author: HIGGINBOTHAM, J.

text:
    Milton Lee HARRIS and Lisa Harris v. Stephen M. BREAUD, M.D.
    NO. 2017 CA 0421
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 27, 2018
    Alan K. Breaud, Timothy W. Basden, Lafayette, LA, Attorneys for Defendant-Appellee, Stephen M. Breaud, M.D.
    Steve Adams, Baton Rouge, LA, Attorney for Plaintiffs-Appellants, Melton Lee Harris and Lisa Harris
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

In this medical malpractice case, plaintiffs, Mr. Milton Lee Harris and Mrs. Lisa Harris, appeal the trial court judgment granting defendant's, Dr. Stephen M. Breaud, declinatory exception raising the objection of lis pendens and peremptory exception raising the objection of prescription.

FACTS AND PROCEDURAL HISTORY

In February 2009, Mr. Harris was evaluated by his ophthalmologist, Dr. Breaud, for difficulties he was experiencing with his vision. In an effort to improve Mr. Harris's vision, Dr. Breaud performed a number of procedures on Mr. Harris's eyes including: a laser procedure on Mr. Harris' left eye on May 11, 2009; a surgical vitrectomy on May 28, 2009; a surgical vitrectomy on December 29, 2009; a laser procedure on Mr. Harris's left eye on April 20, 2010; and a laser procedure to Mr. Harris's retina on October 25, 2010. After Mr. Breaud completed the December 29, 2009 vitrectomy, Mr. Harris went into cardiac arrest which resulted in hospitalization in the intensive care unit.

Thereafter, on December 15, 2010, Mr. Harris, through his attorney, requested the formation of a Medical Review Panel (MRP) pursuant to the provisions of the Louisiana Medical Malpractice Act to evaluate his claim arising out of the treatment he was provided on December 29, 2009, by Dr. Breaud as well as the anesthesiologist, Dr. James Sharpless, and the nurse anesthetist, Ms. Amanda Meckes. In the request, Mr. Harris stated that "as a result of [d]efendants' negligent and careless treatment and monitoring of Mr. Harris, he was inflicted with cardiac arrest, which resulted in intensive care hospitalization, continued treatment of the vitreous hemorrhage to the left eye, and further cardiac instability." After reviewing the submissions of the parties, the MRP issued its opinion finding no evidence that Dr. Breaud failed to meet the applicable standard of care and pointed out that the record indicated subsequent improvements of vision and resolution of the vitreous hemorrhage, that indicated Mr. Harris suffered no negative effects from Dr. Breaud's actions.

On December 3, 2012, Mr. Harris and his wife, Lisa Harris, filed suit in section D of the 19th Judicial District Court, assigned as case number 617,420, alleging Dr. Breaud breached the applicable standard of care in failing to conduct a proper examination, failing to order appropriate testing, performing unnecessary laser surgeries, failing to perform laser surgery in an appropriate fashion, failing to perform vitrectomies in an appropriate medically acceptable fashion, failing to render appropriate follow-up treatment, and such other acts/and or omissions as were presented before the MRP. According to the Harrises' petition Dr. Breaud's negligence resulted in Mr. Harris experiencing a loss of vision, physical and mental pain, physical impairment, and loss of enjoyment of life. The Harrises' petition pointed specifically to the procedures performed by Dr. Breaud on May 11 and 28, 2009, December 29, 2009, April 20, 2010, and October 25, 2010.

The Harrises' petition was met with an exception of prematurity filed by Dr. Breaud on all claims other than the claims related to the December 29, 2009 procedure, because the other procedures were not raised before a MRP as required by La. R.S. 40:1231.8(B)(1)(a)(i). The Harrises acknowledged that the claims related to all procedures other than the December 29, 2009 procedure were premature and signed a stipulated judgment on the exception of prematurity dismissing all of their claims "referable to any care rendered by [Dr. Breaud] to [Mr. Harris] on any date other than December 29, 2009." The stipulated judgment acknowledged that "the claim for breach of the standard of care on December 29, 2009, previously submitted for review by a duly convened [MRP] [was] not subject to this dismissal."

On May 15, 2013, Mr. Harris filed a second request with the Division of Administration, for invocation of an MRP seeking review by the MRP of the procedures performed by Dr. Breaud on May 11 and 28, 2009, December 29, 2009, April 20, 2010, and October 25, 2010, alleging that the treatment Dr. Breaud provided to Mr. Harris "was of continuing nature and had a cumulative effect." The second request for an MRP expired without an opinion by operation of law on or about September 12, 2015.

Thereafter, on December 8, 2015, the Harrises filed a second suit, the present petition for damages, (19th Judicial District Court Section 22 case number 644,353) pointing out the same procedures performed by Dr. Breaud as discussed in their petition filed under case number 617,420, including the vitrectomy performed on December 29, 2009. In response, Dr. Breaud filed a declinatory exception of lis pendens contending that the procedure performed on December 29, 2009, is the same procedure for which a claim was made and not dismissed in the case pending under docket number 617,420. Thus, because there are two suits pending on the same transaction and occurrence and between the same parties, Dr. Breaud maintained that the current suit should be dismissed in accordance with La. Code Civ. P. art. 531. Dr. Breaud also filed a peremptory exception of prescription on the remaining claims asserted by the Harrises, contending that all acts complained of in the second MRP request occurred more than one year prior to the filing of that request, on May 15, 2013, and all but the October procedure occurred more than three years prior to the invocation of the MRP. The lis pendens and prescription exceptions came before the trial court on October 24, 2016, wherein the trial court heard arguments of counsel, but no evidence was offered or received. After the hearing, both exceptions were granted in favor of Dr. Breaud.

The trial court signed two separate judgments: one granting Dr. Breaud's lis pendens exception and the other granting Dr. Breaud's prescription exception. As each judgment was a partial judgment lacking the proper decretal language, and neither was designated as final judgment by the trial court, this court issued an order to the parties to show cause why the appeal should not be dismissed and remanded for the limited purpose of allowing the trial court to sign a judgment addressing the noted defects. In response, the trial court signed a new single judgment on August 2, 2017, that granted both the exception of prescription as well as the exception of lis pendens and decreed that because the present judgment dismissed all claims asserted by the Harrises and left no claim or issue unresolved, the judgment constituted a final judgment. In response, this court maintained the Harrises' appeal, but reserved a final determination as to whether this appeal was to be maintained to this panel, the panel assigned the appeal. As the issues in both appeals were included in a single judgment, we maintain the appeal and address both appeals in this opinion. In their appeals, the Harrises assert the following as error: (1) the trial court signed a judgment that was inconsistent with its ruling in open court; or (2) in the alternative, the trial court erred in granting Dr. Breaud's lis pendens exception; and (3) the trial court erred in granting Dr. Breaud's prescription exception.

LAW AND ANALYSIS

LIS PENDENS

In their first assignment of error, the Harrises contend that the trial court erred in signing a judgment inconsistent with its ruling in open court. It is the position of the Harrises that in oral reasons for judgment, the trial court specifically stated "I have to grant the lis pendens on the cardiac event of December 9, 2009," and therefore the trial court's ruling was limited to the treatment related to the cardiac arrest on December 9, 2009, and did not encompass complaints related to Mr. Harris's eyes or vision. However, the judgment signed by the trial court states "the Declinatory Exception of Lis Pendens as it relates to any claim regarding treatment on December 29, 2009, is hereby granted."

A judgment and reasons for judgment are two separate and distinct legal documents and appeals are taken from the judgment, not the written or oral reasons for judgment. The court of appeal reviews judgments and, where the court of appeal believes that the trial court reached the proper result, the judgment will be affirmed. Accordingly, even if the trier of fact erred in findings of fact, we are constrained to affirm the judgment if the judgment is reasonable in light of the record as a whole. Huang v. Louisiana State Bd. of Trustees for State Colleges and Universities, 99-2805 (La. App. 1st Cir. 12/22/00), 781 So.2d 1, 6. Thus, our review is limited to the judgment signed by the trial court that dismissed all claims related to treatment on December 29, 2009. The Harrises' first assignment of error is without merit.

In their second assignment of error, the Harrises contend that the trial court erred in granting the exception of lis pendens. A declinatory exception of lis pendens declines jurisdiction over a second suit where a prior suit is pending between the same parties, in the same capacities, on the same transaction or occurrence. La. Code Civ. P. arts. 531, 923, and 925(3). If two or more essentially identical suits are pending in Louisiana courts, the defendant may have all but the first filed action dismissed. La. Code Civ. P. art. 531.

The Harrises' petition filed in the first suit, case number 617,420, was clearly between the same parties as the current suit, but the Harrises argue that the second suit involves damages related to Mr. Harris's eyes and the first suit only involved damages related to Mr. Harris going into cardiac arrest. We find no merit to this argument. The Harrises' petition in case number 617,420 states "On December 29, 2009, Dr. Breaud reportedly performed a trans pars plana vitrectomy.... This procedure was performed at Perkins Plaza Ambulatory Surgery Center." The petition also states Dr. Breaud breached the applicable standard of care in his "[f]ailure to perform vitrectomies in an appropriate medically acceptable fashion," and sought damages for "[l]oss of vision." In fact, the petitions filed in both suits contain almost identical allegations and requests for damages. Additionally, the 617,420 petition sought review of the acts that were presented before the MRP which clearly included the vitrectomy performed by Dr. Breaud on December 29, 2009. After review of both lawsuits filed by the Harrises, it is clear that the current suit is based on the same transaction or occurrence and between the same parties in the same capacities as the first suit filed in case number 617,420; therefore, we affirm the portion of the trial court judgment granting Dr. Breaud's exception of lis pendens on any claims regarding Dr. Breaud's treatment of Mr. Harris on December 29, 2009.

PRESCRIPTION

In the related appeal, the Harrises contend that the trial court erred in holding that all matters related to procedures, other than the December 29, 2009, procedure were prescribed. Prescription for medical malpractice claims is set forth in La. R.S. 9:5628(A), which provides:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1231.1(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Louisiana Revised Statute 9:5628 has been referred to as a "tripartite prescription provision," meaning that the statute has three parts. In re: Medical Review Panel for Claim of Moses, 2000-2643 (La. 5/25/01), 788 So.2d 1173, 1178. First, a one-year prescriptive period, which follows the same time frame as a traditional tort, is the general rule. Id., 788 So.2d at 1178-79 Second, when an injury is not immediate and apparent, there is a discovery exception to the general rule, known as contra non valentum , providing that such actions prescribe one year from the date of discovery of the alleged act, omission, or neglect. Id. Third, a period of three years has been placed on all claims, regardless of discovery. Id. at 1178. Both the one-year and three-year periods set forth in La. R.S. 9:5628 are prescriptive, with the qualification that the contra non valentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission, or neglect. Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, 48 (on rehearing).

Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs' claims have prescribed, the burden shifts to the plaintiffs to demonstrate prescription was suspended or interrupted. Johnson v. Shafor, 2008-2145 (La. App. 1st Cir. 7/29/09), 22 So.3d 935, 938-39, writ denied, 2009-1921 (La. 11/20/09), 25 So.3d 812. When, as in this case, no evidence is introduced at the hearing to support or controvert the exception of prescription, the exception must be decided upon facts alleged in the petition with all allegations accepted as true. See La. Code Civ. P. art. 931 ; Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428. If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court's role is to determine whether the trial court's ruling was legally correct. See Atain, 193 So.3d at 190.

In their second petition, the Harrises discussed specifically the procedures performed by Dr. Breaud on May 11 and 28, 2009, December 29, 2009, April 20, 2010, and October 25, 2010, and alleged that the treatment rendered by Dr. Breaud was of a continuing nature and had a cumulative effect. The petition also noted that Mr. Harris continued treatment with Dr. Breaud through January 17, 2011. For all procedures other than the December 29, 2009 procedure, the Harrises filed their petition for invocation of the MRP on May 15, 2013. In their petition, the Harrises do not allege a date of discovery of the alleged malpractice. All of the procedures complained of by the Harrises occurred more than one year before the Harrises' filed their action, and on the face of the petition, the Harrises' claims prescribed prior to the invocation of the MRP. Additionally, all procedures other than the laser procedure performed on October 25, 2010, occurred more than three years prior to the invocation of the MRP. Because the Harrises' claims are all prescribed on the face of the petition, the Harrises, as the party asserting a suspension or interruption of prescription, bear the burden of proof.

In support of their position that their claims are not prescribed, the Harrises set forth two theories. First, the Harrises contend that the allegations of inadequate medical care were only discovered after the Harrises changed counsel sometime after July 30, 2012, and thus were timely filed within one year of the date of discovery. Second, the Harrises contend that the treatment by Dr. Breaud was of a continuing nature and with a cumulative effect and under the continuing tort doctrine, prescription did not commence until the tortious conduct was abated and the relationship terminated, which they contend was on Mr. Harris's final visit to Dr. Breaud on January 17, 2011.

I. Date of Discovery

The Harrises' contention that the inadequate medical care was only discovered after the Harrises changed counsel is a contra non valentem type exception to prescription. Specifically, the discovery rule, which is encompassed in the fourth category of contra non valentem , provides that "prescription does not begin to run until the plaintiff knows sufficient facts and has a reasonable basis for filing suit against a certain defendant." Fontenot v. ABC Ins. Co., 95-1707 (La. 6/7/96), 674 So.2d 960, 964. In Borel, the Louisiana Supreme Court reaffirmed its prior holding that both the one-year and three-year periods set forth in La R.S. 9:5628 are prescriptive, with the qualification that the contra non valentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission, or neglect. Borel, 989 So.2d at 69. Thus all claims that are subject to the prescription exception other than the October 25, 2010, procedure, regardless of the date of discovery, are prescribed as the invocation of a MRP was filed after the three-year period eliminating the suspension of prescription as to such three-year period.

Therefore, the only allegation that the discovery rule could be applicable to is the treatment performed on October 25, 2010. The petition states only that Dr. Breaud performed a laser procedure to Mr. Harris's retina on October 25, 2010, but does not give an alleged date of discovery. Because the Harrises' petition was prescribed on its face, the Harrises had the burden of proving that their claims were not prescribed. In this matter, the Harrises' petition did not contain any allegations or facts whatsoever regarding an inability to discover the alleged acts of malpractice against Dr. Breaud on October 25, 2010. Moreover, the Harrises did not produce any evidence at the hearing to support their claim that they were unaware of the alleged malpractice prior to obtaining new counsel. Thus, the trial court was legally correct in concluding that the Harrises failed to meet their burden of proving a suspension of prescription.

II. Continuing Tort

In order to allege a continuing tort, a plaintiff must allege both continuous action and continuous damage. The Louisiana Supreme Court discussed the continuing tort concept in South Central Bell Telephone Company v. Texaco, Inc., 418 So.2d 531, 533 (La. 1982), stating that "[w]hen the tortious conduct and resulting damage continue, prescription does not begin until the conduct causing the damage is abated." A continuing tort is occasioned by unlawful acts, not the continuation of the ill effects of an original, wrongful act. Marin v. Exxon Mobil Corp., 2009-2368 (La. 10/19/10), 48 So.3d 234, 253 ; Crump v. Sabine River Authority, 98-2326 (La. 6/29/99), 737 So.2d 720, 728. The inquiry is essentially a conduct-based one, asking whether the tortfeasor perpetuates the injury through overt, persistent, and ongoing acts. Hogg v. Chevron USA, Inc., 2009-2632 (La. 7/6/10), 45 So.3d 991, 1003. In a medical malpractice case, a series of radiation treatments negligently administered to a plaintiff who was misdiagnosed with cancer that allegedly resulted in the plaintiff's death was held to be a continuing tort in Winder v. Avet, 613 So.2d 199, 202 (La. App. 1st Cir. 1992), writs denied, 617 So.2d 907 (La. 1993). Similarly, a course of administration of narcotic drugs spanning several years that allegedly resulted in addiction was held to be a continuing tort in Chiasson v. Doe, 618 So.2d 38, 41 (La. App. 3d Cir.), writ denied, 624 So.2d 1225 (La. 1993). Another illustration of a course of narcotic drug administration that was held to be a continuing tort is found in Page v. United States, 729 F.2d 818, 822-23 (D.C. Cir. 1984). A common characteristic shared by Winder, Chiasson, and Page, is that they present a plaintiff who was harmed as a result of the cumulative effect of a course of negligent treatment, not by a single act of malpractice.

Although the Harrises' petition contends that Dr. Breaud's final treatment of Mr. Harris was on January 17, 2011, the Harrises introduced no evidence whatsoever to support their argument that Dr. Breaud's continued treatment of Mr. Harris caused continued damage. Typically, courts have found torts to be continuous in nature when each individual act would not necessarily give rise to a cause of action; rather, it is the cumulative effect of regularly occurring or continuous actions that results in successive damages from day to day. See Hunter v. Tensas Nursing Home, 32,217 (La. App. 2d Cir. 10/27/99), 743 So.2d 839, 842, writ denied, 99-3334 (La. 2/4/00), 754 So.2d 228.

The vague allegations of negligence in the petition set forth separate and distinct acts rather than continuous actions that resulted in successive damages. Since the Harrises presented no evidence at the hearing to prove that the continuous treatment by Dr. Breaud had a cumulative effect on Mr. Harris's vision, we find no merit to the Harrises' contention that Dr. Breaud's treatment constituted a continuing tort.

Furthermore, even if evidence of a continuing tort was in the record, the final treatment of Mr. Harris by Dr. Breaud noted in the record was on January 17, 2011, more than one year prior to filing for the invocation of the MRP. Again, nothing in the petition indicated a different date of discovery other than the day of the final treatment, and the one-year prescriptive period would apply. Therefore, we find the trial court was legally correct in finding that the Harrises' claims, other than for the December 29, 2009, procedure, are prescribed.

Additionally, we note that La. Code Civ. P. art. 934 provides, when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, the action shall be dismissed. The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the district court. Pearl River Basin Land & Dev. Co., LLC v. State ex rel. Governor's Office of Homeland Sec. & Emergency Preparedness, 2009-0084 (La. App. 1st Cir. 10/27/09), 29 So.3d 589, 594. In this matter, the Harrises did not provide any written response to Dr. Breaud's exception of prescription nor did they provide any evidence, testimonial or otherwise, at the hearing demonstrating that prescription had been interrupted or suspended in any way or that their claim had otherwise not prescribed. For the reasons stated above, we find the plaintiffs failed to present any evidence that the grounds for the exception of prescription can be removed by amendment to the petition. Accordingly, the district court did not abuse its discretion in not ordering amendment of the petition with regard to the Harrises medical malpractice claims.

CONCLUSION

For the foregoing reasons, the August 2, 2017, judgment of the trial court granting Dr. Breaud's peremptory exception of prescription for the treatments dated February 2, 2009, May 11 and 28, 2009, April 20, 2010, and October 25, 2010, and granting Dr. Breaud's declinatory exception of lis pendens as it relates to any claim regarding treatment on December 29, 2009, is affirmed. All costs of this proceeding are assessed to Mr. Milton Lee Harris and Mrs. Lisa Harris.

AFFIRMED.

      Louisiana Revised Statute 40:1231.8(B)(1)(a)(i) provides: "No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel established pursuant to this Section."

      Louisiana Revised Statute 40:1231.8(B)(l)(a)(i)(b) provides in pertinent part:
      [I]f an opinion is not rendered by the panel within twelve months after the date of notification of the selection of the attorney chairman by the executive director to the selected attorney and all other parties pursuant to Paragraph (1) of Subsection C of this Section, suit may be instituted against a health care provider covered by this Part. However, either party may petition a court of competent jurisdiction for an order extending the twelve month period provided in this Subsection for good cause shown. After the twelve month period provided for in this Subsection or any court-ordered extension thereof, the medical review panel established to review the claimant's complaint shall be dissolved without the necessity of obtaining a court order of dissolution.

      We note that the copy of the petition in case number 617,420 was attached to Dr. Breaud's exception, but no evidence was introduced at the hearing on the exception of lis pendens. However, neither side disputes the existence of the other suit nor objected to consideration of the evidence in the trial court or on appeal, and the trial court, in considering the exception, could properly take judicial notice of the relevant facts with regard to the other suit that was also filed in the 19th JDC. See AmSouth Bank v. Unemployment Compensation Control Systems, LLC, 2005-0253 (La. App. 1st Cir. 5/8/09), 2009 WL 1270295 *3 (unpublished) and La. Code Evid. art. 201. See also Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, LLC, 2004-1227 (La. App. 1st Cir. 6/10/05), 916 So.2d 252, 257. Because the requirement to establish the exception raising the objection of lis pendens conforms to the requirements of res judicata, a court must determine whether a judgment in the first-filed suit would bar the claims asserted in the subsequent suit. See Newman v. Newman, 96-1062 (La. App. 1st Cir. 3/27/97), 691 So.2d 743, 745.

      Unless properly offered and introduced into evidence, documents attached to memoranda do not constitute evidence and cannot be be considered on appeal. Atain Special i ty Ins. Co. v. Premier Performance Marine, LLC, 2015-1128 (La. App. 1st Cir. 4/8/16), 193 So.3d 187, 190.


source: Caselaw Access Project

license: Public Domain

text:
    CONTINENTAL CASUALTY COMPANY and Cost Segregation Services, Inc. v. ENTERGY GULF STATES LOUISIANA, L.L.C., City of Baton Rouge, East Baton Rouge Parish, and CSRS, Inc.
    America First Insurance Company v. City of Baton Rouge, Parish of East Baton Rouge, and Entergy Gulf States, LLC, and ABC Insurance Company
    NO. 2017 CA 0988 CONSOLIDATED WITH 2017 CA 0989
    Court of Appeal of Louisiana, First Circuit.
    FEBRUARY 27, 2018
    Brent E. Kinchen, Sallie C. Dupont, Baton Rouge, LA, Attorneys for Defendant-Appellant, Baton Rouge Water Works Company
    Richard B. Levin, J. Brint Marks, Metairie, LA, Attorneys for Plaintiffs-Appellants, Continental Casualty Company and Cost Segregation Services, Inc.
    Dan M. Boudreaux, Baton Rouge, LA, Attorney for Defendant-Appellee, America First Insurance Company
    Steven B. Loeb, John T. Andrishok, Baton Rouge, LA, Attorney for Defendant-Appellee, CSRS, Inc.
    Todd S. Manuel, Joseph R. Ballard, Baton Rouge, LA, Attorney for Defendant-Appellee, Entergy Gulf States Louisiana, L.L.C.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

This consolidated matter concerns damage to an office building after a main water line was unintentionally cut by a utility company, Entergy Gulf States Louisiana, L.L.C. ("Entergy"), during underground utility work for a road-expansion project ("the project") in Baton Rouge, Louisiana. When Entergy was dismissed from the litigation by means of a partial summary judgment granted in its favor, two appeals were filed: the first appeal was filed by Baton Rouge Water Works Company ("BRWW") and the second appeal was filed by the owner of the office building that was damaged, Cost Segregation Services, Inc. ("CSS"), along with its insurer, Continental Casualty Company ("Continental").

BACKGROUND

This matter is before us for review of a motion for summary judgment. Consequently, the facts have not been fully developed. However, for the purpose of this review, the following facts are essentially undisputed. The project at issue in this litigation involved relocating and adding underground utility lines in order to improve/expand Siegen Lane. On April 27, 2010, Entergy was engaged in underground directional boring work that was necessary for relocating a six-inch gas main line in the vicinity of CSS's office located at 10343 Siegen Lane. During the boring work, Entergy unintentionally struck BRWW's main water line, causing the water line to rupture and resulted in both water and sewage to flow into CSS's office, damaging the office, as well as office equipment, furniture, computers, and the surrounding property. CSS settled its claim with Continental, its business interruption insurer. CSS and Continental then filed a petition for subrogation and damages on April 25, 2011, alleging negligence. The lawsuit named defendants: Entergy, the City of Baton Rouge's Department of Public Works/Parish of East Baton Rouge ("City/Parish"), and CSRS, Inc., the contractor for the project. Continental/CSS later amended the petition to remove CSRS as a defendant and to add BRWW as a defendant, again alleging negligence.

After several years of discovery, Entergy moved for summary judgment with respect to the claims asserted by Continental/CSS. Entergy maintained that it had requested "locates" of all underground utilities prior to beginning its work of installing/relocating the gas line, as required by the Louisiana Underground Utilities and Facilities Damage Prevention Law, La. R.S. 40:1749.11, et seq. , (hereafter referred to as the "LA One-Call Law"). Because Entergy complied with the LA One-Call Law, Entergy argued that it was entitled to statutory immunity and, therefore, summary judgment dismissal of Entergy was appropriate since there was no proof of a breach of any duty. Continental/CSS and BRWW all opposed Entergy's motion for summary judgment, but after a hearing on the matter, the trial court granted a partial summary judgment in favor of Entergy, dismissing Entergy with prejudice. In oral reasons for judgment, the trial court found that Entergy's compliance with the LA One-Call Law and its reliance on the location markings made by BRWW revealed that Continental/CSS and BRWW could not prove a breach of any duty owed by Entergy. Continental/CSS and BRWW appealed, essentially arguing that Entergy is not automatically absolved of liability for damages simply by notifying LA One-Call of the excavation, because there remained a genuine issue of material fact as to whether Entergy failed to maintain a safe clearance zone around BRWW's water main, which caused Continental/CSS's damages.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Lieux v. Mitchell , 2006-0382 (La. App. 1st Cir. 12/28/06), 951 So.2d 307, 314, writ denied, 2007-0905 (La. 6/15/07), 958 So.2d 1199. In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett, 2004-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-766.

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

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

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

DISCUSSION

According to the provisions of the LA One-Call Law, anyone who engages in excavation operations (such as Entergy in this case) must first ascertain the specific location of all underground facilities in the area that would be affected by the proposed excavation via a call to the notification center (known as LA One-Call) at least forty-eight hours, but not more than one hundred twenty hours, prior to the excavation. See La. R.S. 40:1749.13(A) and (B). Once the call is made to LA One-Call, the various utility operators are notified and given a "mark by" date by which the utility operators must mark the locations of their underground lines, cables, etc., so the excavator will not damage the underground utilities. The markings are "deemed good as long as visible but not longer than twenty calendar days, including weekends and holidays, from the 'mark by' time." See La. R.S. 40:1749.14(C)(1)(a) and (b)(iii). Further, an excavator "shall use all reasonable and prudent means, within common industry practice , to protect and preserve all marks of the underground utility or facility." La. R.S. 40:1749.14(C)(1)(b)(iv) (emphasis added).

In addition to the notification requirements, each excavator shall plan the excavation to avoid damage and shall maintain a safe clearance between the underground utilities and the cutting edge of the excavating equipment. See La. R.S. 40:1749.16(1) and (2). The specific location of the underground facilities is defined as an area not wider than the width of the underground facility or utility as marked plus eighteen inches on either side (a/k/a the safe clearance zone). See La. R.S. 40:1749.14(D). We also note that pursuant to La. R.S. 40:1749.14(E)(2), the immunity provided to excavators who have complied with the notice provisions of the LA One-Call Law "shall not apply to civil liability for damages caused by the negligence of the excavator[.]" Additionally, the provisions of the LA One-Call Law "shall not affect any civil remedies for personal injury or property damage[.]" La. R.S. 40:1749.21(A).

Thus, Entergy's argument that it is entitled to immunity since it called LA One-Call before excavating is without merit. Furthermore, if the evidence offered in opposition to Entergy's motion for summary judgment reveals any possible negligence on the part of Entergy that caused damage to Continental/CSS, then Entergy's potential liability for damages remains a genuine issue of material fact for trial. See Faucheaux v. Terrebonne Consol. Government , 615 So.2d 289, 292-293 (La. 1993).

Louisiana courts resolve most negligence cases by employing a duty/risk analysis, where a plaintiff must prove five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard of care; (2) whether the defendant's conduct failed to conform to the appropriate standard of care; (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries/damages; (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries/damages; and (5) whether the plaintiff was damaged. Milbert v. Answering Bureau, Inc. , 2013-0022 (La. 6/28/13), 120 So.3d 678, 687-688. The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law. Id. at 688. Simply put, the inquiry is whether the plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support the claim. Bowman v. City of Baton Rouge/Parish of East Baton Rouge , 2002-1376 (La. App. 1st Cir. 5/9/03), 849 So.2d 622, 627, writ denied, 2003-1579 (La. 10/3/03), 855 So.2d 315.

Our analysis of the LA One-Call Law reveals that an excavator such as Entergy has two distinct statutory duties. The first duty is to notify LA One-Call of the proposed excavation in order to ascertain the specific location of the affected utilities prior to the excavation, and the second duty is to use all reasonable and prudent means to protect and preserve the marked utility within the safe clearance zone of eighteen inches on either side of the mark. See La. R.S. 40:1749.14 and La. R.S. 40:1749.16. See also BellSouth Telecommunications, Inc. v. Eustis Engineering Co., Inc. , 2007-0865 (La. App. 4th Cir. 12/19/07), 974 So.2d 749, 752 ; Bell s outh Telecommunications, Inc. v. Johnson Bros. Corp. of Louisiana , 1995 WL 384513, *1 (E.D. La. 1995).

In the instant case, it is undisputed that Entergy notified LA One-Call prior to the proposed excavation. It is also undisputed that pursuant to the notice, BRWW sent a locator to mark the location of BRWW's underground water main line. Therefore, Entergy had not breached its first duty. However, it is unclear as to whether Entergy used all reasonable means to protect the marked water main line within the safe clearance zone, despite the clear duty that an excavator must inform itself of the location of underground utilities. See South Central Bell Telephone Co. v. Sewerage and Water Board of New Orleans, 94-1648 (La. App. 4th Cir. 3/16/95), 652 So.2d 1090, 1094, writ denied, 95-0949 (La. 5/19/95), 654 So.2d 1090. After reviewing the deposition testimony excerpts offered in support of and in opposition of Entergy's motion for summary judgment, we find that genuine issues of material fact remain regarding the second duty owed by Entergy as to whether any breach of that duty was the legal cause of the damage to Continental/CSS.

According to the deposition testimony of Entergy's workers that were involved in the excavation procedure, Derek Calvin and Larry Russo, BRWW's "locates" were clearly marked and Entergy bore outside of the safe clearance zone away from the marked water main line. However, the testimony of Entergy's workers varied on the size of the safe clearance zone, which was anywhere from ten inches to eighteen inches from the locate marker. They also testified that BRWW's locate was obviously mismarked since Entergy broke the water main line when they were removing the bore.

BRWW's locator, Brian Williams, testified in his deposition that he located the water main line based upon his personal knowledge of the area, and he also walked through the area with Entergy's workers on the morning of the excavation. BRWW's locator insisted that he marked the proper location of the water main line, because he was working on this particular project "almost every day." However, Mr. Williams acknowledged that he did not take any actual measurements when locating the water main line, and instead he relied on his memory from working in the area and knowing the location of the above-ground valve. He further testified that there was no verification system in place to ensure that the locate mark was correct.

A BRWW maintenance foreman, Travis Harrison, testified by deposition that he uses a variety of methods to locate lines such as a computer system, GPS coordinates, tape measures, probing rods, field notes, tracing wires, and landmarks. He also testified that this particular water main line had a tracing wire, so that method could have been an option for the locator to use when locating the line. The deposition testimony of BRWW's construction supervisor, Donald Kozan, Jr., revealed that a standard industry practice is to "spot the main" water line by physically digging around the locate marker by hand, with a shovel, in order to visualize the line before the boring procedure begins with the drilling equipment. He explained that Entergy should have performed a spot/dig before they bored so they would know exactly where the line was located, but that was not done in this case. He also testified that he saw where the water main line was located, and he determined that BRWW's locate paint lines were properly marked.

After a de novo review of the documents filed in support of and in opposition to the summary judgment, along with all documents that were not objected to, we find that genuine issues of material fact preclude the entry of summary judgment in favor of Entergy. We specifically conclude that Continental/CSS and BRWW presented evidence sufficient to create genuine issues of material fact regarding Entergy's possible violation of the LA One-Call Law duty to use all reasonable and prudent means, within common industry practice (such as spot digging by hand/shovel before mechanically boring so as to visualize the line), in order to protect and preserve all of the underground utility lines during the excavation project. Additionally, there are genuine issues of material fact as to whether any purported breach of duty by Entergy caused damage to Continental/CSS. Therefore, the trial court erred in granting the partial summary judgment in favor of Entergy and dismissing Entergy from the litigation.

CONCLUSION

Based on our analysis, we reverse the partial summary judgment rendered in favor of Entergy, and we remand the matter to the trial court for further proceedings. All costs of these consolidated appeals are assessed to Entergy Gulf States Louisiana, L.L.C.

REVERSED AND REMANDED.

      Another subrogation lawsuit arising out of the same cause of action, America First Insurance Company v. City of Baton Rouge, et al , (Number 601,271), was filed a few days after the Continental and CSS petition (Number 600,987) in the Nineteenth Judicial District Court. The cases were consolidated for trial by an order signed on August 18, 2011. Some of the other defendants have been dismissed from the litigation; however, those dismissals are not at issue in these consolidated appeals.

      Because the judgment dismissed all of the remaining claims against one defendant, Entergy, the judgment is a partial final judgment subject to immediate appeal pursuant to La. Code Civ. P. art. 1915(A)(1) without necessity of the trial court's certification as such.

      Since Entergy's motion for summary judgment was filed on August 3, 2016, we apply the version of La. Code Civ. P. art. 966, as amended by La. Acts 2015, No. 422, § 1, effective January 1, 2016.

      The purpose of the LA One-Call Law is to promote the protection of property and protect the public from damage, death, or injury resulting from the underground utilities being damaged. See La. R.S. 40:1749.11(B) ; Weatherly v. Fonseca & Associates, L.L.C. , 2010-495 (La. App. 3d Cir. 10/6/10), 48 So.3d 394, 395-396, writ denied, 2010-2497 (La. 1/7/11), 52 So.3d 887. The legislation is intended to act as a penal safety provision, with penalties imposed whether or not damages have occurred. The LA One-Call Law expressly negates any legislative intent to provide a comprehensive civil liability scheme to the exclusion of Louisiana tort principles. See BellSouth Telecommunications, Inc. v. Johnson Bros. Corp. of Louisiana , 106 F.3d 119, 124-125 (5th Cir. 1997).


author: HOLDRIDGE, J.

text:
    Jackie HOLDEN v. MIKE'S CATFISH INN, INC. and Massachusetts Bay Insurance Company
    2017 CA 1056
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered: FEBRUARY 27, 2018
    Cassandra Butler, Independence, LA, Attorney for Plaintiff/Appellant Jackie Holden
    Leon A. Crist, Metairie, LA, Attorney for Defendants/Appellees, Mike's Catfish Inn, Inc. and Massachusetts Bay Insurance Company
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HOLDRIDGE, J.

The plaintiff, Jackie Holden, appeals a summary judgment dismissing her tort claim against her employer, Mike's Catfish Inn, Inc., and its insurer, Massachusetts Bay Insurance Company. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 14, 2015, Ms. Holden, an employee of Mike's Catfish Inn, was clocked in and working in the kitchen, when she was notified by another employee that her daughter called the restaurant and was waiting outside in the parking lot to see her. Mike's Catfish Inn permitted its employees to take breaks while on the time clock. Ms. Holden's daughter parked her car within feet of the back door of the restaurant. As Ms. Holden exited the back door of the restaurant and proceeded toward her daughter's vehicle, she fell on a concrete slope adjacent to the restaurant door and injured herself. Ms. Holden reported the accident to her employer before leaving for the emergency room. Ms. Holden was admitted to the emergency room at Lallie Kemp Regional Medical Center and was diagnosed with a broken left kneecap. Ms. Holden was discharged from the emergency room that night, but was advised that she needed surgery. Approximately fifteen days later, Ms. Holden had surgery on her left kneecap at Cypress Pointe Hospital.

On July 8, 2016, Ms. Holden filed a petition for damages against defendants alleging that her injuries were caused by the negligence of Mike's Catfish Inn in failing to remove the foreign substance on the step which caused her to fall. Defendants answered the petition denying all allegations and asserted that Ms. Holden was in the course and scope of her employment at the time of the accident and that her exclusive remedy was in accordance with the Louisiana's Workers' Compensation Act, La. R.S. 23:1032. On February 6, 2017, defendants filed a motion for summary judgment alleging that there remained no genuine issues of material fact and that they were entitled to judgment as a matter of law. Defendants submitted a statement of uncontested material facts which provided that Massachusetts Bay Insurance Company was the commercial general liability insurer for Mike's Catfish Inn at the time of Ms. Holden's accident and it did not provide workers compensation coverage. It further stated that Ms. Holden was paid workers' compensation benefits in a settlement in the amount of $10,000.00 as a result of the July 14, 2015 accident.

After a hearing on defendants' motion for summary judgment, the trial court found that the accident occurred during the course and scope of Ms. Holden's employment, stating in oral reasons "Mike's Catfish [Inn] is [not] individually liable ... that is what they have worker's comp[ensation] for." The trial court signed a judgment in accordance with its ruling on April 3, 2017, dismissing Ms. Holden's claims against defendants with prejudice. Ms. Holden appeals.

DISCUSSION

In her sole assignment of error, Ms. Holden argues that the trial court erred in granting defendants' motion for summary judgment because there remains a genuine issue of material fact as to whether she was in the course and scope of her employment when the accident occurred.

Summary judgments are reviewed de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Marcaurele v. City of Baton Rouge/Parish of East Baton Rouge, 16-0915 (La. App. 1 Cir. 2/17/17), 214 So.3d 968, 971, writ denied, 17-0464 (La. 5/1/17), 221 So.3d 72. A motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The initial burden of proof is on the mover. If the moving party will not bear the burden of proof at trial, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. If the nonmoving party fails to make this requisite showing, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. art. 966(D)(1).

Generally, when an employee seeks to recover from her employer for injuries suffered during the course and scope of employment, recovery is limited in accordance with the Louisiana Workers' Compensation Act, which provides for the employee's exclusive rights and remedies against the employer for such injury and provides immunity from civil liability in favor of an employer. La. R.S. 23:1032 ; see Cole v. State Department of Public Safety & Corrections, 01-2123 (La. 9/4/02), 825 So.2d 1134, 1138. Under the Louisiana Workers' Compensation Act, employers are responsible for compensation benefits to an employee when the employee's injury results from an accident "arising out of and in the course of his employment[.]" La. R.S. 23:1031(A).

Ms. Holden argues that she was not within the course and scope of her employment when her accident occurred, and she can proceed with her suit for damages against defendants. In support of her argument, Ms. Holden relies on Ruiz v. City of New Orleans, 12-405 (La. App. 5 Cir. 1/16/13), 109 So.3d 52, 54-55, which held that a police officer who fell in a stairwell at a different location from his own workplace, was not in the course and scope of his employment because he was not performing work-related duties and was not on his employer's premises at the time the accident occurred. Ms. Holden argues that like the police officer in Ruiz, she was not actively engaged in the performance of work related duties at the time of her accident and, thus, was not in the course and scope of her employment.

Defendants counter that Ruiz is distinguishable from the instant matter because Ms. Holden's accident occurred at her jobsite, unlike in Ruiz where the police officer's accident occurred "miles away from his jobsite at a different building performing a transaction at his credit union." Defendants further argue that Ruiz is distinguishable from the instant matter because of the timing of Ms. Holden's accident. Because Ms. Holden's accident occurred during a brief work break, while she was on the clock on her employer's premises, defendants argue that she was in the course and scope of her employment. In support of their argument, defendants cite Carradine v. Regis Corp., 10-529 (La. App. 3 Cir. 11/3/10), 52 So.3d 181, 187, which held that an employee's injury occurring during a permitted break period may be compensable when occurring on the employer's work premises and is generally regarded as occurring during the course of employment. See Dufrene v. Ins. Co. of State of Pennsylvania, 01-47 (La. App. 5 Cir. 5/30/01), 790 So.2d 660, 669, (employee who was injured when she tripped and fell on a handicap ramp as she exited a building on her morning break was injured in course and scope of her employment and on employer's premises during work hours, such that employer was entitled to tort immunity under workers' compensation law with respect to personal injury claim brought by employee).

For purposes of workers' compensation, the requirement that an employee's injury occur "in the course of" employment focuses on the time and place relationship between the injury and the employment. Sharp v. United Fire & Indem. Co., 15-0976 (La. App. 1 Cir. 12/23/15), 185 So.3d 830, 833. The principal criteria for determining "course of employment" are time, place, and employment activity. Mundy v. Department of Health and Human Resources, 593 So.2d 346, 349 (La. 1992). An accident occurs in the course of employment when the employee sustains an injury while actively engaged in the performance of her duties during work hours, either on the employer's premises or at other places where employment activities take the employee. McLin v. Industrial Specialty Contractors, Inc., 02-1539 (La. 7/2/03), 851 So.2d 1135, 1140. The requirement that an employee's injury "arise out of" her employment relates to the character or origin of the injury suffered by the employee and whether the injury was incidental to the employment. Id.

The submitted testamentary evidence is sufficient to prove the ultimate issue of whether Ms. Holden was within the course and scope of her employment at the time of her accident. It is undisputed that at the time of Ms. Holden's accident she was employed by Mike's Catfish Inn, on her employer's premises, on the time clock, and on a work break. The fact that Ms. Holden walked outside on her employer's premises to see her daughter does not change the fact that she was still in the course and scope of her employment at the time of her accident. An employee who is getting paid, is on her employer's premises, and is on an approved work break is in the course and scope of her employment whether she is visiting with her daughter, getting a breath of fresh air, smoking a cigarette, or walking outside to drink a diet coke. All of the elements of course and scope of employment are met in the instant matter.

Moreover, it is undisputed that Ms. Holden made a claim for workers' compensation benefits arising out of her accident and was paid in a settlement the sum of $10,000.00. Considering these facts alone and the lack of evidence presented by Ms. Holden, we find that the trial court correctly determined that there are no genuine issues of material fact and that as a matter of law, Ms. Holden was in the course and scope of her employment when her accident occurred. Therefore, Ms. Holden's argument that the trial court erred in granting summary judgment to defendants has no merit.

CONCLUSION

The April 3, 2017 judgment, which granted the motion for summary judgment in favor of Mike's Catfish Inn, Inc. and Massachusetts Bay Insurance Company, and dismissed Jackie Holden's suit, with prejudice, is affirmed. Costs of this appeal are assessed to Jackie Holden.

AFFIRMED.

      Ms. Holden's petition named Hanover Insurance as a defendant; however, the record reveals that Massachusetts Bay Insurance Company should have been named as a defendant.


author: PENZATO, J.

text:
    Joseph D. HUFFMAN v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, LICENSE CONTROL AND DRIVER IMPROVEMENT DIVISION
    2017 CA 1215
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Glynn J. Delatte, Jr., Stephen R. Edwards, Jr., Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant, Joseph D. Huffman
    Laura C. Hopes, Baton Rouge, Louisiana, Counsel for Defendant/Appellee, State of Louisiana, Department of Public Safety and Corrections, Office of Motor Vehicles
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

Appellant, Joseph D. Huffman, seeks review of a district court judgment that affirmed the suspension of his driver's license and required him to install an ignition interlock device prior to its reinstatement. For the reasons that follow, we affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

On July 31, 2016, around 2:30 a.m., Louisiana State Trooper William Cook stopped Mr. Huffman for a traffic violation. When Trooper Cook approached the vehicle, he smelled an odor of an alcoholic beverage and observed Mr. Huffman swaying while trying to stand. Trooper Cook became suspicious that Mr. Huffman was impaired, but did not suspect Mr. Huffman to be under the influence of drugs. Therefore, he decided to administer field sobriety tests. Mr. Huffman performed poorly on the standardized field sobriety testing and was arrested for driving while intoxicated and transported to the Livingston Parish Jail. Trooper Cook read to Mr. Huffman the applicable portions of the standardized arrestee's rights form, "Rights Relating to the Chemical Test for Intoxication." Mr. Huffman refused to sign the form, but submitted to the chemical test for intoxication. The results indicated a .172 grams percent blood alcohol concentration.

Mr. Huffman's driver's license was suspended, and he timely requested, and was granted, an administrative hearing to contest the suspension. Mr. Huffman's suspension was affirmed. He filed suit in the Twenty-First Judicial District Court to challenge the suspension. A de novo hearing on the merits was held on April 3, 2017. The district court heard testimony from witnesses, and evidence was submitted. The district court ordered post-trial memoranda, and took the matter under advisement. On May 5, 2017, the district court issued reasons for judgment, and signed a judgment affirming the 365 day suspension of Mr. Huffman's driving privileges, and requiring Mr. Huffman to install an ignition interlock device in his vehicle prior to reinstatement of his driver's license. From that judgment, Mr. Huffman appeals.

ASSIGNMENTS OF ERROR

Mr. Huffman asserts that the district court erred in finding that (1) even though he was not advised of all of the rights as required by La. R.S. 32:661(C)(1), the test results were admissible, since he was not prejudiced; and (2) the provisions of La. R.S. 32:667(I)(1)(b) were proven by competent evidence to be applicable in this matter, thereby requiring the use of an ignition interlock device at the time of reinstatement.

LAW AND DISCUSSION

On review of the administrative suspension of a driver's license pursuant to the implied consent law, the district court is required to conduct a trial de novo to determine the propriety of the suspension. Such a trial is a civil action amenable to all of the ordinary rules of procedure and proof. Further, the fact that this is an action for judicial review of a decision resulting from an administrative hearing does not change the burden of proof placed by law. Stoltz v. Dept. of Public Safety and Corrections , 2013-1968 (La. App. 1 Cir. 6/25/14), 147 So.3d 1131, 1133.

Louisiana's implied consent statute, La. R.S. 32:661(A)(1), provides, in pertinent part, as follows:

Any person ... who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood, and the presence of any abused substance or controlled dangerous substance ... if arrested for any offense arising out of acts alleged to have been committed while the person was driving ... while believed to be under the influence of alcoholic beverages or any abused substance or controlled dangerous substance ....

Louisiana Revised Statutes 32:661(C) provides as follows with regard to the procedures which must be performed before the test is administered:

(1) When a law enforcement officer requests that a person submit to a chemical test as provided for above, he shall first read to the person a standardized form approved by the Department of Public Safety and Corrections. The department is authorized to use such language in the form as it, in its sole discretion, deems proper, provided that the form does inform the person of the following:
(a) His constitutional rights under Miranda v. Arizona.
(b) That his driving privileges can be suspended for refusing to submit to the chemical test.
(c) That his driving privileges can be suspended if he submits to the chemical test and such test results show a blood alcohol level of 0.08 percent or above or, if he is under the age of twenty-one years, a blood alcohol level of 0.02 percent or above.
(d) That his driving privileges can be suspended if he submits to the chemical test and the test results show a positive reading indicating the presence of any controlled dangerous substance listed in R.S. 40:964.
(e) The name and employing agency of all law enforcement officers involved in the stop, detention, investigation, or arrest of the person.
(f) That refusal to submit to a chemical test after an arrest for an offense of driving while intoxicated if he has refused to submit to such test on two previous and separate occasions of any previous such violation is a crime under the provisions of R.S. 14:98.2 and the penalties for such crime are the same as the penalties for first conviction of driving while intoxicated.
(2) In addition, the arresting officer shall, after reading said form, request the arrested person to sign the form. If the person is unable or unwilling to sign, the officer shall certify that the arrestee was advised of the information contained in the form and that the person was unable to sign or refused to sign.

In the instant case, Trooper Cook testified that he did not suspect Mr. Huffman to be under the influence of drugs. There is no dispute that Trooper Cook read to Mr. Huffman the applicable portions of the standardized form approved by the Department of Public Safety and Corrections (DPS). Further, there is no dispute that subsection (d) of La. R.S. 32:661(C)(1) regarding chemical testing for the presence of a controlled dangerous substance is not contained in this form, and therefore was not read to Mr. Huffman. The issue raised in Mr. Huffman's first assignment of error is whether the results of Mr. Huffman's chemical test for intoxication are admissible despite the failure of the standardized form to include La. R.S. 32:661(C)(1)(d) regarding chemical testing for the presence of a controlled dangerous substance.

We find that the omission of subsection (d) from the standardized rights form does not require the exclusion of the results of Mr. Huffman's chemical test for intoxication. In Jones v. State, Dept. of Public Safety , 98-2597 (La. App. 1 Cir. 12/28/99), 747 So.2d 774, 775, Mr. Jones contended that the rights form that he was provided with prior to his submission to the blood test which formed the basis of his driver's license suspension was defective in that it did not list all of the law enforcement officers involved in the "stop, detention, investigation, or arrest of [his] person" in accordance with La. R.S. 32:661C(1)(e). The district court reversed the suspension of his license for failure to list certain officers on the rights form, apparently concluding that a failure to comply with this requirement of La. R.S. 32:661 was a defect fatal to the validity of the blood test results. Id. at 776. On appeal, the court noted that:

There is no constitutional infringement involved in subjecting persons suspected of driving while intoxicated to a chemical test and no constitutional requirement that such persons be advised of the consequences of taking the test and of adverse test results. The failure of a law enforcement officer to comply with the procedure required by statute offends no constitutional rights of the person to be tested. Accordingly, the drastic remedy or sanction of the judicially created exclusionary rule, designed to deter wrongful police conduct which impinges on constitutionally protected rights, need not and should not be applied to exclude chemical test evidence obtained without compliance with the statutory warning procedure. Compliance by law enforcement officers with the statutory requirements is a matter which should be required and regulated internally within the law enforcement agencies.
Id. at 776-77 (citing State v. Fortner , 478 So.2d 673 (La. App. 2 Cir. 1985) ).connection with the following circumstances as a condition of the reinstatement of such person's driver's license:
* * *
(b) Any person who has submitted to an approved chemical test for intoxication where the results indicate a blood alcohol level of 0.08 percent or above and whose driver's license has been suspended in accordance with the law for an arrest occurring within ten years of the first arrest.

In Veasman , this court found that the evidence adduced at trial did not establish an arrest for driving while intoxicated but simply established a previous suspension and a refusal of a chemical test. Id. at 92. In the instant case, unlike the situation in Veasman , evidence was introduced at trial that Mr. Huffman was arrested on August 20, 2008 for driving while intoxicated, was convicted of same on January 22, 2009, and that his driver's license was suspended in connection therewith. Thus, we find that that the provisions of La. R.S. 32:667(I)(1)(b) were proven by competent evidence and that Mr. Huffman is required to install an ignition interlock device in his motor vehicle as a condition of the reinstatement of his driver's license. Mr. Huffman's second assignment of error has no merit.

CONCLUSION

For the foregoing reasons, the May 5, 2017 judgment, affirming the suspension of Joseph D. Huffman's driver's license and requiring him to install an ignition interlock device prior to its reinstatement, is affirmed. Costs of this appeal are assessed against appellant, Joseph D. Huffman.

AFFIRMED.

      Trooper Cook did not read the portions of the form applicable in the event of a fatality/serious bodily injury, for a driver under the age of 21, or for a driver operating a commercial motor vehicle or possessing a commercial driver's license.


text:
    Marjorie HODSON v. DARON CAVANESS BUILDER, INC.
    NO. 2017 CA 1235
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Kentley R. Fairchild, Houma, LA, Attorney for Defendant-Appellant, Daron Cavaness Builder, Inc.
    Willard P. Schieffler, Thibodaux, LA, Attorney for Plaintiff-Appellee, Marjorie Hodson
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

A builder appeals a judgment rendered in favor of a homeowner based upon an alleged oral agreement to repair damaged flooring.

BACKGROUND

On June 30, 2010, Marjorie Hodson purchased a new home from Daron Cavaness Builder, Inc. in Raceland, Louisiana. Ms. Hodson and her daughter, Kelli Ann Dugas, immediately moved into the new house. Approximately six years later, on May 18, 2016, Ms. Hodson called Mr. Cavaness to request that he come to her house to examine a recent problem with the tile flooring and grout that was cracking and crumbling. Mr. Cavaness responded that same date by personally examining the damaged flooring. Ms. Hodson made it clear to Mr. Cavaness that she expected him to have the damage repaired. Mr. Cavaness advised Ms. Hodson that he would "look into it and get back with her." However, Mr. Cavaness never got back with Ms. Hodson, even though she repeatedly tried to contact him about the repair job. Ms. Hodson filed a complaint with the Better Business Bureau for the Greater New Orleans area on June 1, 2016. Still, Ms. Hodson did not receive a response from Mr. Cavaness. Because Ms. Hodson believed that Mr. Cavaness had made an oral promise to have her floors repaired, she sought assistance from a lawyer to make a written demand on Mr. Cavaness to repair the floors as promised. Mr. Cavaness responded to the demand by informing Ms. Hodson's lawyer that the house was "out of warranty" for flooring pursuant to the Louisiana New Home Warranty Act (NHWA). Mr. Cavaness denied that he ever told Ms. Hodson that he would have the flooring repaired.

Ms. Hodson filed suit against Mr. Cavaness's business on June 16, 2016, alleging claims pursuant to the NHWA and in redhibition. She supplemented her petition a few weeks later to add an allegation for breach of oral contract, alleging that Mr. Cavaness had breached an oral agreement to inspect and repair the flooring in her house. The claims pursuant to the NHWA and in redhibition were dismissed pursuant to peremptory exceptions granted in favor of Mr. Cavaness's business on October 7, 2016. Those claims are not at issue in this appeal. However, the remaining claim for breach of an oral contract to repair proceeded to a bench trial on May 31, 2017. The trial court ultimately ruled in favor of Ms. Hodson, finding her testimony to be more credible than that offered by Mr. Cavaness and that Ms. Hodson met her burden of proving corroborating circumstances sufficient to establish the existence of an oral contract. A final judgment was rendered in favor of Ms. Hodson for $5,750.00 against Daron Cavaness Builder, Inc., for the cost to repair the damaged flooring. Mr. Cavaness's business appeals, asserting the trial court erred in finding a valid oral contract to repair.

DISCUSSION

The only issue at trial was whether a valid oral contract to repair the floors was proven by Ms. Hodson. A contract not reduced to writing, for a price or value above $500.00, must be proved by at least one witness and other corroborating circumstances. La. Civ. Code art. 1846 ; Suire v. Lafayette City-Parish Consolidated Government , 2004-1459 (La. 4/12/05), 907 So.2d 37, 58. To meet the burden of proving an oral contract by a witness and other corroborating circumstances, a plaintiff may serve as her own witness and the "other corroborating circumstances" may be general and need not prove every detail of the plaintiff's case. Pennington Const., Inc. v. R A Eagle Corp. , 94-0575 (La. App. 1st Cir. 3/3/95), 652 So.2d 637, 639. The corroborating evidence, however, must come from a source other than the plaintiff. Id. Whether there were corroborating circumstances sufficient to establish an oral contract is a question of fact, and our review of the factual conclusions is limited to a review of the entire record to determine if those conclusions are clearly wrong. Id.

We also note that when evaluating the evidence needed to establish the existence or non-existence of an oral contract, the trial court is allowed to make credibility determinations. Key Office Equipment, Inc. v. Zachary Community School Bd. , 2015-1412 (La. App. 1st Cir. 4/15/16), 195 So.3d 54, 60, writ denied, 2016-0841 (La. 6/17/16), 192 So.3d 772. Reasonable evaluations of credibility will not be disturbed upon review unless documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the determination. Id. at 61.

In oral reasons for judgment, the trial court first noted that the repair estimate given by a different contractor, Jacob Boudreaux, established by a preponderance of the evidence that Ms. Hodson's floor damage could be repaired for $5,750.00, which clearly put the amount at issue over $500.00. The trial court next noted that Ms. Hodson's testimony was credible and she was clearly under the impression that Mr. Cavaness had promised to repair the damaged floor when he examined the flooring on May 18, 2016. Our review of Ms. Hodson's testimony reveals that she was frustrated that Mr. Cavaness never got back to her after promising that he would determine who had installed the flooring and would get back with her to set up the repair. The trial court also observed, and the record supports, that Ms. Hodson's daughter's testimony did not provide the required corroboration needed to prove the existence of the alleged oral contract to repair, because the daughter was not present at the time of Mr. Cavaness's examination of the damage and she never heard Mr. Cavaness tell Ms. Hodson that he would repair the floor.

As for the testimony of Mr. Cavaness, the trial court stated that it found his testimony "inconsistent" and that it did not "give a great deal of weight to [Mr. Cavaness's] testimony because of the number of inconsistencies." Our review of Mr. Cavaness's testimony shows confusion over the number of phone calls received by Ms. Hodson and her daughter. However, the testimony also reveals a consistent denial that Mr. Cavaness ever promised to repair Ms. Hodson's damaged floors, even though she had made it clear to him that she expected him to take responsibility for the repair. Instead, Mr. Cavaness admitted that he promised to "look into it and get back with her in a week or two[,]" but he never got back with her. The trial court went on to discuss the corroborating evidence envisioned by La. Civ. Code art. 1846 and the jurisprudence, such that there was a need for an independent source of corroboration in addition to Ms. Hodson's testimony. The trial court was impressed with the fact that Mr. Cavaness had acknowledged his failure to follow through with his promise to get back in touch with Ms. Hodson, and therefore, the trial court concluded that Mr. Cavaness's failure to respond was sufficient corroboration of the oral contract to repair.

After thoroughly reviewing the entire record, we conclude that the trial court manifestly erred in determining that Mr. Cavaness's acknowledgement of his failure to respond to Ms. Hodson was sufficient corroborating evidence that he had orally agreed to repair the damaged floors. Mr. Cavaness certainly promised to get back with Ms. Hodson about the flooring, and then he neglected to do so. However, there is simply no corroborating evidence from a source other than Ms. Hodson that Mr. Cavaness promised to repair the damaged flooring. While the trial court is allowed to make credibility determinations when evaluating the evidence needed to establish the existence of an oral contract, we find that the trial court's evaluation of Mr. Cavaness's testimony was not reasonable in this instance. An acknowledged broken promise to look into a situation does not equate to an oral agreement to repair. Additionally, we find it significant that Ms. Hodson filed a complaint within thirteen days and this lawsuit within a month of first seeking assistance from Mr. Cavaness, yet she did not mention any promise to repair until the month following the filing of the original petition. Thus, we find that Ms. Hodson failed to prove the existence of an oral contract by a preponderance of corroborating evidence. Consequently, the trial court's award of $5,750.00 to Ms. Hodson for the cost of repairs is manifestly erroneous and must be reversed.

CONCLUSION

For the assigned reasons, we reverse the trial court's judgment in favor of plaintiff, Marjorie Hodson, casting defendant, Daron Cavaness Builder, Inc., with the payment of $5,750.00, together with legal interest and court costs. Further, we hereby dismiss, with prejudice, Marjorie Hodson's lawsuit against Daron Cavaness Builder, Inc. All costs of this appeal are assessed to plaintiff-appellee, Marjorie Hodson.

REVERSED.

Holdridge, J., concurs with reasons

HOLDRIDGE, J., concurs.

I respectfully concur with the report. I agree with the majority that the plaintiff failed to prove an oral contract existed which required the defendant to repair the plaintiff's floor. However, I do find that an oral contract existed wherein the defendant agreed to inspect the floor and investigate the cause of the damage to the floor. Clearly, the defendant breached that contract. However, the plaintiff failed to prove the amount of damages, if any, were caused by that breach.

      We see no issue regarding the expiration of warranties pursuant to the NHWA, because a builder and homeowner may enter into a collateral agreement regarding additional repairs/remedies outside of the exclusive minimum required warranties in the NHWA. See Allemand v. Discovery Homes, Inc. , 2009-1565 (La. App. 1st Cir. 5/28/10), 38 So.3d 1183, 1188 ; Barnett v. Watkins , 2006-2442 (La. App. 1st Cir. 9/19/07), 970 So.2d 1028, 1035, writ denied, 2007-2066 (La. 12/14/07), 970 So.2d 537. See also Primeaux v. Bennett Homes, Inc. , 339 So.2d 1251, 1254 (La. App. 1st Cir. 1976).


text:
    STEVE OWENS CONSTRUCTION, INC. v. Chad B. BORDELON, an Individual and Causeway Place, LLC
    NO. 2017 CA 1320
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 27, 2018
    Richard A. Richardson, Covington, LA, Attorney for Defendant-Appellee, Chad B. Bordelon, an Individual, and for Defendant-2nd Appellant, Causeway Place, LLC
    Michael F. Weiner, Covington, LA, Attorney for Plaintiff-1st Appellant and Appellee, Steve Owens Construction, Inc.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

This matter concerns an oral construction contract and a dispute over unpaid invoices on a commercial project. The owner of the project and the general contractor that worked on the project both appealed the trial court's judgment that ordered the payment of the invoices and recognized a lien against the property and its owner.

BACKGROUND

Sometime in late 2007 to early 2008, Chad B. Bordelon, a general contractor, hired another general contractor, Steve Owens Construction, Inc. (Owens), to help him renovate immovable commercial property owned by Causeway Place, LLC, ("the Owner"), in Mandeville, Louisiana. The renovation involved transforming a former movie theater into a venue for events, named the Fleur de Lis Event Center ("the Project"). Bordelon informed Owens that the scope of the work to be performed by Owens was uncertain, because he intended to have some of his own employees and subcontractors do a portion of the work. Therefore, no firm estimate of the cost to complete the Project was ever offered by Owens. However, Bordelon and Owens ultimately came to an oral agreement for Owens to perform the work on the Project. Owens submitted weekly invoices to Bordelon for Owens' time and materials, plus 15% overhead and 10% profit.

Between January 2008 and October 2008, Owens submitted 48 invoices to Bordelon, all of which were paid by the Owner without question. Each invoice clearly indicated that it was a time and materials (T & M) invoice, and the labor was charged using a different hourly rate for each employee that included direct and indirect costs associated with those employees, such as insurance, social security, tax withholdings, benefits, and administrative fees. Each invoice also outlined the materials used each week, the equipment rented, a supervision fee for Steve Owens, and bills for any subcontractor used by Owens on the Project. After paying invoices on a regular basis without incident for ten months, Bordelon presented a check to Owens on November 5, 2008, but he requested that Owens hold the check until the Owner could secure additional funding for the Project. Owens agreed to continue the work since the Project was nearing completion.

Owens submitted three more invoices and completed the Project at the end of December 2008. Owens continued to request payment from Bordelon on the outstanding invoices, receiving only a partial payment on one, while Bordelon persistently indicated that payment would be made as soon as additional financing was secured. In early 2009, Bordelon informed Owens that the remaining invoices would not be paid for a different reason than financing issues, because Bordelon thought that the work on the Project should have been billed on a "cost-plus" basis, rather than a T & M basis, so that the labor costs were limited to the direct wages that Owens actually paid its employees. Accordingly, Bordelon and the Owner refused to pay the remaining invoices totaling $70,042.89. Consequently, Owens filed a lien on the Project and filed a lawsuit against Bordelon individually, and the Owner of the Project. Bordelon and the Owner reconvened against Owens for an unspecified amount, claiming entitlement to a credit for the difference between the labor rate charged in all of Owens' invoices throughout the Project and the amount Owens actually paid its employees for the hours billed on the invoices.

A bench trial was held on February 13, 2017, where the parties stipulated that the works reflected in the invoices were truly performed. The only issues for the trial court was to determine the type of oral contract the parties agreed to, what amount Owens was entitled to charge for labor on the Project, and whether to recognize the lien that had been filed against the property, the Owner, and Bordelon. The trial court ultimately determined, with written reasons for judgment, that the oral agreement constituted a T & M contract and that Owens was entitled to judgment against the Owner for all of the unpaid invoices plus legal interest. Additionally, the trial court dismissed Bordelon and the Owner's reconventional demand, while recognizing Owens' lien against the Owner and the property, but not Bordelon individually.

Owens appealed the trial court's judgment, assigning error to the trial court's dismissal of Owens' claim against Bordelon individually, maintaining that Bordelon was liable in solido with the Owner because he had acted as an undisclosed agent of the Owner. The Owner also appealed the trial court's judgment, arguing that the trial court erred in finding that the parties had orally agreed to a T & M contract as opposed to a cost-plus contract and therefore, the trial court had erred in dismissing Bordelon and the Owner's reconventional demand.

DISCUSSION

A trial court's determination of the existence or nonexistence of an oral contract is a finding of fact governed by the manifest error or clearly erroneous standard of review. See Read v. Willwoods Community, 2014-1475 (La. 3/17/15), 165 So.3d 883, 888. An appellate court cannot set aside a trial court's factual findings in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). If the factual findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556 (citing Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La. 1990) ).

A party who seeks to demand performance of a contract is required to prove the existence of that obligation. La. Civ. Code art. 1831. The facts supporting the existence of the contract must be proven by a preponderance of the evidence. B.M. Albrecht Elec., Inc. v. Griffin, 413 So.2d 246, 247 (La. App. 4th Cir.), writ denied, 414 So.2d 1252 (La. 1982) (citing Bordlee v. Pat's Const. Co., Inc., 316 So.2d 16, 17 (La. App. 4th Cir. 1975) ). When claiming the existence of an oral contract for the payment of money above $500.00 in value, the party must prove the existence and terms of the contract by at least one credible witness and other corroborating circumstances. See La. Civ. Code art. 1846. To meet the burden of proof of an oral contract, the party may serve as its own witness. B.M. Albrecht Elec., 413 So.2d at 247. However, the corroborating circumstances that are required must come from a source other than the party. Pennington Const., Inc. v. R A Eagle Corp., 94-0575 (La. App. 1st Cir. 3/3/95), 652 So.2d 637, 639 ; Hilliard v. Yarbrough, 488 So.2d 1038, 1040 (La. App. 2d Cir. 1986). The other corroborating circumstances may be general and need not prove every detail of the party's claim. Hilliard, 488 So.2d at 1040. Whether there is sufficient corroborating circumstances to establish an oral contract is a question of fact governed by the manifest error standard of review. Key Office Equipment, Inc. v. Zachary Community School Bd., 2015-1412 (La. App. 1st Cir. 4/15/16), 195 So.3d 54, 60, writ denied, 2016-0841 (La. 6/17/16), 192 So.3d 772. We also note that when evaluating the evidence needed to establish the existence of an oral contract, the trial court is allowed to make credibility determinations. Id.

In this case, there is no real dispute that an oral contract existed. Furthermore, our review of the entire record reflects that Bordelon and the Owner must have been aware of the T & M basis for calculating the amount of each invoice throughout the Project. All of the invoices submitted to Bordelon and timely paid by the Owner without objection clearly revealed at the top of each invoice that they were T & M invoices, and there was no evidence of any negotiated amount that would have been typical of a cost-plus type of agreement. The trial court found those facts to be significant, and so do we.

Additionally, the trial court carefully considered the evidence and testimony, and especially recognized the experience of each of the contractors as professionals in the construction industry. The trial court found it noteworthy that both Bordelon and Owens would have been well aware that the hourly rate paid to an employee is only the starting point of the costs to the employer and, further, Bordelon had specifically indicated to Owens that he did not need any detailed explanation about the costs of employees since he understood the actual costs involved.

Also, the trial court found that due to the sophistication of the general contractors involved and the testimony of the parties, Owens had to have known that Bordelon was not undertaking the huge Project in his personal capacity. Moreover, the fact that all payments of the T & M invoices, from the first to the last, were issued by the Owner rather than Bordelon individually, sufficiently revealed an indication that both contractors understood that they were not contracting with each other on an individual basis, but instead they were operating on behalf of their juridical entities.

Considering these facts, we are in complete agreement with the trial court's reasonable conclusion that the work on the Project was performed under an oral T & M agreement made between Owens and the Owner. Thus, we find no merit to any of the assignments of error made by any party, as each assigned error is dispositive by the trial court's factual findings as explained in its written reasons for judgment. Further, there is no indication of manifest error in the trial court's credibility determinations or weighing of the evidence.

CONCLUSION

For the reasons assigned, the judgment appealed from is affirmed in all respects. All costs of this appeal are assessed equally between the first appellant-appellee, Steve Owens Construction, Inc., and the second appellant, Causeway Place, LLC.

AFFIRMED.

Holdridge J., concurs

      See Burdette v. Drushell, 2001-2494 (La. App. 1st Cir. 12/20/02), 837 So.2d 54, 59. writ denied, 2003-0682 (La. 5/16/03), 843 So.2d 1132 (a "costs plus" or a "percentage" contract is a construction contract in which the owner agrees to reimburse the contractor for the costs of material and labor and to pay a percentage of those costs as his profit). See also Peterson Sales Co., Inc. v. C-Moore Glass, Inc., 296 So.2d 397, 399 (La. App. 2d Cir. 1974) (failure to object to an invoice within a reasonable time is regarded as an admission of its correctness by the party charged).

      See GWS Engineering, Inc. v. Gomez, 2012-1888 (La. App. 1st Cir. 9/17/13), 135 So.3d 71, 74(citing La. Civ. Code art. 3018 and Frank's Door & Bldg. Supply, Inc. v. Double H. Const. Co., Inc., 459 So.2d 1273, 1275 (La. App. 1st Cir. 1984), an agent ceases to be personally bound when the principal is sufficiently disclosed).See also J.T. Doiron, Inc. v. Lundin, 385 So.2d 450, 453 (La. App. 1st Cir. 1980) (express notice of the agent's status and the owner's identity is unnecessary if facts and circumstances combined with the general knowledge that persons in that type of business are generally acting as agents, demonstrates that the third person should be charged with notice of the agency relationship). The determination of whether an agency relationship was sufficiently disclosed or made known is a factual determination which must be made on a case-by-case basis. GWS Engineering, 135 So.3d at 76.