author: MCDONALD, J.

text:
    STATE of Louisiana IN the INTEREST OF D.L., JR.

    2017 KJ 0891
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      Hillar C. Moore, III, District Attorney, and Otha Curtis Nelson, Jr., Cristopher J.M. Casler, Assistant District Attorneys, Baton Rouge, Louisiana, Attorneys for Ap-pellee State of Louisiana
    Jack Harrison, Baton Rouge, Louisiana, Attorney for Defendant/Appellant D.L., Jr.
    BEFORE: WHIPPLE, C.J., MCDONALD, and CHUTZ, JJ.

      . To protect D.L.’s identity as a'minor child, we have recaptioned this case and refer to hitó by his initials. ’See Uniform Rules— Courts of Appeal, Rule 5-2.

   MCDONALD, J.

|aD.L., a child, was alleged to be delinquent and/or in need of supervision by petition based on one count of first degree rape in violation of LSA-R.S. 14:42A(1) (count 1); one count of first degree rape in violation, of LSA-R.S. 14:42A(2) (count 2); one count of first degree rape in violation of LSA-R.S. 14:42A(5) (count 3); and one count of simple robbery in violation of LSA-R.S. 14:65 (count 4). He denied the allegations, and following an adjudication hearing, the juvenile court found him not guilty of counts 1 and 2 and dismissed those charges, and adjudged him delinquent as to counts 3 and 4. Following a disposition hearing, the juvenile court committed D.L. to the secure custody of the Department of Public Safety and Corrections, Office of Juvenile" Justice, until his 21st birthday, without benefit of parole, probation, or suspension of sentence. He now appeals, challenging the sufficiency, .of the evidence on both counts. For the following reasons, we affirm the adjudications of delinquency and disposition.

FACTS

The victim, T.S., age fourteen at the time of this offense, testified at trial. According to T.S., she resided in an apartment at Scotland Square Apartments (in East Baton Rouge Parish) with her grandmother, mother, younger brother, and younger sister. On the morning of December 17, 2016, T.S.’s father, E.S., who did not live with |Rthem, picked up the children, and they returned to the apartment after lunch. That afternoon, T.S.’s grandmother asked T.S. to go to the mailbox and check the mail. While walking alone to the mailbox, T.S. was stopped by two boys (later identified as D.L. and M.P., also charged as noted herein). Although T.S. did not know the boys, she described herself as friendly and answered the boys’ questions about her name, age, and whether she had a boyfriend. The boys walked with T.S. to the mailbox, and M.P. asked T.S. for a hug. When she hugged him, D.L. took her cell phone out of her back pants pocket and ran off with it. T.S. asked M.P. to help her get her phone back, and M.P. offered to take her to D.L. ■

As they approached an area behind the apartments where a dumpster was located, T.S. saw D.L. with her phone.. T.S. saw another boy (later identified as T.H.) on the other side of a nearby fence/gate. When T.S. asked for her phone, the boys began passing it back and forth, and D.L. told her she was not getting the phone back until she let one of the boys “yeah,” which T.S. was aware meant to have sex. Although T.S. told them she was not that kind of girl, she testified that the boys forced her. According to T.S., the boys pulled her pants down and despite her efforts to pull them up, the boys bent her over and “hit” her from behind, meaning to have intercourse from the back. T.S., testified the boys kept switching positions, with one sticking his penis in her mouth while the other was behind her having intercourse with her. T.S. unequivocally testified that both M.P. and D.L. put their penises in her vagina, and at least one of them, possibly both, put his penis in her mouth. T.S. told one of the boys she had surgery on her mouth to try to avoid putting his penis in her mouth. During this activity, T.H. threw a condom to one of the boys, and at some point, T.H. came over the fence. Although T.S. recalled that T.H. got behind her, she was unsure what he did while behind her. In her statement with the Children’s Advocacy Center, T.S. stated that T.H.’s pants were down, but she did not see his. penis and was unsure whether he put his penis in her vagina. T.S. testified that T.H. was not present when D.L. originally took her phone, and the only time T.H. had the phone was when they were playing with it.

[4T.S„ knowing that her father was at the apartment and hoping that he would catch the boys, told the boys there was $1,000 at the apartment that she would give them to get her phone back. When the boys agreed, T.S. walked to the apartment with M.P. and D.L.- According to T.S., T.H. had jumped back over the fence and left. T.S. entered the apartment with M.P. and D.L., but when her grandmother, who is deaf, came out of the bathroom and yelled, one boy called to the other and they both ran outside. As T.S. also ran outside, she saw her brother and told him that the boys attacked her and took her phone. Her brother then called their father, who was out looking for T.S., and as the father returned, he and T.S. got into his car in pursuit of the boys. They eventually got out of the car and ran after the boys but were unable to catch them. T.S. identified the three boys in court as the ones who committed these acts.

T.S. testified she did not try to run or stop them when they began pulling her pants down because there were two boys on that side of the fence with her. When asked if she tried to “punch” them, T.S. testified that the boys told her if she hit them, they would hit her. T.S. testified that she did not consent to the sexual activity and did not consent to the taking of her phone, which she never got back.

T.S.’s brother testified at trial that he also went to look for T.S. after his father called saying that he could not find her. As he returned to the apartment, he saw two boys, one in the apartment and .one on the side of the building. T.S. was outside and told him the boys raped her. He called their father and told him what T.S. said, and when the boys started running, he tried to chase them'-until he saw them climb over a fence. He called the police while T.S. and their father looked for the boys. T.S.’s father, E.S., also testified at trial that he became concerned and went to look for T.S. As he returned to the apartment, T.S. and her brother ran toward him, and his son said some boys took T.S.’s phone and raped her. E.S. and T.S. pursued them in his car, then on foot, but were unable to catch them. Subsequently, E.S. obtained information from calling people and social media as to the name of one of the boys, which he gave to the police.

| aOfficer Amy Krumm with the Baton Rouge Police Department responded to the call and, after obtaining a statement from T.S., went to the area of the dumpster, where, she found a condom. Officer Krumm described T.S. as crying and emotionally upset. She observed dirt and grass stains on T.S.’s pants around the knees and up the legs and buttocks areas and. noted that her hair was somewhat disheveled.

Wanda Pezant, a certified nurse practitioner, accepted by the court as an expert sexual assault nurse, examined T.S- that evening at the hospital. T.S. was very tearful, but alert and oriented during the examination. Nurse Pezant observed vaginal bruising, abrasions and redness and anal abrasions and redness. She also observed hymenal notching, which she testified was consistent with forced sexual intercourse. The injuries to the vaginal area were consistent with sexual intercourse. The injuries to the anal area were consistent with penetration, and although scarring and trauma in this area may often be found in cases of consensual sex, it -is less common to see the abrasions and friction in the direction observed on T.S., which was the basis for .her opinion that these injuries were- consistent with forced penetration. Nurse Pezant opined that these injuries, while they may seem.minor, were pretty dramatic and consistent with forced sexual assault, and she further opined that T.S.’s statement was very consistent with the documented injuries.

Although a rape kit was performed, at the time of the trial, the investigating officers were unaware of any DNA results. The condom found at the scene, the recorded statement of T.S. to the Children’s Advocacy Center, the recorded statements of the three boys, T.H., M.P., and D.L., and surveillance video of the area were admitted into evidence. -The surveillance video did not include the area where the sexual assault was alleged to have occurred, but did include some limited footage of two of the boys following T.S. Each of the boys provided varying versions of the events, which each gradually included more incriminating details as the versions changed. In his statement to police, D.L. admitted to taking T.S.’s phone and to putting his penis in her mouth. Although he claimed the vaginal sex occurred in T.S.’s apartment, he admitted to vaginal sex and also confirmed that T.S. offered to give them $1,000 for, her stuff, which prompted them to go to the apartment. In his | (¡statement to police, M.P. admitted to putting his penis in T.S.’s mouth, and after putting on the condom, tried to put it in her vagina. M.P. also confirmed that T.S. offered them $1,000 and told them she had surgery on her mouth. T.H. admitted giving a condom to. M.P. and holding the phone at one point, but then giving it back to D.L. T.H. denied touching T.S.

The juvenile court noted that it considered the statements of-each juvenile only as to that juvenile, not the others. The court found the statements of T.S. credible and found the statements of each of the juveniles to be self-serving, noting each juvenile’s statement changed multiple times, but each time became more consistent with T.S. The court found that T.S.’s account of the events made sense to the court, while the juveniles’ statements, based upon the facts, did not make sense. The juvenile court found each of the juveniles guilty of first degree rape, in violation of LSA-R.S. 14:42A(5), and simple robbery, in violation of LSA-R.S. 14:65.

SUFFICIENCY OF THE EVIDENCE

In his two assignments of error, D.L. asserts the evidence was insufficient to adjudicate him delinquent for either first degree rape or simple robbery.

In a juvenile adjudication proceeding, the State must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. LSA-Ch.C. art. 883. The burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T., 95-2187 (La. App. 1 Cir. 6/28/96), 677 So.2d 1071, 1074. In State in Interest of Giangrosso, 385 So.2d 471, 476 (La. App. 1 Cir. 1980), affirmed, 395 So.2d 709 (La. 1981), this Court stated:

In juvenile proceedings, the scope of review of this court extends to both law and fact. Article 5, Section 10, Constitution of 1974 .... We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt. [Citation omitted.]

Thereafter, in State in Interest of Giangrosso, 395 So.2d 709, 714 (La. 1981), the Supreme Court affirmed this Court, concluding that a rational trier of fact could 17have found, from the evidence adduced at the trial, proof of guilt beyond a reasonable doubt, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State in Interest of Batiste, 367 So.2d 784 (La. 1979). See In Interest of L.C., 96-2511 (La. App. 1 Cir. 6/20/97), 696 So.2d 668, 669-70.

Accordingly, on appeal, the standard of review for sufficiency of the evidence enunciated in Jackson is applicable to delinquency cases, ie. whether viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see also LSA-C.Cr.P. art. 821B ; State v. Ordodi, 06-0207 (La. 11/29/06), 946 So.2d 654, 660; and State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). It is well settled that, if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence, or prove the commission of the offense by the defendant. State v. Lilly, 12-0008 (La. App. 1 Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 12-2277 (La. 5/31/13), 118 So.3d 386.

Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to determine if the juvenile court was clearly wrong in its factual findings. See State in Interest of DM., 97-0628 (La. App. 1 Cir. 11/07/97), 704 So.2d 786, 789-90. In a juvenile ease, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, the appellate court should not disturb this factual finding on review in the absence of manifest error. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. State in Interest of Wilkerson, 542 So.2d 577, 581 (La. App. 1 Cir. 1989).

The Jackson standard is an objec: five standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial ^evidence, LSA-R.S. 15:438 provides that, assuming every fact, to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. State in Interest of D.F., 08-0182 (La. App. 1 Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 08-1540 (La. 3/27/09), 5 So.3d 138. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).

First Degree Rape

Louisiana Revised Statute 14:41A defines “rape” as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. Louisiana Revised Statute 14:42 provides, in pertinent part:

A. First degree rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances: ... (5) When two or more offenders participated in the act.
B.-For purposes of Paragraph (5), “participate” shall mean:
(1) Commit the act of rape.
(2) Physically assist in the commission of such, act.

D.L. does not deny that he engaged in sexual intercourse with T.S., but rather he argues the State failed to prove T.S.’s lack of consent, and accordingly, the evidence was insufficient to convict him of first degree rape, as the incident was not shown to be a “rape.” D.L. cites several cases in support of his argument that the State was required to prove not only that two or more offenders participated in the act, but also was required to prove another statutory “element” sufficient to show lack of lawful consent. The cases cited by D.L. do not support his argument. In State v. Conway, 556 So.2d 1323, 1327 (La. App. 3 Cir.), writ denied, 563 So.2d 876 (La. 1990), the Court rejected, as completely unreasonable, defendant’s argument that LSA-R.S., 14:42A(5) sought to criminalize sex between two participants. The Court found that the use of the term “offenders” did not make the act between two or more participants illegal, but rather the State had the burden- of proving the victim was raped. Id. D.L. argues that the victim in Conway resisted to the utmost, thereby satisfying LSA-R.S. |fl14:42A(l). While the Conway court discussed the victim’s resistance therein, there .was certainly no requirement that two subsections of LSA-R.S. 14:42A be proven in order to convict of the crime. In State v. Watson, 529 So.2d 94, 96 (La. App. 4 Cir. 1988), writ denied, 535 So.2d 740 (La. 1989), the defendant argued that LSA-R.S. 14:42A(5) criminalized group sex. The Watson court rejected that argument, finding the State was required to prove that the victim was raped, not simply that group sex occurred. Id. at 97. Based upon the facts of Watson, D.L. argues that the evidence was insufficient under either subsection A(l) or A(5). However, the Watson court clearly stated that the sanctions of LSA-R.S. 14:42A(5) applied, not that proof of two subsections was required. Id. at 97. Next, D.L. seizes upon language in State v. McDonald, 02-909 (La. App. 3 Cir. 2/5/03), 838 So.2d 128, 133, writ denied, 03-0807 (La. 10/17/03), 855 So.2d 758, that defendant “could also be viewed as a principal to violating the first three subsections of [LSA-JR.S. 14:42, as well.” Again, there is no requirement that proof of more than one subsection of LSA-R.S. 14:42A is necessary to support a conviction. The fact that thé evidence may prove moi-e than one subsection applies does not render proof of more than one necessary. Moreover, the clear statutory language provides that the rape is deemed to be without the lawful consent of the victim if “any one or more” of the enumerated circumstances is proven. LSA-R.S. 14:42A. Accordingly, whether more than one circumstance was proven in each' of the cases cited by D.L. is of no moment, as the statute clearly provides that any one of the circumstances is sufficient, but more than one is also allowable.

In this cáse, T.S. testified that when she asked for her phone, the boys told her she had to let them have sex with her before she could get it back. She testified that she told them she was not that type of girl, but they forced her and began pulling her pants down. T.S. testified the boys pushed her to bend her over, and she felt something forcefully pushing in her. According to T.S., D.L. and M.P. both put their, penises in her vagina. While D.L. argues that T.S. did not fight, scratch or kick the. boys, did not yell or scream, walked back' to her apartment with two of the boys arm-in-arm, still concerned about getting her phone back, and remained calm during all of this, D.L.’s arguments do not take into account the entirety .of T.S.’s testimony, which the | injuvenile court specifically found to be credible. When D.L. took her phone, T.S. initially felt somewhat uncomfortable, but was not scared, as the boys were her age and she thought they would not hurt her and they were “playing.” However, when they pulled her pants down, she did think they were going to hurt her. T.S. testified that she did not cooperate, and although she tried to remain calm, she was trying to get away from them, She also' testified that she did not stop them because there were three boys and only one of her, and she did not think she could run. According to T.S., D.L told her he would hit her if she hit him. T.S. testified she did not scream or yell, because it was a bad neighborhood and no one would come help because they hear screaming often. She testified that her reasoning for bringing them to the apartment was to have her father catch them. T.S. unequivocally testified that she did not want to have sex with any of the boys and she did not give them permission to have sex with her.

The testimony of T.S. that she did not consent to sexual intercourse with any of the boys, which Was supported by the testimony of Nurse Pezant that the injuries she observed to T.S.’s vagina and anus were consistent with forced penetration, was sufficient to prove a lack of consent to this sexual assault. Moreover, because more than two offenders participated in the acts, the intercourse is further deemed to be without lawful consent of the victim. LSA-R.S. 14:42A(5). This Court further notes that D.L. fled from the apartment complex,, and although an individual’s flight does not- in and of itself indicate guilt, it can be considered as circumstantial evidence that the individual has committed a crime, as flight shows consciousness of guilt. State v. Williams, 610 So.2d 991, 998 (La. App. 1 Cir. 1992), writ denied, 617 So.2d 930 (La. 1993). Any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that D.L. was guilty of first degree rape herein where two or more offenders participated in the act. Further, after undertaking our constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit,

jjjSimple Robbery

D.L. does not deny that he took T.S.’s phone, but rather he argues that the State failed to prove that force or intimidation was used when he took it. Louisiana Revised Statute 14:65A defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon. The Supreme Court has found that" the element of force or intimidation need not occur before or contemporaneously with the taking, but rather recognized that the elements of force and intimidation can be proven by evidence that it occurred in the course of completing the crime. State v. Meyers, 92-3263 (La. 7/1/93), 620 So.2d 1160, 1163.

In this case, although T.S. did not testify to force used at the time of the taking, and although she felt somewhat uncomfortable but not scared initially, the totality of the evidence, including the actions of the boys in leading her to the dumpster area, where she then felt that she was unable to run because she was outnumbered, supports the element of force or intimidation used by D.L. herein in completing the crime of robbery of the phone from T.S. Any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that D.L. was guilty, of simple robbery.,Further, after undertaking our constitutionally mandated review of. the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

ADJUDICATIONS AND DISPOSITION AFFIRMED.

      . Two other juveniles, M.P. and T.H., were also charged and adjudicated for the same crimes, and each of their adjudications are the subject of separate appeals. See State in Interest of T.H., 17-0890 (La. App. 1 Cir. 11/1/17), 233 So.3d 662, 2017 WL 4970014, and State in Interest of M.P., 17-0892 (La. App. 1 Cir. 11/1/17), 233 So.3d 633, 2017 WL 4969457.

      . Although the minutes of the disposition hearing, which were signed by the clerk of the juvenile court, provided separate adjudications for each count, the transcript of that hearing did not reflect separate dispositions. Nevertheless, this court has found it is appropriate in juvenile cases for a court to declare a single disposition for multiple adjudications. See State In Interest of J.C., 09-2000 (La. App. 1 Cir. 7/15/10), 2010 WL 2802104 at *5 (unpublished), The disposition herein until D.L.'s 21st birthday was the mandatory disposition based upon a violation of LSA-R.S. 14:42,-' first degree rape. LSA-Ch.C. art. 897.1A. Moreover, although the record does not contain information as to the dates of D.L.’s custody, this Court further notes that, even if he has been in custody since December 22, 2016 (the same date as the other two juveniles), the disposition until D.L.'s 21st birthday results in a custody period of 5 years, 4 months, and 17 days, which is less than the maximum term of imprisonment for the felony of simple robbery, and accordingly, it is within the limits of the statute. See LSA-Ch.C. art. 898A; LSA-R.S. 14:65.

      .The initials of the victim and her family members are used in order to keep her identity confidential pursuant to LSA-R.S. 46:1844W and Uniform Rules—Courts of Appeal, Rule 5-2.

      . The district court’s action in considering the statements separately avoided a potential Bru-

        ton problem. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

      . In the absence of specific procedures provided by the Louisiana Children’s Code, courts exercising juvenile jurisdiction in delinquency proceedings shall proceed in accordance with the Louisiana Code of Criminal Procedure. See LSA-Ch.C. art. 803.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    Michelena A. ROSE, Linda Rose Gallagher, Melanie K. Rose v. TWIN RIVER DEVELOPMENT, LLC, CSRS, Inc., Hilltop Logging Corp., Marty Due, Richard Demint, and Charles Brown
    NO. 2017 CA 0319
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017

      RICHARD T. GALLAGHER, JR. ME-TAIRIE, LA ATTORNEY FOR PLAINTIFFS-APPELLANTS THE ESTATE OF MICHELENA A. ROSE, LINDA ROSE GALLAGHER AND MELANIE K ROSE
    STEVEN B. LOEB JACOB E. ROUS-SEL BATON ROUGE, LA ATTORNEYS FOR DEFENDANT-APPELLEE CSRS, INC.
    ANTHONY S. MASKA HAMMOND, LA ATTORNEY FOR DEFENDANT-APPELLEE RICHARD DEMINT
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

Lin the instant case, the trial court heard two motions for summary judgment on September 19, 2016. Following the hearing, both motions were granted by the trial court, each in favor of a different defendant. However, only one judgment was signed on that day. According to plaintiffs, they had no intention of appealing the judgment signed on September 19, 2016, but they did. Although the second judgment, signed on October 6, 2016, was never appealed, it is the only judgment challenged by plaintiffs in the appeal before us now. For the reasons that follow, we dismiss this appeal.

FACTS AND PROCEDURAL HISTORY

The underlying litigation arises from the clear-cutting of a large swath of trees from land (“the Rose property”) plaintiffs, the Estate of Michelena A. Rose, Linda Rose Gallagher, and Melanie K. Rose, claim to own. Particularly, the disputed land consists of approximately 6.6 acres along the Tickfaw River in Livingston Parish.

In 2006, Twin Rivers Development, LLC (“Twin Rivers”) bought a tract adjoining the Rose property. Marty Due owned Twin Rivers, and Richard Demint was the company’s manager. Prior to Twin Rivers’ purchase of the adjoining property, Twin Rivers hired CSRS, Inc. and Stephen Es-topinal to survey the property.

Also in 2006, Michael Gallagher, Linda’s son, hired a surveyor, Larry Lessard, to survey the property lines in connection with possible reclamation of riverfront property that had eroded Lessard’s employees determined that survey stakes had been placed diagonally over the Rose property, incorrectly setting the boundary line between the tracts and diminishing the Rose tract. After checking the public conveyance records, Lessard notified CSRS and its surveyor that they had placed the property line incorrectly over part of the Rose property. However, the allegedly encroaching stakes were never removed.

IsTwin Rivers subsequently hired Hilltop Logging Corp. to clear cut trees up to the CSRS survey markers. As a result, Hilltop Logging cut approximately 6.6 acres of old growth riverfront timber from property allegedly belonging to plaintiffs.

In May 2007, plaintiffs filed a petition for damages and trespass. Among the named defendants were Richard Demint and CSRS. In July 2016, Demint and CSRS filed separate motibns for summary judgment. Demint alleged that he had no ownership interest in Twin Rivers and that he had no involvement in cutting the trees on the disputed land. CSRS alleged that it should be dismissed from the litigation because there was no evidence that CSRS violated the applicable duty of care for surveyors.

Both motions for summary judgment came oh for hearing on September 19, 2016. The hearing transcript shows that plaintiffs did not contest the grant of summary judgment in Demint’s favor. A prepared judgment granting the motion for summary judgment, without decretal language, was submitted and signed that date, and was later certified as final under La. Code Civ. P. art. 1915,.

CSRS’s motion for summary judgment, however, was contested. After hearing ar- • gument from the parties, the trial court granted CSRS’s motion for summary judgment. In a judgment signed on October 6,' 2016, the trial court dismissed plaintiffs’ claims against CSRS, with prejudice. On November 29, 2016, plaintiffs filed a motion and order for appeal, as follows:

NOW INTO COURT, through undersigned counsel, come plaintiffs, the Estate of Michelena A. Rose, Linda Rose Gallagher and Melanie K. Rose who moves that this Court grant them a [devolutive] appeal from the final judgment in this case, which was read, rendered and signed on September 19, 2016, and mailed on October 4, 2016.

The record in this appeal was lodged on March 9, 2017. That same day, this court issued a show cause order on the grounds that the September 19, 2016 judgment appeared to lack appropriate decretal language and therefore is not a final, appeal-able judgment. The order directed the parties to show cause why the appeal should or Lshould not be dismissed on that basis. It further remanded the matter to the trial court for the limited purposes of curing the defect in the judgment.

DISCUSSION

The judgment signed by the trial court on September 19, 2016, simply states:

Considering the facts, pleadings and argument of counsel made during the hearing on the Motion for Summary Judgment submitted by Richard Dem-int:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by the defendant, Richard Demint, be and is GRANTED.
This Court further finds that there is no just reason for delay, and this is a final judgment pursuant to L.C.C.P. art. 1915.

This judgment does not dismiss plaintiffs' claims against Demint. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Texas Gas Exploration Corp. v. Lafourche Realty Co., Inc., 2011-0520, p. 8 (La. App. 1 Cir. 11/9/11), 79 So.3d 1054, 1059, writ denied, 2012-0360 (La. 4/9/12), 85 So.3d 698. This court’s appellate jurisdiction extends only to “final judgments.” See La. Code Civ. P. art. 2083(A); Van ex rel. White v. Davis, 2000-0206, p. 5 (La. App. 1 Cir. 2/16/01), 808 So.2d 478, 483. A judgment that determines the merits in whole or in part is á final judgment. La. Code.Civ. P. art. 1841. A final judgment shall be identified as such by appropriate language. A valid judgment must be “precise, definite, and certain.” Laird v. St. Tammany Parish Safe Harbor, 2002-0045, p. 3 (La. App. 1 Cir. 12/20/02), 836 So.2d 364, 365. Moreover, a final appealable judgment must contain de-cretal 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 relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016, p. 2 (La. App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of a judgment without reference to other documents in |Rthe record. Laird, 2002-0045 at 3, 836 So.2d at 366. Thus, a judgment that does not contain decretal language cannot be considered as a final judgment for the purpose of an immediate appeal, and this court lacks jurisdiction to review such a judgment. See Johnson v. Mount Pilgrim Baptist Church, 2005-0337, p. 3 (La. App. 1 Cir. 3/24/06), 934 So.2d 66, 67. Because the September 19, 2016 judgment is defective in that it does not contain decretal language, we cannot consider it as a final judgment for the purpose of an immediate appeal. However, because of the unique posture of this case, our discussion does hot end here.

In their brief submitted in response to this court’s show cause order, plaintiffs allegé that although they referenced the September 19, 2016 judgment in their motion and order for appeal, they actually intended to appeal only' the judgment rendered in favor of CSRS, ie., the judgment signed by the trial court on October 6, 2016. In fact, in their appellate brief filed herein, the only error alleged by plaintiffs concerns the granting of summary judgment in favor of CSRS. Citing Vienne v. Chalona, 203 La. 450, 14 So.2d 54 (La. 1943), plaintiffs argue that where there are multiple judgments, one motion to appeal is sufficient to perfect the appeal.

Subsequent thereto, CSRS filed a “Motion To Dismiss Appeal, Or Alternatively, Motion For Leave To File Appellee Brief’ with this court. CSRS argued that pursuant to La. Code Civ. P. art. 2088 and applicable jurisprudence, there can be no appeal of the judgment rendered in its favor and signed on October 6, 2016, as plaintiffs never filed a motion to appeal said judgment.

It is.well settled that appeals are favored in the law and should be maintained unless the grounds urged for dismissal are free from doubt. Adams v. South Lafourche Levee Dist., 2015-0507, p. 11 (La. App. 1 Cir. 6/27/16), 199 So.3d 20, 26, writ granted and cause remanded, 2016-1423 (La. 6/29/17), 222 So.3d 34. However, a party wishing to appeal an adverse judgment must obtain an order of appeal. There can be no appeal absent an order of appeal because the order is jurisdictional; this lack | nof jurisdiction can be noticed by the court on its own motion at any time. Noyel v. City of St. Gabriel, 2015-1890, p. 5 (La. App. 1 Cir. 9/1/16), 202 So.3d 1139, 1142, writ denied, 2016-1745 (La. 11/29/16), 213 So.3d 392. See also La. Code Civ. P. art. 2088. The failure of the appellant to obtain an order of appeal forfeits his right to appeal. Snearl v. Mercer, 99-1738, p. 7 (La. App. 1 Cir. 2/16/01), 780 So.2d 563, 571, writs denied, 2001-1319, 2001320 (La. 6/22/01), 794 So.2d 800, 801.

Here, the motion and order for appeal unambiguously state that plaintiffs are appealing the judgment read, rendered, and signed on September 19, 2016, and mailed on October 4, 2016. Even on careful review of the motion and order for appeal and the latter judgment signed on October 6, 2016 and mailed on October 19, 2016, there appears to be no ambiguity, latent question, or doubt about which judgment is being appealed.

In Kirsch v. Kirsch, 2015-0281, pp. 19-20 (La. App. 1 Cir. 7/29/15), 180 So.3d 417, 428, writ denied, 2015-1626 (La. 9/18/15), 178 So.3d 153, this court considered whether it had jurisdiction over all of the issues presented in an appeal where the appellant filed a motion and order for appeal that referenced the first of two judgments but sought review of the “final judgment rendered in this action.” The second judgment was not signed until after the order granting the appeal was signed. Based on another first circuit opinion, Voelkel v. State, 95-0147, pp. 3-4 (La. App. 1 Cir. 10/6/95), 671 So.2d 478, 479-180, writ denied, 95-2676 (La. 1/12/96), 667 So.2d 523, this court in Kirsch concluded: “As the [first] judgment only addressed the award of sole custody ..., the remaining assignments of error do not arise from [that] judgment. Therefore, pursuant to Voelkel, this Court lacks jurisdiction over the remaining assignments of error, which are not encompassed within the award of sole custody.” Kirsch, 2015-0281 at 21, 180 So.3d at 429.

In Voelkel, the trial court signed a judgment on September 1, 1994, granting the State of Louisiana’s motion for summary judgment. A separate judgment was signed on September 30, 1994, dismissing the Washington Parish Police Jury. The appellant moved for an appeal, on September 23, 1994, wherein he stated he was 17appealing the judgment “rendered on or about August 30, 1994.” The order granting the appeal was signed October 17, 1994. The appellant treated the appeal as if it were an appeal of both judgments. This court dismissed the appeal as to the latter judgment concluding as follows: “We find we have no jurisdiction over the appeal of the September 30 judgment because of the lack of an order of appeal.” Voelkel, 95-0174 at 3-4, 671 So.2d at 480.

The only apparent distinction between these two cases and the one on appeal here is that here, the order of appeal was signed after both judgments were rendered. Even so, the plain language of the motion and order for appeal here pertains only to the judgment signed September 19, 2016 and mailed October 4, 2016.

In opposing the dismissal of their appeal, plaintiffs argue several points. First, they explain that they did not oppose the summary judgment as to Demint. Rather, they did oppose the summary judgment filed by CSRS. Plaintiffs argue that they demonstrated an intent to appeal this ruling “by requesting reasons for judgment in the oral arguments before the [trial court].” They explain that it was their intent to appeal the judgment in favor of CSRS. As previously noted, plaintiffs cite the Louisiana Supreme Court’s holding in Vienne, supra, as authority for the proposition that where there are multiple judgments, one motion to appeal is sufficient to perfect the appeal.

The holding in Vienne, however, is easily distinguishable. In Vienne, the notice of appeal was specifically filed on behalf of two distinct plaintiffs who both received substantially the same, but separate judgments at the same time. The motion for appeal referenced both appellants and both judgments. The order granting the appeal granted a devolutive appeal to both appellants by name. Vienne, 14 So.2d at 54-55. In the instant case, nothing in the motion and order for appeal provides a basis for referencing or incorporating the summary judgment in favor of CSRS into plaintiffs’ appeal of the first judgment.

The first circuit has at times liberally construed motions for appeal in order to maintain appeals. In Noyel, supra, the trial court signed a judgment on June 17, 2015. Following the appellant’s motion for devol-utive appeal of the June 17, 2015 judgment, |sthe trial court issued an order of appeal “from the Judgment rendered in the above-captioned matter on April 30, 2015 and signed on May 15, 2016[.]” No such judgment existed however, so on the motion of the appellant, the trial court ultimately rendered an amended order of appeal reflecting the correct dates. Further, based on the apparent defect in the appeal, this court, ex proprio mot% issued an interim order on May 20, 2016, remanding the case to the trial court for the limited purpose of issuing an amended order of appeal with the correct dates of the original judgment. The trial court rendered an amended order of appeal. This court then held: “As the amended order of appeal contains the correct dates of the original judgment, the jurisdiction of this court now attaches upon the granting of the amended order of appeal.” Noyel, 2015-1890 at 5-6, 202 So.3d at 1142.

Similarly, in Grote v. Federal Insurance Company, 2016-0474 (La. App. 1 Cir. 12/22/16), 2016 WL 7407385 (unpublished), writ denied, 2017-00153 (La. 3/13/17), 216 So.3d 805, the trial court signed a judgment on September 15, 2015. On motion for appeal, however, the trial court signed an order granting an appeal “of the judgment rendered on 08/17/15.” However, there was no judgment rendered on August 17, 2015. Again, based on the apparent defect in the appeal, this court, ex propriomotu, issued an interim order remanding the case to the trial court for the limited purpose of issuing an amended order of appeal with the correct dates of the original judgment. The trial court then supplemented the record with an amended order for devolutive appeal. As in Noyel, this court observed that “[a]s the amended order of appeal contains the correct dates of the original judgment, the jurisdiction of this court now attaches upon the granting of the amended order of appeal.” Grote, 2016 WL 7407385, at 4-5.

These cases, however, also appear to be distinguishable from the facts at issue in this appeal. In Noyel and in Grote, there was only one judgment to be appealed, and this court recognized that the orders of appeal apparently contained clerical errors, which the appellants were allowed to correct. Here, perhaps the reference to the judgment signed September 19, 2016 and mailed October 4, 2016, may be a clerical 13error on plaintiffs’ part. However, a judgment exists that completely conforms to the judgment referenced in the motion and order for appeal. Even if all the parties know that plaintiffs had no intent to appeal the judgment they appear to have acquiesced in, but rather that they intended to appeal the judgment in favor of CSRS, they have not obtained an order of appeal for that judgment.

'DECREE

For the above and fóregoing reasons, we dismiss the instant appeal and assess all appeal costs against plaintiffs, the Estate ofMichelena A. Rose, Linda Rose Gallagher, and Melanie K. Rose.

APPEAL DISMISSED; MOTION TO DISMISS APPEAL DENIED AS MOOT.

      . Following the death of Michelena A. Rose in 2010, the Estate of Michelena A. Rose was substituted as party plaintiff for Michelena A. Rose.

      . We note that although the parties filed briefs in response to our show cause order, to this date there has been no amended judgment filed into the record addressing our concerns about- the finality of the September 19, 2016 judgment.

      . Based on our holding dismissing the instant appeal, we deny this motion by CSRS as moot.


author: WELCH, J.

text:
    BIG 4 TRUCKING, INC. and Nationwide Agribusiness Insurance Company v. NEW HAMPSHIRE INSURANCE COMPANY
    NUMBER 2017 CA 0420
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017

      Frank R. Whiteley, Robert J. May, Megan M. Richardson, New Orleans, Louisiana, Attorneys for Appellants, Plaintiffs— Big 4 Trucking, Inc. and Nationwide Agribusiness Insurance. Company
    Elizabeth A. Liuzza, Metairie, Louisiana, ■Attorney for Appellee, Defendant—New Hampshire Insurance Company
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   WELCH, J.

lain this workers’ compensation matter, the plaintiffs, Big 4 Trucking, Inc. and Nationwide Agribusiness Insurance Company, appeal a judgment by the Office of Workers’ Compensation (“OWC”) sustaining a peremptory exception raising the objection of prescription and, dismissing certain claims against the defendant, New Hampshire Insurance Company. For the reasons that follow, we reverse the judgment and remand this matter back to the OWC for further proceedings consistent with this ruling'herein.

FACTUAL AND PROCEDURAL BACKGROUND

Successive Claims & Settlement

On March 27, 2014, Darrell Shanks sustained injuries as the result of an accident while in the course and scope of his employment with Big 4 Trucking, Inc. (“Big 4 Trucking”). At the time of Mr. Shanks’ 2014 accident, New Hampshire Insurance Company (“New Hampshire”) had in effect a policy providing workers’ compensation coverage to Big 4 Trucking. As per the policy, New Hampshire paid indemnity benefits and medical benefits in connection ■with Mr. Shank’s injuries. Relevant to the issues under consideration’ herein, New Hampshire made the last indemnity benefit payment to Mr. Shanks on April 25, 2014, and the last medical benefit was paid on behalf of Mr. Shanks by New Hampshire on August 12, 2014.

On July 2, 2015, Mr. Shanks was involved in a second accident while still in the course and scope of his employment for Big 4 Trucking. At the time of the 2015 accident, Nationwide Agribusiness Insurance Company (“Nationwide”) |3provided workers’ compensation insurance coverage to Big 4 Trucking. Nationwide paid approximately $22,500.00 in indemnity benefits and $52,991.55 in medical benefits on behalf of Mr. Shanks following the 2015 accident. Nationwide and Big 4 Trucking eventually entered into a settlement agreement with Mr. Shanks. As required by La. R.S. 23:1274, the settlement was approved by the workers’ compensation judge (“WCJ”) on June 17, 2016. Under the terms of the settlement agreement, Mr. Shanks expressly released Nationwide and Big 4 Trucking from any obligation to pay past or future indemnity benefits or medical benefits claims in exchange for a lump sum payment of $245,000.00.

Claim for Contribution—Exception of Prescription

On August 9, 2016, Big 4 Trucking filed a disputed claim for compensation urging the claim for contribution at issue in the instant appeal. On November 28, 2016, Nationwide was added as a named plaintiff via a second amended disputed claim for compensation. The attached petition for compensation alleged that Mr. Shanks sustained injuries in both the 2014 and 2015 accidents while in the course and scope of his employment with Big 4 Trucking. The complaint alleged solidary liability between all of the named parties on the basis that Mr. Shanks’ claims arising out of the 2015 accident resulted from an aggravation of the injuries he sustained in the 2014 accident. The contribution claim asserted was for one half of all workers’ compensation benefits and medical expenses paid by Big 4 Trucking and Nationwide in connection with Mr. Shanks’ job related accidents. New Hampshire answered and urged peremptory exceptions raising the objections of prescription and no right of action.

|4On December 5, 2016, a hearing was held on New Hampshire’s exceptions of prescription and no right of action. New Hampshire’s-exception of no right of action was denied by the WCJ, and a judgment was signed on December 16, 2016. Regarding prescription, citing La. R.S. 23:1209 and Larkin v. Regis Hair Stylists, 2002-127 (La. App. 3rd Cir. 5/15/02), 817 So.2d 1266, New Hampshire argued a one year prescriptive period applied to all claims for contribution brought under the Workers’ Compensation Act. New Hampshire argued that the action for contribution was prescribed because the action was filed more than one year after New Hampshire had made its last payment of benefits to Mr. Shanks. The WCJ took the matter under advisement and issued a judgment signed December 20, 2016, and for the reasons argued by New Hampshire, sustained the exception of prescription and dismissed the claims against Nationwide with prejudice. We observe that the judgment signed December 20, 2016, addressed and ruled on only those claims asserted by Nationwide; thus, the claims asserted by Big 4 Trucking remain pending before the WCJ.

Nationwide and Big 4 Trucking filed this devolutive appeal of the WCJ’s December 20, 2016 judgment, and assert that the WCJ erred as a matter of law in its finding that the claim for contribution “for supplemental earnings benefits and medical benefits paid to [Mr. Shanks] prescribed.” As noted herein, there is no final judgment against Big 4 Trucking; thus, we limit our opinion to Nationwide’s claims against New Hampshire on appeal.

JjDISCUSSION

Exception of Prescription—Standard of Review and Burden of Proof

Generally, when evidence is introduced at the hearing on an exception of prescription, the WCJ’s findings of fact on the issue of prescription are reviewed under the manifest error-clearly wrong standard of review. See Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1267. However, in a case involving no dispute regarding material facts, but only the determination of a legal issue, the reviewing court must apply the de novo standard of review. State by and Through Caldwell v. Fournier Industrie et Sante and Laboratories Fournier, S.A., 2015-1353 (La. App. 1st Cir. 12/22/16), 208 So.3d 1081, 1084; Cawley v. National Fire & Marine Ins. Co., 2010-2095 (La. App. 1st Cir. 5/6/11), 65 So.3d 235, 237; see also TCC Contractors, Inc. v. Hospital Service Dist. No. 3 of Parish of Lafourche, 2010-0685 (La. App. 1st Cir. 12/8/10), 52 So.3d 1103, 1108. Evidence in the form of a stipulation between the parties and a copy of the receipt and release agreement entered into between Mr. Shanks, Nationwide and Big 4 Trucking was entered into evidence at the hearing on the exception. However, the material facts of this case are not in dispute and the pnly issue is the legal issue regarding the proper prescriptive period applicable to contribution claims asserted between workers’ compensation insurers under La. R.S. 23:1209; therefore, we conduct a de novo review herein. Under the de novo standard of review the WCJ’s legal conclusions are not entitled to deference. See Kevin Associates, L.L.C. v. Crawford, 2003-0211 (La. 1/30/04), 865 So.2d 34, 43.

With regard to the burden of proof, if the facts alleged in a petition do not show that a claim has prescribed, the burden is on the party raising the objection of prescription to prove it. Conversely, if a claim is prescribed on the face of the pleadings, the burden is on the plaintiff to show that prescription has not tolled | (¡because of an interruption or suspension of prescription. Gay v. Georgia-Pacific, 2012-1892 (La. App. 1st Cir. 10/10/13), 184 So.3d 39, 43; Brister v. GEICO Ins., 2001-0179 (La. App. 1st Cir. 3/28/02), 813 So.2d 614, 616. At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. Prescription statutes, including La. R.S. 23:1209, are construed to maintain rather than to bar actions, Albert v. Air Products and Chemicals, 2015-0525 (La. App. 1st Cir. 1/21/16), 186 So.3d 743, 748, writ denied, 2016-0630 (La. 5/20/16), 191 So.3d 1071.

The facts alleged in the disputed and amended disputed claims for compensation do not show on their face that the claim for contribution has prescribed. Instead, the facts alleged in the disputed and amended disputed claims for compensation reference the dates of the 2014 and 2015 job related accidents, but there is no reference to the dates that disability benefit and medical expense payments were last made on behalf of Mr. Shanks by New Hampshire. As set forth in detail below, under La. R.S. 23:1209, the last date that indemnity and medical benefit payments were made serves as the definitive trigger for the running of prescription; therefore, without an allegation as to the date when prescription was triggered, the burden of proof remains with the mover, New Hampshire, to show that the' claim against it is prescribed.

Louisiana Revised Statutes 23:1209

Louisiana Revised Statutes 23:1209 provides, in pertinent part, as follows:

A. (1) In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2)Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the 17time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to' R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the procéed-ings have been begun within three years from the date of the accident. .
(4) However, in all cases described in Paragraph (3) of this Subsection, where the proceedings have begun after two years from the date of the work accident but within three years from the date of the work accident, the employee may be entitled to temporary total disability benefits for a period not to exceed six months and the payment of such temporary total disability benefits in accordance with this Paragraph only shall not operate to toll or interrupt prescription as to any other benefit as provided in R.S. 23:1221.
C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has ■ been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.

According to La. R.S. 23:1209(A) and (B), a claim for indemnity benefits must be filed in the following time periods: (1) one year after the accident or death; or (2) one year after the last payment of indemnity compensation, except in claims for supple-, mental earnings benefits (“SEBs”), when the period of three years from the last weekly payment of indemnity benefits applies (regardless of the type of benefit previously paid); or (3) one year from the time the “injury develops” if the injury “does not result at the time of, or develop immediately after the accident,” but in no event more than two years after the accident. See Pal v. Stranco, Inc., 2010-1507 (La. App. 1st Cir. 8/3/11), 76 So.3d 477, 485, writ denied, 2011-1834 (La. 11/4/11), 75 So.3d 925. Similarly, under La. R.S. 23:1209(0, a claim, for 1 ^medical benefits must be filed within the following time periods: (1) one year after the accident; or (2) three years after the last payment, of medical benefits.

Although the language of La. ,R.S. 23:1209 only discusses claims by or on behalf of an employee for indemnity and medical benefits, both this Circuit and the Third Circuit have- held that the prescriptive periods found in La. R.S. 23:1209 are applicable to cross-claims between employers. or workers’ compensation insurers for contribution. In the only two reported cases on the application of La. R.S. 23:1209 to contribution claims between insurers, TIG Ins. Co. v. Louisiana Workers’ Compensation Corp., 2009-0330 (La. App. 1st Cir. 9/11/09), 22 So.3d 981, and Larkin v. Regis Hair Stylists, 2002-127 (La. App. 3rd Cir. 05/15/02), 817 So.2d 1266, the First and Third Circuits concluded that the 1997 legislative amendment to La. R.S. 23:1310.3(E) granting original, exclusive jurisdiction to the WCJ over “cross claims between employers or workers’ compensation insurers for indemnification or contribution” results in the application of La. R.S. 23:1209 to such claims, because La. R.S, 23:1209 governs prescription on all claims brought under the Workers’ Compensation Act. See TIG Ins. Co., 22 So.3d at 986-987; Larkin, 817 So.2d at 1268.

Additionally, Larkin and TIG Ins. Co. addressed, how the prescriptive period in La. R.S. 23:1209 applies to contribution claims.' In Larkin, an employee was injured on October 21, 1999, while in the course and scope of her employment with Regis Hair Stylists. On March 23,. 2000, the. employee filed a, disputed claim for. compensation and sought TTD benefits from Regis. Regis, in turn, filed a third party demand, on February 2,2001, against the employee’s previous employer, Books-A-Million, and its insurer, asserting the 1999 injury was a continuation, or, alternatively, an aggravation of a previous job related injury suffered .by the | employee in 1996, . during her employment ydth Books-A-Million. Larkin, 817 So.2d at 1266-1267.

Books-A-Million and its insurer filed an exception of prescription arguing a one year prescriptive period applied to Regis’ contribution claim under La. R.S. 23:1209. The Third Circuit agreed and held as follows:

The amendment to . R.S. 23:1310,3(E) clearly, granted original .and exclusive jurisdiction of claims between insurers for contribution to the Office of.Workers’ Compensation. R.S. 23:1209 provides that “all claims for payments shall be forever barred” unless brought within one year. R.S. 23:1209 does not grant any exceptions or extensions for a com tribution claim filed by an insurer against another beyond the one year period.

Larkin, 817 So.2d at 1268.

As noted above, the WCJ relied upon the Third Circuit’s holding in Larkin to find that Nation-wide’s contribution claim was prescribed. In its written reasons for judgment, the WCJ found that the prescriptive period for Nationwide’s contribution claim ran one year from the date of the last workers’ compensation benefit payment by New Hampshire. The WCJ’s interpretation of La. R.S. 28:1209 did not appear to distinguish between claims for certain types of indemnity benefits and/or medical benefits. New Hampshire argues that Larkin is controlling here and mandates the application of a one year prescriptive period to all contribution claims regardless of whether the claims relate to the payment of indemnity or medical benefits. New Hampshire takes the position that only express claims for SEB benefits or medical benefits by or on behalf of an employee claimant would be subject to the three year prescriptive period set forth in La. R.S. 23:1209(A) and (C).

Nationwide maintains that the instant matter is governed by this court’s holding in TIG Ins. Co. Nationwide avers that under the holding of TIG Ins. Co., any contribution claims for SEBs or medical benefits paid by Nationwide and Big 4 Trucking would be subject to a three year prescriptive period that runs from |inthe last date of the payment of the benefit in question by New Hampshire. Nationwide contends that its claim for contribution was timely filed less than three years after New Hampshire’s last benefit payments. Nationwide asserts that the WCJ erred in dismissing its contribution action as there was no determination by the WCJ whether SEBs or medical benefits had been paid by Nationwide or Big 4 Trucking prior to dismissing the entire claim on the grounds that it was prescribed.

In TIG Ins. Co., the employer had two overlapping policies in effect at the time of the employee’s injury, one through TIG, and the other through Louisiana Workers’ Compensation Corporation (“LWCC”). TIG paid the indemnity and medical benefits in connection with the employee’s claim, and eventually settled with the employee. TIG Ins. Co., 22 So.3d at 983. The last payment of benefits by TIG to the employee was on July 9, 2002. More than three years later, on April 25, 2006, TIG sued LWCC for contribution for one half of TIG’s expenditures associated with the settlement and handling of the claim. TIG alleged solidary liability on the basis of overlapping coverage. The WCJ sustained LWCC’s exception of prescription and found that TIG’s contribution claim was prescribed under La. R.S. 23:1209. Id.

Recognizing the issue as res nova, this Court first reviewed and adopted the reasoning set forth by the Third Circuit in Larkin holding that La. R.S. 23:1209 governs the time for filing cross claims for employers and insurers for contribution. Id. at 986. However, this Court did not find that Larkin established a blanket one year prescriptive period for all contribution claims. Instead, this court in TIG Ins. Co. found that application in Larkin of the one year prescriptive period found in La. R.S. 23:1209 was appropriate therein because the only claim at issue in Larkin was a contribution claim for TTD benefits. See Larkin, 817 So.2d at 1267. This court explained:

JjjAs the claim in Larkin was a claim for temporary total disability benefits, the one-year prescriptive period of La. R.S. 23:1209 was clearly applicable. However, as previously noted, there are different prescriptive periods applicable for supplemental earnings benefits and medical benefits that were not at issue in Lar-kin.

Id. at 987, n.5. To that end, this Court held that the contribution claim for TTD asserted by TIG were prescribed under the La. R.S. 23:1209. Id. at 988. However, this Court then observed that under La. R.S. 23:1209(A) and (C), TIG “would have had up to three years” from the last date of payment for any SEB and medical benefits to file a claim for contribution against LWCC. Id. The Court observed that the record was not clear as to what types of benefits had been paid by TIG in the settlement with the employee. This Court then found that TIG’s claim for contribution was prescribed on its face because it was filed more than three years after the payment was made; however, the Court observed that prescription may have been interrupted by the initial filing of suit in the district court. Id. The Court remanded the matter back to the OWC to determine whether prescription had been interrupted as to any claims related to SEB and the medical benefits. Id. at 989.

New Hampshire’s principal argument is that Larkin establishes a blanket one year prescriptive period for all contribution claims whether the claims be for indemnity benefits or medical benefits. We disagree. Instead, we find that this court in TIG Ins. Co. correctly observed that the holding of Larkin is limited to the one year prescriptive period applicable to contribution claims for TTD benefits. We also agree with the finding in TIG Ins. Co. that Lar-kin did not consider the application of La. R.S. 23:1209 to contribution claims related to SEBs or medical benefits. Based on our reading of this court’s holding in TIG Ins. Co. and La. R.S. 23:1209, we conclude that a party can file a contribution claim for SEBs and medical benefits up to three years from the last payment of indemnity or medical benefits by a party against whom indemnity is sought.

liaHere, Nationwide’s claim for contribution asserts that New Hampshire owes contribution for one half of the sums that were paid to Mr. Shanks. The receipt and release dated June 8, 2016, that was entered into evidence at the hearing on the exception of prescription provides that the $245,000.00 paid releases Nationwide and Big 4 Trucking from liability for all sums arising out of the July 2, 2015 accident, including compensation benefits and medical benefits. However, the terms of the receipt and release are fairly general and provide no indication as to whether the compensation benefits paid represent SEBs. Attached to New Hampshire’s exception of prescription is a copy of the petition for settlement filed jointly by Mr. Shanks and Nationwide seeking approval by the WCJ for the settlement as required by La. R.S. 23:1274. The petition for settlement asserts that $22,500.00 in “compensation benefits” and $52,991.55 in “medical benefits” had been paid by Nationwide and Big 4 Trucking to Mr. Shanks prior to reaching the settlement. With regard to the lump sum settlement of $245,000.00, the petition for settlement asserted that $195,000.00 of the total represented “future indemnity benefits” and “substitutes for a payment of $480.77 per month of periodic indemnity compensation benefits” for the duration of a period 405.6 months (a negotiated time period).

From the information in the record, it is clear that Nationwide paid medical hene-fits to Mr. Shanks for which it now seeks contribution from New Hampshire. Based on the reasoning set forth in TIG, we find Nationwide timely filed its contribution claim for medical benefits within three years from the last payment by New Hampshire; therefore, the WCJ legally erred in holding that this claim was prescribed. Further, we find that the mover, New Hampshire, failed to carry its burden of proof that prescription had run as to any SEB benefit claims. The h ¡¡record, including the petition for settlement and the receipt and release, suggests that Nationwide may have paid SEB payments to Mr. Shanks within the three year prescriptive period. Based on the above, we find that the WCJ erred in sustaining the exception of prescription and dismissing Nationwide’s entire claim for contribution with prejudice.

CONCLUSION

For the above and foregoing reasons, we reverse the judgment signed on Décember 20, 2016 sustaining the peremptory exception raising the objection of prescription filed by New Hampshire Insurance Company and dismissing the contribution claim filed by Nationwide ’ Agribusiness Insurance Company. We remand the matter for further proceedings consistent with this opinion and note that any contribution claims not subject to the three year prescriptive period in La. R.S. 23:1209 are prescribed. All costs associated with this appéal áre assessed against New Hampshire Insurance Company.

REVERSED, MATTER REMANDED.

      . We note an inconsistency throughout the record regarding the last date that New Hampshire made benefit payments to Mr. Shanks. At various places in the record, New Hampshire asserts that the last indemnity payment was made to Mr. Shanks on April 22, 2014 and the last medical benefit was paid on May 9, 2014. However, at the December 5, 2016 hearing on New Hampshire’s exceptions, the parties stipulated that the last indemnity benefit was paid on April 25, 2014 and the last medical benefit:on August 12, 2014. We adopt the later dates as those dates were stipulated to by the parties at the December 5, 2016 hearing.

      . In the initial disputed claim for compensation, Big 4 Trucking erroneously named "AIG Claims, Inc." as the defendant in the matter. In its answer,. New Hampshire appeared and noted Big 4 Trucking’s-error in naming AIG Claims, Inc. in the disputed claim for compensation. The error was eventually corrected by an October 18, 2016 order granting Big 4 Trucking’s motion for partial dismissal seeking the dismissal of AIG Claims, Inc. On November 11, 2016, Big 4 Trucking sought and was granted leave to file a first amended disputed claim for compensation that formally named New Hampshire as the sole defendant.

      . While we find that the judgment signed December 20, 2016 is a final judgment as to Nationwide under La. C.C.P. art. 1915(A)(1), we find that there is no final judgment against Big 4 Trucking presented for this court’s consideration on appeal. Review of the transcript reveals that the plaintiffs, Big 4 Trucking and Nationwide, were represented by shared counsel at the December 5, 2016 hearing; however, the December 20, 2016 judgment makes no reference to Big 4 Trucking in the body of the judgment or render any type of judgment with regard to Big 4 Trucking. Since there is no final judgment in the record dismissing Big 4 Trucking’s claims against New Hampshire, we are constrained to find that the claims asserted by Big 4 Trucking remain pending.

      . In the absence of legislative action specifi- ■ cally addressing' prescriptive periods for contribution claims between employers or workers' compensation insurers, -we are constrained to continue to apply La. R.S. 23:1209 to cross claims between employers or insurers for contribution or indemnity.

      . The Louisiana Revised Statutes do not recognize a "periodic indemnity compensation benefit,” and at oral argument before this Court, the parties categorized the payment of $480.77 identified in the motion to settle as an SEB. As noted herein, the nature of indemnity benefits paid for purpose of determining which claims are prescribed can be determined on remand.


author: HIGGINBOTHAM, J.

text:
    James E. SHIELDS, Jr., Christine F. Shields, James E. Shields, III, and Joseph Luke Shields v. ALVIN R. SAVOIE & ASSOCIATES, INC. d/b/a Savoie Construction, Inc., Foster-Taylor Fireplaces, Inc., American Empire Surplus Lines Insurance Company, The Travelers Indemnity Company of Connecticut, Ross Savoie, Ross Savoie Construction, LLC, American Empire Surplus Lines Insurance Company, America’s Choice 2-10 Home Buyer’s Warranty, and JKL Insurance Company ASI Lloyds as Subrogee of James and Christine Shields v. Savoie Construction, Inc., Savoie Construction and Development, LLC, and Foster-Taylor Fireplaces, Inc.
    NO. 2017 CA 0602
    NO. 2017 CA 0603
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      See also 214 So.3d 27, 217 So.3d 420, 2017 WL 4958971.
    James E. Shields, Jr., James E. Shields, ■Sr., Gretna, LA, Attorneys for Plaintiffs-Appellants, James E. Shields, Jr., Christine F. Shields, James E. Shields, III and Joseph Luke Shields
    George J. Richaud, Metairie, LA, Attorney for Defendant-Appellee, J. Ross Sa-voie
    Christopher R. Teske, Eric S. Charleston, New Orleans, LA, Attorneys for Defendant-Appellee, American Empire Surplus Lines Insurance Company
    Sean M. Casey, Mandevillé, LA, Attorney for Defendants-Appéllees, Foster-Taylor Fireplaces, Inc., and the Travelers Indemnity Company Connecticut

      Ross F. Lagarde, Slidell, LA, Attorney for DefendanL-Appellee, J. Ross Savoie Construction, LLC
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO/JJ.
   HIGGINBOTHAM, J.

IsThis is not the first time this consolidated matter has been before this court. The ongoing litigation involves claims for damages arising out of a January 2011 residential fire that originated in an outdoor fireplace in a home that was constructed between 2005 and 2006, and then occupied by the homeowners in September 2006. In this appeal, the homeowners challenge the summary judgment dismissal, on the grounds of peremption, of additional defendants (and an insurer), who were involved with the alleged defective installation of the outdoor fireplace during the original construction of the home.

BACKGROUND

The homeowners, James E. Shields, Jr. and Christine F. Shields, along with their two sons, originally brought suit in January 2012, against the builder of their Sli-dell, Louisiana home, Alvin R. Savoie & Associates, Inc., d/b/a Savoie Construction. The homeowners also named the builder’s insurer, American Empire Surplus Lines Insurance Company, the fireplace installer, Foster-Taylor Fireplaces, Inc., and the manufacturer of the fireplace, Lennox Hearth Products, LLC. In a second supplemental and amending petition filed with leave of court on June 15, 2016, the homeowners named ■ new defendants, J. Ross Savoie and Ross Savoie Construction LLC (collectively referred to as “Savoie”), and their commercial general liability insurer, American Empire Surplus Lines Insurance Company | ¿(“American Empire”), contending that Savoie, as a subcontractor for the builder, along with Foster-Taylor Fireplaces, was responsible for negligently installing the defective outdoor fireplace during the original construction of the residence.

In the meantime, the homeowners were also in the process of appealing the summary judgment dismissal of their builder and its insurer, on the grounds that the homeowners’ claims for defective and negligent construction against the builder were barred by the exclusivity provisions of the Louisiana New Home Warranty Act (NHWA), and that those claims were statutorily perempted. On February 17, 2017, this court affirmed the dismissal of the homeowners’ NHWA claims against the builder and its insurer as perempted. See Shields I, 214 So.3d at 34-35, and Shields II, 217 So.3d at 421. The Supreme Court denied writs in Shields I on May 19, 2017.

While the first two appeals were pending, Savoie filed a motion for summary judgment on October 7, 2016. Savoie sought dismissal of the homeowners’ claims based on peremption pursuant to La. R.S. 9:2772, which bars any claim for damage to property arising out of defective construction of an immovable, or improvement to immovable property, more than five years after the homeowner occupies the | ¡diome. Shortly thereafter, Sa-voie’s insurer, American Empire, filed a motion for summary judgment arguing that by extension, since the homeowners had no valid claims against its insured, Savoie, then American Empire could have no liability by operation of law. The district court granted the motions for summary judgment, dismissing all of the homeowners’ claims against Savoie and American Empire on the grounds of per-emption. The district court also denied the homeowners’ motion for new trial. The homeowners now appeal, urging this court to find error in the district court’s failure to allow the homeowners’ amended pleadings against joint tortfeasors to relate back to the date of filing the original petition. In short, the homeowners assign error to the district court’s finding of peremption.

DISCUSSION

In this case, the facts are not in dispute; therefore, the doctrine of manifest error does not apply. Rather, appellate review of questions of law is simply to determine whether the district court was legally correct. See Stewart v. Continental Cas. Co., Inc., 2011-0505 (La. App. 1st Cir. 11/9/11), 79 So.3d 1047, 1050, writ denied, 2011-2721 (La. 2/17/12), 82 So.3d 285. Furthermore, when determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Temple v. Morgan, 2015-1159 (La. App. 1st Cir. 6/3/16), 196 So.3d 71, 76, writ denied, 2016-1255 (La. 10/28/16), 208 So.3d 889.

On appeal, the homeowners contend that their June 2016 amended petition was timely filed against Savoie and American Empire because Savoie is soli-darily liable with the builder for the defective installation of the outdoor fireplace when their home was constructed. The homeowners further maintain that the subsequent amendment of their suit to add Savoie and their insurer as defendants related back to the filing of the original petition filed against the builder in January 2012.

|fiThe applicable period for filing an action for damages against the subcontractor, Savoie, is governed by a peremptive period found in La. R.S. 9:2772, which allows five years after the homeowner occupies the house for filing suit. The homeowners occupied their new home in September 2006. The dates of the amended pleadings filed ten years later reveal that the-- homeowners’ damage claims against Savoie are clearly perempted, which means .that their claims were completely extinguished. See La. Civ.- Code art. 3458. Nothing may interfere with the running of a peremptive period. Stewart, 79 So.3d at 1051.

The district court recognized that the homeowners’ claims were perempted and assigned written reasons, which we conclude are based upon current jurisprudence and are well-founded. The district court succinctly stated:

Louisiana law is clear that, unlike prescription, nothing can interrupt, or suspend peremption. [The homeowners] attempt to circumvent peremption by arguing that the amended petition should be allowed to relate back under [La. Code Civ. P. art.] 1153 to the filing of the original petition against other parties, which [the homeowners] claim are solidary, obligors with [Savoie]. However, relation back under [La. Code Civ. PJ art. 1153 does not apply to per-emption, as has been recognized by the Louisiana Supreme Court in [Naghi v. Brener, 2008-2527 (La. 6/26/09), 17 So.3d 919, 925], and by the Louisiana First Circuit Court of Appeal in [Stewart, 79 So.3d at 1053]. As explained by the Court in Naghi, the primary importance of [Article 1153] is the avoidance of prescription, which, unlike peremption, can be interrupted or suspended so that the cause of action still exists, whereas once peremption has occurred, the cause • of action no longer exists.
[The homeowners’] attempts to distinguish Naghi and Stewart are ineffec-five. Both Naghi and Stewart establish that relation back under [Article 1153] does not apply to peremption .., because peremption destroys the cause of action itself, so that there is nothing to which an amended or supplemental pleading filed after the peremptive period has expired can relate back.... [T]he claim is destroyed and no relation back can revive the extinguished claim. As 17[the homeowners] did not name [Sa-' voie] as defendants until years after the termination of the peremptive period of all claims against them, those claims no longer exist.
The application of a commercial general liability policy is premised upon the insured becoming legally obligated to pay damages. See [Barnett v. Watkins, 2006-2442 (La. App. 1st Cir. 9/19/07), 970 So.2d 1028, 1037, writ denied, 2007-2066 (La. 12/14/07), 970 So.2d 537.] The scope of American Empire’s liability extends only as far as the' liability of alleged insureds [Savoie]. Therefore, because [the homeowners] cannot recover against [Savoie], they cannot recover against American Empire.

Having thoroughly reviewed the record and jurisprudence, we find no error in the district court’s excellent analysis of the applicable law. Therefore, we hereby adopt and incorporate the district court’s reasons as our own, and we agree with .the district court’s determination that Savoie and American .Empire are entitled to summary judgment as a matter of law. The homeowners’ claims against Savoie and their insurer no longer exist, because the expiration of the peremptive time period in 2011 extinguished the homeowners’ cause of action. See La. Civ. Code art. 3458. Thus, there is nothing for the amended petition to relate back to under La. Code Civ. P. art. 1153.

CONCLUSION

Accordingly, the judgments of the district court dismissing all of the. homeowners’ claims against Savoie as perempt-ed are hereby affirmed. We likewise, in a separate decision issued this day, affirm the dismissal of the homeowners’ claims against American Empire. All. costs of these consolidated appeals are assessed against the homeowners, James E. Shields, Jr. and Christine F. Shields.

AFFIRMED.

      .For a detailed outline of the facts and procedural history in this contentious litigation, see Shields v. Alvin R. Savoie & Associates, Inc., 2016-0825 c/w 2016-0826 (La. App. 1st Cir. 2/17/17), 214 So.3d 27, writ denied, 2017-0506 (La. 5/19/17), 220 So.3d 750 (hereafter referred to as Shields I), and Shields v. Alvin R. Savoie & Associates, Inc., 2016-0827 c/w 2016-0828 (La. App. 1st Cir. 2/17/17), 217 So.3d 420 (hereafter referred to as Shields II).

      . The homeowners’ appeal of the insurer’s summary judgment dismissal is the subject of a related consolidated appeal decided this same date. See Shields v. Alvin R. Savoie & Associates, Inc., 2017-0604 c/w 2017-0605 (La. App. 1st Cir. 11/1/17), 233 So.3d 107, 2017 WL 4958971 (hereafter referred to as Shields IV).

      . The homeowners first attempted to file the amended petition without leave of court on April 1, 2015.

      . Louisiana Revised Statute 9:2772 clearly provides a peremptive time period for claims arising under construction contracts. See Vicari v. Window World, Inc., 2014-870 (La. App. 5th Cir. 5/28/15), 171 So.3d 425, 434, writ denied, 2015-1269 (La. 9/25/15), 178 So.3d 570. The statute establishes a definite time period from which the peremptive period starts to run, which is not dependent on the discovery of the defect. Burkart v. Williamson, 2009-0294 (La. App. 1st Cir. 11/13/09), 29 So.3d 635, 639. The pertinent part of La. R.S. 9:2772, with emphasis added, states:
      A. Except as otherwise provided in this Subsection, no action ... including ... to recover damages, or otherwise arising out of an engagement of ... construction ... or building immovable or movable property ..., shall be brought against any ... person performing or furnishing ... the construction of im-movables, or improvement to immovable property, including but not limited to a residential building contractor ...:
      * ⅜ *
      (1) ... (b) ... more than five years after the improvement has been thus occupied by the owner.
      * ⅜ *
      B. (1) The causes which are perempted within the time described above include any action:
      * * *
      (b) For damage to property, movable or immovable, arising out of any such deficiency.

      . As we previously held in Shields I, 214 So.3d at 35, peremption for all of the homeowners' claims against the builder that arose out of the construction of the home occurred much, earlier than five years, pursuant to the NHWA’s minimum required warranties set forth in La. R.S. 9;3144. However, for the purpose of these consolidated appeals, we accept the parties' assertion that the five-year peremptive period in La. R.S. 9:2772 applied as to the homeowners’ claims against the subcontractor, Savoie. Thus, the latest possible date that peremption occurred is in September 2011, five years after the homeowners occupied their home.

      . Article 3458 provides: "Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the per-emptive period.”