text:
    Kathryn ZEITOUN, individually and on behalf of her minor son, Zachery Makowsky v. ORLEANS PARISH SCHOOL BOARD, Westport Insurance Corporation and Steven Volo.
    No. 2009-CA-1130.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2010.

      George B. Recile, Chehardy Sherman Ellis Murray Recile Griffith Stakelum & Hayes, L.L.P., Metairie, LA, for Appellants, Kathryn Zeitoun and Zachery Ma-kowsky.
    Robert I. Siegel, Heather M. Valliant, Gieger Laborde & Laperouse, LLC, New Orleans, LA, for Appellee, National Union Fire Insurance Company of Louisiana.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge ROLAND L. BELSOME).
   MAX N. TOBIAS, JR., Judge.

| ]The plaintiff, Kathryn Zeitoun, individually and on behalf of her minor son, Zachery Makowsky (“Zachery”), appeals the trial court’s granting of a motion for summary judgment in favor of the defendant, National Union Fire Insurance Company of Louisiana (“National Union”). For the reasons that follow, having determined that the summary judgment was properly granted, we affirm.

Zachery Makowsky, a student at Lusher Elementary School in New Orleans, allegedly sustained a closed head injury when he struck his head against a wall of the school building while playing kick ball during his physical education class. It is alleged that he suffered sensory loss (smell and taste) and other injuries. Ms. Zeitoun originally filed suit, seeking damages for herself and Zachery, against the Orleans Parish School Board (“OPSB”); the physical education teacher, Steven Volo; West-port Insurance Corporation, the OPSB’s public liability insurer. By supplemental and amending petitions, Ms. Zeitoun added National Union and the Insurance Company of the State of Pennsylvania (“ISOP”) as defendants on the basis that both the National Union and ISOP policies provide coverage for schoolyard accidents.

|2Ms. Zeitoun filed a motion for partial summary judgment on the coverage issue. National Union opposed Ms. Zeitoun’s motion and submitted its own motion for summary judgment on the basis that its policy did not afford coverage for the subject incident. Following oral argument, the trial court denied Ms. Zeitoun’s motion and granted National Union’s motion, finding that the National Union policy applied solely to liability arising from construction-related activity and did not afford coverage for the personal injuries sustained by Zachery in the schoolyard. Ms. Zeitoun timely appealed the trial court’s dismissal of National Union.

At the time of Zachery’s injury, the OPSB was insured by several different companies. Specifically, the OPSB held an excess liability policy issued by ISOP that provided coverage for all general liability risks in excess of the OPSB’s $500,000 self-retained limit. Also at the time of Zachery’s injury, the OPSB was engaged in a Capital Improvements Program (“CIP III”), consisting of several construction projects at various school properties. In connection with the CIP III, the OPSB procured a general liability policy commonly known as a “wrap-up” or Owner Controlled Insurance Program (“OCIP”) from National Union that provided coverage for risks associated with construction-related activities performed on school property; the policy contained no self-retained limit. It is undisputed that joZachery’s injuries were unrelated to construction on the school premises; no repair or renovation work was being performed at Lusher Elementary at the time of the accident.

The sole issue presented by this appeal is whether the wrap-up or OCIP policy issued by National Union to the OPSB provides coverage for the injuries sustained by Zachery.

DISCUSSION

We review this matter de novo because only issues of law are presented and the matter comes before us for review on the granting of a motion for summary judgment.

Interpretation of an insurance policy usually involves a legal question that can be resolved properly in the framework of a motion for summary judgment. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.App.5/17/06), 930 So.2d 906 McGuire v. American Southern Home Ins. Co., 07-0810, p. 3 (La.App. 4 Cir. 10/10/07), 969 So.2d 681, 684. An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637, p. 8 (La.6/27/03), 848 So.2d 577, 580. When the language of a policy is clear and not ambiguous, the insurance contract must be enforced as written. When the wording is clear, a court lacks the authority to alter or change the terms of the policy under the guise of interpretation. Louisiana Ins. Guar. Ass’n. v. Interstate Fire & Cas. Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. In interpreting an insurance contract our responsibility is to determine the parties’ common intent; such intent is to be determined according to the ordinary, plain, |4and popular meaning of words used in a policy. Id.; La. C.C. arts. 2045 and 2047. The liability under a comprehensive liability policy is only as provided in the policy and attached endorsements. The parties are free to select the types of risks to be covered. First Mercury Syndicate, Inc. v. New Orleans Private Patrol Service, Inc., 600 So.2d 898, 900 (La.App. 4 Cir.1992).

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43 (quoting Louisiana Ins. Guar. Ass’n, id.). An insurer, like other individuals, is entitled to limit its liability and to impose and enforce reasonable conditions upon the policy obligations it contractually assumes; it may change or amend the coverage provided by the policy by an endorsement attached to the policy as long as the provisions and/or endorsements do not conflict with statutory law or public policy. Louisiana Ins. Guar. Ass’n, id., p. 6, 630 So.2d at 763. If an endorsement is attached to the policy and the policy and endorsements are parts of the same contract, the endorsement becomes part of the contract, and the two must be construed together. Mattingly v. Sportsline, Inc., 98-230, p. 7 (La.App. 5 Cir. 10/28/98), 720 So.2d 1227, 1230. If a conflict between the endorsement and the policy exists, the endorsement prevails. Chicago Property Interests, L.L.C. v. Broussard, 08-526, p. 10 (La.App. 5 Cir. 1/3/09), 8 So.3d 42, 49. If coverage is provided in the policy, but then excluded in the endorsement to the policy, coverage will be excluded. Id.

|fiIf after applying the general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Cadwallader, id., p. 3, 848 So.2d at 580; Carrier, id. p. 12, 759 So.2d at 43-44. Under the rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Louisiana Ins. Guar. Ass’n, id., p. 6, 630 So.2d at 764. The principle, however, is subject to exceptions. Cadwallader, id., p. 3, 848 So.2d at 580; Carrier, id., p. 12, 759 So.2d at 43-44. An exception is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. Cadwallader, id., p. 3, 848 So.2d at 580; Carrier, id., p. 12, 759 So.2d at 43-44. Put simply, for the rule of strict construction to apply, the insurance policy must not only be susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Cadwallader, id., at p. 3, 848 So.2d at 580; Carrier, id., p. 12, 759 So.2d at 43-44.

In the instant case, Ms. Zeitoun contends that because National Union’s OCIP policy is a commercial general liability (“CGL”) policy, by its very terms, it affords coverage for Zachery’s claims, and that the endorsements expand rather than restrict the coverage to include not only personal injuries such as those suffered by Zachery, but also liability arising out of any construction project on the OPSB properties. Alternatively, Ms. Zeitoun avers that the policy terms are ambiguous and, accordingly, any ambiguity should be resolved against Nation Union and in favor of coverage. We disagree and find that Ms. Zeitoun’s arguments are misplaced.

[^We do not find that the National Union policy and endorsements contain any ambiguity. We find the policy to be a traditional wrap-up or OCIP policy issued providing coverage for rehabilitation and/or construction projects (i e., the CIP III) being performed on various OPSB properties. Wrap-up or OCIP policies are primarily used for large construction projects and are generally obtained by the owner of a project to cover workers’ compensation and liability risks of specific parties to a construction project and risks associated with the job site. See Liberty Mutual Ins. Co. v. Louisiana Ins. Rating Comm’n., 96-0793, p. 2 (La.App. 1 Cir. 2/14/97), 696 So.2d 1021, 1023. By obtaining an OCIP, the owner, or sponsor, procures insurance for himself, the general contractor, subcontractors, and employees working on the construction project. Id. The coverage, however, is generally limited in scope and covers only risks associated with the specific project.

Both the Common Policy Declarations and CGL Declarations pages of National Union’s policy delineate the “business description” for which the policy was issued as “Construction.” Additionally, National Union’s policy endorsements, which are a part of the policy itself, specifically reference “construction,” the “project(s),” the “project sites,” as well as “contractors” or “subcontractors,” clearly indicating the policy pertains to construction in conjunction with the CIP III for which the OPSB procured the policy.

| 7As set forth in La. R.S. 22:881, “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the |8policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy.” The terms of an insurance contract must be interpreted consistently so as not to render portions of the policy of no significance, surplusage, or meaningless. Fontenot v. Diamond B Marine Services, Inc., 05-0863 p. 7 (La.App. 4 Cir. 7/26/06), 937 So.2d 425, 430. In the case at bar, we find that, given the nature of a “wrap up” policy or owner-controlled insurance program, these various policy endorsements, when read in conjunction with the National Union policy as a whole, restrict and/or limit rather than expand coverage to liability arising out of construction-related incidents in conjunction with the CIP III project for which the OCIP policy was issued.

In short, we do not find Ms. Zei-toun’s interpretation of the policy to be logical or reasonable. If, in fact, the endorsements “expanded” coverage to include construction projects as posited by Ms. Zeitoun, the endorsements would be nothing more than surplusage and/or of no significance because, if the National Union policy were a conventional CGL policy as Ms. Zeitoun suggests, such a policy would already cover construction and the construction endorsements would not be needed. Instead, the purpose of the endorsements is to actually acknowledge that the coverage provided under the National Union policy is restricted to general liability coverage for construction projects only. The only reasonable interpretation of the policy is that it provides general liability coverage to the OPSB limited solely to risks associated with the construction projects of the CIP III, and does not afford coverage for the injuries sustained by Zachery. No ambiguity between the endorsements and the policy exists. As the Supreme Court [9stated in Cadwallader, id., pp. 3-4, 848 So.2d at 580, “the rules of construction do not authorize a perversion of the words or the exercise of inventive powers to create an ambiguity where none exists.” Applying the established rules of construction, we conclude the argument set forth by Ms. Zeitoun is not a reasonable interpretation of the policy.

CONCLUSION

For the foregoing reasons, the judgment granting the motion for summary judgment in favor of National Union is affirmed.

AFFIRMED.

      . In the Louisiana Department of Insurance’s Office of Property and Casualty Insurance Rating and Policy Forms, Filing Handbook, wrap-up insurance is defined as a "policy that covers exposures for a large group. Each member of the group is connected to other members by one or more common insuring characteristics. For example, wrap-up insurance can be written for all the various businesses working together on a special project. Wrap-up insurance includes owner-controlled insurance programs.” According to the Louisiana Department of Insurance, wrap-up "insurance rates and rules must be filed with and approved by the OPC [Office of Property and Casualty] before they can be used in Louisiana. A wrap-up insurance filing must adhere to directives contained in all LIRC [Louisiana Insurance Rating Commission] and OPC bulletins and must conform to all Louisiana Statutes.” See Louisiana Department of Insurance, Office of Property and Casualty Insurance Rating and Policy Forms, Filing Handbook, July 2009, p. 31. See also Bulletin LIRC 95-03, dated 21 June 1995.

      . See also, J. Randolph Evan and J. Stephen Berry, Construction Defect Coverage Law: Past, Present, and Future, New Appleman on Insurance: Current Critical Issues in Insurance Law, IV(C) (December 2008).

      . Endorsement MS #0001, the "NAMED INSURED ENDORSEMENT " amends the original named insured and changes it from "Orleans Parish School Board" to "ORLEANS PARISH SCHOOL BOARD, ET AL AND ITS RELATED ENTITIES AFFILIATED WITH THIS PROJECT, CONTRACTORS AND SUBCONTRACTORS OF ANY TIER FOR WHOM THE AFOREMENTIONED INSUREDS HAVE AGREED TO FURNISH THE INSURANCE COVERAGE PROVIDED UNDER THIS POLICY.”
      Endorsement MS # 0002, the "ADDITIONAL DEFINITIONS ENDORSEMENT," amended and changed the policy as follows:
      16. The term "Sponsor" as used herein shall mean Orleans Parish School Board, et al.
      17. The term "Contractors” as used herein shall mean contractors who have executed the Contract Document with the Orleans Parish School Board, et al, have been enrolled in this insurance program, and who perform operations at the Project Site in connection with the Project.
      18. The term "Project Site” means: Various location(s) under the control of the Orleans Parish School Board, wherein contracts have been awarded for The Rehabilitation and/or Construction of these facilities by The Board as provided for under The Owner Controlled Insurance Program.
      19. The term "from” the Project Site means emanating from the Project Site.
      20. The term "Project” or "the Project” as used herein means: As described in Contract Documents between Orleans Parish School Board, et al and contractors.
      Additionally, Endorsement MS # 0007, which clearly states that the "ENDORSEMENT CHANGES THE POLICY,” further states, in part:
      [I] T IS HEREBY UNDERSTOOD AND AGREED THAT THE COVERAGE PROVIDED UNDER THIS POLICY FOR "PROD-U CTS-COMPLETED OPERATIONS HAZARD” IS EXTENDED TO APPLY FOR A PERIOD BEGINNING AT THE INCEPTION DATE OF THIS POLICY AND EXTENDED FOR THREE (3) YEARS AFTER FINAL COMPLETION OF THE DESIGNATED PROJECT BY THE OWNER AS COVERED AND DEFINED BY THIS POLICY.”
      The "TERM OF PROJECT ENDORSEMENT," Endorsement MS # 0009, which specifies the term of the project, provides: IT IS AGREED AND UNDERSTOOD THAT COVERAGE AFFORDED BY THIS PROJECT AND ITS RENEWAL(S) IS FOR THE TERM OF THE PROJECT COMMENCING ON 3/09/99 THROUGH 3/09/03, UNLESS SPECIFICALLY AMENDED BY ENDORSEMENT TO THIS POLICY.
      Endorsement MS #0010, the "DESIGNATED PROJECT SITE ENDORSEMENT ” provides:
      IT IS HEREBY AGREED AND UNDERSTOOD THAT THE DESIGNATED PROJECT SITE IS COVERED BY AN “OWNER CONTROLLED INSURANCE PROGRAM' AND THAT THE INSURANCE OFFERED BY THIS PROGRAM IS PRIMARY FOR ALL "NAMED INSUREDS” AFFORDED COVERAGE BY CONTRACT DOCUMENTS AND/OR SPECIFICALLY ENDORSED HERETO:
      A. PROJECT SITE(S) AS IDENTIFIED IN THE CONTRACT DOCUMENTS AND/OR CONSTRUCTION DOCUMENTS BETWEEN ORLEANS PARISH SCHOOL BOARD, ET AL AND CONTRACTORS AND/OR SUB-CONTRACTORS.
      B. DESIGNATED LOCATION/PROJECT: THOSE AREAS INDICATED IN THE CONTRACT DOCUMENTS WHERE CONSTRUCTION WORK IS PERFORMED, INCLUDING THE WAYS AND MEANS IMMEDIATELY ADJOINING THERETO, BUT EXCLUDING OFF-SITE MANUFACTURING AND FABRICATION SITES.
      AS RESPECTS CONTRACTORS AND SUBCONTRACTORS INCLUDED AS NAMED INSUREDS, IT IS AGREED THAT THE POLICY APPLIES TO ALL OPERATIONS CONDUCTED AT THE PROJECT SITES ADJACENT OR NEARBY UNLESS SPECIFICALLY ENDORSED THEREIN.
      The "COMPOSITE RATE ENDORSEMENT," Endorsement MS #0011, identifies the "DESCRIPTION OF OPERATIONS" as being "CONSTRUCTION OPERATIONS.”
      Lastly, Endorsement MS # 0022, entitled, “AMENDED HIRED AUTO AND NON-OWNED AUTO LIABILITY," provides: INSURANCE IS PROVIDED ONLY WITH RESPECT TO THOSE COVERAGES FOR ORLEANS PARISH SCHOOL BOARD IN CONJUNCTION WITH CONSTRUCTION.


source: Caselaw Access Project

author: KIRBY, Judge.

license: Public Domain

text:
    William STRICKLAND, Evan Strickland and William Strickland on Behalf of His Minor Daughter, Meridith Strickland v. Lenore GORDON.
    No. 2009-CA-0856.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2010.

      Miles G. Trapolin, Trapolin Law Firm, New Orleans, LA, for Plaintiff/Appellant, William Strickland.
    Joseph J. Lepow, Metairie, LA, for Defendant/Appellee.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.)
   KIRBY, Judge.

| plaintiff, William Strickland, filed suit for wrongful eviction and damages against his former landlord, defendant, Lenore Gordon, alleging that she discarded his personal property after Hurricane Katrina without his permission. He seeks damages for the loss of certain valuables, including an Elkhart Conn 8D French Horn and a Lawson Bell. Following a trial, the trial court rendered a judgment in favor of Ms. Gordon. Mr. Strickland appealed. For the reasons that follow, we affirm the judgment.

In August 2005, Mr. Strickland, head librarian at the Tulane University A.B. Freeman School of Business and a professional musician, was renting a ground level apartment at 4923 South Miro Street in New Orleans from Ms. Gordon. The rental agreement was a verbal, month-to-month lease. On August 28, 2005, Mr. Strickland and his children, who were living with him at the time, left the apartment and drove to Shreveport, as the may- or had issued a mandatory evacuation of the city due to Hurricane Katrina. The next morning Hurricane |2Katrina made landfall just south of New Orleans. The accompanying high winds and tidal surges caused levee breaches at the 17th Street, London Avenue and Industrial Canals, resulting in widespread flooding throughout the city. The interior of Mr. Strickland’s apartment sustained several feet of water.

While evacuated, Mr. Strickland tried repeatedly to reach Ms. Gordon by telephone but was unsuccessful. At the same time, Ms. Gordon, who was temporarily residing in Baton Rouge, had asked Carey Herman, a Loyola University employee with access to a computer and Mr. Strickland’s neighbor, to search the Tulane University website to try to locate Mr. Strickland. Twice, Ms. Herman tried to locate Mr. Strickland through the website but was unsuccessful. In late September 2005, when the mandatory evacuation order was lifted for parts of the city, Ms. Gordon returned and hired a cleaning crew to clean, gut and remove the debris from her rental properties, including Mr. Strickland’s apartment. Mr. Strickland returned to New Orleans in early October 2005, and discovered his apartment had been cleaned and most of his personal property discarded onto the street outside the premises. Although several items were salvageable, some were missing, including his customized French horn.

Prior to trial the parties made the following stipulations: 1) Mr. Strickland had a month-to-month lease with Ms. Gordon; 2) the apartment was flooded during Hurricane Katrina; 3) the apartment was destroyed and rendered uninhabitable due to the flood; 4) the city remained flooded for weeks after the storm; 5) Ms. Gordon did not institute an eviction proceeding against Mr. Strickland; 6) Ms. Gordon and | sMr. Strickland were unable to contact each other for several weeks after the storm; 7) due to the flooding, Ms. Gordon removed Mr. Strickland’s property from the apartment after the storm without his permission; 8) Executive Order KBB 05-67, prohibiting evictions after the storm until October 25, 2005, was in effect when Ms. Gordon had Mr. Strickland’s property removed from the apartment.

After Mr. Strickland presented his case at trial, Ms. Gordon moved for an involuntary dismissal of the wrongful eviction claim pursuant to La. C.C.P. art. 1672 B . The trial court granted the motion. Following the trial, the court took the damages claim under advisement and, on April 9, 2009, rendered judgment in favor of Ms. Gordon. In written reasons for judgment, the trial court stated the following:

The court finds that Ms. Gordon made numerous attempts after the storm to contact Mr. Strickland through the Tulane University database web-site, before she disgarded [sic] his damaged property. The court finds that Ms. Gordon acted reasonable [sic] in light of the circumstances and finds in favor of the defendant.

Mr. Strickland raised three assignments of error on appeal. First, he argues that the trial court erred in dismissing his wrongful eviction claim because Executive Order KBB 05-67 was in effect when Ms. Gordon had his personal property removed from the apartment.

14Louisiana Civil Code article 2668 provides, in part, “Lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay.”

The lessor’s principal obligations are set forth in La. Civ.Code art. 2682, which states, “The lessor is bound: (1) To deliver the thing to the lessee; (2) To maintain the thing in a condition suitable for the purpose of which it was leased; and (3) To protect the lessee’s peaceful possession for the duration of the lease.”

The lessee’s principal obligations are set forth in La. Civ.Code art. 2683, which states, “The lessee is bound: (1) To pay the rent in accordance with the agreed terms; (2) To use the thing as a prudent administrator and in accordance with the purpose for which it was leased; and (3) To return the thing at the end of the lease in a condition that is the same as it was when the thing was delivered to him, except for normal wear and tear or as otherwise provided hereafter.” If a lessee fails to pay the rent in the amount and manner agreed upon, a lessor may dissolve the lease and regain possession in the manner provided by law. See La. Civ.Code art. 2704.

The evidence in the record indicates that the extensive water damage to the interior of the apartment rendered it uninhabitable and unsuitable for a residential lease. Because Ms. Gordon was without fault in causing the damage, and Mr. Strickland never paid rent after the month of August, we agree with the trial court’s conclusion that a wrongful eviction did not occur in this case. Thus, we find the 1¡¡trial court properly granted the involuntary dismissal of Mr. Strickland’s wrongful eviction claim.

In the second assignment of error, Mr. Strickland contends that the trial court erred by finding Ms. Gordon acted reasonably in discarding his personal property because she had made a good faith attempt to locate him after the storm. We find no merit to this argument.

Ms. Gordon testified that she had no contact information on Mr. Strickland other than his New Orleans home and work telephone numbers, which were out-of-service due to the storm. Mr. Strickland acknowledged that he had no cell phone at that time. Ms. Gordon contacted Ms. Herman and asked her to try to locate and/or e-mail Mr. Strickland through Tulane University’s website to let him know that she could be reached in Baton Rouge. Ms. Herman corroborated Ms. Gordon’s testimony, explaining that she tried on two separate occasions to contact Mr. Strickland but was unsuccessful.

Ms. Gordon testified that she hired a crew to clean her own home and six rental properties based on information given by FEMA, Red Cross, and local authorities warning residents that flooded properties contained toxic mold and raw sewerage, which posed serious health and safety hazards. Before commencing the cleanup, she contacted all of her tenants, save Mr. Strickland. Several tenants instructed her to discard their damaged property. Ms. Gordon also testified that she left a note on the door of Mr. Strickland’s apartment with her contact information in the event he returned to the city.

I (¡Mr. Strickland testified that after the storm the apartment was uninhabitable. Although he claimed that upon his return he found most of his personal property outside on the street, he admitted that a few items that were not damaged because they were above the water level were in the apartment. Also, Ms. Herman testified that Ms. Gordon had asked her and her husband to keep Mr. Strickland’s bicycle in their garage until he returned.

The appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Driscoll v. Stucker, 2004-0589, p. 17 (La.1/19/05), 893 So.2d 32, 46. Considering the evidence in the record, we cannot say the trial court was clearly wrong in finding that Ms. Gordon acted reasonably under the circumstances.

In the third assignment of error, Mr. Strickland argues the trial court erred by not awarding him damages. We disagree. “If the leased thing is lost or totally destroyed, without the fault of either party, or if it is expropriated, the lease terminates and neither party owes damages to the other.” La. Civ.Code art. 2714. As previously mentioned, the extensive floodwater damaged the apartment, rendering it uninhabitable and unsuitable for rental purposes. Because Ms. Gordon was not at fault in destroying the leased premises, she owes no damages to Mr. Strickland.

17Finally,' Ms. Gordon, in her appeal brief, requests this court to award her the costs associated with this appeal. We decline to do so. Each party is to bear their own costs. See La.Code Civ. Proc. 2165.

Accordingly, for the above reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . In addition to his individual claims, Mr. Strickland asserted a claim on behalf of his minor daughter, Meridith Strickland. Evan Strickland, Mr. Strickland’s major son, also was named as a plaintiff in the original petition. Meridith’s and Evan’s claims were dismissed prior to trial.

      . La. C.C.P. art. 1672 B provides:
      In an action tried by the court without a jury, after the plaintiff has completed die presentation of his evidence, any parly, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.


author: CHARLES R. JONES, Judge. BELSOME, J.

text:
    Esther LINGONI v. HIBERNIA NATIONAL BANK and St. Paul Fire and Marine Insurance Company.
    No. 2009-CA-0737.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2010.

      R. Glenn Cater, David J. Foshee, Cater & Associates, LLC, New Orleans, LA, for plaintiff/appellant.
    Edward J. McCloskey, Metairie, LA, for Daly-Sublette Landscape Architects, Inc.
    James A. Castex, Jr., Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Sizeler Thompson Brown Architects.
    William W. Hall, Metairie, LA, for Shamrock Construction Co., Inc.
    Ernest S. Anderson, Joseph P. Anderson, Jr., Anderson & Anderson, Sli-dell, LA, for Paradise Gardens Landscaping, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

hThe appellant, Esther Lingoni, appeals an adverse judgment granting the defendants’ motion for summary judgment. We affirm.

Paradise Gardens Landscaping, Inc., (Paradise Gardens) contracted with Shamrock Construction Co., Inc. (Shamrock) to install landscaping and irrigation systems at Hibernia Bank located at 5696 Bullard Avenue in New Orleans, Louisiana, in February 1996. Paradise Gardens performed all of its obligations under its contract with Shamrock Construction Co., Inc., including the furnishing of the materials and labor necessary to complete the landscaping, and irrigation services as stipulated in the contract, plans and or specifications. There was no reason to believe that its adherence to the plans and specifications would create a hazardous condition. In particular, all sprinkler heads were installed, as required by the plans and specifications, at least 4 inches from the sidewalk pavement.

The work of Paradise Gardens was supervised and approved by the landscape architect on the job, Daly-Sublette Landscape Design & Development, Inc. (Daly-Sublette), and by the general contractor, Shamrock.

No disagreement or dissatisfaction with said landscaping and irrigation services was ever conveyed to Paradise Gardens by any person, firm or entity.

|2The work of Paradise Gardens was completed and accepted by the general contractor, Shamrock. The work was also accepted by the owner, Hibernia National Bank, by the architect, Sizeler Architects, Inc., and the landscape architect, Daly-Sublette.

On December 17, 1999, Ms. Lingoni suffered serious injuries after tripping over a pop-up sprinkler head outside of the Hibernia Bank at the aforementioned location. The sprinkler head’s positioning near the intersection of two sidewalks purportedly made it difficult to be seen and dangerous to patrons, including Ms. Lingo-ni. Ms. Lingoni’s fall allegedly caused her to suffer numerous injuries.

On December 7, 2000, Ms. Lingoni filed suit against Hibernia bank and its insurer, St. Paul Fire and Marine Insurance Company. Since a number of entities were involved with the landscape architectural design and placement at the Hibernia location, she added defendants Sizeler, Daly-Sublette, Shamrock and Paradise Gardens.

Shortly thereafter, Ms. Lingoni settled with Hibernia and its insurer and dismissed her claims against Hibernia and its insurer. Sizeler, Daly-Sublette, Shamrock and Paradise Gardens all filed motions for summary judgment. As contractors, Shamrock and Paradise Gardens invoked the immunity of La. R.S. 9:2771, conferred on contractors who construct work according to plans and specifications provided by another party. Shamrock and Paradise Gardens also submitted that they owed no duty to plaintiff because a reasonable amount of time had elapsed between their completion of the work and plaintiffs accident.

The other two landscape-architectural design/placement defendants, Sizeler Architects (Sizeler) and Daly-Sublette filed Motions for Summary Judgment, claiming that Ms. Lingoni could not meet her burden of establishing architect |anegligence, because she has not designated an architectural expert. In support of their motion for summary judgment, Sizeler and Daly-Sublette submitted the following documents into evidence at the hearing on the Motion for Summary Judgment:

A. A “Certificate of Substantial Completion” for the project stating that “[t]he Work performed under this Contract has been reviewed and found, to the Architect’s best knowledge, information and belief to be substantially complete ...” and stating that “[Hibernia] accepts the work or designated portion thereof as substantially complete and will assume full possession thereof at 12:01 a.m. on January 21,1997;
B. A set of punch lists from Sizeler Architects, Inc. and Daly-Sublette, neither of which contained any reference to deficient placement of automatic irrigation system sprinkler heads;
C. A letter from Daly-Sublette dated February 3, 1997 indicating that “[a]ll punch list items have been taken care of by the Landscape Contractor and Provisional Acceptance has been given;” and,
D. A City of New Orleans City Planning Commission memorandum indicating that the landscaping for this project had been “installed as per approved drawings dated July 17,1996.”

The district court heard all of the motions on January 23, 2009, considered the motions, evidence, memoranda and argument of counsel, and rendered summary judgment for each of the defendants. The court signed the judgment, and designated it final and appealable, on March 4, 2009. This timely appeal followed.

In the instant appeal, Ms. Lingoni raised the following assignments of error:

1. The district court erred in granting summary judgment in favor of Paradise Gardens because genuine issues of material fact are in dispute regarding whether the placement of the sprinkler head at the accident site precludes the application of the contractor immunity statute, La. R.S. 9:2771, in favor of Paradise Gardens.
|42. The district court erred in granting summary judgment in favor of Paradise Gardens because genuine issues of material fact exist regarding whether too much time had lapsed between Paradise Gardens’ completion of the job and the incident in question.
3. The district court erred in granting summary judgment in favor of Shamrock because genuine issues of material fact are in dispute regarding whether the placement of the sprinkler head at the accident site precludes the application of the contractor immunity statute, La. R.S. 9:2771, in favor of Shamrock.
4. The district court erred in granting summary judgment in favor of Shamrock because genuine issues of material fact exist regarding whether too much time had lapsed between Shamrock’s completion of the job and the incident in question.
5. The district court erred in granting summary judgment in favor of Daly-Sublette because genuine issues of material fact exist regarding whether expert architectural testimony is required in this matter.
6. The district court erred in granting summary judgment in favor of Siz-eler because genuine issues of material fact exist regarding whether expert architectural testimony is required in this matter.

DISCUSSION

This Court reiterated the standard of review on a motion of on a motion for summary judgment as follows:

Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends. King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). An appellate court reviews a district court’s decision granting summary judgment de novo, using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 00-2456, p. 4 (La.App. 4 Cir. 1/10/01), 778 So.2d 668, 670. Under this standard, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together "with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Sanchez v. Harbor Const. Co., Inc., 2008-0316, pp. 3-4 (La.App. 4 Cir. 10/1/08), 996 So.2d 584, 587. Further,

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ. P. art. 966(B). Pursuant to this article, the burden of producing evidence at the hearing on the motion for summary judgment is on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Cyprien v. Board of Sup’rs ex rel. University of Louisiana System, 2008-1067, p. 5 (La.1/21/09), 5 So.3d 862, 866, 243 Ed. Law Rep. 991 (citing Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058; Babin v. Winn-Dixie Louisiana, 00-0078 (La.6/30/00), 764 So.2d 37).

Additionally, considering actions arising out of alleged defects in workmanship, “An owner seeking to recover from a contractor for defective workmanship bears the burden of proving the existence and nature of the defects and that the defects were due to faulty materials or workmanship.” Taaffe v. Factory Direct Installations, Ltd., 2008-0175, p. 13 (La.App. 4 Cir. 4/15/09), 13 So.3d 562, 568 citing Hernandez v. Martinez, 2000-1282 (La.App. 5 Cir. 2/28/01), 781 So.2d 815, 821; La. C.C. article 2769.

1 ^Furthermore, pursuant to La. R.S. § 9:2771, entitled, Non-liability of contractor for destruction or deterioration of work:

No contractor, including but not limited to a residential building contractor as defined in R.S. 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.

Although Ms. Lingoni asserts six assignments of error, she simply argues the district court erred in granting the motions for summary judgment in favor of Paradise Gardens, Shamrock, Sizeler, and Daly-Sublette, when genuine issues of material fact are in dispute regarding the placement of the sprinkler head at the accident location, precluding the application of the ' contractor immunity statute, La'. R.S. 9:2771.

. Ms. Lingoni argues that La. R.S. 9:2771 provides immunity for a building contractor who follows established plans and specifications, unless the contractor “had reason to believe that working in compli-anee with the plans and specifications would create a hazardous condition.” She maintains that Paradise Gardens’ and Shamrock’s arguments that their own self-serving affidavits and the certificates of completion by other defendants do not satisfy the issue of whether there was compliance with applicable specifications and guidelines.

Ms. Lingoni also argues that the arguments by Paradise Gardens and Shamrock on the immunity issue ignored direct evidence that the sprinkler head in |7question was not located at the location designated in the plans and specifications for the Hibernia Bank in question. She contends that the protections offered by La. R.S. 9:2771 are not extended where the plans and specifications are not properly followed or if installation is not proper. Thus, Ms. Lingoni argues that Paradise Gardens and Shamrock failed to establish that no genuine issues of material fact remain in dispute regarding whether Paradise Gardens and Shamrock properly followed the plans and specifications set forth for the sprinkler placement, and whether installation of the sprinkler head in question was performed properly.

Ms. Lingoni argues that Brian Sublette, the designated corporate representative of defendant, Daly-Sublette, testified that the sprinkler head needed to be placed at least 4 inches from the intersecting paved walkways that marked the site of the accident in this case, in order to avoid presenting a trip hazard.

However, Ms. Lingoni contends that despite Mr. Sublette’s designation on the schematics, the sprinkler head in question was positioned less than one inch from the accident site. She points out that when her expert, Wilfred Gallardo, measured and photographed the site in question, he determined that the sprinkler was actually positioned less than one inch from the paved walkway in question.

Ms. Lingoni argues that Paradise Gardens and Shamrock have offered no explanation as to why the sprinkler head was not positioned correctly at the time of her accident. She argues that Paradise Gardens and Shamrock have gone to great lengths to suggest that the sprinkler head in question must have been purposefully moved, kicked by pedestrians, or itself moved over time. However, she asserts that Paradise Gardens and Shamrock acknowledged that these suppositions are merely ^speculations. She also asserts that the defendants failed to offer any evidence to establish that the sprinklers were in fact moved by Hibernia or over time by pedestrian traffic.

Additionally, Ms. Lingoni argues that Daly-Sublette’s representative acknowledged, via testimony, that moving the sprinkler heads in question required no small effort. The sprinkler lines were connected to numerous other heads and movement of the head in question would have required digging up the line, sawing into the line, moving the head, and securing a new coupling in place. She notes that testimony has further established that the amount of movement in question (approximately 3 inches if one presumed that the 4 inch requirement had been met in the first place, which the plaintiff contests), would have been unlikely from erosion in that area. She also contends that testimony established that such movement was unlikely (due to the brief duration between project completion and the accident) and that any natural actions such as root growth could have contributed to the movement in question, particularly in light of the types of plants in the area.

She asserts that while Paradise Gardens and Shamrock deny responsibility, Paradise Gardens and Shamrock offer no alternative theories in support of its contentions. She notes that instead, Paradise Gardens and Shamrock assert that because no punch list notation was made regarding the site in question, no problem must have existed. However, when pressed, the corporate representative of Shamrock testified that, although it was normal for him to measure distances such as the one in question, he admittedly had no recollection of whether such measurement actually occurred at the site.

|9Ms. Lingoni argues since genuine issues of material fact remain disputed on the issues addressed in Paradise Gardens’ motion for summary judgment, the district court erred in granting the motion.

Paradise Gardens and Shamrock argue it is well-settled, under Louisiana law, that La. R.S. 9:2771 establishes an immunity from liability for the defects of the work constructed by him if he can prove the work was constructed according to the plans and specifications furnished him, since the contractor is not the guarantor of the sufficiency of the plans and specifications drawn by another person. City of Covington v. Heard, 428 So.2d 1132, 1134 (La.App. 1 Cir.1983); Washington Parish Police Jury v. Belcher & Son, Inc., 215 So.2d 849 (La.App. 1 Cir.1968); Bernard v. State through DOTD, 93-1376 (La.App. 3 Cir. 6/1/94), 640 So.2d 694.

Paradise Gardens and Shamrock argue that the statute does not require the contractor to prove the fault or insufficiency of the plans or specifications; the immunity results from proof of compliance with said plans and specifications alone. La.R.S. 9:2771; See also, Allstate Enterprises, Inc. v. Brown, 39,467 (La.App. 2 Cir. 6/29/05), 907 So.2d 904 Heard, supra; Bernard, supra; See also, Menzie Tile Co., Inc. v. Professional Centre, 594 So.2d 410 (La.App. 1 Cir.1991).

Paradise Gardens and Shamrock, relying on Winford Co. v. Webster Gravel & Asphalt, 21,994, 571 So.2d 802, 806 (La. App. 2 Cir.1990), assert that the statute, La. R.S. 9:2771, provides a safe harbor to the contractor so long as plans and specifications are not provided by him. Id., 571 So.2d at 806. Additionally, Paradise Gardens and Shamrock maintain that the immunity provided by this statute [La. R.S. 9:2771] applies to third-party tort claims such as involved in the | ininstant case (citing Morgan v. Lafourche Recreation Dist. No. 5, p. 7 (La.App. 1 Cir. 6/21/02), 822 So.2d 716, 721-722, writ denied, 2002-1980 (La.10/25/02), 827 So.2d 1156). “Louisiana appellate courts have extended the statutory immunity of LSA-R.S. 9:2771 to third-party tort claims.” Morgan at 722. (citing Richard v. State, 610 So.2d 839, 840 (La.App. 1st Cir.1992)).

In Heard, as in the instant case, defendant filed a motion for summary judgment attaching affidavits attesting to the defendant’s complete compliance with the contractual specifications. Accordingly, the district court, which was affirmed by the First Circuit, found that the City of Cov-ington failed to show a genuine issue of material fact exists as to defendant’s compliance with the specifications, and granted summary judgment in favor of defendant.

Paradise Gardens and Shamrock contend that the affidavits of Robert Bradley and Charlotte Carollo, the representatives of Paradise Gardens, and the evidence it introduced at trial establish that the district court did not err in granting the motion for summary. In particular, Paradise Gardens notes that it complied with all the plans and specifications of the contract between itself and Shamrock.

Paradise Gardens and Shamrock assert that the deposition of Brian Sublette, the supervising landscape architect, clearly states that he personally measured each and every sprinkler head twice after installation and determined that each such sprinkler head was at least four (4) inches from the sidewalk. It points to the following colloquy by Mr. Sublette in support of this contention:

Q. When you did your final walk through, if you recall, did you do measurements to make sure the sprinkler system was properly installed and the dimensions were correct?
A. Sure, it’s standard practice.
InQ. At the time of the installation by Paradise Garden and Landscaping, the sprinkler heads that you inspected were, at least, four inches away from the sidewalk?
A. Yes.
Q. You measured those?
A. Yeah.
Q. But there is nothing in the punch list items about the sprinkler heads being less than four inches?
A. No.
Q. To the pavement?
A. No.
Q. If there had been, you would have noted it in the punch list?
A. Sure.
Q. And in your final acceptance letter, you were satisfied that all of the punch list items had been taken care of?
A. Yeah.
Q. So it’s a fair statement that you inspected the sprinkler heads on, at least two occasions, and on each of those occasions it was at least four inches from the—
A. Correct.
Q. —from the pavement?

Paradise Gardens and Shamrock contend that Ms. Lingoni does not offer any evidence to refute the evidence establishing that Paradise Gardens and Shamrock complied with all plans and specifications, including the requirement that the sprinkler head be installed at least four inches from the sidewalk. Instead, Paradise Gardens and Shamrock note that Ms. Lingoni’s entire argument rests on |12her assertion that the sprinkler heads were less than four inches from the sidewalk at or following the date of the accident. Paradise Gardens and Shamrock submit that Ms. Lingoni’s assertion is not sufficient to show that there is a material issue of fact concerning Paradise Gardens’ and Shamrock’s compliance with the plans and specifications. Paradise Gardens and Shamrock maintain that the location or positioning of the sprinkler head more than two years after their correct installation by Paradise Gardens does not raise a material issue of fact and is simply not relevant to the issue of said contractor’s immunity.

Additionally, Paradise Gardens and Shamrock argue that Ms. Lingoni’s accident happened after the warranty period in the contract expired and during a period of time that Paradise Gardens and Shamrock were no longer responsible for maintenance of the landscape and irrigation system. Paradise Gardens and Shamrock maintain that they did not have any custody or control of the allegedly defective sprinkler head. Paradise Gardens and Shamrock assert that they did not have any maintenance contract for the landscaping or sprinkler system for more than two years prior to plaintiffs accident because maintenance of the sprinkler system had been taken over by another landscaping contractor.

Paradise Gardens and Shamrock, relying on Rosato v. Louisiana Dept. of Transp. & Development, 1997-2543 (La.App. 4 Cir. 5/27/98), 714 So.2d 862, argue that once they provided factual support at the hearing on the motion for summary judgment sufficient to establish that the plans and specifications were followed, it was “... incumbent on plaintiff to show that there is a material issue of fact with respect to whether Paradise Gardens and Shamrock had reason to believe that working in accordance with [The Plans and Specifications] would create a hazardous condition.” Rosato at 867.

11sIn the alternative, Paradise Gardens and Shamrock argue that even if this Court agrees with Ms. Lingoni’s argument that Paradise Gardens and Shamrock were not entitled to the immunity of La. R.S. 9:2771, the grant of summary judgments in favor of Paradise Gardens and Shamrock were appropriate because, according to Louisiana jurisprudence, Paradise Gardens and Shamrock did not have custody or control of the landscaping and sprinkler system at the time of the accident (which incidentally occurred more than two years after Paradise Gardens and Shamrock had completed and installed said landscaping and sprinkler system).

Our review of the record in the instant matter establishes that Paradise Gardens and Shamrock presented credible evidence to the district court that was well-documented. Clearly, the district court was presented with countervailing affidavits in which the court found credible. Ms. Lingoni failed to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden at trial. As we stated earlier,

The party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial. Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.

Cyprien, 2008-1067, p. 5, 5 So.3d at 866. Therefore we find that Ms. Lingoni’s countervailing expert’s affidavit did not create a genuine issue of fact for trial. We find that the district court did not err in this matter. There is no merit to the appellant’s argument.

114Ms. Lingoni also argues that the district court erred in granting summary judgment in favor of Daly-Sublette and Sizeler architects because genuine issues of material fact exist regarding whether expert architectural testimony is required in this matter.

As to Daly-Sublette and Sizeler, Ms. Lingoni argues that Daly-Sublette and Sizeler based their motions for summary-judgment on their assertion that Ms. Lin-goni’s claim must fail because she did not have an expert in the field of architecture. Further, Daly-Sublette and Sizeler claimed that Ms. Lingoni could not maintain a negligence action against either Daly-Sublette or Sizeler regarding the work either they or other defendants performed at the Hibernia Bank location in question.

Ms. Lingoni argues that Daly-Sublette was responsible for the plans regarding the placement of the sprinkler in question, and expert testimony is not required to determine whether those plans were followed. Daly-Sublette contracted with Siz-eler to perform landscape-architectural duties at the Hibernia Bank location marking the accident site in this litigation. As discussed previously, Sizeler had contracted directly with Hibernia for the overall architectural/construction project, with its duties including providing schematics and design plans for the landscape-architectural elements at the Hibernia site, including the sprinkler systems on the site. These duties included providing landscape-architecture design schematics and submitting them to Hibernia for its approval. Sizeler’s corporate representative testified that Sizeler hired Daly-Sublette to produce the schematics and plans pertinent to the landscape | ^architectural elements at the site. Sizeler’s representative testified that Sizeler completely relied upon the expertise of Daly-Sublette in this area, and deferred to Daly-Sublette to ensure that plans were properly drawn up and followed.

However, Ms. Lingoni points out that Daly-Sublette’s own corporate representative testified that Daly-Sublette created the plans in question, including determining that the sprinkler head at issue needed to be at least 4 inches from the intersection of the two paved walkways that marked the accident site in question. She maintains that common sense would suggest that expert testimony would not be required to see if the end product did not correlate with the design documents approved by Hibernia.

Ms. Lingoni also argues that despite Sizeler and Daly-Sublette’s arguments in favor of summary judgment, Louisiana law routinely recognizes that expert testimony is not always required to establish the negligence of an architect, and the disputed genuine issues should have precluded the district court from granting summary judgment in favor of either Sizeler or Daly-Sublette on this issue. See Milton J. Womack, Inc. v. House of Representatives of State, 509 So.2d 62 (La.App. 1 Cir.,1987).

Additionally, Ms. Lingoni asserts that Sizeler’s and Daly-Sublette’s motions for summary judgment ignored the fact that much of this matter turns not just on issues involving the standard of care for an architect and whether the defendant has deviated from that standard, but also on matters of basic contract interpretation. Ms. Lingoni notes that Sizeler entered into a contract with Hibernia Bank to oversee the architectural duties at the location in question, including the landscape-architectural elements. Ms. Lingoni notes that the contract includes provisions | ^establishing that Sizeler would accept responsibility for preparing schematic design documents for Hibernia’s approval.

Ms. Lingoni maintains that an explanation in the contract further establishes that Sizeler’s duties in this “Design Development Phase” extended to fixing and describing “architectural, civil engineering, and landscape architectural elements.” Further, she asserts that the Sizeler-Hi-bernia contract dictates that Sizeler would prepare construction documents, including drawings and specifications setting forth the requirements for the construction of the Hibernia project.

In support of her argument, Ms. Lingoni contends that in addressing the issue of the expert-testimony requirement in architect-liability cases, Louisiana courts have looked to the law applicable to medical-malpractice cases to inform their jurisprudence. She notes, in particular, that in Louisiana (in some medical malpractice cases), expert testimony is not required to establish a standard of care, particularly where a physician’s act is such that a lay person can infer negligence. See, Hastings v. Baton Rouge Gen. Hosp., 490 So.2d 275 (La.1986).

Ms. Lingoni reiterates that Brian Sub-lette, the landscape architect designated by Daly-Sublette, testified in his corporate deposition that the specifications for the Hibernia location called for the sprinkler head in question to be at least four inches away from the paved surfaces. Mr. Sub-lette testified that having the sprinkler positioned away from the paved surface was for safety reasons, and to avoid a trip 117hazard that would be presented by having the sprinkler head too close to the paved area. Mr. Sublette explained that no standard or formal guidelines dictated this positioning; it was merely a determination made to avoid a safety risk. Sizeler’s corporate representative testified that Sizeler deferred to Daly-Sublette as “experts;” therefore, expert testimony from the defendants established that this positioning was necessary for maximum safety at the site in question.

Additionally, Ms. Lingoni argues that Mr. Sublette’s acknowledgment that this determination was not one based on professional standards or publications that dictated the positioning further underscores that this issue is not one requiring architectural expertise, but rather, an appreciation of common-sense safety concerns. She maintains that an architectural expert is not required to assist lay people with understanding that having trip hazards so near a walkway that a passerby’s foot might inadvertently strike or catch it is a safety risk. She contends that if lay individuals can determine whether the structural integrity of a building has been properly accounted for in architectural design schematics, it stands to reason that lay individuals can appreciate basic safety and/or trip hazards without an architectural expert’s assistance. Ms. Lingoni asserts that this is particularly true in the instant case.

Ms. Lingoni concludes that despite arguments by Sizeler and Daly-Sublette to the contrary, Louisiana law routinely recognizes that expert testimony is not always required to establish the negligence of an architect.

Sizeler and Daly-Sublette argue that in order to prevail at trial against an architect (or design professional), it is essential that Ms. Lingoni establish these necessary elements: (1) the standards of skill and care owed; (2) that those standards were breached; and, (3) that “but for” the breach the injuries would not |1shave occurred. (Relying on McKeen Homeowners Ass’n, Inc. v. Oliver, 586 So.2d 679, 682; citing Segal Company, Inc. v. W.D. Glassell Co., 401 So.2d 483 (La.App. 2 Cir. 1981); and Pittman Construction Company v. City of New Orleans, 178 So.2d 312 (La.App. 4 Cir.1965), writ denied, 248 La. 434, 179 So.2d 274 (La.1965).)

Sizeler and Daly-Sublette argue Ms. Lingoni’s claim for architect negligence lack both the three essential elements, listed above, and factual support. Sizeler and Daly-Sublette assert that once they pointed out to the district court an absence of factual support for one or more of those elements, there was no genuine issue of material fact, and summary judgment was warranted.

Sizeler and Daly-Sublette also argue that Ms. Lingoni instead relied on unsupported allegations and failed to demonstrate a genuine issue of material fact warranting the preclusion of summary judgment. Particularly, Sizeler and Daly-Sublette maintain that Ms. Lingoni failed to produce competent evidence of the duty owed by Sizeler and Daly-Sublette or that Sizeler and Daly-Sublette breached that duty, or that the allegedly duty was the “cause-in-fact” of her accident. They argue that in order for her to prevail on her claim for architect negligence, Ms. Lingoni was required to present evidence of the duty owed and that the architect breached that duty. They contend that since Ms. Lingoni failed to present such evidence, the district court was correct in granting summary judgment.

In addition, Sizeler and Daly-Sublette argue that Ms. Lingoni’s failure to present expert testimony to establish the standard of care and skill owed by Sizeler | U)or that Sizeler deviated from the standard of care was also detrimental to her claim. In support of their argument Sizeler and Daly-Sublette assert that this Court has held, generally, that expert testimony is necessary “to establish the standards of care and skill against which an architect’s performance is judged ...” Sizeler and Daly-Sublette also assert that in Greenhouse v. C.F. Kenner Associates Limited Partnership, 1998-0496, p. 7 (La.App. 4 Cir. 11/10/98), 723 So.2d 1004, 1008 this Court further explained that “the failure to submit expert testimony to prove the standard of care is a ‘fatal omission.’ ”

Sizeler and Daly-Sublette note that the only exception that might apply to this rule is when a lay person can infer design negligence applying a common sense standard. As demonstrated by all parties at the summary judgment hearing, the design of the sprinkler system required the sprinkler heads to be installed four inches from the edge of the sidewalk. There was no evidence that the 4 inch requirement was defective or insufficient or otherwise deviated from any standard of care and skill owed. The only expert provided by Ms. Lingoni on this issue was her liability expert, Wilfred Gallardo, who testified that there were no standards or codes concerning the location of sprinkler heads. Unfortunately, Sizeler and Daly-Sublette maintain that common sense cannot be relied on by Ms. Lingoni to establish whether a design that requires sprinkle heads to be installed 4 inches from the sidewalk is per se defective.

As explained by Daly-Sublette’s representative, the design of the sprinkler system met all applicable standards of care and skill owed. Sizeler and Daly-jSublette20 note that as to this issue, Ms. Lingoni only argued that the sprinkler head should have been “substantially further away from the sidewalk intersection.” However, no evidence was presented by Plaintiff indicating that there was any design standard that should have been followed.

Further, on this issue, there is no dispute that the sprinkler head Ms. Lingoni allegedly tripped over was less than 4 inches from the sidewalk at the time of the accident. Because the sprinkler head was less than 4" from the sidewalk at the time of the accident, a layperson cannot infer, applying a common sense standard, that the design was faulty.

Next, Sizeler and Daily-Sublette argue that Ms. Lingoni’s own liability expert established that the cause-in-fact of her accident was something other than the location of the sprinkler head. Ms. Lingoni’s only liability expert, Mr. Gallardo, was deposed on February 18, 2004 (prior to Sizeler and Daly-Sublette’s involvement in this litigation). Mr. Gallardo testified that his area of expertise is “safety” and that he was retained in this case to be a “safety expert” and to perform an “accident cause” analysis. Sizeler and Daly-Sublette point out that Mr. Gallardo is not an architect, and that he offered no testimony on the standard of care owed by Sizeler and Daly-Sublette or that Sizeler and Daly-Sublette deviated from that standard.

Based on his observations, Mr. Gallardo testified that the only trip hazard in the area where the accident allegedly occurred was a sprinkler head. Based on his experience and information provided by Ms. Lingoni, Mr. Gallardo opined that the sprinkler head had to be in the up, or on position, or “popped up,” at the time of Ms. Lingoni’s alleged accident. On this issue, Mr. Gallardo testified:

|21Q. So it is your opinion, then, that this sprinkler system was up in some fashion and [plaintiff] tripped over it?
A. That would be my opinion, for the simple reason that it had to be something to catch her ... so something has [sic] to be protruding up for her to trip on.

Sizeler and Daly-Sublette point out that Mr. Gallardo went on to state that “but for” the fact that the sprinkler head apparently malfunctioned and was in the up position, Ms. Lingoni would not have tripped. Mr. Gallardo testified that but for the malfunction, “there’s no way [plaintiff] would have tripped.” Particularly, Mr. Gallardo opined that had the sprinkler head been flush or level to the ground, as it had been on the day he inspected the property, that there was “no way” Ms. Lingoni would have tripped.

Because of this lack of evidence, Sizeler and Daly-Sublette assert that they cannot be responsible for any malfunction' of the system. Although Mr. Gallardo opined that the sprinkler head was located too close to the sidewalk, he did not make any comparison of the drawings or any of the contract documents to determine why the sprinkler head was located in the place it was at the time he conducted his inspection. On the issue of whether the design was sufficient, the only thing Mr. Gallardo offered was that there are “no building codes as to sprinkler heads.” He offered no testimony relating to the design, that he had ever reviewed the design or specifications, what Sizeler’s and Daly-Sublette’s obligations were, or should have been, or that Sizeler breached those obligations in any particular manner.

Our review of the record indicates that the sprinkler head was designed to be 4" off-center from the sidewalk and that several persons, including Sizeler, Daly-jSub-lette,22 Paradise Gardens and Shamrock Construction, inspected the locations of the sprinkler heads at the conclusions of the project and determined that all of them were located where they should have been. Ms. Lingoni presented no evidence to demonstrate that a genuine issue of material fact remained.

Our review of the record also indicates that while Ms. Lingoni claims that she tripped on a “popped up” sprinkler head, her safety expert, Mr. Gallardo, testified that more likely than not the sprinkler head malfunctioned at the time of the accident causing a trip hazard. There is nothing in the record to indicate design negligence or the work undertaken by Sizeler or Daly-Sublette caused Ms. Lingoni’s accident, nor was there evidence produced by Ms. Lingoni establishing the duty owed by Sizeler and Daly-Sublette, or that Sizeler and Daly-Sublette breached that duty. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Cyprien v. Board, of Sup’rs ex rel. University of Louisiana System, 2008-1067, p. 5 (La.1/21/09), 5 So.3d 862, 866, 243 Ed. Law Rep. 991. Because genuine issues of material fact do not exist, we find that the district court properly granted the motions for Summary Judgment filed by Sizeler and Daly-Sublette.

DECREE

The judgment of the district court is affirmed.

AFFIRMED.

BELSOME, J., concurs in part and dissents in part with reasons.

BELSOME, J.

concurs in part and dissents in part with reasons.

| ,As the majority recognizes, Daly-Sub-lette’s own corporate representative testified that Daly-Sublette’s plans provided for the sprinkler head to be installed at least four inches from the paved walkway, and that this design was not in compliance with any formal guidelines; rather, the four-inch specification was to avoid a trip hazard. It is undisputed that the sprinkler head was less than four inches from the sidewalk at the time of Ms. Lingoni’s accident. Considering this fact in conjunction with Daly-Sublette’s admission that the four-inch specifications were drawn up as a safety measure and not pursuant to any architectural standards or guidelines, this writer finds that issues of fact remain regarding the necessity of expert testimony to establish liability on the part of Daly-Sublette or Sizeler.

Accordingly, summary judgment with respect to Daly-Sublette and Sizeler was unwarranted under these particular facts and circumstances. See Chevron U.S.A., Inc. v. State, 2007-2469, p. 16 (La.2008) 993 So.2d 187, 197. Therefore, I dissent with regard to the affirmation of the grant of summary judgment in favor of Sizeler and Daly-Sublette. With respect to the affirmation of the trial court’s grant |2of summary judgment as to Shamrock Construction and Paradise Gardens, I join in the majority’s reasoning and result.

      . Ms. Lingoni notes, "See., e.g., Calcasieu Parish Sch. Bd. v. Lewing Const. Co., Inc., 931 So.2d 492 (La.App. 3 Cir.2006).”

      . Daly-Sublette adopted the arguments raised in Sizeler’s brief.

      . In Hastings, the surviving parents brought a medical malpractice action against the hospital, emergency room physician, and thoracic surgeon on call for the wrongful death of a stab-wound victim, who died following an attempt to transfer him to another hospital. The district court, entered a directed verdict for hospital, physician, and surgeon, and the parents appealed. The Court of Appeal, 486 So.2d 190, affirmed. Following grant of writ of certiorari to consider that judgment, 490 So.2d 275, the Supreme Court, held that evidence presented jury questions as to whether physician and surgeon, and hospital through such physicians, were negligent in their treatment of victim.

      . Sizeler and Daly-Sublette make reference to Standard Roofing Co. of New Orleans v. Elliott Constr. Co., Inc., 535 So.2d 870 (La.App. 1 Cir.1988), which determined that an architect is not responsible for damages caused by inherent manufacturing defects unless it is established that the architect modified the product.

      . Sizeler notes: See Sams v. Kendall, 499 So.2d 370 (La.App. 4 Cir.1986), citing Pittman Const. Co. v. City of New Orleans, 178 So.2d 312. See also Carter v. Deitz, 556 So.2d 842 (La.App. 4 Cir.1990) "... it is necessary to produce expert witnesses to establish the standards of care and skill against which [a design professional’s] performance is to be judged.”

      . See Pfiffner v. Correa, 94-0924 (La. 10/17/94), 643 So.2d 1228, 1234 (expert testimony not required where a layperson can infer negligence).


author: PAINTER, Judge.

text:
    Marcia F. YOUNG, Appellant, v. Bobby JINDAL as Governor of State of Louisiana, Jay Dardenne as Secretary of State of Louisiana, and Joanell Wilson as Registrar of Voters of Rapides Parish, Louisiana, Appellees.
    No. CA 10-283.
    Court of Appeal of Louisiana, Third Circuit.
    March 9, 2010.

      H. Brenner Sadler and Albin A. Pro-vosty, Alexandria, LA, for Appellant, Marcia F. Young.
    William Bryant, Baton Rouge, LA, for Defendant, Bobby Jindal, Governor and Joanell Wilson, Registrar of Voters.
    William E. Crawford, Jr., And Benjamin H. Dampf, Baton Rouge, LA, for Defendant, Jay Dardenne, Secretary of State.
    Court composed of Judges ELIZABETH A. PICKETT, J. DAVID PAINTER, and JAMES T. GENOVESE.
   PAINTER, Judge.

| jarcia Young, Mayor of the Village of Forest Hill (Village), Louisiana contests a recall petition filed by Donna Kay Arring-ton, Chairman of the recall committee. Specifically, Ms. Young challenges the validation of the recall petition by the Rapides Parish Registrar of Voters (Registrar). The trial court held that the validation of the recall petition stands and that the recall election shall proceed as scheduled. Ms. Young appeals the decision of the trial court. For the following reasons, we reverse the decision of the trial court and render the recall petition invalid.

I.

ISSUE

We must decide whether the trial court:

(1) erred by not invalidating the recall petition because the Chairman of the recall committee did not file a three day notice of intent to file as required by La. R.S. 18:1300.2?
(2) erred by not invalidating the recall petition despite allegations that the signatures of eleven individuals who signed the petition were not qualified electors?

II.

FACTS AND PROCEDURAL HISTORY

On December 10, 2009, Ms. Arrington filed a recall petition with the office of the Secretary of State requesting a recall election against Ms. Young. Later that month, Ms. Arrington filed the original recall petition with the Registrar of voters in Rapides Parish. Amendments to the original recall petition were filed on January 4, 2010, and January 7, 2010.

|2After receiving the recall petition, Ms. Young objected to twelve of the signatures on the recall petition, and she advised the Registrar that these individuals did not live in the Village limits. Ms. Young asked the Registrar to remove the twelve signatures from the recall petition.

The Registrar investigated Ms. Young’s claims, and she determined that three of the challenged names were of persons who lived inside the Village limits. Ms. Young concurred with the Registrar’s findings. The Registrar also determined, however, based on her own records and the records of the Assessor, that nine of the challenged individuals did not live within the Village limits. The Registrar sent Challenge Letters to each of these nine individuals.

The Registrar then certified the recall petition and forwarded it to the Governor. The Registrar’s certification authorized that the signatures of the Challenged Parties were signatures of qualified electors.

The Registrar further certified that the recall petition contained the signatures of 138 qualified electors of the voting area. The Registrar also certified that the area in which the recall election was sought to be held had 329 electors.

The recall petition was forwarded to the Governor on January 8, 2010, then to the Attorney General for review. Because the number of signatures of qualified electors exceeded the number required, the Governor issued a Proclamation |scalling for a recall election to be held on May 1, 2010.

The trial court held a trial on the merits of this action on March 3, 2010. The trial court determined that the recall petition was valid and that the recall election should proceed. The trial court did not given written reasons for judgment, but it assigned oral reasons as follows:

Taking into consideration the entire suit record, all exhibits admitted into evidence, the testimony of all the witnesses and the arguments of counsel,
The court notes that the information used by the Registrar of Voters is the same information that was used to determine if the election of a candidate was valid and legal. Therefore, the validation of a recall petition should entail the same information that would have been taken to validate a candidate for an office.
With that said, the validation of the recall petition stands and the election will proceed as scheduled.

Ms. Young now appeals that judgment.

III.

LAW AND DISCUSSION

Standard of Review

This case poses mixed questions of law and fact. It poses questions of law as it involves the interpretation of codal articles. Thus, the appropriate standard of review regarding interpretation of codal articles is de novo.

An appellate 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.

Domingue v. Bodin, 2008-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 ( citations omitted).

Moreover, under the de novo standard of review, the appellate court gives no additional weight to the trial court but, instead, conducts a de novo review and renders judgment on the record. Id. Accordingly, we will review the record in its entirety to determine whether the trial court’s decision was legally correct.

As to questions of fact, we review the trial court’s judgment for manifest error.

[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.

Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted).

The Notice Provision

The recall petition is invalid because the Chairman of the recall committee, Ms. Arrington, failed to file a three-day notice of intent to file as required by La. R.S. 18:1300.2 C(3). This statute states:

The chairman shall file notice with the registrar on the third day before the petition is submitted to the registrar that he will submit the petition and the date of such submission, unless such submission is made within three days prior to the expiration of the period for submitting such petition. Such notice of submission shall be a public record.

La. R.S. 18:1300.2 C(3) (emphasis added).

Here, the Registrar stated that Ms. Ar-rington called the Registrar and alerted her of Ms. Arrington’s intent to file a recall petition. The Governor and the Registrar argue that this phone call provided adequate “notice” under the statute. We disagree. The words of the statute are clear and unambiguous. The Chairman must | file a notice with the Registrar and that notice shall be a public record. A phone call does not equate to filing a public notice. To allow a phone call to suffice as notice would amount to disregarding the public notice requirement entirely. We cannot do so. Thus, we find that the recall petition is invalid due to Ms. Arring-ton’s failure to comply with the statute requiring the filing of a three-day notice of intent to file a recall petition with the Registrar.

The Challenged Signatures

Even if a phone call to the Registrar could be deemed adequate notice under the statute, the recall petition remains invalid because it lacks the required number of signatures. Specifically, seven signatures must be stricken from the recall petition because the signatories listed as their residences addresses located outside the boundaries of the Village of Forest Hill. Thus, these seven individuals are not qualified electors.

Ms. Young challenges the following individuals’ signatures, claiming the individuals, by their own admissions, were not residents of the Village and, therefore, were not qualified electors: Terry Lovas, Angela Humphries Lovas, Randall Martin Johnson, Brittany Eclana Johnson, Kristopher Johnson, Lisa Moore Johnson, and Roger Allen Humphries. Ms. Young points to testimony from expert surveyor Stephen Gremillion and City Clerk Mary Pringle establishing that the addresses of these individuals lie outside the boundaries of the Village of Forest Hill. Moreover, as to each of these seven challenged individuals, the Registrar stated that had she known the information presented by Mr. Gremillion and Ms. Pringle, she would not have certified each of the seven signatures.

IfiThe evidence presented leaves no doubt that the seven persons named above are not residents of the Village of Forest Hill, which is a primary requirement of being a qualified elector. Each individual admitted that he was not a resident of the Village by (a) listing his residence at an address that is located outside the Village limits and by (b) failing to contest the Challenge Letter sent by the Registrar. The evidence is clear and uncontested. Indeed, neither the Governor, the Secretary of State, nor the Registrar contests the evidence regarding these seven individuals.

Thus, the seven individuals listed above are not qualified electors, and their names must be stricken from the recall petition, rendering it invalid.

IV. CONCLUSION

Based upon the foregoing, we reverse the judgment of the trial court. Costs of this appeal are assessed to Appellees.

REVERSED.

      . Though not specifically defined by La. R.S. 18:1300.3, a reading of La. R.S. 18:101(A) and relevant jurisprudence leads to the following definition of a qualified elector: A qualified elector is one who (a) has registered himself to vote in a state, parish, or municipality and (b) resides in that state, parish, municipality or area.

      . Prior to commencing her investigation, the Registrar advised Ms. Young that she could not remove the challenged individuals' signatures before she sent each challenged individual a "Challenge Letter,” advising them that their residency had been challenged. If twenty-one days elapsed after the Challenge Letter was sent out, and if the challenged person did not file an objection or defense with the Registrar, the challenged person's name would be stricken from the recall petition.

      . Pursuant to the deadlines set out by statute, the fifteen day period for the Registrar to certify the recall petition and forward it to the Governor would expire before the twenty-one day challenge period expired with respect to the Challenged Parties. Thus, the Registrar certified the petition and forwarded it to the Governor, even though the petition included the signatures of Challenged Parties. We find it troubling that such inconsistencies in the statutes exist.

      .A valid recall petition must contain the signatures of at least 40% of the electors in the voting area. In the Village of Forest Hill, that number equates to 132 signatures. The certified recall petition contained 138 signatures.

      . Because we find that these seven individuals are not qualified electors, then the number of valid signatures on the recall petition totals 131 — one elector short of the 132 valid signa-turns required. Since this subtraction of signatures invalidates the recall petition, we need not reach Ms. Young’s other arguments regarding the four other Challenged Parties.