of Jean-erette
    Dustin G. Flint, Williamson, Fontenot, Campbell & Whittington, LLC, 955 McClung, Baton Rouge, LA 70802, (225) 383^010, COUNSEL FOR PLAINTIFF/APPELLEE: Kirk A. Sparrow
    Court composed of Jimmie C. Peters, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

liThe City of Jeanerette appeals the judgment of the Workers’ Compensation Judge (WCJ) in favor of Kirk A. Sparrow, which awarded Mr. Sparrow temporary total disability benefits (TTD), medical expenses, penalties, and attorney fees. For the reasons that follow, we affirm in part and reverse in part.

FACTS

Mr. Sparrow was employed by the City as a laborer on January 7, 2015, when he allegedly injured his back. Mr. Sparrow’s fiancé suffers from a seizure disorder, and on that day he was late for work because his fiancé had suffered a seizure. He testified that, on January 7, he and his crew were deployed to the city barn to cut old utility poles into two- to two-and-a-half-foot sections for burial. According to Mr. Sparrow, he lifted a section of pole and felt “a pull” in his back. He emitted an exclamation of some sort, which he is certain others on his crew overheard.

That Mr. Sparrow yelled after lifting a section of pole was corroborated by his fellow employee, Mr. Cornell Penny, who was standing beside Mr. Sparrow when this occurred and testified that he not only heard Mr. Sparrow yell, but also had heard his back pop. Mr. Penny also testified that Ms. Elizabeth “Cindy” Moore, who was nearby, also heard this, because she asked Mr. Sparrow if he was all right and told their supervisor, Ms. Gwen Colar, that he was injured.

The testimonies of Mr. Sparrow and Mr. Penny were categorically contradicted by the deposition testimonies of Ms. Moore, Ms. Colar, and Ms. Elaine Thomas, who each denied that Mr. Sparrow had lifted as much as a single piece of wood; in Ms. Colar’s words, “He never once picked nothing up.” All three of the ladies recall Mr. Sparrow stating that his back was already injured and that he went to the barn and retrieved a dolly onto which to load the sections.

| ?Mr. Edward Broussard, though, did see Mr. Sparrow lift a section of pole. He also noticed that Mr. Sparrow was acting injured. Mr. Broussard asked if he was all right, and Mr. Sparrow replied that he hurt his back.

The next morning, Mr. Sparrow testified, he awoke and was unable to move because of his back pain. He further testified that he phoned the city barn secretary, Ms. Roberta Charles, and Ms. Colar, and told them he had injured his back the day before. Ms. Colar told Mr. Sparrow to go to the doctor and bring in “papers,” which Mr. Sparrow interpreted as requiring that he bring a doctor’s excuse.

Mr. Sparrow, though, did not seek medical attention for his back until January 16, 2015, when he saw Dr. Ruth Smothers of the Iberia Comprehensive Community Health Center in New Iberia, Louisiana. Dr. Smothers ordered X-rays and MRIs of Mr. Sparrow’s lumbar spine. The MRIs, though, were postponed. On January 21, Dr. Smothers referred Mr. Sparrow to outpatient rehabilitation at Iberia Medical Center. On March 11, 2015, Dr. Smothers ordered MRIs because Mr. Sparrow was not responding to physical therapy. Those MRIs were never taken.

Mr. Sparrow presented to Dr. Smothers on April 10, 2015, with his original complaint of low back pain and a new complaint of pain in his shoulders. Dr. Smothers examined Mr. Sparrow’s shoulders and diagnosed him with rotator cuff sprain; however, she did not specify whether this was left, right, or bilateral.

Initially, Dr. Smothers issued a “Certificate to Return to Work/ School” indicating that Mr. Sparrow was under her care from January 7, 2015 through January 21, 2015, and could return to full duty on January 22, 2015. A second certificate returned Mr. Sparrow to work with restrictions as of February 11, 2015. A third certificate indicated that between February 12, 2015 and April 14, 2015, Mr. Sparrow continued under Dr. Smothers’ care and was able to return to work without restrictions on April 15, 2015.

|3The City claims that the first notice it received that Mr. Sparrow was claiming entitlement to workers’ compensation benefits was its receipt of a letter of representation from his attorney on April 15, 2015. The next information the City received were the aforementioned January and February certificates from Dr. Smothers. The City obtained written statements from the members of Mr. Sparrow’s crew. Because Mr. Sparrow’s claim was already filed with the Office of Workers’ Compensation, the third-party administrator for the City assigned the matter to counsel. Based upon the handwritten statements from his co-employees, the City denied Mr. Sparrow’s claim.

Following trial, the WCJ ruled in favor of Mr. Sparrow and awarded him: weekly indemnity of $175.14 from January 7 through April 15, 2015; reimbursement for out-of-pocket expenses for January 15, 2015, March 11, 2015, and April 10, 2015, all from Iberia Comprehensive Clinic totaling $85.00; reimbursement for his insurance co-pay for March 31, 2015 in the amount of $6.35; reimbursement for his co-pay/deductible to Radiology Associates of Acadiana in the amount of $17.35; entitlement to return to Dr. Smothers and to obtain the lumbar MRI; a $1,000.00 penalty for faffing to investigate his claim “once reported at the scene”; a $1,000.00 penalty for “failure of the supervisors to properly investigate the claim once medical slips were submitted”; a $2,000.00 penalty for failure to pay weekly indemnity benefits; a $2,000.00 penalty for failure to pay medical benefits; and $10,000.00 in attorney fees. This appeal followed.

ASSIGNMENTS OF ERROR

The City assigns the following errors:

1. The Trial Court committefd] legal error in ordering the defendant to pay for the balance of the plaintiffs treatment in the amount of $6.39 for the date of service March 31, 2015. This is the balance of the radiology bills by Drs. David Fontenot and John LeMieux. See Plaintiff Exhibit No. 3. This treatment was done at Iberia Medical Center. See Defendant Exhibit No. 9, pgs. 65—75, and was for x-rays of the plaintiffs cervical spine and right shoulder. The plaintiff 14 initially made a claim for this, but withdrew this claim during trial (after an ALFAC [sic] claim form signed by the plaintiff indicated this injury was caused by lifting a T.V. on January 31, 2015). Record, p. 262.
2. The Trial Court committed legal error when it ordered the defendant to pay for the plaintiffs medical treatment at Iberia Comprehensive Clinic on April 10, 2015. This treatment was for the plaintiffs shoulder pain. See Defendant Exhibit No. 5, pgs. 21-22. This part of the claim was withdrew [sic] by the plaintiff at trial. Record, p. 262.
3. The Trial Court committed legal error when it awarded the plaintiff disability benefits from January 7, 2015 through April 14, 2015. No one ever restricted the plaintiff from working from January 7, 2015 through January 16, 2015 (the date of his first medical treatment by Dr. SmothersD ]. Furthermore, Dr. Smothers released the plaintiff to return to work doing full duty without restrictions on January 22, 2015. See Defendant Exhibit No. 16, Deposition Exhibit No. 5.
4. The Trial Court committed manifest error and was clearly wrong when it ruled that the plaintiff met his burden of proving that he had an accident in the course of and arising out of his employment on January 7, 2015.
5. The Trial Court committed manifest error and was clearly wrong when it determined that the plaintiff injured his back during a work place accident on January 7, 2015.
6. The Trial Court committed manifest error and was clearly wrong when it determined the plaintiff was entitled to temporary total disability benefits from January 7, 2015 through April 14, 2015.
7. The Trial Court committed manifest error and was clearly wrong when it determined that the plaintiff was entitled to all reasonable and necessary medical treatment for his back.
8.The Trial Court committed manifest error and was clearly wrong when it awarded penalties and attorney fees.
ANALYSIS
“The manifest error standard of review applies to the findings of the WCJ in workers’ compensation cases. The court must review the record in its entirety and determine whether the record reasonably supports the WCJ’s conclusions. Reasonable evaluations of credibility are afforded great weight, and when the evidence is disputed, a fact-finder’s conclusions “can virtually never be manifestly erroneous.” Purvis v. Grant Parish Sch. Bd., 13-1424, p. 6 (La. 2/14/14), 144 So.3d 922, 926.

Meche v. Gray Ins. Co., 15-465, pp. 3-4 (La.App. 3 Cir. 11/12/15), 178 So.3d 640, 642-43. (Other citations omitted).

1 ^Because the overarching issue upon which all workers’ compensation claims are founded is the occurrence of an “accident,” we will address the City’s assignment of error numbers four and five first. See La.R.S. 23:1031(A). The determination that a workers’ compensation claimant has carried his burden of proof is also reviewed under the manifest error standard. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La. 1992). As noted above, the Louisiana Supreme Court in Purvis, 144 So.3d at 926 stated, “Where the fact-finder’s determination is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous.” Here, there was an almost even split in the number of witnesses who saw (and heard) Mr. Sparrow actually injure his back, and those who claimed that he performed no more work than procuring a dolly on which to load the pole sections. It is difficult to imagine a case to which the supreme court’s quoted admonition in Purvis more appropriately applies. These assignments of error lack merit.

In its first and second assignments of error, the City complains that it was ordered to pay for medical expenses for a condition not causally related to the workers’ compensation claim, i.e., Mr. Sparrow’s shoulder complaints. With regard to the City’s first assignment of error, we agree with the City that this charge of $6.39 represents charges for X-rays of Mr. Sparrow’s shoulder. That portion of the judgment is reversed.

However, with regard to its second assignment of error, the City is not correct. Dr. Smothers’ records reflect that Ms. Sparrow’s chief complaints on that day were, “Pt. is here for back/ shoulder pain.” We find no manifest error in the WCJ’s conclusion that Mr. Sparrow’s back pain is causally related to his on-the-job accident, and he is entitled to medical treatment resulting from that. The City’s second assignment of error also lacks merit.

1 (¡Assignments of error three and six duplicate each other. They address the award of TTDs. The WCJ based her ruling upon the three Certificates to Return to Work/School issued by Dr. Smothers. These certificates could have been more artfully drafted; yet, they state that Mr. Sparrow had been treated between the pertinent dates and that as of April 15, 2015, Mr. Sparrow was able to return to work without limitation. While they do not explicitly state that during the dates of treatment, Mr. Sparrow was not able to work, we cannot say that the WCJ erred in drawing the very reasonable inference implicit therein. These assignments lack merit.

Assignment of error seven addresses whether Mr. Sparrow is entitled to all reasonable and necessary medical treatment for his back injury. Under La.R.S. 23:1031(A), if an employee “receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or persons” designated by the Workers’ Compensation Act. Louisiana Revised Statutes 23:1203(A) mandates that the employer “furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any non-medical treatment recognized by the laws of this state as legal, and shall utilize such state, federal, public, or private facilities as will provide the injured employee with such necessary services.” In this case, the records reflect that Dr. Smothers ordered MRIs of Mr. Sparrow’s back. These have not been performed. Under La.R.S. 23:1203(A), an employer’s duty to furnish reasonable medical care exists independent of a finding that the employee is eligible for disability benefits. Because he was injured in an accident arising from and in the course and scope of his employment, Mr. Sparrow is entitled to such care. Assignment of error seven lacks merit.

Lastly, we turn to assignment of error number eight, which challenges the awards of penalties and attorney fees. Louisiana Revised Statutes 23:1201(F) governs the imposition of penalties and attorney fees. Subsection (2) thereof exempts the |7employer from penalties and attorney fees “if the claim is reasonably controverted.” The threshold for reasonably controverting a claim is low. A claim has been reasonably controverted when the employer “engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.” Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

With regard to the penalty and attorney fee issue, the WCJ concluded that Mr. Sparrow reported the accident, and that he received medical attention for his injury. Those are manifest error findings of fact and we find no manifest error in the WCJ’s decision in that regard. Additionally, it is undisputed that the employer did not obtain statements from the other employees, or even consider the medical reports, until receipt of notice of representation in April of 2015. Had the City done so, it would have found that Mr. Sparrow was asserting an accident and it should have investigated. The employer cannot simply sit on information and hope the whole thing goes away. Absent an investigation into an employee’s claim, an employer can hardly be said to have possessed factual and/or medical information to reasonably counter the employee’s claim. Accordingly, we affirm the WCJ’s award of penalties and attorney fees.

CONCLUSION

Kirk A. Sparrow injured his low back while working for the City of Jeanerette on January 7, 2015. He is entitled to all reasonable medical expenses attendant to that injury. Those medical expenses do not include the $6.39 charge for X-rays of Mr. Sparrow’s shoulder, and we reverse that portion of the judgment. Mr. Sparrow was entitled to weekly indemnity benefits for his temporary total disability from that date through his release to return to work on April 15, 2015, at the rate of $175.14. The | ^awards of penalties and attorney fees are affirmed. Trial and appellate costs in the amount of $1,963.17 are assessed to the City of Jeanerette.

AFFIRMED IN PART AND REVERSED IN PART.

      . We note, however, that Mr. Sparrow withdrew his claim regarding any injury to his shoulder(s).


author: McClendon, J. GUIDRY, J.,

text:
    Gregory CROW v. ST. TAMMANY PARISH GOVERNMENT
    2016 CA 0200
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: December 22, 2016

      D. Steven Wanko, Jr., Chase T. Villeret, Graham Brian, Covington, Louisiana, Counsel for Plaintiff/Appellee, Gregory Crow
    Gilbert R. Buras, Jr., New Orleans, Louisiana, Counsel for Defendant/Appellant, St. Tammany Parish Government
    BEFORE: WHIPPLE, C.J., GUIDRY, McClendon, Higginbotham and CALLOWAY, JJ.

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

   McClendon, J.

lain this workers’ compensation case, the employer appeals from a judgment that awarded the claimant penalties and attorney fees. The claimant answered the appeal, seeking additional attorney fees for defending the appeal. For the following reasons, we reverse that part of the judgment that awarded penalties and attorney fees and deny the answer to the appeal.

FACTS AND PROCEDURAL HISTORY

The claimant, Gregory Crow, was employed by St. Tammany Parish Government (STPG) as a budding inspector on September 21, 2004, when he injured his back during the course of his employment. Mr. Crow tried to return to work, but after a few months stopped working. STPG paid temporary total disability (TTD) benefits thereafter beginning on March 28, 2005. Mr. Crow has not returned to work.

On November 14, 2012, Mr. Crow filed a Disputed Claim for Compensation, asserting a bona-fide dispute and requesting permanent total disability (PTD) status. He also asked for costs, penalties, interest, and attorney fees. After a trial on August 20,2015, the Office of Workers’ Compensation (OWC) determined Mr. Crow to be permanently and totally disabled “since at least 2012.” The OWC also found that STPG had continued to pay to Mr. Crow TTD benefits without interruption, but that it had continued to dispute Mr. Crow’s right to the status of PTD and, therefore, awarded attorney fees in the amount of $4,000.00 and a penalty in the amount of $1,000.00 against STPG. STPG appealed, assigning as error the OWC’s award of penalties and attorney fees. Mr. Crow answered the appeal, seeking additional attorney fees associated with this appeal.

^discussion

The underlying purpose of workers’ compensation laws is to facilitate prompt payments to an injured worker. Hebert v. Jeffrey, 95-1851 (La. 4/8/96), 671 So.2d 904, 906 (citing Ledet v. Hogue, 540 So.2d 422, 425 (La.App. 1 Cir. 1989)). Total disability, whether permanent or temporary, means the inability to engage in any gainful occupation, whether or not it is the same or one similar to that in which the employee was customarily engaged when injured. LSA-R.S. 23:1221(l)(a) and (2)(a); Young v. City of Gonzales, 14-1299 (La.App. 1 Cir. 3/12/15), 166 So.3d 1070, 1073. A workers’ compensation claimant seeking temporary or permanent total disability benefits bears the burden of proving, by clear and convincing evidence, his inability to engage in any type of employment. Iberia Medical Center v. Ward, 09-2705 (La. 11/30/10), 53 So.3d 421, 432; Buxton v. Iowa Police Dept., 09-0520 (La. 10/20/09), 23 So.3d 275, 288.

Awards of penalties and attorney fees in workers’ compensation cases are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Iberia Medical Center, 53 So.3d at 433-34. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed. Id.

Louisiana Revised Statutes 23:1201 provides the authority for assessing attorney fees and penalties in this matter. Subsection F covers situations in which the employer failed to commence, or recommence, payment of benefits timely, to pay continued installments timely, or to pay medical benefits timely. See Nitcher v. Northshore Regional Medical Center, 11-1761 (La.App. 1 Cir. 5/2/12), 92 So.3d 1001, 1010, writ denied, 12-1230 (La. 9/21/12), 98 So.3d 342. Under this statutory provision, penalties and attorney fees are recoverable unless the claims were reasonably controverted. See LSA-R.S. 23:1201F(2).

In its appeal, STPG asserts that the OWC erred as a matter of law in awarding penalties and attorney fees. It avers that there was neither an act nor a failure to act by STPG that contravened the payment requirements of LSA-R.S. 23:1201. Although Mr. Crow does not dispute that he has received indemnity benefits without interruption since March 28, 2005, he argues that STPG failed to recognize his PTD status or to reasonably controvert his claim for PTD status. Specifically, he contends that under the clear language of LSA-R.S. 23:1201B, permanent total disability benefits were due when STPG had knowledge of his PTD status in 2012, and because STPG continued to pay him TTD benefits, rather than PTD benefits, until the trial of this matter, penalties and attorney fees under LSA-R.S. 23:1201F were properly awarded to him. Mr. Crow does not dispute that the monetary amount of TTD benefits and PTD benefits are identical.

Louisiana Revised Statutes 23:1201B provides:

The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.

Because this matter involves the interpretation of a statute, it is a question of law, and is thus reviewed under a de novo standard of review. Thibodeaux v. Donnell, 08-2436 (La. 5/5/09), 9 So.3d 120, 122. The starting point in the interpretation of any statute is the language of the statute itself. Red Stick Studio Development, L.L.C. v. State ex rel. Dept. of Economic Development, 10-0193 (La. 1/19/11), 56 So.3d 181, 187. Generally, courts begin such an interpretation with the premise that legislation is the solemn expression of legislative will, and that the interpretation of a law involves a search for the legislature’s intent. LSA-C.C. art. 2; Falgout v. Dealers Truck Equipment Co., 98-3150 (La. 10/19/99), 748 So.2d 399, 401. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. Red Stick Studio Development, L.L.C., 56 So.3d at 187-88.

Looking at the language of LSA-R.S. 23:1201, Subsection B plainly refers to the timely payment of the “first installment of compensation” that is due upon knowledge of the injury, not upon knowledge of whether it is for TTD or PTD benefits. It is uncontroverted that STPG began compensation payments timely. Further, Subsection F refers to the “failure to provide payment in accordance with this Section” and imposes a penalty for “any unpaid compensation ... benefits” and for “any and all compensation ... benefits” that “remain unpaid.” Mr. Crow does not assert a failure to pay compensation benefits, nor does he challenge the timeliness of any payments made. There simply is no evidence of a failure to provide compensation payments in accordance with LSA-R.S. 23:1201. Since 2005, Mr. Crow has received the maximum benefits to which he is entitled. Considering the purpose of the Workers’ Compensation Act and the penal nature of LSA-R.S. 23:1201F, as well as the clear language of LSA-R.S. 23:1201, we cannot find a “failure to provide payment” under the requirements of LSA-R.S. 23:1201 that would permit the assessment of penalties and attorney fees under Subsection F. Accordingly, we conclude that the owe committed legal error in imposing penalties and attorney fees, and that portion of the judgment must be reversed.

Lastly, in answer to the appeal, Mr. Crow requested that this Court award additional attorney fees for the work performed by counsel in defending the appeal. | ^Because we reverse the award of penalties and attorney fees, we also deny the relief requested by Mr. Crow in his answer to the appeal.

CONCLUSION

For the foregoing reasons, we reverse that part of the September 28, 2015 judgment that awarded penalties and attorney fees to the claimant. In all other respects, the judgment is affirmed. We also deny the request for attorney fees in Mr. Crow’s answer to the appeal. All costs of this appeal are assessed to the appellee, Gregory Crow.

REVERSED IN PART; AFFIRMED IN PART; ANSWER TO APPEAL DENIED.

Whipple, C.J. concurs, finding that the employer reasonably controverted the claim

Guidry, J. Dissents and will assign reasons.

Calloway, J., dissents in part and would award attorney fees on appeal

GUIDRY, J.,

dissenting.

li Louisiana Revised Statutes 23:1201(F) requires payment in accordance with the section. The payments were not made in accordance with the section, because having failed to reasonably controvert his claim, the claimant should have been paid for permanent total disability, and not temporary total disability. Further, it should be pointed out that, on appeal, the appellant does not contest the OWC’s finding that the claimant should have been classified and paid for permanent total disability since 2012, when the claimant filed his disputed claim for compensation. Hence, I believe any review of the determination of whether the appellant reasonably controverted the claimant’s claim is not properly before us and should not be addressed in the appellate decision. Accordingly, for the foregoing reasons, I dissent.

      . Prior to trial, the parties entered into the following Joint Stipulations For Trial:
      1. Claimant, Gregory Crow, was employed by Employer on the date of the alleged accident, September 21, 2004;
      2. Claimant had an accident in the course and scope of his employment and that arose out of his employment with Employer on September 21, 2004;
      3. Claimant suffered an injury to his back as a result of said accident;
      4. Payment of Loss Time/Indemnity Payments began on 3/28/2005; and
      5. Indemnity benefits paid by STPG to Gregory Crow total to the date of trial $238,021.71.

      . Louisiana Revised Statutes 23:1201F provides, in pertinent part:
      Except as otherwise provided in this Chapter, failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid ... together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.
      ⅜ * *
      2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control. Additionally, we note that pursuant to LSA-R.S, 23:12011, penalties and attorney’s fees are also recoverable when an employer discontinues payment of claims due, when such discontinuance is found to be arbitrary, capricious, or without probable cause. However, since it is undisputed that payments have not been discontinued, Subsection I is not applicable in this matter.

      . Even were we to somehow find merit in Mr. Crow’s argument, we would still find LSA-R.S. 23:1201F inapplicable as the claim was reasonably controverted by STPG. The record shows that while Mr. Crow made his claim in 2012, on March 26, 2014, Dr. Chad M. Do-mangue, Mr. Crow’s treating physician, stated to Becky Riecke, the vocational rehabilitation counselor, that Mr. Crow was capable of sedentary work under certain conditions. It was not until August 3, 2015, when Dr. Domangue responded to written questions from Mr. Crow’s counsel, that Dr. Domangue considered Mr. Crow to be permanently and totally disabled. Thus, it was not until shortly before trial that evidence was presented that Mr. Crow’s disability status was considered permanent and total.