text:
    Barbara LEGER v. CALCASIEU PARISH SCHOOL BOARD.
    No. 09-1261.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Christopher M. Trahan, Raggio, Cappel, etc., Lake Charles, LA, for Defendant/Appellant, Calcasieu Parish School Board.
    Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, for Plaintiff/Appellee, Barbara Leger.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

11 Herein we address whether the trial court erred in finding that Barbara Leger’s (Leger) wages from her employment with McDonald’s should have been included in her workers’ compensation rate for the injuries she sustained in the course and scope of her employment with the Calcasieu Parish School Board (School Board). We also address whether the trial court erred in awarding penalties and attorney fees to Leger.

FACTS AND PROCEDURAL HISTORY:

Leger was employed as a school bus driver by the Calcasieu Parish School Board from 1994 to 2007. On May 15, 2007, after dropping off the last of her passengers, Leger’s bus was struck head-on by a drunk driver, who lost control of his vehicle and veered into her lane. In the accident, Leger suffered severe injuries, including a concussion, cracked ribs, facial lacerations, and a herniated disk in her neck which required a cervical fusion.

At the time of the accident, Leger was also employed as a crew trainer by McDonald’s. During the school year, Leger would begin her bus route at 6:20 a.m. and finish by 7:30 a.m. She would then work at McDonald’s from 8:00 a.m. until 2:00 p.m. Finally, she would resume her bus driving duties from 2:30 p.m. until 4:00 p.m.

Leger’s injuries kept her from working until June 15, 2008, when she took a job at Darrell’s Po-Boy Shop. She attempted to return to her job as a bus driver, but her injuries would not allow it.

The School Board paid Leger’s workers’ compensation benefits based on her average weekly wage derived from her income as a school bus driver. It took into account her annual salary of $13,624.00 along with an additional $4,120.75 — the total of supplemental payments, pay for field trips, etc., received by Leger during the 52 12weeks prior to the accident. These totals were added and then divided by 52 to come up with Leger’s average weekly salary of $341.25. Her resulting workers’ compensation rate came to $227.52.

This case is before us because the lower court found that Leger’s average weekly wage should include, in addition to her wages as a school bus driver, her wages from her part-time employment at McDonald’s. The School Board appeals and asserts the following assignments of error:

APPELLANT’S ASSIGNMENTS OF ERROR:

1. [The workers’ compensation judge] erred in holding that wages from Ms. Leger’s part-time job at McDonald’s should have been included in determining an average weekly wage, and the appropriate weekly workers’ compensation rate, when she was injured in an accident arising out of and in the course of her salaried job at the Calcasieu Parish School Board.
2. [The workers’ compensation judge] erred in awarding penalties and attorney fees.

LAW AND DISCUSSION ON THE MERITS:

The principle behind our workers’ compensation laws is that an employee is entitled to compensation benefits if that employee suffers personal injury by accident arising out of and in the course and scope of his employment. La. R.S. 23:1031(A).

In the matter before us, Leger suffered significant injuries due to an automobile accident that occurred during the course and scope of her employment with the School Board. At the time of the accident, Leger was also employed part-time at a McDonald’s. She was rightfully awarded workers’ compensation benefits for her injuries. The School Board does not question this. What the School Board does question, in its first assignment of error, is whether Leger’s wages from her employment at McDonald’s should have been included in the calculation that |3determined her workers’ compensation award.

An injured employee’s workers’ compensation benefit rate is determined by calculating 66 and 2/3 percent of that employee’s wages — -subject to a minimum and maximum rate set by law. See La. R.S. 23:1221 and 23:1202.

Louisiana Revised Statutes 23:1021(12) defines wages as the “average weekly wage at the time of the accident.” The statute provides additional rules for determining the average weekly wage. It is in these rules that we find the root of the dispute in this case.

Louisiana Revised Statutes 23:1021(12)(a)(iv) reads as follows:

(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.

Both the School Board’s and Leger’s arguments focus on the meaning of the phrase “that employment” in La. R.S. 23:1021(12)(a)(iv)(bb). The School Board argues that the phrase should be interpreted as referring to part-time employment only, while Leger contends that it refers to any of the successive employments. The distinction is an important one.

If the School Board’s reading is correct, it would mean that, because Leger was |4not injured in the course and scope of her employment with McDonald’s (her only part-time employment), the statute would not apply in this case. If Leger is correct in her reading that the statute refers to either of the successive employments, then the statute would be applicable in this case as she was injured in her successive employment as a school bus driver.

We note the trial court’s language on this issue in its oral reasons for judgment: “Now reasonable minds can disagree as to the statute’s meaning; however, no reasonable person could, or should, with a straight face argue that the wording is not at best ambiguous.” We are of the same mind and find that both interpretations are plausible. With that said, we are also mindful that workers’ compensation statutes are to be interpreted liberally in favor of the employee.

The well-recognized beneficial design of the Workers’ Compensation Act is to set up a court-administered system to aid injured workmen by relatively informal and flexible proceedings. Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64. The provisions of the workers’ compensation law are to be interpreted liberally in favor of the worker in order to effectuate its purpose of relieving workers of the economic burden of work-connected injuries by diffusing the cost on channels of commerce. Lester v. Southern Cas. Ins., 466 So.2d 25 (La.1985). See also Coats v. American Tel. & Tel Co., 95-2670 (La.10/25/96), 681 So.2d 1243; Harold v. La Belle Maison Apartments, 94-0889 (La.10/17/94), 643 So.2d 752.

McLin v. Industrial Specialty Contractors, Inc., 02-1539, p. 3 (La.7/2/03), 851 So.2d 1135, 1139.

This court also finds significance in three jurisprudential decisions that addressed issues similar to the one before us today: Jones v. Orleans Parish School Board, 370 So.2d 677 (La.App. 4 Cir.1979), Glynn v. City of New Orleans, 95-1353 (La.App. 4 Cir. 4/3/1996), 672 So.2d 1112, and Mitchell v. Winnfield Holding Corp., 03-677 (La.App. 3 Cir. 12/17/03), 861 So.2d 931, writ denied, 04-0191 (La.4/2/04), 869 So.2d 878.

The Jones case, like ours, involved a school board employee who also held a separate part-time job. Jones worked as a teacher and also had a part-time job as a car salesman. In addressing permanent partial disability stemming from Jones’ injury in the course and scope of employment with the Orleans Parish School Board, the court considered the compensation rate based on Jones’ pre-injury and post-injury earnings. The court found that in determining the compensation rate, it must take into account Jones’ wages from both his employment with the school board and as a car salesman.

In Glynn, the plaintiff was injured in his employment as a fire fighter for the City of New Orleans. The court cited Jones and found that the lower court had made the proper decision in including the plaintiffs wages from his outside employment with Delgado City College when calculating his earnings to determine the compensation benefits.

Lastly, in Mitchell, the plaintiff was a full-time employee with Winnfield Funeral Home and a part-time employee with Nurturing Nook Childcare Center. The workers’ compensation judge, in calculating the plaintiffs benefits, only included Mitchell’s wages from his full-time employment with the funeral home. On appeal, this court found that excluding his part-time wages was improper. It cited the decisions from both Glynn and Jones.

The School Board has directed this court’s attention to the recently decided case, Burnett v. Village of Estherwood, 06-680 (La.App. 3 Cir. 12/9/09), 25 So.3d 997. We find the case to be distinguishable from the matter before us. Burnett was a uniquely fact-specific opinion wherein the plaintiff Chief of Police was injured while on duty. As Chief of Police, he was on call twenty-four hours a day and had | (;no set work schedule. This flexible schedule allowed him to earn money doing various chores for people and businesses within the community. The court found that because Burnett was a monthly employee rather than a full-time or part-time employee, and because he earned the majority of his income from his successive employments rather than from his monthly employment, his situation did not fall within the legislature’s reasoning for enacting the statute. The same is not so in the case before us. The majority of Leger’s income was derived from her employment with the School Board, as opposed to her wages earned while working for McDonald’s. Accordingly, we do not consider Burnett controlling in the present case.

In light of the ambiguity in La. R.S. 23:1021(12)(a)(iv)(bb), the liberal construction in favor of the employee regarding workers’ compensation laws, and the cases cited above, we find that the lower court was correct in including Leger’s wages from her employment with McDonald’s. Accordingly, we find that the School Board’s first assignment of error is without merit.

In its second assignment of error, the School Board asserts that the lower court erred in awarding penalties and attorney fees to Leger. We agree.

Louisiana Revised Statutes 23:1201 sets out the circumstances under which penalties and attorney fees may be rewarded. It reads, in pertinent part:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim;

La. R.S. 23:1201(F). By the authority of this provision, the lower court awarded |7Leger $2,000.00 in penalties and $8,000.00 in attorney fees. The School Board argues, and we agree, that the penalty and fees were improperly awarded under this statute in light of the language of La. R.S. 23:1201(F)(2). It reads: “This subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.”

We note that our supreme court has discussed the meaning of “reasonably controverted” in Brown v. Texas-La Cartage, Inc., 98-1063, p. 9 (La.12/1/98), 721 So.2d 885, 890.

The phrase “reasonably controverted,” on the other hand, mandates a different standard. In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

In Aswell v. Rockwood Ins. Co., 519 So.2d 394, 399 (La.App. 2 Cir.1988), the second circuit addressed the application of La. R.S. 23:1201(F)(2) and held:

When a substantial legal question exists as to entitlement to benefits or where denial of benefits is based upon a close issue of law, a defendant who denies benefits is not to be assessed with penalties and attorney fees. Guidry v. Serigny, 385 So.2d 295 (La.App. 1 Cir. 1980), writ denied, 386 So.2d 355 (La.1980); [Sones v. Mutual of Omaha Ins. Co.], 272 So.2d 739 (La.App. 2 Cir.1972), writ denied, 273 So.2d 292 (La.1973).

In our view, there is no doubt that the matter at issue was reasonably controverted by the School Board. We have already discussed the notable ambiguity attached to La. R.S. 23:1021(12)(a)(iv)(bb). While we have found in favor of Leger on that issue, our decision was based on numerous factors — none of which were that |8the School Board’s actions were frivolous or not supported by well-reasoned arguments. The lower court itself, in its oral reasons for judgment, commented on La. R.S. 23:1021(12)(a)(iv)(bb) being ambiguous at best.

For these reasons, we find that the School Board’s nonpayment of all the benefits due to Leger was based on a reasonably controverted issue of law. Accordingly, we find that the award of penalties and attorney fees was not warranted. The lower court’s ruling on this issue is reversed.

CONCLUSION:

For the foregoing reasons, we affirm the ruling of the lower court that Leger’s wages from McDonald’s should be included in the calculation of her workers’ compensation benefits. We reverse the lower court’s award of penalties and attorney fees in favor of Leger. The costs of this appeal are assessed equally between the parties.

AFFIRMED IN PART, REVERSED IN PART.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Carolyn SANCHEZ v. LOUISIANA NURSERY.
    No. 09-1247.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Michael Benny Miller, Miller & Miller, Crowley, LA, for Intervenor/Appellant, Michael Benny Miller.
    Amanda H. Carmon, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee, Louisiana Workers’ Compensation Corporation Louisiana Nursery.
    Carolyn Sanchez, Eunice, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

|! This is a workers’ compensation case where a claimant fired her attorney, and the discharged attorney filed an intervention naming his former client and the defendants in the principal defendants-in-intervention. The defendants then filed an involuntary motion to dismiss the claimant’s principal demand. After the hearing on the defendant’s motion, the workers’ compensation judge (WCJ) dismissed the entire litigation based on the finding that the claimant had abandoned her claim.

The discharged attorney timely appealed the WCJ’s judgment asserting that the dismissal of his former client’s claim and his intervention, respectively, was improper. We find that the discharged attorney cannot raise as error the dismissal of his former client’s claim, but find that the dismissal of his inteiwention was in error.

FACTS AND PROCEDURAL HISTORY:

On October 9, 2003, Carolyn Sanchez (Sanchez) allegedly sustained injuries due to a work accident while employed by Louisiana Nursery, Inc. (Louisiana Nursery). Sanchez hired Michael B. Miller (Miller) as legal counsel on January 6, 2005.

Sanchez, with Miller representing her, filed a disputed claim for compensation on January 10, 2005, against Louisiana Nursery and LWCC. Miller was then discharged by Sanchez on February 15, 2007. On February 16, 2007, Miller filed a motion and order to withdraw as counsel of record, which was granted. On April 9, 2007, Miller filed a petition for intervention seeking attorney fees as well as expenses and advances incurred with legal interest during his representation of Sanchez.

On October 14, 2008, Louisiana Nursery filed a motion for involuntary dismissal of Sanchez’s claim due to her alleged abandonment of that claim. At the hearing for the motion, no argument was made regarding Miller’s intervention. At|2the end of the hearing, the WCJ dismissed the entire litigation based on Louisiana Administrative Code, Title 40, Part I, Chapter 57, § 5705 entitled “Abandonment” without prejudice with Sanchez being given the right to request reinstatement within thirty days for good cause shown. Miller has timely appealed this judgment, alleging the following two assignments of error:

ASSIGNMENTS OF ERROR:

1. The WCJ erred when it dismissed Miller’s intervention.

2. The WCJ erred when it dismissed Sanchez’s claim against Louisiana Nursery.

ASSIGNMENT OF ERROR NUMBER ONE:

Miller contends in this first assignment of error that the WCJ erred when it dismissed his intervention citing La.Code Civ.P. art. 1039. Louisiana Nursery counters that Miller’s status as a discharged attorney necessitates that his intervention be dismissed with Sanchez’s claim. We are moved by neither contention.

Miller’s assignment of error poses a question of law. This court, in Domingue v. Bodin, 08-62, pp. 2-3 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted), stated:

[ajppellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.
Furthermore, under the de novo standard of review, the appellate court assigns no special weight to the trial court and, instead, conducts a de novo review of questions of law and renders judgment on the record.

Louisiana Code of Civil Procedure Article 1039 states, “[i]f an incidental demand has been pleaded prior to motion by plaintiff in the principal action to dismiss the principal action, a subsequent dismissal thereof shall not in any way affect |sthe incidental action, which must be tried and decided independently of the principal action.” An intervention is an incidental demand. La.Code Civ.P. art. 1031(B).

Louisiana Code of Civil Procedure article 1039 is the rule regarding the lack of effect on incidental demands following the dismissal of the principal demand. However, jurisprudence has recognized that there are some exceptions when dealing with a discharged attorney’s intervention seeking to recover under the contract between the discharged attorney and the former client, especially those contracts that are based on a contingency as authorized by La. R.S. 37:218. Our supreme court, in Scott v. Kemper Ins. Co., 377 So.2d 66, 69-70 (La.1979) (footnotes omitted), stated:

As we determined in Saucier [v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978) ], statutes which tend to impede or frustrate this Court’s constitutionally imposed judicial authority in connection with disciplinary proceedings and regulations of attorney’s law practice will not be approved. We said in that case:
In deciding this case we recognize as a primary consideration the Court’s duty to assert the authority Conferred by the Constitution to regulate the practice of law, which stems from the grant of original exclusive | ¿jurisdiction of disciplinary proceedings against a member of the bar. La. Const. Art. V, [§ ]5(B); See Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976). As set forth more fully in the dissent on original hearing, this Court’s prevailing judicial authority resulted in the adoption and promulgation of the Articles of Incorporation of the Louisiana State Bar Association, which Articles came to incorporate the Code of Professional Responsibility, in lieu of the Canons of Professional Ethics. The Code of Professional Responsibility which regulates attorneys’ practices has been recognized as having the force and effect of substantive law. As a result, these rules set forth by virtue of the Court’s exercise of its prevailing judicial authority override legislative acts which tend to impede or frustrate that authority; only legislative enactments in this area which aid the Court’s inherent powers will be approved. [ ]

[Saucier, 373 So.2d at 115.]

Thus, if [La.JR.S. 37:218 is to be literally applied[,] it must not be in conflict with the Code of Professional Responsibility.

Specifically, two disciplinary rules of the Code of Professional Responsibility (approved by this Court and adopted by the Louisiana State Bar Association) militate against the literal application of the last sentence of [La.]R.S. 37:218.

Disciplinary Rule 2-110(B)(4) recognizes the client’s absolute right to discharge his attorney. It provides[,] in pertinent part:

DR2-110 Withdrawal from Employment[ ]
B) Mandatory withdrawal.
A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:
(4) He is discharged by his client.

And Disciplinary Rule 5-103, while acknowledging that a lawyer may contract with a client for a reasonable contingency fee, specifically prohibits, as we determined in Saucier v. Hayes, an attorney’s acquiring |sa proprietary interest in the client’s cause of action:

Disciplinary Rule 5-103
(A) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation he is conducting for a client, except that he may:
(1) Acquire a lien granted by law to secure his fee or expenses.
(2) Contract with a client for a reasonable contingent fee in a civil case.
Thus an attorney can neither force his continued representation of a client who wishes to discharge him, nor obtain, by any means, a proprietary or ownership interest in the client’s claim. Therefore, he may not proceed with the suit or claim as if settlement had not been made. And he has no right to interfere with or nullify the settlement which his former client has made, (as in this case) or chooses to make.

In the case before us, the hearing before the WCJ was for a rule to show cause why the principal demand should not be dismissed. The rule transpired based on Louisiana Nursery’s motion for involuntary dismissal. However, Louisiana Nursery’s motion did not request dismissal of Miller’s intervention, nor did Louisiana Nursery present any argument below as to why the WCJ should dismiss Miller’s intervention. Given these facts, this court is troubled that Miller’s intervention was dismissed when he was not put on notice of that potential.

The record reflects that at the conclusion of the hearing, the WCJ’s order of dismissal was based on “Office of Workers’ Compensation Hearing Rule 5705.” The WCJ is authorized to do so under La. R.S. 23:1310.1(0, which states the following:

The director [of the Office of Workers Compensation] shall have the authority to adopt reasonable rules and regulations, including the rules of procedure before the workers’ compensation judges, according to the procedures established by the Administrative Procedure Act. All rules and regulations, properly approved and promulgated under the Administrative Procedure Act, shall be consistent with the Workers’ Compensation Law and shall be binding in the administration of that | ,-,law.

Under the authority granted by La. R.S. 23:1310.1, the Louisiana Administrative Code, Title 40, Part I, Chapter 57, § 5705, entitled “Abandonment” was promulgated, the text of which, in pertinent part, follows:

A. A claim may be dismissed at the judge’s discretion after contradictory hearing properly noticed by the court for lack of prosecution for the following reasons:
3. where a claim has been pending six months without proceedings being taken within such period. This provision shall not apply if the claim is awaiting action by the workers’ compensation court; or
4. where a party fails to appear for a properly noticed conference;
5. where an attorney or pro se litigant fails to keep the workers’ compensation court apprised of an address change may be considered cause for involuntary dismissal for failure to prosecute when a notice is returned to a party or the workers’ compensation court for the reason of an incorrect address and no correction is made to the address for a period of 60 days.
C. Dismissal under this rule shall be without prejudice. Any order of dismissal shall allow for reinstatement of the action within thirty days for good cause shown.

On appeal, Louisiana Nursery argues that the WCJ was proper in dismissing the entire litigation under Clark v. Aetna Life Ins., 510 So.2d 1300 (La.App. 3 Cir.1987) and Hawthorne v. National Union Fire Ins. Co., 562 So.2d 473 (La.App. 3 Cir.1990), as those two cases stand for the proposition that a discharged attorney’s intervention absolutely must fall when the principal demand is dismissed. We disagree with Louisiana Nursery’s interpretation of these two cases.

In Clark, a discharged attorney intervened in his former client’s workers’ ^compensation suit in order to recover attorney’s fees for the defendant’s failure to pay medical expenses. The former client’s suit was dismissed due to prematurity, and the former client did not appeal that dismissal. The discharged attorney filed an appeal where his principal argument was that the WCJ’s dismissal of his former client’s claim was improper. This court, based on a client’s absolute right to discharge his or her attorney, ruled that the discharged attorney could not raise that issue on appeal because to allow such an argument would, in effect, allow the discharged attorney to continue forward with the former client’s case after having been discharged. This court also found that the discharged attorney was not entitled to any fees under the language of his contract with his former client, as no judgment or settlement of his former client’s claim occurred. However, the Clark court did find that the discharged attorney was properly awarded reimbursement from his former client for expenses he incurred prior to his dismissal.

Like Clark, in Hawthorne, a discharged attorney intervened in his former client’s workers’ compensation suit seeking attorney’s fees and expenses. The discharged attorney in Hawthorne named his former client and the defendants in the principal demand as defendants-in-intervention. The defendants in the principal demand and the former client were granted a motion for summary judgment against the intervention. The discharged attorney argued that he could proceed against the defendants in the principal demand directly for attorney’s fees owed under La. R.S. 23:1201.2 for the denial of his former client’s benefits that was arbitrary and capricious. This court upheld the WCJ with respect to the summary judgment granted to the defendants in the principal demand because to allow the discharged attorney to proceed would “amount to the continued representation of his former client, which |sis forbidden by the Rules of Professional Conduct.” Hawthorne, 562 So.2d at 476. However, the court reversed the summary judgment as related to the discharged attorney’s former client, as she was not part of the motion.

Thus, in both Clark and Hawthorne, the intervening attorney was allowed to pursue recovery under the terms of their respective contracts against their former clients. Further, in Hawthorne, our reading of the opinion is that had the discharged attorney properly filed his contract with the clerk of court, he could have potentially recovered from the defendants in the principal demand with the caveat that his recovery was limited to those items which would not necessitate his running afoul of our Code of Professional Responsibility.

In this particular assignment of error, unlike the discharged attorney in Clark, Miller is not arguing that the dismissal of his former client’s case was improper. Rather, Miller is arguing that the dismissal of his intervention was improper. Under Hawthorne, Miller would have to have put forth some evidence as to how his intervention could proceed without violating any provision of our Code of Professional Responsibility or as to whether he filed his attorney/client contract with the clerk of court. While the record has no evidence of either, the discharged attorney in Hawthorne was put on notice that his intervention was being challenged when the defendants in the principal demand filed a summary judgement request directly against it. Here, Miller had absolutely no notice that his intervention was being challenged via the filing of Louisiana Nursery’s motion for involuntary dismissal, nor was his intervention even argued as to its status at the hearing below. Therefore, given the lack of notice given to Miller, we remand this case for a hearing regarding the merits of his intervention against Sanchez and Louisiana Nursery. We note that |9Miller’s claims against Louisiana Nursery cannot be based upon him running afoul of any provision of our Code of Professional Responsibility, including, but not limited to, Miller taking a proprietary interest in Sanchez’s case or Miller continuing Sanchez’s case after having been properly discharged in violation of Sanchez’s absolute right to do so.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Miller contends that the WCJ erred when it dismissed the principal demand. Miller is prevented from raising this assignment of error.

This court, in Clark, 510 So.2d at 1304, stated the following:

A litigant can ... decide not to appeal a dismissal of his suit. The discharged attorney cannot step back into the shoes of his former client and take an appeal to try to maintain the client’s action after such a dismissal. Such efforts would enable the discharged attorney to control his former client’s suit thereby forcing his continued representation of the client.

A client has an “absolute right to discharge his attorney.” Scott, 377 So.2d at 69. Allowing Miller to raise this issue would violate that right. Accordingly, we affirm the WCJ’s dismissal of Sanchez’s claims against Louisiana Nursery.

CONCLUSION:

Miller raised two assignments of error: that the WCJ erred in dismissing his intervention and that the WCJ erred in dismissing Sanchez’s claim against Louisiana Nursery. We affirm the WCJ’s dismissal of Sanchez’s claim. However, we find that Miller was not properly put on notice that his intervention was at issue and, therefore, reverse the WCJ’s dismissal of his intervention and remand the case for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . Louisiana Revised Statutes 37:218 states:
      A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.

        B. The term “fee", as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.


author: AMY, Judge.

text:
    Audrey THOMPSON, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 09-1369.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Rehearing Denied May 12, 2010.

      Michael L. Glass, Alexandria, LA, Wilbert J. Saucier, Jr., Pineville, LA, for Plaintiffs/Appellees, Audrey Thompson, Charles Thompson.
    Russell L. Potter, Stafford, Stewart & Potter, Alexandria, LA, for Defendant/Appellant, Government Employees Insurance Company.
    Bonita K. Preuett-Armour, Armour Law, Alexandria, LA, for Defendant/Appellant, State Farm Mutual Automobile Insurance Company.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

[iThe plaintiff and her husband filed suit in city court for damages related to an automobile accident. The city court entered an initial summary judgment assigning one hundred percent of the fault to the defendant driver, establishing that the defendant insurance company provided coverage of $100,000 per person and $300,000 per accident, and finding that the plaintiffs insurer, both a defendant and an intervenor, afforded UM benefits. Thereafter, the city court awarded $50,000 to the plaintiff for general damages and $50,000 to the plaintiffs husband for loss of consortium and for medical expenses incurred by the community property regime. The city court also ordered that the plaintiffs insurer be reimbursed for the $5,000 it paid under the medical pay portion of its policy from the plaintiffs husband’s award. Both insurers appeal. For the following reasons, however, we vacate the judgment for lack of subject matter jurisdiction and remand for transfer to a court of proper jurisdiction.

Factual and Procedural Background

The plaintiff, Audrey Thompson, filed suit in the City Court of Alexandria, seeking damages for injuries stemming from a rear end vehicle collision. Her husband joined the suit, seeking damages for loss of consortium. Mr. Thompson also sought medical expenses and loss of his wife’s income on behalf of the couple’s marital community.

The plaintiff named Chad Harpe, the driver allegedly at fault in the accident, as a defendant as well as the insurer of the vehicle he was driving, State Farm Mutual Automobile Insurance Company. Additionally, Mrs. Thompson also named her uninsured motorist carrier, Government Employees Insurance Company (GEICO), as a defendant. GEICO later intervened in the matter, naming Mr. and Mrs. Thompson, |j>Mr. Harpe, and State Farm as defendants. It sought return of the funds expended under the medical pay provisions of the policy issued to Mrs. Thompson.

The city court granted an initial partial summary judgment sought by the plaintiffs, wherein it determined that Mr. Harpe was one hundred percent at fault in the automobile accident and that, in pertinent part, the State Farm policy afforded policy limits of $100,000 per person and $300,000 per accident. In the same judgment, the city court determined that the GEICO policy afforded UM coverage to the plaintiffs in the amount of $10,000 per person and $20,000 per accident. The GEICO policy was further determined to provide medical coverage to the plaintiffs in the amount of $5,000.

After trial, the city court rendered reasons for ruling, ultimately concluding that “the injuries sustained by Mrs. Thompson justify a general damage award in excess of $100,000.00. However, the court is limited by the jurisdictional limit of $50,000.00 in general damages to Mrs. Audrey Thompson and awards that amount to her.” The city court found Mr. Thompson entitled to $20,000 for loss of consortium. Further, the city court determined that Mr. Thompson was entitled to recover $654.91 for past lost wages of the community and that the community was entitled to recover $8,192.52 for past medical expenses and that the community would incur medical expenses in the amount of $117,000 in the future. Again, the city court explained that it was limited to the $50,000 jurisdictional limit available to Mr. Thompson.

The subsequent final judgment reflected the city court’s award of general damages of $50,000 to Mrs. Thompson and $20,000 for loss of consortium to Mr. Thompson. It further awarded past medical expenses in the amount of $8,129.52 and |3future medical expenses in the amount of $21,870.48 to Mr. Thompson. The judgment reflected that it did so “on behalf of the marital community!.]”

With regard to GEICO, the city court found the insurer entitled to recover the $5,000 paid under the medical pay portion of its policy. The judgment indicated that this payment was to be made from the medical expenses paid to Mr. Thompson. Therefore, the judgment reflected a $50,000 award to Mrs. Thompson and a $45,000 award to Mr. Thompson. GEICO filed a motion for new trial, seeking dismissal from the proceeding in its capacity as a UM provider. The city court denied this motion.

State Farm appeals, assigning the following as error:

[1] The city court exceeded its jurisdictional limit by splitting the cause of action of Audrey Thompson for general and special damages when awarding her its full jurisdictional limit for her general damage claim and then awarding her husband the balance of another jurisdictional limit for her special damage claim for lost wages and medical expenses.
[2] The city court erred in awarding Charles Thompson $20,000.00 for loss of consortium.

GEICO also appeals, asserting that the city court “erred in failing to dismiss the plaintiffs’ claims against GEICO with prejudice after trial on the merits.” After appeal, but prior to submission to the panel, State Farm filed an Exception of Lack of Subject Matter Jurisdiction.

^Discussion

Subject Matter Jurisdiction

We first consider the exception of lack of subject matter jurisdiction wherein State Farm contends that the underlying judgment should be vacated as null as the amount in dispute exceeded the jurisdictional limits of the City Court of Alexandria. It contends that the city court exceeded its jurisdiction when it awarded Mrs. Thompson’s medical expenses to Mr. Thompson. It argues that the city court essentially awarded “$80,000 to Audrey Thompson through the guise of the community property claim of Charles Thompson” and, in doing so, it lacked subject matter jurisdiction to enter the judgment. Although we conclude that the exception of lack of subject matter jurisdiction must be granted, we conclude that the city court lacked subject matter jurisdiction earlier in the case history than the point identified by State Farm.

The City Court of Alexandria’s jurisdictional limit is established by La.Code Civ.P. art. 4843 as follows:

Art. 4843. City court jurisdiction; amount in dispute; injunctive actions by state or political subdivision
H. In the City Court of Alexandria ..., the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed the amount provided in Article 1732(1) for purposes of demanding a jury trial.

Article 1732(1) states that a trial by jury is unavailable in “[a] suit where the amount of no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interest and costs.” Accordingly, for the City Court of Alexandria to have permissibly exercised jurisdiction, the amount in dispute could not have exceeded fifty thousand dollars.

IfiFurther, La. Code Civ.P. art. 4841 instructs that:

A. The subject matter jurisdiction of parish courts and city courts is limited by the amount in dispute and by the nature of the proceeding, as provided in this Chapter.
B. For the purposes of this Chapter, the amount in dispute is determined by the amount demanded, including damages pursuant to Civil Code Articles 2315.3 and 2315.4, or value asseried in good faith by the plaintiff, but does not include interest, court costs, attorney fees, or penalties, whether provided by agreement or by law.
C. If the demand asserted in an amended or supplemental pleading exceeds the jurisdiction of the court, the court shall transfer the action to a court of proper jurisdiction.

(Emphasis added.) Thus, if the amount demanded by the plaintiffs exceeded $50,000, the city court was without jurisdiction. In that event, Paragraph C dictated that the city court transfer the action to a court of proper jurisdiction.

The pleadings in this case demonstrate that the amount in dispute exceeded $50,000. Both the petition and the amended petition include GEICO as a defendant in its capacity as a UM insurer. In their amended petition, the plaintiffs alleged that, in addition to the State Farm policy previously identified in the petition, that coverage from the accident could also exist under the State Farm policy alleged to cover Mr. Harpe’s personal vehicle. Under both petitions the plaintiffs alleged that these policies were believed to be inadequate to cover the plaintiffs’ damages, requiring GEICO’s presence as the UM provider. Further, subsequent pleadings such as a motion for summary judgment filed by GEICO, which was denied by the trial court, and the motion for partial summary judgment filed by the plaintiffs, which was granted by the trial court, revealed that the State Farm policy limits ($100,000 per person and $300,000 per accident) well exceeded the city court’s jurisdictional limits. Considering the pleadings’ allegations as to damages exceeding these policy limits, |fithe allegation and subsequent determination that Mr. Harpe was one hundred percent at fault, and the plaintiffs’ pursuit of the UM proceeds, it was obvious that the amount in dispute exceeded the $50,000 jurisdictional limit. At that time, the trial court was required to transfer the action to a court of competent jurisdiction pursuant to La.Code Civ.P. art. 4841(C).

While the city court’s judgment reduced the damages it found were proven to the jurisdictional limits, this curative approach to the underlying jurisdictional defect has been found to circumvent the basic doctrine of subject matter jurisdiction. See Bryant v. Pierson, 583 So.2d 97 (La.App. 8 Cir.1991)(wherein a panel of this court concluded that a city court lacked subject matter jurisdiction from the filing of the petition due to the nature of the demand and that a curative attempt to reform the judgment to the court’s jurisdictional limits was absolutely null).

For these reasons, we vacate the entirety of the city court judgment as a nullity and remand this matter to the city court for the sole purpose of transferring the action to a court of proper jurisdiction.

DECREE

The Exception of Lack of Subject Matter jurisdiction filed by the appellant, State Farm Mutual Automobile Insurance Company, is granted. The underlying judgment is vacated as null. This matter is remanded to the City Court of Alexandria for the limited purpose of transfer to a court of proper jurisdiction pursuant to La.Code Civ.P. art. 4841(C). All costs of this proceeding are assigned to the appel-lees, Audrey Thompson and Charles Thompson.

EXCEPTION OF LACK OF SUBJECT MATTER JURISDICTION GRANTED. JUDGMENT VACATED. REMANDED WITH INSTRUCTIONS.

GREMILLION, J., concurs in result.

      . The city court’s reasons for ruling indicated that "the jurisdictional limit of the court falls within the liability limits of the policy issued by State Farm" and that, accordingly, the claim against GEICO was dismissed. However, this dismissal was not included in the judgment.

      . La.Code Civ.P. art. 2163 provides that "[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.”

      . La.Code Civ.P. art. 2002(A)(3) provides that "[a] final judgment shall be annulled if it is rendered ... [b]y a court which does not have jurisdiction over the subject matter of the suit.”


text:
    Debra GOUTIERREZ v. Octa GOUTIERREZ.
    No. 09-1360.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Paul G. Moresi, III, Abbeville, LA, for Defendant/Appellant, Octa Goutierrez.
    Debra Goutierrez, Youngsville, LA, for Plaintiff/Appellee, In Proper Person.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

_JjThe defendant filed a petition for the partition of community property subsequent to the parties’ divorce judgment. The trial court issued judgment classifying the former marital home as community property and valued it at $76,000.00. The trial court also awarded the plaintiff an equalizing payment in the amount of $25,000.00 and assigned various movable assets to the parties. The defendant appeals, asserting that the trial court did not partition the community property in accordance with La. R.S. 9:2801. Further, the defendant contends the trial court erred in classifying the former marital home as community property and assigning value to it without sufficient evidence. For the following reasons, we vacate the underlying judgment and remand for further proceedings.

Facts and Procedural History

The parties were married on September 10, 2004 in Vermilion Parish and subsequently divorced pursuant to a judgment of divorce signed March 4, 2008. The parties were unable to agree on a voluntary partition of their community, and on May 13, 2008, the defendant, Octa Goutier-rez, filed a petition for the partition of community property. The matter proceeded to trial on March 9, 2009. The trial court issued reasons for ruling on March 18, 2009, and signed a judgment reflecting that ruling on May 8, 2009. In its judgment, the trial court awarded the defendant ownership of the marital home and all of the community movables listed in his detailed descriptive list, with the exception of one motorcycle. It further ordered the defendant to pay the plaintiff, Debra Gou-tierrez, $25,000.00.

The defendant appeals, asserting that trial court did not partition the community property in accordance with La. R.S. 9:2801 in that it did not assign value to all of the items of the community property, establish the amount of community debt, assign ^responsibility for the community obligations, or rule on the defendant’s reimbursement claims. The defendant asserts that the trial court also erred in classifying the marital home as community property and placing a value on the home without sufficient evidence.

Discussion

Partition of Community Property

In his first assignment of error, the defendant asserts that the trial court erred in failing to partition the community property in accordance with La. R.S. 9:2801. Specifically, the defendant contends that the trial court erred in not assessing the value of all the items of community property, establishing the amount of community debt, assigning responsibility for the community obligations, and ruling on the defendant’s reimbursement claim.

Louisiana Revised Statutes 9:2801 provides the procedure to be used by the trial court in partitioning community property, in pertinent part as follows:

(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
| s(d) In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
(e) In the event that the allocation of an asset, in whole or in part, would be inequitable to a party, the court may order the parties to draw lots for the asset or may order the private sale of the asset on such terms and conditions as the court deems proper, including the minimum price, the terms of sale, the execution of realtor listing agreements, and the period of time during which the asset shall be offered for private sale.

After a trial on the merits, the trial court issued written reasons for ruling on March 18, 2009, and a judgment reflecting that ruling was executed on May 8, 2009. In its written reasons for ruling, the trial court stated as follows:

After the trial, this court made an oral ruling from the bench. However, subsequent to that ruling, the parties had several issues that they wanted clarification on which weren’t specifically addressed during the trial or in the ruling. Because of this, Mr. Moresi [counsel for the defendant] requested that this court issue written reasons for ruling so that the judgment will be able to easily track the ruling. Accordingly, the court issues the following written reasons.
The primary disputed issue in this case was the house. The parties were married September 10, 2004, filed for divorce on June 22, 2007, and were divorced on March 4, 2008. In December of 2004 they bought a house for $14,000 in Delcambre. In January, 2005 Octa sold Debra his half of that house for $7,000 giving Debra sole ownership of the house. The parties subsequently separated and reconciled but at the time of Hurricane Rita, Debra was living alone in the home. This is undisputed. In January of 2006, they physically separated and Debra sold the house to Octa for $6,000. The parties reconciled again and Debra testified that Octa came home with information about the Road Home program, only Debra was eligible because she was living in the home at the time of Hurricane Rita. Octa told Debra that the cash sale for the home was not recorded and he had no plans to record it. It would be as though the parties never entered into the sale. The parties got back together and Debra applied for the loan based on her belief that she and Octa were going to make a life together in the home and Octa’s statement that he wasn’t going to file the cash sale. This court found Debra to be more credible than Octa on this issue. It does not make sense that Debra would apply for Road Home money to fix a house that she had no legal | interest in. Under the Road Home program, it was Debra who would be obligated to repay the money if certain conditions are not complied with by Octa.
Neither side did a good job of presenting evidence of the current value of the house. However, $76,600 in Road Home money, which was disbursed on April 5, 2007, did go into rebuilding the house. Octa testified that he did not know the value of the house, but it was worth $76,600 to him because he lived in it. For the policy period of June 11, 2007 through June 11, 2008, the house was insured for $40,000, and the contents were insured for $20,000. Accordingly, the Court values the house at $76,600 even though there was no appraisal or any other credible evidence, other than the parties’ testimony as to what it was worth.
Civil Code Article 4 authorizes the court to apply equitable principles if no rule for a particular situation can be derived from legislation [or] custom. The facts of this case are ideally suited for the application of equitable principles. In response to the numerous hurricanes that have hit Louisiana in recent years, the State developed the Road Home Program. This funding opportunity for the parties was complicated by the facts that Debra was living in the house therefore she had to apply for the loan but Octa would get all the benefits. Additionally, the parties had an unrecorded cash sale between the parties transferring ownership to Octa which Octa in essence told Debra he was going to rescind. Because of the hurricane damage, the use of the Road Home money, and the parties’ frequent changing of occupancy and ownership of the home, this court finds that this is an appropriate situation for the application of equitable principles.
Based on this valuation stated above, and applying law and equity to the facts of the ease, this Court awards Octa title to the house and orders Octa to pay $25,000.00 to Debra Goutierrez. Additionally, Octa is awarded the lot next to the house. Octa is awarded all of the movables listed on the detailed descriptive list with the exception of the Springer motorcycle. Debra is awarded ownership of the Springer. If Octa pays Debra the $25,000 within 60 days, then Debra is ordered to refinance the debt owed on the Springer within 30 days of that payment. Octa Goutierrez is cast with costs.

|sThe defendant asserts that the trial court failed to assess the value of items in the community. The record reveals that the defendant identified and assigned value in his detailed descriptive list for several items under the title “movable assets,” including: 2005 Harley Davidson FLHTCI Special Police Edition, 2006 Harley Davidson Springer Classic, 2001 Wanderer Toy Hauler Trailer, 1991 Harley Fat Boy (not fully assembled, engine is frozen), Honda generator, and Dell Laptop. The plaintiffs list, which the record indicates is not sworn, lists several items under the headings “Debra Goutierrez’s”, “Octa Goutier-rez’s”, and “Debra and Octa Goutierrez”. It is unclear from the plaintiffs list whether she was indicating what items were in the possession of each party or whether she was indicating what she believed constituted her separate property and the parties’ community property. In that list, the plaintiff identified and assigned value to similar property as the defendant such as a “Generator” and “2001 Trailer” under the heading “Debra Goutierrez’s”. Further, the plaintiff listed and assigned value to a “2006 Springer HP”, “2005 Electra Slide”, and “1991 Fatboy Custom” under the heading “Debra and Octa Goutierrez.”

The trial transcript reveals that testimony was taken in regard to these movables. The record indicates a joint stipulation between the parties, however, that stipulation only involved two of the items, the 2005 Harley Davidson Police Edition and the 2006 Harley Davidson Springer. The judgment, written reasons for ruling, or the trial transcript do not indicate that the trial court made any determination as the value of these items.

The defendant further argues that the trial court did not establish an amount for the community debt or assign the responsibility for the community debt. The | (¡defendant testified at trial, in accordance with the information provided in his sworn list, about the amount of liabilities of the community. Accordingly, the defendant identified those liabilities as debt on two of the motorcycles, one owed to Harley Davidson and the other owed to Gulf Coast Bank. The other liability included was a debt associated with a small business administration loan. The plaintiffs list does not make reference to any community liability, however in her testimony she does not dispute that certain liabilities of the community exist. The trial transcript also indicates that the plaintiff attempted to testify in regard to loans she allegedly gave the defendant, however, the trial court did not allow the testimony over the objection of the defendant, who objected to its introduction because it was not identified in the plaintiffs list.

Louisiana Revised Statutes 9:2801(4)(a) provides that a court, in a partition of community property, “shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.” Here, the record indicates that the trial court only valued the marital home, yet made no reference to the value of the other movables or liabilities. The trial transcript provides the following exchange during the court’s oral reasons for ruling:

Mr. Moresi: You’re awarding him ownership of the bikes?
The Court: Correct.
Ms. Goutierrez: All of them, Your Hon- or? I’ve been paying for mine.
The Court: What do you mean, yours, the one that you’re riding?
Ms. Goutierrez: The Springer, yes, sir. I’ve been paying for mine since the beginning.
|7The Court: I didn’t realize that she was actually using one of them. It wasn’t—
Ms. Goutierrez: The Springer is mine.
The Court: I guess I just assumed that he was using both of them.
Ms. Goutierrez: He has the Police, and I have the Springer. And I have receipts that I paid for mine since day one.
Mr. Moresi: Well, I object to anything — The evidence has been closed. I think, Your Honor, the court has to assign which assets and which debts between the parties—
The Court: Is it worth [sic] to get five thousand ($5,000) less if you keep that Springer?
Ms. Goutierrez: There’s still ten thousand something owed on it.
The Court: That is my proposal to you.
Ms. Goutierrez: Okay.
The Court: You want to keep the motorcycle and get twenty-five ($25,000) instead of the thirty ($30,000)?
Ms. Goutierrez: Yes, sir.
Mr. Moresi: I’m confused, Your Honor. The Springer—
The Court: Well, you asked me about title.
Mr. Moresi: The Springer is worth thirteen nine, and there is a debt on it of ten five. There’s about, what, thirty-five hundred in equity there?
The Court: Yeah. But look at the Fat Boy that he says is worth five thousand dollars ($5,000), and she paid eighteen thousand ($18,000). See I’m making adjustments on all these items. That’s what I’m doing.
Mr. Goutierrez: But this motorcycle—
The Court: No, no. We’re not going to open it up to argument right now.
laMr. Moresi: Judge, I’m going to have to prepare the judgment. I just want to make sure that I understand that the court is assigning values to these items and awarding their ownership to one party or the other, so that I can prepare my judgment.
The Court: Right. I’m not assigning values to every item....

It is clear from the record that the trial court failed to assign values to the property, which creates confusion in determining how the trial court reached the $25,000.00 award to the plaintiff. Although not identified as such, it appears that the $25,000.00 award purports to be an “equalizing payment.” See La. R.S. 9:2801(A)(4)(c). An equalizing payment is ordered in the event where the allocation of assets results in an unequal distribution. Id. The statute explains the allocation of assets as follows:

The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.

La. R.S. 9:2801(A)(4)(c). As to the equalizing payment, the statute states:

In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.

La. R.S. 9:2801(A)(4)(d).

In sum it appears the trial court did not follow the procedures mandated by La. R.S. 9:2801 because it failed to assign value to all of the assets or liabilities, | ¡¡divide the assets and liabilities, and determine if an equalizing payment was required due to an unequal distribution. See Corken v. Corken, 05-2297 (La.App. 1 Cir. 11/3/06), 950 So.2d 780. Generally, when a trial court errs in its application of a state statute, a reviewing court may review the matter de novo. Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541. As such, if we could fairly partition the parties’ community property with the record before us, we would do so, as opposed to remanding the matter for further proceedings. However, there is insufficient evidence in the record for this court to determine on review if each spouse received property of equal value in light of what liabilities they assumed, or whether one of the parties was entitled to an equalizing sum. Further, La. R.S. 9:2801(A)(4)(c) provides that in the allocation of assets, the court should be mindful of the nature of the assets, the economic condition of each spouse, and any other relevant circumstances. The record does not provide any information as the economic condition of the spouses, thus, if we were to award an equalizing sum, we would have to do so with no evidence as to whether either party could afford such. Accordingly, we find it appropriate to vacate the judgment of the trial court. In light of the absence of sufficient evidence in the record, we remand the matter to the trial court for a new trial on the partition of the community property to be made in accordance with La. R.S. 9:2801.

In light of the discussion above, we pre-termit discussion of the defendant’s other two assignments of error dealing with the classification of the marital home and the value assigned to the marital home.

ImDECREE

For the foregoing reasons, the trial court’s judgment partitioning the parties’ community property is vacated, and the matter is remanded to the trial court for further proceedings consistent with this opinion. The costs of this appeal are assessed to the defendant-appellant, Octa Goutierrez.

JUDGMENT VACATED AND REMANDED.

      . This following exchange took place between Mr. Moresi and the defendant:
      Q Do you have an opinion as to what the house is worth?
      A Man, in Delcambre, like I said, a one bedroom house, people are moving out, I really don't know. I can go have it appraised if y'all want, but—
      Q It’s certainly not worth anywhere close to seventy something thousand dollars?
      A No. To me it is, because I live in it. I mean,—


text:
    STATE of Louisiana v. Marcus Allen MAZE.
    No. KA 09-1300.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Don M. Burkett, Sabine Parish District Attorney, Many, LA, for Appellee, State of Louisiana.
    James Beal, Louisiana Appellate Project, Jonesboro, LA, for Appellant, Marcus Allen Maze.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and JAMES T. GENOVESE, Judges.
   AMY, Judge.

The Defendant, Marcus Allen Maze, was charged by bill of information, district court docket number 64,388, with resisting an officer, a violation of La.R.S. 14:108, and with simple criminal damage to property under $500.00, a violation of La.R.S. 14:56. Pursuant to a plea agreement in district court docket number 64,386, the charges in docket number 64,388 were dismissed.

On September 8, 2009, the Defendant filed a motion in the trial court seeking an appeal of the charges in district court docket number 64,386, as well as the charges that were dismissed in district court docket number 64,388. On March 5, 2010, this court issued a rule to show cause why the appeal in the above-captioned case should not be dismissed, as the charges at issue were dismissed. The Defendant responded, conceding that the charges were dismissed, and thus, the matter is moot.

Accordingly, the appeal in the above-captioned case is hereby dismissed.

APPEAL DISMISSED.

      . On February 25, 1010, the State filed a motion and order to dismiss the charges in docket number 64,388 because they were not dismissed on the record. The order was signed by the trial court that same day.


author: PAINTER, Judge.

text:
    Debra Bergeron DUHON v. PETRO “E”, LLC, et al.
    Nos. 09-1150, 09-1473.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.
    Richard J. Dodson, Kenneth H. Hook, III, Brent P. Frederick, H. Price Moun-ger, III, Baton Rouge, LA, William W. Goodell, Jr., Lafayette, LA, Ronald W. Melebeck, Abbeville, LA, for Plaintiff-Appellant, Debra Bergeron Duhon.
    John Michael Parker, Edward Daniel Hughes, Baton Rouge, LA, for Defendants Appellee, The Dow Chemical Company.
    Robert E. Kerrigan, Jr., David K. Groome, Francis J. Barry, Jr., New Orleans, LA, for Defendants-Appellees, Estis Well Service and Petro “E”, LLC.
    Eric E. Jarrell, Michael D. Roche, Rebecca H. Dietz, Michael J. Cerniglia, New Orleans, LA, for Defendant-Appellee, Co-nocoPhillips Company.
    Morgan J. Wells, Jr., Stephen M. Lar-zelere, Metairie, LA, for Defendant-Appel-lee, Enerquest Oil & Gas, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Plaintiff, Debra Bergeron Duhon, appeals the judgment granting Defendants’ exception of prematurity and referring the case to the Department of Natural Resources. Finding that the action is not premature, we reverse and remand to the trial court for further proceedings.

FACTS

On January 24, 2008, Plaintiff filed suit in the Fifteenth Judicial District Court for the Parish of Vermilion naming as Defendants Petro “E” L.L.C. (Petro), Estis Well Service, L.L.C. (Estis), Enerquest Oil & Gas, L.L.C. (Enerquest), ConocoPhillips Company, formerly Phillips Petroleum Company (Phillips), and the Dow Chemical Company (Dow). She sought damages for contamination of her property as a result of oilfield operations, including storage and disposal of toxic oil field wastes in unlined pits, on nine acres of property that she owns and lives on. She alleged that her nine acre tract was part of a former eighty acre tract previously leased for oil and gas exploration to Phillips. Plaintiff maintained that part of the nine acres was also subject to a surface facility lease and servitude to Phillips. She alleged that Defendants:

conducted, directed and participated in various oil and gas exploration and production activities on plaintiffs property as lessee, sub lessee, operator and/or working interest owner/joint venturer in wells, SWDs, pits, tank batteries, flow-lines, pipelines, processing facilities, treatment facilities, separation facilities, transportation facilities, and other facilities which have caused pollution related property damage on and/or adjacent to plaintiffs property. Plaintiff had no knowledge of and first learned of the possibility of pollution and the related pollution claims asserted herein after a September 2007 spill which plaintiff reported to The Louisiana Department of Environmental Quality (LDEQ). LDEQ has done nothing to address plaintiffs concerns or to effect proper cleanup of the lease premises. The above named defendants at various times owned and operated certain wells and facilities located on and/or adjacent to plaintiffs property....

|2She further alleged that the leases affecting the property required restoration of the property to its original condition and that upon expiration of the leases, no restoration took place. Additionally, she alleges that Defendants knew of and concealed from her the toxic and hazardous nature of the waste stored and buried on her property.

Estis filed a dilatory exception of vagueness and ambiguity. Phillips field dilatory exceptions of lack of jurisdiction or improper venue, non-conformity of the petition with the requirements of La.Code Civ.P. art. 891, vagueness, improper cumu-lation and joinder and prematurity and/or want of amicable demand. Enerquest filed dilatory exceptions of lack of subject matter jurisdiction, non-conformity of the petition with the requirements of La.Code Civ.P. art. 891, vagueness or ambiguity of the petition, want of amicable demand, improper cumulation of actions, and prematurity. Dow filed a declinatory exception of lack of jurisdiction based on the primary jurisdiction of the Louisiana Department of Natural Resources, dilatory exceptions of prematurity, non-conformity of the petition with the requirements of La.Code Civ.P. art. 891, vagueness or ambiguity, improper cumulation of actions, and peremptory exceptions of no cause or right of action and no cause of action for punitive damages under La.Civ.Code art. 2315.3.

After a hearing on the exceptions, the trial court entered judgment granting the exception of prematurity and the exception of lack of subject matter jurisdiction, referring the case to the Louisiana Department of Natural Resources “for review and such agency action as may be appropriate in advance of further consideration by this Court of the allegations of substandard conditions and/or non-compliance raised ^herein.” Plaintiff filed both an application for writs and a motion for appeal. The two were consolidated for disposition by this court.

DISCUSSION

Subject Matter Jurisdiction

Plaintiff asserts that the trial court erred in granting the exception of subject matter jurisdiction and in referring the matter to the Department of Natural Resources On appeal and at the trial court hearing on the exceptions, Dow asserts that under La. R.S. 30:29, also referred to as Act 312, subject matter jurisdiction in this matter is discretionary with the trial court, which may refer the matter to the Department of Natural Resources at any time. We disagree.

The Louisiana Supreme Court discussed the application of La. R.S. 30:29 which governs the “[rjemediation of oilfield sites and exploration and production sites,” in M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 31 (La.7/1/08), 998 So.2d 16, 37 (emphasis added):

Act 312 does not divest the district court of original jurisdiction. [N]ot only is the claim for environmental damages filed in the district court, the claim is not deferred to DNR until the district court determines environmental damage exists and further determines the legally responsible party. La.Rev.Stat. § 30:29(C)(1). Moreover, the district court is not required to adopt the plan approved by the administrative agency, and further retains jurisdiction to compare the various proposed plans, whether proposed by a party or the administrative agency, and determines which plan is “a more feasible plan to adequately protect the environment and the public health, safety, and welfare.” La. Rev.Stat. § 30:29(0(5).

Contrary to Defendant’s argument that the district court retains the discretion to send such cases to the Department of Natural Resources, in the M.J. Farms, Ltd. case, however, the Louisiana Supreme Court made it clear that it is the job of the district court to determine whether environmental damage exists and who the legally | .¡responsible party or parties are prior to referral to the Department of Natural Resources.

We further reject Defendants’ argument that the Department of Natural Resources has primary jurisdiction. The jurisprudence cited by Defendants predate the enactment of La. R.S. 30:29 which plainly sets forth a procedure whereby litigation is filed in the district court and remains there until “a party admits liability for environmental damage or the finder of fact determines that environmental damage exists and determines the party or parties who caused the damage or who are otherwise legally responsible therefor.” The statute allows for intervention by the Department of Natural Resources or for an independent enforcement action but makes no provision for a referral to the Department of Natural Resources by the district court prior to the determination of environmental damage and the responsible parties.

Accordingly, we reverse the trial court’s grant of the exception of lack of subject matter jurisdiction.

Prematurity

Defendants argument with regard to prematurity all center on Plaintiffs alleged failure to show that the leases have expired. Dow, however, admits that it has no current leases on the property. Defendants argue that the law and the surface lease provide that no restoration is due until termination of the lease. Additionally, they argue that the mineral lease to Phillips requires notice in paragraph 11 which states:

In the event that Lessor at any time considers that operations are not being conducted in compliance with this lease, Lessor shall notify Lessee in writing of the facts relied upon as constituting a breach hereof, and Lessee, if legally required to conduct operations in order to maintain the lease in force, shall have sixty (60) days after receipt of such notice in which to commence the necessary operations to comply with the requirements hereof.

As evidenced particularly by the language requiring operations “to maintain the lease in force,” this paragraph contemplates a breach of a lease which is in effect and has not been terminated.

The Louisiana Supreme Court in LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008, 07-0016, pp. 8 (La.9/5/07), 966 So.2d 519, 525, explained the burden of proof in an exception of prematurity:

In the instant case, the defendant hospital, which has the burden of proof as the exceptor, has chosen to rely on the allegations as set forth in the plaintiffs’ original and first supplemental and amending petitions, because the defendant put on no other evidence at the trial. Where no evidence is presented at trial of a dilatory exception, like prematurity, the court must render its decision on the exception based upon the facts as alleged in the petition, and all allegations therein must be accepted as true. Blakely v. Powers, 590 So.2d 1286, 1290 (La.App. 1st Cir.1991).

As in LaCoste, Defendants herein, in urging their exception of prematurity, relied on the allegations of Plaintiffs petition. That petition asserts that the leases, both surface and mineral, have expired. The leases are attached but nothing in the record shows whether they have expired or not.

However, since Defendants, as excep-tors, had the burden of proof and did not introduce any evidence to show that the leases had not expired, the trial court erred in failing to render its decision based on the facts as alleged in the petition. Therefore, we reverse the finding that the suit was premature.

CONCLUSION

For these reasons, the judgment of the trial court granting the exceptions of prematurity and lack of subject matter jurisdiction are reversed. This matter is remanded to the trial court for further proceedings in keeping with this court’s opinion herein. Costs of this appeal are assessed to Appellees.

REVERSED AND REMANDED.


text:
    Debra Bergeron DUHON v. PETRO “E”, LLC, et al.
    Nos. 09-1473, 09-1150.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Richard J. Dodson, Kenneth H. Hook, III, Brent P. Frederick, H. Price Moun-ger, III, Baton Rouge, LA, William W. Goodell, Jr., Lafayette, LA, Ronald W. Melebeck, Abbeville, LA, for Plaintiff-Appellant, Debra Bergeron Duhon.
    John Michael Parker, Edward Daniel Hughes, Baton Rouge, LA, for Defendant-Appellee, The Dow Chemical Company.
    Robert E. Kerrigan, Jr., David K. Groome, Francis J. Barry, Jr., New Orleans, LA, for Defendants-Appellees, Estis Well Service and Petro “E”, LLC.
    Eric E. Jarrell, Michael D. Roche, Rebecca H. Dietz, Michael J. Cerniglia, New Orleans, LA, for Defendant-Appellee, Co-nocoPhillips Company.
    Morgan J. Wells, Jr., Stephen M. Lar-zelere, Metairie, LA, for Defendant-Appel-lee, EnerQuest Oil & Gas, LLC.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

For the reasons set forth in the companion case hereto, Duhon v. Petro “E”, LLC, 09-1150 (La.App.3.Cir.4/7/10), 34 So.3d 1065, the trial court’s judgment is reversed and the case is remanded to the trial court for further proceedings. Costs of this appeal are assessed to Appellees.


author: WILLIAMS, J.

text:
    William James REILLY, Plaintiff-Appellant, v. Ernesto A. SPINAZZE, M.D., Christus Health Northern Louisiana d/b/a Christus Schumpert Health System, Christus Schumpert Rehab and Clinton G. McAllister, M.D., Defendant-Appellees.
    No. 45,209-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 2010.

      Richard L. Fewell, Jr., for Appellant.
    Mark A. Goodwin, Shreveport, for Ap-pellee, Christus Health Northern Louisiana d/b/a Christus Schumpert Health System.
    Robert G. Pugh, Jr., Shreveport, for Ap-pellees, Ernesto A. Spinazze, M.D. and Clinton G. McAllister, M.D.
    Before WILLIAMS, STEWART and DREW, JJ.
   WILLIAMS, J.

hThe plaintiff, William James Reilly, appeals the district court’s grant of summary judgment in favor of the defendants, Christus Health Northern Louisiana, d/b/a Christus Schumpert Health System (“Schumpert”). For the following reasons, we affirm. We remand this matter to the district court for further proceedings.

FACTS

On December 18, 2005, the plaintiff was seriously injured when a horse fell on him at his place of employment, Louisiana Downs, in Bossier City, Louisiana. The plaintiff was initially treated for his injuries in the emergency room of Willis Knighton Medical Center, where tests revealed that he had multiple pelvic fractures, a large hematoma in the pelvic area and a small disc herniation at L5-S1. The emergency room staff inserted a Foley catheter into the plaintiffs penis and threaded it through his urethra into his bladder to allow his urine to drain; the plaintiff was admitted to the orthopedics unit at Willis Knighton.

On December 23, 2005, the plaintiff was admitted to Christus Schumpert-Bossier for rehabilitation and treatment. Dr. Clinton McAlister was the admitting physician. One day following the plaintiffs admission, Dr. Robert Saucier examined him for a family practice consult. Dr. Saucier noted the presence of the Foley catheter, visible bruising of the plaintiffs penis and the presence of blood in the plaintiffs urine. Subsequently, the plaintiff developed gross hematuria (a large amount of blood in the urine). On December 27, 2005, Dr. McAl-ister consulted Dr. Ernesto A. Spinazze, a urologist, to examine the plaintiff with regard to the hematuria. Dr. 12Spinazze noted small blood clots in the tubing of the plaintiffs catheter, ecchymosis (purple discoloration of the skin) of the plaintiffs penis and scrotum and the presence of “blood-tinged” urine in the catheter. Dr. Spinazze ordered a cystogram and a CT scan of the plaintiffs abdomen and pelvis. He also ordered that the Foley catheter be left in place.

On January 3, 2006, the plaintiffs catheter was supposed to have been removed and another catheter inserted. The nurses notes revealed that the nursing staff was unsuccessful in removing the catheter; however, the following day, the catheter was removed and a new catheter was inserted. The plaintiff testified that prior to the insertion of the catheter, he told the nurse that it was not the right catheter and that it was too large. He also testified that the nurse forced the catheter into his penis, causing extreme pain.

On January 5, 2006, the plaintiff was discharged from Schumpert with the catheter in place. He was followed by Dr. Spinazze and other physicians at Regional Urology. On January 12, 2006, the catheter was removed in accordance with Dr. Spinazze’s orders. Thereafter, the plaintiff developed difficulty urinating. On January 17, 2006, plaintiff returned to the emergency room at Schumpert, and, by then, his urine stream had stopped completely. The nurses made multiple attempts to insert a Foley catheter, but were unable to do so. A physician was eventually able to insert the catheter. On January 23, 2006, the plaintiff was seen by Dr. Tobin Grigsby, who noted that the catheter remained in place, and the plaintiff had developed cramping, which was consistent with bladder spasms. At some |spoint, the plaintiff was examined by Dr. Spinazze, who determined that the plaintiff had a bulbar stricture. On February 7, 2006, the plaintiff underwent a cystoscopy and internal urethrotomy. However, the plaintiff continued to experience difficulty urinating, and the procedure was repeated on March 15, 2006. The catheter continued to cause the plaintiff severe pain, so he returned to Dr. Spinazze on March 25, 2006 to have it removed. According to the plaintiff, the catheter was difficult to remove, so a nurse at Regional Urology twisted the catheter until it loosened and removed it. Plaintiff testified that he discharged blood and tissue from his penis when the catheter was removed. Plaintiff alleged that, as the result of the negligence of the nurses and physicians involved, he is now impotent and has had to endure several surgical procedures.

The plaintiff filed a claim under the Louisiana Medical Malpractice Act, LSA-R.S. 40:1299.41, et seq., against Dr. Spi-nazze, Dr. McAlister and Schumpert. On April 15, 2008, a medical review panel unanimously concluded that Dr. McAlister and Dr. Spinazze met the applicable standard of care. The panel also concluded that the nursing personnel did not breach the applicable standard of care. The panel stated:

It is quite common in injuries involving urethral stricture that tissue and blood can be seen when catheters are removed. Moreover, after a urethral injury that may involve scarring, a catheter procedure can be quite |4painful, particularly if a stricture is present. In such an event, the choice of a Foley catheter is appropriate. The Panel believes that the choice of catheter was appropriate. The Panel also notes that Mr. Reilly, based on the medical records, was a very demanding patient. Moreover, catheterizations in younger patients [are] frequently somewhat painful. The Panel believes that the nursing personnel acted reasonably in connection of [sic] the care provided to Mr. Reilly.
* * *
The Panel believes that Mr. Reilly’s residual impotence is most likely causally related to the severe trauma which he sustained in December 2006, when the horse fell on him.

On July 18, 2008, the plaintiff filed a petition for damages against the same parties. The plaintiff alleged that the defendants were negligent in failing to: (1) use the appropriate technique to insert and/or remove a urinary catheter; (2) use the appropriate type of catheter; (3) use due care expected of a physician and/or employees within a medical facility under the circumstances; and (4) provide medical care consistent with the appropriate standards.

Following discovery, Schumpert filed a motion for summary judgment, contending the plaintiff lacked the necessary expert medical testimony to support his claims against the hospital and/or its employees. In support of the motion, Schumpert relied upon the opinion of the medical review panel, which found no deviation from the standard of care by the defendants. Schumpert also relied upon a copy of the plaintiffs answers to interrogatories, in which the plaintiff stated that he did not have any retained experts.

|fiThe plaintiff opposed the motion for summary judgment, submitting an affidavit from Mary L. Rinaldi, a registered nurse, who had opined that Schumpert had breached the standard of care in treating the plaintiff. In her affidavit, Ms. Rinaldi attested that she had reviewed the plaintiffs medical records, and after summarizing the medical records, Ms. Rinaldi questioned Dr. Spinazze’s decision to leave the catheter in place after the results of the CT and cystogram showed that the plaintiffs bladder was elongated. Ms. Rinaldi stated, “I question why the catheter was not removed at that time simply because common sense would make one believe that the catheter itself was causing trauma, thus an increase in bleeding.” Ms. Rinaldi also questioned the physicians’ decision to leave the catheter in place from December 18, 2005, until January 3, 2006, stating, “Rarely is a Foley catheter left in a 48 year old man for more than 3 days.” Ms. Rinaldi noted that one physician’s notes had made reference to the plaintiffs use of opiates without making reference to the plaintiffs urinary retention. She stated, “I find that interesting because opiate use can directly cause major issues with the inability to empty the bladder.” Additionally, Ms. Rinaldi took issue with a physician’s notes concerning the plaintiffs continued request for narcotics. In conclusion, Ms. Rinaldi opined:

It is my opinion that the above issues have resulted in both urinary and sexual impairment for Mr. Reilly due to the defendant’s negligence.... Prior to this accident, Mr. Reilly never had problems passing urine or erectile dysfunction. No doubt these issues occurred secondary to nerve and structural damage resulting from [F]oley catheter mismanagement by the defendants. It is very clear that the life as a 48 year old male will never be the same due to this negligence.

| i;The district court granted summary judgment, finding that Ms. Rinaldi’s affidavit was inadmissible, and even if it was admissible, it was insufficient to defeat summary judgment with regards to Schumpert. The plaintiff appeals.

DISCUSSION

The plaintiff contends the district court erred in rejecting Ms. Rinaldi’s affidavit. The plaintiff argues that Ms. Rinaldi’s assessment “makes it clear that plaintiffs troubles began on January 3 and 4, 2006 after the nurses provided substandard treatment, and the nurses and others were at fault.” The plaintiff also argues that genuine issues of material fact existed, and therefore, summary judgment is precluded.

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 2007-1726 (La.2/26/08), 977 So.2d 880; Duncan v. USAA Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544; See also LSA-C.C.P. art. 966. Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(C)(1). In Hines, supra, our supreme court stated:

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to 17determine the truth of the matter, but [is] to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a 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 765-66.

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the 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 to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

To establish a claim for medical malpractice, a plaintiff must prove, by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was a causal connection between the breach and the resulting injury. LSA-R.S. 9:2794(A). A determination of whether a hospital has breached the duty of care to a particular patient depends upon the circumstances and facts of the case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974); Clark v. G.B. Cooley Service, 35,675 (La.App.2d Cir.4/5/02), 813 So.2d 1273.

A hospital is responsible for the negligence of its nurses under the respon-deat superior doctrine. Hinson v. The Glen Oak Retirement System, 37,550 (La.App.2d Cir.8/20/03), 853 So.2d 726, writ denied, 2003-2835 (La.12/19/03), 861 So.2d 572; The Estate of Wilburn v. Leggio, 36,534 (La.App.2d Cir.3/19/03), 842 So.2d 1175, writ denied, 2003-1096 (La.6/6/03), 845 So.2d 1095. The liability imputed to the medical facility is to be viewed in light of the employee’s actions. Hinson, supra; In re Triss, 2001-1921 (La.App. 4th Cir.6/5/02), 820 So.2d 1204.

Nurses and other health care providers are subject to the same standard as physicians. Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989); Hinson, supra. It is a nurse’s duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. Hinson, supra; King v. State, Dept. of Health and Hospitals, 31,651 (La.App.2d Cir.2/24/99), 728 So.2d 1027, writ denied, 99-0895 (La.5/7/99), 741 So.2d 656.

In the instant case, pursuant to the above statutory and jurisprudential rules, the plaintiff must establish the standard of care applicable to the nursing staff at Schumpert, a violation of that standard of care and a causal connection between the nurses’ alleged negligence and the plaintiffs injuries resulting therefrom. See, Pfiffner v. Correa, 1994-0924, 1994-0963, 1994-0992 (La.10/17/94), 643 So.2d 1228; Hinson, supra. Expert testimony is generally required to establish the applicable standard of care and whether or not that standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha, supra; Pfiffner; supra; Tillman v. Eldridge, 44,460 (La.App.2d Cir.7/15/09), 17 So.3d 69.

Courts in this state have not been reluctant to accept the testimony of registered nurses with regards to the standard of care and alleged negligence of nurses and certified nursing assistants. See, Hinson, supra; Hall v. Our Lady of the Lake R.M.C., 2006-1425 (La.App. 1st Cir.6/20/07), 968 So.2d 179; Newsom v. Lake Charles Memorial Hospital, 2006-1468 (La.App. 3d Cir.4/4/07), 954 So.2d 380, writ denied, 2007-0903 (La.6/15/07), 958 So.2d 1198.

In the instant case, the plaintiff introduced the affidavit of Ms. Rinaldi. The district court found that the affidavit was inadmissible, stating:

[Ojn the issue of whether the plaintiffs affidavit should even be admitted, of course the Court is mindful that in a medical malpractice case that expert opinion testimony is required to defeat the summary judgment if the defense has, and in this case particularly reified] on the ruling of the Medical Review Panel. I don’t believe that the affidavit of the nurse is sufficient to defeat summary judgment, so I would rule in favor of the defense that the affidavit should not be admitted. However, I will go even further and say that even if it was admitted, I don’t believe it — I believe it goes beyond the scope of what the expertise of a registered nurse would be, particularly when her affidavit is really addressing what the different doctors did. I agree with defense counsel that [in] my reading of her affidavit, I was never able to see where she really addressed ... what the nurses may have done or may have failed to do, the nurses at Schumpert. So, even if I would admit the affidavit, I still believe that it is | innot sufficient to raise such material issues of fact that would defeat the Motion for Summary Judgment, which primarily relies on the finding of the Panel.

We agree. Our review of the record reveals that Ms. Rinaldi went to great lengths to express her opinion of what the physicians involved should or should not have done. More importantly, Ms. Rinaldi made no mention of any alleged negligent acts on the part of the nurses involved. Additionally, there is no mention in the affidavit of the applicable standard of care for the nurses involved and/or whether the nurses breached that standard. Therefore, we find that the district court was correct in finding that Ms. Rinaldi was not qualified to express any opinion concerning any negligence or a breach of the standard of care on the part of the physicians. Accordingly, we find no error in the district court’s grant of summary judgment in favor of Schumpert. This case is remanded to the district court for further proceedings.

CONCLUSION

For the reasons set forth herein, we affirm the district court’s grant of summary judgment in favor of Christus Health Northern Louisiana, d/b/a Christus Schumpert Health System, and remand for further proceedings. Costs of the appeal are assessed to the plaintiff, William James Reilly.

AFFIRMED; REMANDED FOR FURTHER PROCEEDINGS.

      . A bulbar stricture is an area of hardened tissue in the urethra, which narrows the urethra and reduces its diameter.

      . A urethrotomy is an operation which involves the incision of the urethra to relieve a stricture.

      .Christus Schumpert Rehab was also named as a defendant, but was voluntarily dismissed from the proceedings.

      . The case against Dr. Spinazze and Dr. McAlister is still pending.