author: AMY, Judge.

text:
    Frank J. HAYES, Jr., et al. v. BURLINGTON RESOURCES OIL & GAS COMPANY, et al.
    No. 09-1353.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Roger G. Burgess, Baggett, McCall, Burgess, Watson & Gaughan, L.L.C., Lake Charles, LA, for Defendants/Appellees, Bridget Voge, John Voge.
    James R. Nieset, Plauche’, Smith, & Nieset, Lake Charles, LA, for Defendant/Appellee, P.B. Energy Storage Services.
    Vernon Ed McGuire, III, Plauche’, Smith & Nieset, Lake Charles, LA, for Defendant/Appellee, Calcasieu Parish Police Jury.
    Barry A. Roach, Larry A. Roach, Inc., Michael H. Schwartzberg, Vamvoras & Schwartzberg, Lake Charles, LA, for Plaintiffs/Appellants, Christy Johnson, Frank J. Hayes, Jr.
    Kenneth R. Spears, C. Thomas Tolbert, Spears & Gary, LLC, Lake Charles, LA, for Defendant/Appellee, Burlington Resources Oil & Gas Co.
    Scott J. Scofield, Scofield, Gerard, Sin-gletary & Pohorelsky, L.L.C., Lake Charles, LA, for Defendant/Appellee, Sa-sol North America, Inc.
    Paul L. Veazey, Jr., Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appel-lees, PPG Pipeline, Centerpoint Energy Resources, PPG Industries, Inc.
    Henry Dupont Heck Olinde, Jr., Rachel Marasa Azzarello, Carleton, Dunlap, Olinde, et al., Baton Rouge, LA, for Defendant/Appellee, Gravity Drainage District No. 5 of Ward 4.
    Robert J. Young, III, Young, Richaud & Myers, LLC, Metairie, LA, for Defendant/Appellee, Gulf South Pipeline Company.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

|tThe plaintiffs brought suit on behalf of their minor daughter after she sustained serious injuries in a four-wheeler accident. Included among the defendants was the owner of the land and a pipeline right of way where the accident took place. The owner filed a motion for summary judgment, contending that it was immune from liability for this accident under Louisiana’s Recreational Use Statutes. The trial court granted the motion and dismissed the plaintiffs claims against the owner. The plaintiffs appeal, asserting that the owner is not entitled to immunity. For the following reasons, we affirm.

Factual and Procedural History

The plaintiffs, Frank Hayes and Christy Johnson, brought suit seeking recovery for them minor daughter’s injuries sustained in a four-wheeler accident. In their petition for damages, the plaintiffs alleged the following circumstances giving rise to their minor daughter’s injuries:

On or about October 6, 2005, at approximately 9:00 a.m., petitioners’ minor daughter, KALLIE HAYES, was riding as a passenger on a 4-wheeler being operated by Kristly Voge with Sam Tra-han also riding as passenger. As they were riding eastbound along a pipeline right of way owned and/or in the custody, care and control of and/or maintained by the defendants, at the end of Live Oak Street in Sulphur, Calcasieu Parish, Louisiana, they approached a wooden bridge, which apparently traversed a gully 20' deep and approximately 30' wide. When the 4-wheeler riders were within only a few feet of the wood bridge, then and only then, it became apparent that the first 10' of the west end of the wooden bridge was missing and in a dilapidated and un-crossable condition. Due to the driver’s inability to stop, suddenly and without warning, the 4-wheeler plummeted down into the gully whereupon KALLIE HAYES was ejected and impaled on a piling below sustaining multiple serious injuries.

It is undisputed that the girls were traveling on a tract of land owned by Burlington Resources Oil and Gas Company (Burlington), one of the named defendants. Burlington had right of way agreements with several other businesses to |2operate pipelines running underneath the tract of land. The plaintiffs allege that the accident was caused by Burlington, among other defendants not a party to the present appeal, in its failure to keep and maintain the property, and bridge, in a safe condition.

Burlington filed a motion for summary judgment, seeking dismissal on the basis of Louisiana’s Recreational Use Immunity Statutes, La. R.S. 9:2791 and La. R.S. 9:2795. On August 20, 2009, the trial court rendered written reasons granting Burlington’s motion. The plaintiffs appeal, asserting that the trial court erred in holding that La. R.S. 9:2795 provides Burlington immunity.

Discussion

Surnmary Judgment

Louisiana Code of Civil Procedure Article 966(B) states that summary judgment shall be rendered “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.” In Boykin v. PPG Industries, Inc., 08-117, p. 4 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, 842, writ denied, 08-1635, 08-1640 (La.10/31/08), 994 So.2d 537, this court explained the standard of review applicable to motions for summary judgment, stating:

Appellate courts review a trial court’s grant or denial of a motion for summary judgment using the de novo standard of review, under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate in any given case. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

| ^Recreational Use Immunity Statutes (RUS)

Louisiana Revised Statutes 9:2791 and 9:2795 address landowners’ liability for property that is used for recreational purposes. ' These statutes address the same subject matter and are to be read together. Keelen v. State Dep’t of Culture, Recreation & Tourism, 463 So.2d 1287 (La.1985). Louisiana Revised Statutes 9:2791 provides, in relevant part:

A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing, or boating or to give warning of any hazardous conditions, use of, structure, or activities on such premises to persons entering for such purposes, whether the hazardous condition or instrumentality causing the harm is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises. If such an owner, lessee, or occupant gives permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.

Louisiana Revised Statutes 9:2795(B) provides:

B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.
(b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed.
|4(c) Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
(2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility.

Under the language of La. R.S. 9:2791, immunity does not apply “when the premises are used principally for a commercial, recreational enterprise for profit.” However, La. R.S. 9:2795 provides that immunity does not apply to owners “except an owner of a commercial recreational development or facility[.]” The Louisiana Supreme Court has resolved this conflict in holding:

The enactment of La.Rev.Stat. 9:2795, a second more expansive immunity statute, evidences an intent on the Legislature’s part that these statutes are to grant a broad immunity from liability. The amendments to the statutes indicate the Legislature’s will to expand the immunity. Our resolution of the conflicting language is in accordance with our duty to strictly interpret these statutes because they constitute an impairment to the common or natural right, and we do not extend them beyond their obvious meaning. Section 2791’s proscription of immunity where the premises are used principally for a commercial recreational enterprise for profit has been repealed by Acts 1975, No. 615, § 7, which provides the immunity to owners, except owners of commercial recreational developments.
Placing a construction on La.Rev.Stat. 9:2795 B(l) which is consistent with the obvious intent of the Legislature results in a resolution that the person claiming the immunity must utilize the premises for a commercial recreational enterprise for profit to be excluded from the immunity provisions.

Richard v. Hall, 03-1488, pp. 29-30 (La.4/23/04), 874 So.2d 131, 151-52.

|5In the present ease, the trial court found that Burlington was afforded immunity under the RUS. The trial court explained that according to Richard, 874 So.2d 131, it is the owner’s use of the premises which determines the availability of immunity, and thus, because there was no evidence that Burlington used its property for a commercial recreational enterprise, immunity applies. The record supports this finding.

In support of its motion for summary judgment, Burlington submitted an affidavit stating that the property in question has never been used for commercial recreational activities. In brief, the plaintiffs do not dispute this fact, stating “there is no evidence that Burlington has any inclination to allow the public onto its corridor for recreational purposes.” Rather, the plaintiffs argues that RUS immunity under La. R.S. 9:2791 and La. R.S. 9:2795 is inapplicable in this case because Burlington never intended to make the right of way at issue available to the public for recreational purposes, and thus, it conflicts with the purpose of the statute. However, this case does not involve the commercial purposes conflict. Rather, this case fits into the immunity provided in La. R.S. 9:2791.

A panel of this court in Domingue v. Stanley, 01-41 (La.App. 3 Cir. 5/2/01), 784 So.2d 844, was presented with a similar fact pattern presented in the present case. The Domingue court addressed the issue of whether a landowner’s permission is a prerequisite to the application of the RUS. In that case, the plaintiffs were involved in a tragic four-wheeler accident and they brought suit against the owners of the property where the accident took place. The owners filed a motion for summary judgment contending that they were immune from liability for the accident. The trial court granted that motion and the plaintiffs appealed, asserting that because the | f,landowner refused to give permission to use the property for ATV recreational purposes that the landowner had no immunity. The Domingue court rejected the plaintiffs’ argument citing agreement with the reasoning of the fourth circuit’s opinion in Verdin v. Louisiana Land & Exploration Co., 96-1815 (La.App. 4 Cir. 3/12/97), 693 So.2d 162, writs denied, 97-1581, 97-1598 (La.9/26/07), 701 So.2d 994, stating:

In Verdin v. Louisiana Land & Exploration Co., the plaintiffs claimed they suffered injuries when the skiff in which they were riding hit a concrete survey marker placed by the defendant at the corner of the defendant’s property in a marshy area in an open bay. The edges of the property were posted. The defendant claimed immunity as the owner of property used for recreational purposes. The plaintiffs claimed that the defendant was not entitled to immunity for several reasons, including the absence of permission for them to engage in any recreational use of the bay. In affirming the trial court’s finding of immunity, the fourth circuit took issue with the anomalous effect of imposing on a landowner “a greater duty to a party who goes onto his land for recreational purposes without his permission than to a person who goes onto his land for recreational purposes with his permission.” After analyzing La. R.S. 9:2791 and applicable jurisprudence, the court stated:
[T]he record is replete with evidence that the area where the accident occurred in the instant case was widely used by the general public for recreational purposes, despite the fact that [the defendant] posted the area and considered the persons using the property as trespassers. Although [the defendant] did not invite the public to use the property for recreational fishing purposes, even the witnesses testifying on behalf of the [plaintiffs] at trial admitted that they frequently use the area. One witness had used the area the very day he testified. Thus, we find that the general public was able to use this land for recreational purposes and that [the defendant] is therefore entitled to the benefits of the recreational use immunity statutes.

Domingue, 784 So.2d at 847-48 (citations omitted).

Here, as in Domingue, the plaintiffs were able and did in fact enjoy the use of Burlington’s property for a recreational purpose, regardless of whether they were invited to do so. In accordance with previous jurisprudence from this court we 17conclude that the trial court did not err in finding that RUS immunity does not implicitly or explicitly require evidence of an intent on the part of the landowner to open his property to the public for recreational purposes. Id.

The plaintiffs further argue that neither immunity statute is applicable to the present case because Burlington’s land “is not the type of land characteristically envisioned by the statute because it is too small.” Louisiana Revised Statutes 9:2791 provides immunity to owners of “premises” which is defined in the statute as “lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.” A plain reading of the statute reveals no requirement that land be of a certain size to be covered under the statutes’s immunity. Further, the record does not contain any information about the size of Burlington’s land other than the plaintiffs’ contention that it is too small. Accordingly, the plaintiffs’ assertion that Burlington is not afforded immunity because of the size of its land is ■without merit.

The plaintiffs argue that immunity is inapplicable in this case because under La. R.S. 9:2791, four-wheeling is not one of the enumerated recreational activities provided immunity. However, Domingue applies the statute to this particular recreational activity. Furthermore, we note that La. R.S. 9:2791(A) applies not only to hunting, fishing, etc., but specifically to the more general activity of sightseeing. Accordingly, we find no error in the trial court’s granting of immunity to Burlington.

Conclusion

The trial court was correct to find that RUS immunity applied to Burlington in the present case. Kallie Hayes, the injured person, was engaged in the recreational activity of riding a motorized vehicle, a four-wheeler, on Burlington’s land at the time she suffered injuries. No evidence was put forward that Burlington intended to harm | sKallie or that Burlington willfully or maliciously failed to warn Kallie against any dangerous condition. See La. R.S. 9:2791(B). As such, Burlington is entitled to immunity as set forth in La. R.S. 9:2791.

DECREE

For the foregoing reasons, the trial court’s judgment granting Burlington’s motion for summary judgment and dismissing the plaintiffs’ claims against Burlington with prejudice, is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants, Frank Hayes and Christy Johnson.

AFFIRMED.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    SUCCESSION OF Donnie DeWayne CARLTON.
    No. CA 09-1339.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Thomas Overton Wells, Attorney at Law, Alexandria, LA, for Appellee, Monica Player.
    Gwenda Renee’ Linzay Lamb, Attorney at Law, Alexandria, LA, for Appellants, Melba Stuckey Phillips, Ellen Fay Wise.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

liThe appellants, Melba Stuckey Philips and Ellen Faye Wise (the Aunts), appeal the trial court’s grant of summary judgment in favor of Monica Player, finding her brother, Donnie DeWayne Carlton’s, testament a nullity. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Donnie DeWayne Carlton was killed in a car accident in September 2008, leaving behind a one-page notarial testament dated June 14, 2008. In July 2009, Philips and Wise, Carlton’s aunts, filed a Petition for Probate of Notarial Testament and Petition for Possession. A judgment of Possession was rendered by the trial court in August 2009. That same month, Player filed a Petition to Annul Probated Testament. Thereafter, in September 2009, Player filed a Motion for Summary Judgment urging the nullity of the testament due to the lack of an attestation clause. Affidavits of the witnesses and notary were attached to the motion and recited that the testament was signed in Carlton’s and each other’s presence before the notary. Following a hearing, the trial court granted summary judgment in favor of Player and annulled its August 4, 2009 Order probating Carlton’s testament and the August 4, 2009 Judgment of Possession. The Aunts now appeal. Although they assign multiple errors, they all derive from the seventh assignment of error, to wit, that the trial court erred in granting summary judgment.

SUMMARY JUDGMENT

On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. 19Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. Art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party’s claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.

Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2). The issue of whether the formalities of a will has been met is a question of law.

DISCUSSION

Louisiana Civil Code Article 1577 states:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator had declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have | .¡hereunto subscribed our names this _day of_.,_”

“The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” La.Civ. Code art. 1573.

Carlton’s testament bears his signature, two witnesses signatures, and the notary’s signature and includes as its final paragraph:

IN WITNESS WHEREOF, I have signed this, my last will and testament in the presence of the Notary and witnesses named and undersigned.
/s/ Donnie D. Carlton DONNIE DEWAYNE CARLTON
/s/ Penny Smith
/s/ Cecil Philips
Sworn to and subscribed before me this 14th day of June 2008.
/s/ Tammy B. George # 78638
Notary Public

Clearly, the legislature intended the signature of the witnesses to be followed by a clause specifically indicating that the testament had been declared by the testator to be his last will and testament in their presence. La.Civ.Code art. 1577. Moreover, the legislature placed such importance on this declaration that failure to do so results in absolute nullity. La.Civ.Code art. 1573. The complete absence of any attestation clause by the witnesses simply cannot be cured. Although this result may seem harsh, failure to adhere to this principle would lead to nullification of the legislature’s proclamation. In Succession of Richardson, 05-0552, pp. 3-4 (La.App. 1 Cir. 3/24/06), 934 So.2d 749, 751, writ denied, 06-0896 (La.6/2/06), 929 So.2d 1265 (footnote omitted) (emphasis added), our colleagues on the first circuit stated:

In Succession of Morgan, 257 La. 380, 242 So.2d 551, 552 (1970), the court explained that statutory wills are not founded on the civilian law but rather on common law principles which have as their original source the English Statute of Frauds of 1677. The primary purpose of our statute authorizing this type of will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. Id. at 553. It further stated, “[i]n construing an attestation clause we will not require strict, technical, and pedantic compliance in form or in language.”
However, the law regarding the lack of the witness and notary attestation clause is very clear. We concluded in the Succession of Brown, 458 So.2d 140 (La.App. 1 Cir.1984), a case on all fours with the present case, that all of the formal requisites for confection of a notarial testament must be observed, under penalty of nullity. Although its form is not sacrosanct, there must be an attestation clause, or clause of declara tion signed, by the witnesses and the notary. Id. at 142.
Here there is no attestation clause or declaration by the notary and the witnesses, reciting that the notary and witnesses signed their names ... in the presence of the testator and each other. As we concluded in Succession of Brown, 458 So.2d at 143, the attestation clause itself, being non-existent, is not in substantial compliance with the article and this substantial defect is fatal to the validity of the will.

Moreover, the Aunts’ argument that their and the notary’s affidavits cure the concern for fraud or duress still renders meaningless the requirements set forth by the legislature. This argument has been advanced before and failed as it must do so here. See Richardson, 934 So.2d 749, and Succession of English, 508 So.2d 631 (La.App. 2 Cir.1987).

Finally, the Aunts’ reliance on Succession of Guezuraga, 512 So.2d 366 (La.1987) is misplaced and we have addressed this same argument before in Succession of Slay, 99-1753 (La.App. 3 Cir. 5/17/00), 764 So.2d 102, writ denied, 00-2481 (La.11/13/00), 774 So.2d 144. The significant factor separating Guezuraga from the instant facts is that, in Guezuraga, there was an attestation clause. The minimum formalities required of La. Civ. Code art. 1577 must be met. Carlton’s testament does not meet that requirement and the will is invalid because it lacks an |Battestation clause.

CONCLUSION

There is no question of law that Carlton’s testament is absolutely null for want of form. Accordingly, summary judgment was properly granted in favor of the Monica Player. All costs of this appeal are assessed against the plaintiffs-appellants, Melba Stuckey Phillips and Ellen Faye Wise.

AFFIRMED.


author: PICKETT, Judge.

text:
    W.L. WAGNER & Nina Wagner v. Stephen R. ALFORD, et al.
    No. 09-1338.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Michael Steven Beverung, Lake Charles, LA, for Plaintiffs-Appellees, W.L. and Nina Wagner.
    Jack L. Simms, Jr., Leesville, LA, for Defendant-Appellant, Greenhills International, LLC.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

11 The defendant-appellant, Greenhills International, LLC, appeals the confirmation of a default judgment against it.

STATEMENT OF THE CASE

W.L. And Nina Wagner own two condominium units in the Fairway Villas Condominiums (Fairway Villas) on the grounds of Emerald Hills Resort in Florien, Louisiana. At the time this suit was filed, Rael, Inc., was the owner of Emerald Hills Resort and the remaining eighteen condomin-iura units in Faii-way Villas. Steve Alford is the sole shareholder of Rael, Inc., and the president of the Fairway Villas Condominium Owners’ Association, Inc. (FVCOA).

In January 2008, the Wagners filed suit against Alford, Rael, Inc., and FVCOA, alleging that FVCOA had a duty to provide water and sewer utilities and to maintain the common areas for the benefit of the owners, and that they had failed to provide water and sewer services to then-units and maintained the common areas. The Wagners sought damages for the decreased value of their condominium units, lost rental income for on of the units, and general damages. Alford and Rael, Inc., filed an exception of prescription in the trial court.

This is not the first time the issue of the Wagners’ access to water and sewage service has been presented to this court. This court has previously held that the resort property owned by Rael, Inc. and Alford was not burdened with a personal servitude to provide utilities in favor of the Wagners. Wagner v. Alford, 98-1726 (La.App. 3 Cir. 6/30/99), 741 So.2d 884, writ denied, 99-2265 (La.11/5/99), 750 So.2d 192. In a subsequent case, we found there was not a predial servitude in favor of the Wagners’ property for the provision of water and sewage service, that Rael, Inc. and Alford were | ¡.not abusing the right of ownership in failing to provide utilities, and that Rael, Inc. did not have a contractual obligation to provide utilities to the Wagners. Wagner v. Fairway Villas Condominium Associates, Inc., 01-734 (La.App. 3 Cir. 3/13/02), 813 So.2d 512, writ denied, 02-1492 (La.9/20/02), 825 So.2d 1174.

In April 2008, Rael, Inc. and Alford sold their interest in the eighteen units in Fairway Villas to Greenhills International (Greenhills). In October 2008, the Wag-ners filed a First Amending and Supplemental Petition adding Greenhills as a defendant. When FVCOA and Greenhills failed to file an answer to the suit, the Wagners filed a Motion for a Preliminary Default, and a preliminary default was entered by the trial court on April 1, 2009. At a hearing on the confirmation of default on June 15, 2009, Mrs. Wagner testified. During her testimony, the condominium regime declaration filed in the Sabine Parish Clerk of Court’s office, the cash deed transferring ownership from Rael, Inc., and Alford to Greenhills, and an appraisal of the value of the Wagners’ units was introduced into evidence. On July 6, 2009, the trial court signed a judgment confirming the default and awarding the Wagners $92,000.00 for loss of value of the condominiums, $20,340.00 for loss of income, and $10,000.00 in general damages. Greenhills now appeals.

ASSIGNMENTS OF ERROR

Greenhills asserts six assignments of error:

1. No notice of the entry of a default was sent to counsel for defendants, James R. Mitchell, or to any of the parties, as provided by law;

2. There was no proper substitution or joinder of parties ordered by the trial court, after the filing of the supplemental and amended petition, and plaintiffs did not proceed, thereafter, as required by La. Code Civ.P art. 807;

3. The exception filed by defendants, Stephen R. Alford and Rael, Inc., which directly affected the merits of these proceedings, was still pending when the default judgment was confirmed;

|⅞4. The trial court allowed the plaintiffs to prove their claim by hearsay evidence and non-authenticated exhibits;

5. The trial court did not require plaintiffs to prove the essential elements of its claim by admissible evidence;

6. The law and evidence presented by plaintiffs did not present a prima facie case in support of the judgment.

DISCUSSION

The supreme court recently explained the procedure for obtaining and confirming a défault judgment:

A defendant’s failure to comply with Louisiana Code of Civil Procedure articles 1001 and 1002 exposes the party to a judgment of default. The law and procedure relative to default judgments is set forth in Louisiana Code of Civil Procedure article 1701, et seq. Specifically, in an ordinary proceeding, such as the instant one, a defendant is generally required to file an answer within fifteen (15) days after service of citation upon him. La. C.C.P. art. 1001. A delay is afforded when an exception is filed prior to answer or the trial court grants additional time for answering upon motion. La. C.C.P. art. 1001. Notwithstanding the specified delay periods for answering, a defendant may file his answer at any time prior to confirmation of a default judgment against him. La. C.C.P. art. 1002. However, when the defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. La. C.C.P. art. 1701(A). 1 Frank L. Maraist, Louisiana Civil Law Treatise: Civil Procedure § 12.3, at 451 (2d ed.2008).
The process for obtaining a default judgment when the defendant has failed to answer a petition timely is uncomplicated. It may be obtained by oral motion in open court or by written motion, entered in the minutes of the court, and the judgment consists merely of a minute entry. La. C.C.P. art. 1701(A); Power Marketing Direct, Inc. v. Foster, 05-2023, p. 10 (La.9/6/06), 938 So.2d 662, 669. A judgment of default is sometimes referred to as a “preliminary default.” Power Marketing Direct, 05-2023 at 10, 938 So.2d at 669.
Thereafter, the judgment of default may be confirmed after two days, exclusive of holidays, from the entry of the judgment of default, that is, on the third “judicial day” after the lapse of two days, which are not judicial holidays, from the entry of the preliminary default La. C.C.P. art. 1702(A).
| Confirmation of a default judgment is similar to a trial and requires, with admissible evidence, “proof of the demand sufficient to establish a prima fa-cie case.” La. C.C.P. art. 1702(A); Power Marketing Direct, 05-2023 at 10, 938 So.2d at 670; Maraist, supra, at 452-453. The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254, 1258 (La.1993); Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits. Thibodeaux, 538 So.2d at 1004. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.
There is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 527, 263 So.2d 875, 878 (1972). Finally, a defendant against whom a default judgment is confirmed may not assert an affirmative defense on appeal. Galland v. Nat’l Union Fire Ins. Co. of Pittsburg, Pa., 452 So.2d 397, 398-99 (La.App. 3d Cir.1984); Romero v. Sunseri, 359 So.2d 305, 308 (La.App. 4th Cir.1978).

Arias v. Stolthaven New Orleans, L.L.C., 08-1111, pp. 5-8 (La.5/5/09), 9 So.3d 815, 818-820 (footnotes omitted).

On appeal, we restrict our review of default judgments to a determination of the sufficiency of the evidence offered in support of the judgment. Bordelon v. Sayer, 01-717 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, writ denied, 02-1009 (La.6/21/02), 819 So.2d 340. As this is a question of fact, we review it under the manifest error standard of review. Id.

Greenhills argues that as the successor-in-interest to Rael, Inc., the Wag-ners should have been required to substitute Greenhills for Rael, Inc., or that the suit against Rael, Inc., should have been consolidated with the suit against Green-hills, pursuant to La.Code Civ.P. art. 807. Article 807 states:

|5When a party to an action transfers an interest in the subject matter thereof, the action shall be continued by or against such party, unless the court directs that the transferee be substituted for or joined with the transferor.

This argument is based on a misrepresentation of the procedural facts of this case. The supplemental petition added Green-hills as an additional defendant in this suit. While some of the allegations in the supplemental petition against Greenhills were substantially similar to those lodged against the other defendants, the petition was based on Greenhills’ failure to provide water or sewage facilities after it purchased Emerald Hills Resort and the other units in Fairway Villas. Thus, Greenhills was an additional defendant. The pending exception of prescription filed by Rael, Inc., and Alford did not prevent the Wag-ners from seeking a default judgment against Greenhills. See Dismuke v. Quaynor, 25,482 (La.App. 2 Cir. 4/5/94), 637 So.2d 555, writ denied, 94-1183 (La.7/1/94), 639 So.2d 1164. This assignment of error lacks merit.

Greenhills also argues that the Wagners were required to give notice to the attorney for Rael, Inc., and Alford pursuant to La.Code Civ.P. art. 1702(A). This provision of law requires notice of the preliminary default if the party against whom the default judgment is taken has made an appearance in the record. Again, this is a misstatement of the procedural posture of this case based on the supposition that Greenhills was a substitute party for Rael, Inc., and Alford. As discussed earlier, Greenhills was named as an additional defendant. As Greenhills never made an appearance of record, the notice requirement of La.Code Civ.P. art. 1702(A) does not apply. This assignment of error lacks merit.

Greenhills argues that the evidence admitted by the trial court to support the Wagners’ prima facie case were not admissible. Specifically, they object that the ^appraisal of their property provided by Raymond Willett was inadmissible hearsay evidence. As this is an action for tort damages, La.Code Civ.P. art. 1702(B)(2) explains the evidence required:

When a demand is based upon a delic-tual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

In Arias, 9 So.3d 815, 820, the supreme court explained that the rules of evidence are applicable to confirmations of default judgments:

At the hearing, the rules of evidence generally apply. La. C.E. art. 1101(A); Maraist, supra, at 452-453. The plaintiff must follow the rules of evidence even though there is no opponent. “Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert Force, Gerald A. Rault, Jr., & Kerry Triche, Handbook on Louisiana Evidence Law 677 (2007). Thus, inadmissible evidence, except as specifically provided by law, may not support a default judgment even though it was not objected to because the defendant was not present. 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof § 1.1, at 5 (2d ed.2007).

“Hearsay evidence does not sustain this burden of proving a prima facie case.” Ducharme v. Guidry, 392 So.2d 755, 757 (La.App. 3 Cir.1980).

The Willett appraisal, which the Wag-ners used to prove their damages, is hearsay evidence. While evidence corroborating the testimony of Mrs. Wagner may be used to prove a prima facie case, the evidence must be admissible. The appraisal is not admissible because it is hearsay evidence. Without the appraisal, the Wag-ners cannot prove an element of their claim, damages. Therefore, they failed to prove a prima facie case, and the default judgment was improperly confirmed.

| ^CONCLUSION

The judgment of the trial court finding Greenhills liable for damages in the amount of $122,340.00 is reversed. The case is remanded for further proceedings. Costs of this appeal are assessed to the Wagners.

REVERSED AND REMANDED.


author: GENOVESE, Judge.

text:
    Lawrence John HARRY v. DIAMOND B MARINE SERVICES, INC., Diamond B Industries, L.L.C., Century Exploration New Orleans, Inc[.] and Century Exploration Houston, Inc.
    No. 09-1271.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Cié Simon, Barry L. Domingue, Simon Law Offices, Lafayette, Louisiana, for Plaintiff/Appellant, Lawrence John Harry.
    Richard K. Leefe, Michael R. Gelder, Leefe Gibbs Sullivan Dupré & Aldous, Me-tairie, Louisiana, for Defendants/Appellants, Century Exploration New Orleans, Inc. and Century Exploration Houston, Inc.
    John Blackwell, New Iberia, Louisiana, for Defendant/Appellee, Diamond B Marine Services, Inc. and Diamond B Industries, L.L.C.
    Frank X. Neuner, Jr., Daniel J. Poolson, Jr., Laborde & Neuner, Lafayette, Louisiana, for Defendant/Appellee, AGR Petroleum Service, Inc.
    Charles A. Mouton, Mahtook & LaFleur, Lafayette, Louisiana, for Defendant/Appel-lee, Parker Drilling Offshore USA, L.L.C.
    Dan Boudreaux, Keith R. Giardina Law Offices, Baton Rouge, Louisiana, for Defendant/Appellee, Liberty Mutual Insurance Company.
    Thomas Gordon O’Brien, Adams and Reese, L.L.P., New Orleans, Louisiana, for Defendant/Appellee, James Rivers Insurance Company.
    Court composed of SYLVIA R. COOKS, JAMES T. GENOVESE, and DAVID E. CHATELAIN, Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GENOVESE, Judge.

hln this maritime action, Plaintiff, Lawrence John Harry, and Defendants, Century Exploration New Orleans, Inc. and Century Exploration Houston, Inc. (collectively Century), appeal the trial court’s grant of summary judgment in favor of Defendants, Diamond B Marine Services, Inc. and Diamond B Industries, L.L.C. (collectively Diamond B). For the following reasons, we reverse.

FACTS

Mr. Harry alleges that on February 23, 2005, while working at the Herald Hodges Lee # 1 well site in Bayou Postillion in Iberia Parish, he was injured while in the course and scope of his employment as a compact memory log operator with “Reeves Wireline Services, Inc. (Precision Energy)” (Reeves). The well site was owned by Century and was managed by AGR Group Petroleum Services, Inc., formerly known as the Occidental Peak Group, Inc. (AGR). Diamond B provided the tugboat and crew to tow a wireline barge loaded with a wireline truck to the well site. Diamond B then moored the wireline barge to the chemical barge already at the well site.

Mr. Harry initially instituted this litigation against Century and Diamond B, alleging that his injuries were caused by the unseaworthy condition of the barge and/or the negligence of these Defendants. Mr. Harry supplemented his pleadings to also assert negligence claims against Defendant, Parker Drilling Offshore USA, L.L.C. (Parker), which “had contracted with ... Century, to provide and was providing labor, materials, equipment[,] and services for the well site.”

On March 26, 2009, Diamond B filed a Motion for Summary Judgment, asserting that:

[Tjhere is no genuine issue of material fact in dispute and defendants are 12entitled to a judgment of dismissal with prejudice as a matter of law on the grounds of that [sic] defendants breached no duty to the plaintiff and owed no duty to the plaintiff to intervene in the cargo operations of the drilling contractor being conducted on a barge which was not owned or under the control of the defendants.

Following a hearing on June 5, 2009, the trial court granted the Motion for Summary Judgment on behalf of Diamond B and issued Findings of Fact and Reasons for Judgment on Motion for Summary Judgment on June 16, 2009, along with a concomitant Judgment dated July 17, 2009. Mr. Harry and Century appeal.

ASSIGNMENTS OF ERROR

Although Mr. Harry and Century delineate numerous assignments of error, essentially, both parties assert on appeal that the trial court erred in granting Diamond B’s Motion for Summary Judgment when there were genuine issues of material facts and that the trial court erred in making impermissible factual determinations in a summary judgment proceeding.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether or not summary judgment was appropriate. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.
La. Code Civ.P. art. 966, [sic] charges the moving party with the burden of proving that summary judgment is appropriate. In doing so, the moving party’s supporting documentation must be sufficient to establish that no genuine issue of material fact remains at stake. Once the mover makes a prima facie, [sic] showing that there is no genuine issue as to a material faet and that summary judgment should be granted, the burden shifts to the nonmover. Furthermore, La.Code Civ.P. art. 967 provides, in pertinent part:
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his responses by affidavits or otherwise provided above, must set forth specific |afacts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. After which, we must determine whether reasonable minds could conclude, based on the facts presented, that the mover is entitled to judgment. Thus, summary judgment is apropos when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole remaining issue relates to the legal conclusion to be drawn from the facts.
Facts are material if they determine the outcome of the legal dispute. The determination of the materiality of a particular fact must be made in light of the relevant substantive law.

Murphy’s Lease & Welding Serv., Inc. v. Bayou Concessions Salvage, Inc., 00-978, pp. 4-5 (La.App. 3 Cir. 3/8/01), 780 So.2d 1284, 1287-88, writ denied, 01-1005 (La.6/1/01), 793 So.2d 195 (footnotes omitted).

In the instant matter, the evidence introduced in connection with Diamond B’s Motion for Summary Judgment includes excerpts of the depositions of Mr. Harry and Keith Broussard, the captain of the Diamond B tugboat. These depositions reveal factual discrepancies which are relevant to the issue of a duty, vel non, and breach thereof, on the part of Diamond B.

The Findings of Fact and Reasons for Judgment on Motion for Summary Judgment evidence the trial court’s factual finding that Century and AGR had “exclusive control” over the chemical barge. Additionally, the trial court found that Diamond B “was responsible only for the delivery of the wireline barge to the well site, and asserted no further control over either barge, active or otherwise.” This element of control, however, was clearly disputed in the deposition testimony.

According to Mr. Harry’s deposition, he personally voiced complaints to Mr. Brous-sard about the debris on the chemical barge and the danger that it posed. | .(Additionally, Mr. Harry testified that, because of the debris on the chemical barge, he and the deckhand employed by Diamond B, Travis Barras, cleaned up some of the debris before his accident occurred. To the contrary, Mr. Broussard denied receiving any complaints about anything at the well site. He also testified that he did not recall instructing Mr. Barras to clean up the debris on the deck of the barge.

Given the testimony of Mr. Harry and Mr. Broussard, we find that there are genuine issues of material fact as to the awareness of Diamond B’s employees, Mr. Broussard and Mr. Barras, as to the debris. Moreover, there is conflicting evidence as to whether Mr. Broussard directed Mr. Barras to assist in cleaning up the debris and the nature and extent of what was done. Whether Mr. Broussard acknowledged the allegedly dangerous condition, whether he directed Mr. Barras to assist in the cleanup efforts, and what actions may have been undertaken by Mr. Barras are factual determinations necessarily made by the trial court in reaching its conclusion that Diamond B did not assert control over the barge, “active or otherwise.”

Mr. Harry and Century also argue on appeal that “[o]ne of the several factual issues ... is whether Diamond B properly and safely moored the wireline barge to the chemical/mud barge.” The trial court, in its Findings of Fact and Reasons for Judgment on Motion for Summary Judgment, stated as follows:

Captain Broussard testified that the barges were moored to within approximately one (1) foot of each other, while Lawrence Harry failed to provide an estimate as to the distance between the barges at the time of his accident. Further, [Mr.] Harry failed to assert that the distance between the barges was unreasonably wide as a result of the failure to properly moor the barges, thereby resulting in his sustaining injuries. He merely concludes that the gap between the barges must have been too wide by the mere fact that he fell between the barges and almost went into the water.

| ^However, we find from the summary judgment evidence that the mooring of the barge by Diamond B, and particularly the distance allowed to remain between the chemical barge and the wireline barge, was clearly disputed in the deposition testimony.

Diamond B does not dispute that it had the responsibility of properly securing the barge. Mr. Broussard testified that it was his responsibility to push the wireline barge to the well site and that his “deck hand ties it up” to the chemical barge already on location. He explained that he would watch from his wheelhouse while the deckhand would tie the barges, and if the gap left between the barges was greater than one foot, he would “ask him to change it” and to “close the gap as much as he can.” According to Mr. Broussard’s testimony, it was his estimation that, on this job site, the distance remaining between the two barges would have been “[a]bout a foot.” Yet, this estimation differs from that of Mr. Harry. Mr. Harry agreed that the two barges “were tied to where they were supposed to be up against each other, but they weren’t tight together.” He explained that when he fell, he “fell in between the barges” and his “feet touched the water.” It was Mr. Harry’s testimony that he was able to grab on to the wireline barge to stop himself from completely falling into the water but, “definitely[,]” there was enough space for his body to fit between the two barges.

Thus, while Mr. Harry testified that the gap between the two barges was sufficiently large that when he fell, his entire body was able to fit between them, Mr. Brous-sard estimated that the distance between the two barges was only about one foot. This fact, which is clearly disputed, is also relevant to whether Diamond B breached its duty of safely securing the barges.

In determining whether summary judgment is appropriate, our jurisprudence cautions that:
|fi[I]t is not the function of the trial court to determine or inquire into the merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.
Further,
Summary judgment may not be granted when supporting and opposing documents reveal conflicting versions of the facts which may only be resolved by weighing contradicting testimony and assessing witness credibility.
Johnson v. Gov’t Employees Ins. Co., 05-476, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454 (quoting Federated Rural Electric Ins. Corp. v. Gulf South Cable Inc., 02-852, pp. 4-5 (La.App. 3 Cir. 12/11/02), 833 So.2d 544, 546-47 (footnotes omitted)). “If in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.” Strickland v. Doyle, 05-11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 852, writ denied, 05-1001 (La.6/3/05), 903 So.2d 466.

Portie v. Flavin [Realty] Inc., 09-436, p. 4 (La.App. 3 Cir. 11/4/09), 22 So.3d 1143, 1146.

In the case at bar, we find that the deposition testimony of Mr. Harry conflicts with the deposition testimony of Mr. Broussard on genuine issues of material facts. When, as here, genuine issues of material facts remain, the matter is not ripe for summary judgment. For these reasons, the Motion for Summary Judgment must be reversed.

DECREE

The judgment of the trial court granting summary judgment in favor of Defendants, Diamond B Marine Services, Inc. and Diamond B Industries, L.L.C., and dismissing the claims of Plaintiff, Lawrence John Harry, against them is reversed. |7Costs of this appeal are assessed to Diamond B Marine Services, Inc. and Diamond B Industries, L.L.C.

REVERSED.

      . Additional claims were filed by these parties, and additional entities also became parties to the litigation; however, these claims are not pertinent to the present appeal.


author: EZELL, Judge.

text:
    Daryel LEDET v. JO-DE EQUIPMENT RENTAL COMPANY, INC., et al.
    No. CA 09-1267.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      John Felton Blackwell, New Iberia, LA, Timothy George Schafer, Schafer & Schafer, New Orleans, LA, for Defendant/Ap-pellee, Spider Staging Corporation.
    Michael Anthony McGlone, Clay A. Cosse, Jr., Kean, Miller, Hawthorne, D’Ar-mond, McCowan <& Jarman, New Orleans, LA, for Defendant/Appellee, Corrosion Control Specialists, LLC.
    Arthel Joan Scheuermann, Scheuermann & Jones Law Office, New Orleans, LA, for Plaintiff/Appellee, Daryel Ledet.
    Paul D. Palermo, Craig V. Sweeney, Spyridon Palermo & Doman, L.L.C., New Orleans, LA, for Defendant/Appellant, Jo-De Equipment Rental Co., Inc.
    Patricia Jackson Delpit, Craig Vincent Sweeney, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Intervenor/Appellee, Louisiana Workers’ Compensation Corporation.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjAt issue in this appeal is whether or not an employer waived its tort immunity when it signed a rental agreement for some equipment which contained an indemnity agreement. The trial court granted a motion for summary judgment in favor of the employer holding that the employer did not waive its exemption from tort immunity.

FACTS

Corrosion Control Specialists was hired to perform some sandblasting and painting at the North American Salt Dome in Cote Blanche. In order to perform this work, Corrosion Control needed to rent some suspensive scaffolding. In December 2004, Travis Segura, president and one owner of Corrosion Control, contacted Larry Langlinais, manager of Jo-De Equipment Rental Company in New Iberia, regarding renting an Air Spider sus-pensive scaffold. After Mr. Segura and Mr. Langlinais discussed the specifics, Terry Bernard, the second owner of Corrosion Control, went to Jo-De to pick up the Air Spider scaffold on December 23, 2004. Mr. Bernard was required to sign a “SHIPPING OR DRAY RECEIPT” at the time.

On April 7, 2005, the Air Spider scaffold had to be replaced with another Air Spider scaffold, which Jo-De delivered. Again, on April 27, 2005, that Air Spider scaffold had to be replaced with yet another Air Spider scaffold.

On June 17, 2005, Daryel Ledet was working for Corrosion Control at the salt dome when the Air Spider scaffold fell while he was inside the lift, dropping him thirty-five feet to the ground. As a result of the accident, he received serious injuries.

On June 22, 2006, Mr. Ledet filed suit against Jo-De and SafeWorks, LLC a/k/a Spider Staging Corporation for the injuries he received. On August 10, 2007, Jo-De filed a third-party demand against Corrosion Control alleging that, pursuant to the rental agreement, Corrosion Control was obligated to defend and indemnify Jo-De 12from any loss arising out of the use of the rented equipment. Jo-De filed a motion for summary judgment that Corrosion Control is contractually obligated to defend and indemnify Jo-De for the claim asserted by Mr. Ledet. Corrosion Control filed a cross motion for summary judgment seeking to dismiss Jo-De’s third-party claim against it.

On April 22, 2009, a hearing was held on both motions for summary judgment. The trial court denied Jo-De’s motion for summary judgment but granted Corrosion Control’s motion for summary judgment. Judgment was signed on May 7, 2009. Jo-De appealed the judgment.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal, with the reviewing court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.
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. Proc. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. Proc. art. 966(A)(2).

Louisiana Safety Ass’n of Timbermen Self-Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-23, p. 5 (La.6/26/09), 17 So.3d 350, 353-54.

DISCUSSION

Judicial Confession

Jo-De first argues that Corrosion Control confessed the terms of the rental agreement in its answer. Thus, Corrosion Control cannot now argue that the terms Land conditions of the rental agreement do not apply to the relationship between the parties.

Pursuant to La.Civ.Code art. 1853, a judicial confession is a declaration made by a party in a judicial proceeding and constitutes full proof against the party who made it. A review of Corrosion Control’s answer to the third-party demand of Jo-De does indicate that Corrosion Control admitted to signing the rental agreement. However, a further review of the whole answer clearly indicates that Corrosion Control denied that it owed any duty to defend or indemnify Jo-De. We do not find that Corrosion Control judicially confessed that the terms of the rental agreement were applicable, only that it signed the agreement which contained the terms as noted. See Opti-Flow, LLC v. Prod. Servs. Intern., Ltd., 04-1357 (La.App. 3 Cir. 6/1/05), 903 So.2d 1171, writ denied, 05-1748 (La.1/13/06), 920 So.2d 240.

Applicability of Indemnity Provisions

Jo-De claims that the trial court erred in failing to enforce the terms and agreements of the rental agreement which contained an indemnity provision. In granting Corrosion Control’s motion for summary judgment, the trial court found that there was no discussion between the parties about an indemnity agreement. The court found that Corrosion Control did not make a knowledgeable waiver of its tort immunity under the Workers’ Compensation Law. The court recognized that usually an employer who waives its right to tort immunity gets something in return for the waiver.

The shipping receipt was signed by both Mr. Bernard and Mr. Langlinais when Mr. Bernard picked up the Spider scaffold on December 23, 2004. “As consideration of this agreement of lease, lessee agrees to agreement printed on reverse side” was typed above the signature lines. The language on the reverse side of the shipping 14receipt that Jo-De relies on provides:

LESSEE shall defend, indemnify, and hold harmless LESSOR from and against any and all loss, damage, expense, injury, liability, and claims thereof arising out of, connected with, incident to, or directly or indirectly resulting from or related to LESSEE’S performance of this agreement, including but not limited to, LESSEE [sic] use of equipment provided by LESSOR or others, for injury to or death of any person including, but not limited to any employee, agent, servant or contractor, or its employees, agents, or servants of LESSEE or LESSEES [sic] subcontractors or for loss or damage to the property of LESSOR or others, by whomever brought, whether based on statute, tort, contract, quasi-contract and whether or not LESSOR was or is claimed to be solely, concurrently, or comparatively negligent, and regardless of whether or not LESSORS negligence or fault pre-existed or occurred prior to the performance of the AGREEMENT. LESSEE SHALL PROMPTLY PAY (1) TO lessor all costs and attorney’s fees incurred by LESSOR resulting directly or indirectly from any loss, damage, injury, liability, or claim for which LESSEE is obligated in indemnify LESSOR pursuant to this paragraph and (2) to LESSOR all costs and responsible attorney’s fees in any legal action in which LESSOR prevails in whole or in part brought against LESSEE based on a breach of the agreement. LESSOR shall have the right at its option to participate in the defense of any suit or claim without relieving LESSEE of its obligation hereunder.

“A statutorily immune employer is free to enter into an indemnification agreement with persons who are potential third party tortfeasors.” Gauthier v. O’Brien, 618 So.2d 825, 828, fn. 9 (La.1993); Stelly v. Overhead Door Co. of Baton Rouge, 94-569 (La.12/8/94), 646 So.2d 905. However, an employer must knowingly waive his tort immunity. Graves v. Lou Ana Foods, Inc., 604 So.2d 150 (La.App. 3 Cir.1992); Jones v. Vela’s Garage & Rental, Inc., 97-2486 (La.App. 4 Cir. 5/27/98), 717 So.2d 246, writ denied, 98-1760 (La.10/9/98), 726 So.2d 35.

Waiver has been defined as “the intentional relinquishment of a known right, power, or privilege.” Steptore v. Masco Const. Co., Inc., 93-2064, p. 3 (La.8/18/94), 643 So.2d 1213, 1216; Allstate Indem. Co. v. Knighten, 30,012 (La.App. 2 Cir. 12/10/97), 705 So.2d 240. “Waiver occurs when there is an existing right, a knowledge of its existence and an actual intention to relinquish it or conduct so _ynconsistent with the intent to enforce the right as to induce a reasonable belief that it has been relinquished.” Id.

Mr. Langlinais of Jo-De initially met with Mr. Segura from Corrosion Control about renting a Spider in December 2004. Mr. Langlinais showed Mr. Segura how the Spider worked. A few days later, Mr. Segura contacted Mr. Langlinais and told him he would need a 200 foot cable with the Spider. They also discussed the price and payment terms at that time. Mr. Bernard picked up the Spider on December 23. Mr. Langlinais acknowledged that at no time did he discuss an indemnity agreement with Mr. Segura. He also acknowledged that he does not typically discuss indemnity agreements with his customers. Mr. Langlinais did not call any attention to the language on the back of the shipping receipt when Mr. Bernard picked up the Air Spider. Mr. Bernard stated that he read what he was picking up on the shipping receipt but did not read any of the other language. He did not see the indemnity language on the back of the receipt.

Corrosion Control contends that the shipping receipt is of no moment because an oral agreement was confected concerning the rental of the Spider before the receipt was signed. There is no dispute that indemnity was not an issue during Mr. Laglinais’s and Mr. Segura’s negotiations. Furthermore, in its oral reasons for judgment it is apparent that the trial court found that a contract was confected by the parties before the signing of the shipping receipt, The trial court found it important that there was no discussion of an indemnity agreement between the parties who agreed on the contract, i.e. Mr. Laglinais and Mr. Segura.

Pursuant to La.Civ.Code art. 1846, an oral contract for a price in excess of $500 can be proven by one witness and other corroborating circumstances. White v. Rogers, 04-1434 (La.App. 5 Cir. 4/26/05), 905 So.2d 1088. This is a factual finding to which the manifest error standard of review applies. Id.

In Coleman v. Jim Walter Homes, Inc., 08-1221 (La.3/17/09), 6 So.3d 179, the supreme court was faced with the issue of whether an arbitration agreement found in the closing documents for the building of a manufactured home was applicable. The buyer had argued that an oral agreement had been confected as to the design of the home and the price with no mention of the arbitration provision. The supreme court found that when parties intend to reduce their negotiations to writing, they are not bound until the contract is reduced to writing and signed by them.

In this ease there is no evidence whatsoever that a written contract was contemplated. All details of the rental had been agreed upon by Mr. Langlinais and Mr. Sequra prior to the signing of the shipping receipt by Mr. Bernard. Mr. Laglinais testified that he and Mr. Segura agreed on the model of the Air Spider scaffold that would be rented and the price. The evi-denee is very clear that at no point during the negotiations was an indemnity agreement discussed. Furthermore, Mr. Bernard was simply sent to pick up the Air Spider scaffold after the contract had been confected. The signing of the rental agreement was simply a routine practice that Jo-De followed when a piece of equipment was picked up, as it followed this same procedure when it had to replace the Air Spider scaffold on two occasions. Mr. Laglinais explained that these are delivery tickets and return tickets for the incoming and outgoing equipment.

Therefore, we find that an oral agreement had been confected for the Air Spider scaffold prior to Mr. Bernard signing the shipping receipt. No indemnity agreement had been contemplated or discussed. Corrosion Control did not waive its tort immunity. Jo-De was not entitled to defense and indemnity from Corrosion Control.

|7The judgment of the trial court granting Corrosion Control Specialists’ motion for summary judgment and dismissing Jo-De Equipment Rental Company’s claims is affirmed. Costs of this appeal are assessed to Jo-De Equipment Rental Company.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    John TAYLOR, et al. v. LEGER CONSTRUCTION, LLC, et al.
    No. 09-1263.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 2010.

      Eddie J. Lambert, Attorney at Law, Gonzales, LA, for Defendant/Appellee, Post-Tension Slab-General.
    Michael Wayne Adley, Judice and Adley, Paul Joseph McMahon, III, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, John Taylor, Christine Taylor.
    Wayne M. Babovich, Babovich & Spe-dale, New Orleans, LA, for Defendant/Ap-pellee, Roy Carubba.
    Donald Lynn Mayeux, Attorney at Law, Eunice, LA, Gretchen Heider Mayard, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Leger Construction, LLC.
    John Daniel Rayburn, Jr., Rachel Welch, Daigle, Crawford & Jamison, Lafayette, LA, for Defendant/Appellee; Post-Tension Slabs, Inc.
    Timothy Alan Maragos, Lafayette, LA, for Intervenor/Appellee, State Farm Fire <& Casualty Co.
    Kyle Patrick Polozola, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee, Randy Rivera.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

1 t This case involves homeowners whose home was built on an inadequate foundation. The homeowners filed suit against various parties including, but not limited to, the engineer that designed the post-tension slab used in the home and a construction company that constructed a large portion of the home.

The engineer filed exceptions of no right of action and no cause of action, while the construction company filed a motion for summary judgment. The trial court granted the engineer’s exception of no right of action without issuing reasons for that judgment. The trial court also granted the construction company’s motion for summary judgment based on a finding that the homeowners could not meet their burden to prove regarding liability.

We reverse the trial court’s judgment relative to the exception of no right of action. Further, we affirm the summary judgment granted to the construction company.

FACTS AND PROCEDURAL HISTORY:

Doctor John and Christine Taylor (the Taylors) hired Randy Rivera (Rivera), an architect, to create plans for construction of a new home. In October of 2001, construction began on this home located at # 7 Rue Aline, Crowley, Louisiana, in Acadia Parish. Several parties participated in the building of the home. Those parties included Rivera, Leger Construction, LLC (Leger), who provided construction services of the home, Post-Tension Slabs, Inc. (Post-Tension), which furnished services related to the foundation of the home, and Roy Carubba (Carubba), an engineer who contracted with Post-Tension to design the foundation for the home.

The Taylors occupied the home in October of 2002. Thereafter, the Taylors became aware of numerous defects in the home. On August 30, 2006, the Taylors 12filed suit against Rivera, Leger, Carubba, and Post-Tension. After some discovery was conducted and three experts hired to find the cause of the defects, it would eventually be the opinion of those experts that the defects were related to the home’s inadequate foundation for the types of soil present at the site of its construction. Thereafter, amongst other legal devices filed by parties not pertinent to this appeal, Carubba filed exceptions of no cause of action and no right of action, and Leger filed a motion for summary judgment.

A hearing was conducted on both of Carubba’s exceptions and Leger’s motion. The Taylors, despite being properly noticed, were not present. The trial court, without giving specific reasons for judgment, granted Carubba’s exception of no right of action. Further, the trial court granted Leger’s motion for summary judgment based on its finding that the Taylors could not carry their burden to prove fault by Leger at trial. The Taylors timely perfected this appeal alleging the following assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court erred when it granted the exception of no right of action and dismissed the Taylors’ claims against Carubba.

2. The trial court erred when it did not grant the Taylors the right to amend their petition relative to Carubba.

3. The trial court erred when it granted the motion for summary judgment and dismissed the Taylors’ claims against Leger Construction.

ASSIGNMENT OF ERROR NUMBER ONE:

The Taylors contend that the trial court erred when it granted Carubba’s exception of no right of action and dismissed their claims against him. We find that the Tay-lors’ contention has merit.

This court, in Randall v. Concordia Nursing Home, 07-101, pp. 4-5 (La.App. 3 Cir. 6/22/07), 965 So.2d 559, 564 (citations omitted), stated the following:

Whether a plaintiff has a right of action is a question of law. An appellate court considers whether a trial court’s ruling on an [exception of [n]o [rjight of [ajction is legally correct via a de novo review.
The burden of proving that a plaintiff has no right of action is on the movant. The test for the application of the [pjer-emptory [ejxeeption of [njo [rjight of [ajction is whether this plaintiff has the capacity or legal interest to enforce the rights asserted in the petition. This exception is a threshold device that terminates suits brought by one who cannot enforce the right asserted judicially. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.

In the case before us, the Taylors alleged in their petition that they owned immovable property and built a home on that property. In connection with the construction of the home, the Taylors alleged in their petition, with respect to Carubba, the following:

7.
Further in connection with the construction of their residence, Carubba, a licensed engineer issued to design to Post-Tension for the foundation and foundation system and also inspected and approved the work performed by Posb-Tension pursuant to the same.
8.
After commencing occupancy of the residence, the Taylors became aware of serious deficiencies of the same, which deficiencies consists of the following:
a) differential movement in the foundation and foundation system of the residence;
b) cracking in the exterior brick veneer of the residence as a result of the movement;
c) cracking in the interior drywall of the residence as a result of the movement; and
d) other defects to be shown at trial.
9.
The aforementioned defects in the construction of the residence arise out of the failure by the defendants to properly perform their work and/or services to the Taylors in connection with the design and/or ^construction of the residence, which failures include the following:
b) failure by Carubba to properly design the foundation system for the residence and further failure to properly oversee the foundation work performed by Post-Tension[J

We must determine whether the Tay-lors, as owners of a newly built home, have the legal interest or capacity to enforce the rights asserted above against Carubba, the engineer/designer of the foundation system used in constructing their home. Louisiana Civil Code article 2315(A) states, in pertinent part, that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

The Taylors allege in their petition that Carubba’s acts, i.e., failure to properly design the foundation system for their home and failure to properly oversee the foundation work done to construct their home, caused damage to them via damage to that home. Therefore, it is clear that the Tay-lors possess both capacity and legal interest in enforcing the rights asserted in their petition against Carubba under La. Civ. Code art. 2315.

Carubba argues that the Taylors cannot recover under La.Civ.Code art. 2315 because the article is preempted with respect to him by the New Home Warranty Act (NHWA) found at La. R.S. 9:3141, et. seq. Carubba also argues that even if the NHWA does not preempt La.Civ.Code art. 2315, the Taylors’ action against him is prescribed. These arguments are misguided.

Our fifth circuit, in Mason v. Kansas City Southern Railway Co., 00-208, p. 5 (La.App. 5 Cir. 9/26/00), 769 So.2d 1249, 1252 (footnotes omitted), stated the following:

| fiThe essential function of the exception of no right of action is to provide a threshold device for terminating a suit brought by one with no legal interest to assert it, that is, to challenge the plaintiffs interest in the subject matter of the suit or his lack of capacity to proceed with the suit. This exception is not available to urge a defense to the effect that the plaintiff is without interest simply because the defendants have a defense to the plaintiffs actions, nor can this exception of no right of action be invoked to determine whether a particular defendant can stand in judgment in a particular case. Any such defenses must go to the merits only.

Both arguments raised by Carub-ba’s arguments “urge a defense to the effect that the [Taylors are] without interest simply because [he has] a defense to the [their] actions.” Id. Thus, under an exception of no right of action, neither this court, nor the trial court, can use this exception “to determine whether [Carub-ba] can stand in judgment” in this case. Id. Both of Carubba’s arguments are “defenses [that] must go to the merits only.” Id.

Accordingly, we find that the trial court committed an error of law by granting Carubba’s exception of no right of action. The petition of the Taylors establishes that they have “the capacity or legal interest to enforce the rights asserted in the petition.” Randall, 965 So.2d at 564. Therefore, we reverse the trial court’s judgment.

ASSIGNMENT OF ERROR NUMBER TWO:

The Taylors assert in their second assignment of error that the trial court erred when it did not grant them the right to amend their petition rather than grant Ca-rubba’s exception of no right of action. Our reversal of the trial court’s grant of Carubba’s exception renders this assignment moot.

ASSIGNMENT OF ERROR NUMBER THREE:

In their final assignment of error, the Taylors argue that the trial court erred when it granted Leger’s motion for summary judgment. We do not agree.

|RSummary judgments are subject to a de novo review. Covington v. McNeese State University, 08-505 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, writ denied, 09-69 (La.3/6/09), 3 So.3d 491. Louisiana Code of Civil Procedure Article 966(A)(2) states that “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. ... The procedure is favored and shall be construed to accomplish these ends.” Under La.Code Civ.P. art. 966(B), a motion for summary judgment “shall be rendered forthwith 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.” Louisiana Code of Civil Procedure Article 966(C)(2) outlines the burden of proof that a party must carry in order to have a motion for summary judgment granted. It states:

The burden of proof remains with the movant. 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. 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.

La.Code Civ.P. art. 966(C)(2)

In the case before us, the Taylors filed a claim against Leger alleging that Leger, as the general contractor, failed to properly oversee the work performed by its subcontractors, laborers, or any other entity providing services in the construction of their home. The Taylors have the burden to prove this at trial. Therefore, Leger, in order to carry its burden of proof as the movant for the summary judgment, merely |7has to “point out to the court that there is an absence of factual support for one or more elements essential to the [Taylors’] claim.” La.Code Civ.P. art. 966(C)(2).

Leger based its motion for summary judgment on the assertion that the Taylors could not maintain their burden of proof against it at trial. The Taylors respond with two arguments that they claim raise issues of fact material to the case that preclude summary judgment: (1) that Leger was the general contractor of the construction of their home and, as such, is liable unto them as a “Builder” under the NHWA, and (2) that Leger, even if not a “Builder” under the NHWA, was liable unto them under La.Civ.Code art. 2315, under breach of contract, and/or under breach of warranty of workmanlike performance.

The Taylors first argue that there is a genuine issue of material fact regarding whether Leger is liable to them for the inadequate construction of their home as a “Builder” under the NHWA. Louisiana Revised Statutes 9:3150 states that the NHWA:

provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply. Nothing herein shall be construed as affecting or limiting any warranty of title to land or improvements.

Louisiana Revised Statutes 9:3143(1), in pertinent part, defines a “Builder” as “any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home.” La. R.S. 9:3144, in pertinent part, states:

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
B. Unless the parties otherwise agree in writing, the builder’s warranty [ Sshall exclude the following items:
(8) Loss or damage which does not constitute a defect in the construction of the home by the builder, or any employee, agent, or subcontractor of the builder.

Under the clear language of the statutory scheme set up in the NHWA, the Tay-lors must show that Leger was a “Builder” as defined by the act, and that Leger, in its capacity as a “Builder,” caused some damage to their home. The parties dispute whether Leger is a “Builder” under the NHWA. However, a finding by this court that the Taylors have not raised a genuine issue of material fact with regard to whether Leger caused some damage to their home would make a determination of Leger’s status as a “Builder” moot and, further, would dispense with the Taylors’ second argument that Leger was liable unto them under La.Civ.Code art. 2315, under breach of contract, and under breach of warranty of workmanlike performance. Therefore, we will address this issue first.

After a thorough review of the record, we find that there is no evidence that the Taylors’ damages were due to a defect created by Leger or any of its employees, agents or subcontractors. The testimony of three experts exists in the record, Ca-rubba, the civil engineer that designed the slab used in the home, Russell Bellard, a civil engineer hired by the Taylors, and Billy R. Prochaska, a geotechnical consultant. The testimony of each expert is in accord with respect to the following: the damage to the Taylors’ home was caused by uneven heaving in the soil beneath the foundation; heaving in soil occurs when soil rises in elevation usually due to an increase in the moisture content of that soil; different types of soil react differently Rto an increase in moisture content, i.e., some types of soil are elevated more than others; these differences in elevations caused too much stress to be put on the type of post-tension slab used as the foundation of the Taylors’ home; this stress caused the foundation to fail beneath the Taylors’ home, thus damaging the home; and those soil heaving issues could have been avoided had a soil boring test been performed prior to the building of the home’s foundation.

The Taylors sole source of evidence that they cite for Leger’s fault is the testimony of Dr. Taylor. First, the Taylors assert that Leger was the reason that they chose a post-tension slab. The following is an excerpt of Dr. Taylor’s testimony regarding the choice to use a post-tension slab:

Q All right. Now, Let’s — can you tell me, Dr. Taylor, how it came about that a post-tension slab was used for the construction of your home?
A As I recall, the plans called for pilings of piers, shafts or something like that, and in my discussions with [Leger] prior to completion of the plans, we talked about post-tension. And I do recall my concern about the foundation — the soil difficulties in the Crowley area. And there was a point at which I asked [ ] [Rivera] and Brent [Leger] to put their heads together to determine the best choice between those two, between pilings and post-tension.
Q Do you-—
A Because I was concerned about the soils.
Q All right. And you — and your testimony is, at that time, prior to the foundation being poured, you expressed those concerns that you just told us about to both Randy Rivera and Brent Leger.
A Correct.
Q The footings or pilings that you re- ' ferred to, were those in the hnoriginal plans and drawings prepared by Mr. Rivera for your home?
A I’m pretty sure, yes.
Q After you discussed your concerns about the soil in Crowley area with [ ] Rivera and Mr. Leger, what, if anything, did either of those two or anyone suggest to you concerning the foundation of your home?
A I don’t recall specific recommendations. I do know that we ultimately did a post-tension slab.
Q And that was a decision that you had the final authority on; is that correct? You approved that?
A It was my house, yes.
Q And can you tell me, as between [ ] Rivera and Mr. Leger, whether it was a recommendation from one or the other, or from both?
AI think they were in accord.

The Taylors cite this testimony for their assertion that a genuine issue of material fact exists as to whether Leger recommended the installation of an inadequate foundation. We do not agree.

Dr. Taylor’s recollection as to Leger’s recommendations is tenuous at best. Throughout Dr. Taylor’s deposition he states that his memory is very poor, that his wife would have a better recollection of the events surrounding the building of their home, and that he did make some notes of different conversations that took place between he and other parties due to his poor memory. The Taylors did not produce any of these notes, nor did Mrs. Taylor testify.

Further, even if this court were to find that Dr. Taylor’s testimony creates an biissue of fact regarding whether Leger influenced Dr. Taylor to choose a post-tension slab, according to all three experts whose testimony is in the record, the choice to use a post-tension slab versus a traditional slab was not the cause for the problems in the home’s foundation. The problem with the foundation was either the inadequate depth of the post-tension slab or the lack of other support structures such as pilings or footings that add support to the slab regardless of whether the slab was a post-tension slab. According to those experts, a post-tension slab is simply a technique used to make concrete stiffer than the normal reinforcement of concrete which was steel rebar or welded-wire fabric. Thus, even if Leger influenced Dr. Taylor to use a post-tension slab, it is ultimately up to the designer of that slab to make sure that the slab is adequate given the information available to that designer via the plans of the home and the soil beneath that home. The home’s foundation was designed by Carubba who contracted with Post-Tension to create that design. Post-Tension was hired and paid directly by the Taylors. Therefore, neither Carubba nor Post-Tension are the agent, subcontractor or employee of Leger, and there is no evidence that Carubba based his design on anything done or recommended by Leger.

Next, the Taylors assert that it was Brent Leger, the owner of Leger, who advised Dr. Taylor regarding the type of soil testing that needed to be done prior to the installation of the foundation. The Taylors cite the following from Dr. Taylor’s testimony to support their assertion:

Q After the selection of the post-tension slab, do you recall any discussions concerning whether or not you needed to have any soil tests performed for consideration of using a post-tension slab?
A No.
| ii>Q, Don’t remember, or there were none?
A No, I don’t remember.
Q Okay. Did you have an opportunity to see, at any time prior to the preparation of your foundation ... we’ll mark this “Exhibit # 7,” which is a drawing: Post-Tension Slabs, Inc., John Taylor, 449 Fairway Drive, Crowley, Louisiana, foundation plan, drawn by H. Alvarez. Check by R.M.C., date 10-01, and it had a CEI Project Number, 10.15.01-405, and it is referenced as sheet S-l.
I’ll ask you, did you ever see that drawing, to your recollection?
AI don’t recall having seen this drawing specifically, no.
Q Do you know whether or not either [ ] Rivera or Mr. Leger were provided that drawing?
A I don’t know.
Q Would you read for me — there’s a certain number of paragraphs under the notes and specifications section. Would you read for us what is contained in Number 18?
A (Reading) “Owner, builder, general contractor and/or homeowner should verify soil conditions prior to construction to verify design. Foundation designed for minimum bearing capacity of 1200psi, sf3 and TI less than 20.”
Q Do you know if any tests were done prior to the building of your foundation which would verify those assumptions or conditions?
A I’m not even familiar with these terminologies.
Q All right. So you have no idea whether or not that was done or not?
A The only testing that I know we did was a soil compaction test.
|1SQ And why did you have that test done?
A I did that at Mr. Leger’s recommendation.
Q All right. Can you recall whether or not he made any other recommendations for any type of soil testing?
A I don’t recall.

This testimony establishes that Leger may have suggested a soil compaction test be performed, which, again, all the expert testimony in the case stated was necessary. However, this testimony does not suggest that Leger failed to suggest the soil boring test. Dr. Taylor’s testimony specifically states that he does not remember if Leger recommended the soil boring test. Accordingly, we find no merit to the Taylors’ contention that it was Leger, through its owner Brent Leger, who advised Dr. Taylor regarding the decision to forgo the soil boring test prior to the installation of the foundation. Moreover, according to the testimony of Bellard, it is the engineer that designs the slab that makes the recommendation of whether to have a soil boring test performed.

Finally, the only evidence in the record regarding Leger’s involvement with the foundation concerns a contract between Leger and the Taylors for the labor in creating the wooden forms in which the concrete is poured to make slab designed by Carubba. Bellard, the civil engineer hired by the Taylors, was the only source of testimony regarding the adequacy of those forms. An excerpt of his testimony follows:

Q When you observed or went out to observe the Taylors’ house, did you notice anything, or could you even tell — see the slab itself, and see what — if there were any deficiencies in the slab or, I guess not the slab, but in the construction of the forms that went around the slab?
|14A No. Sometimes I do see some irregularities, but I don’t recall any in the Taylor, you know. Irregularities meaning a form slipped in the — concrete.
Q Right.
A Protruded a little bit. I mean, there’s numerous workmanship irregularities.
Q And you didn’t see any of that?
A I don’t recall seeing that.

Therefore, the only evidence in the record is that Leger did perform in a workmanlike manner with regard to constructing the wooden forms for the foundation. No other evidence is found in the record that the Taylors have raised a genuine issue of material fact with regard to whether Leger caused some damage to their home under the NHWA, La.Civ.Code art. 2315, breach of contract, or breach of warranty of workmanlike performance. Accordingly, we affirm the summary judgment granted by the trial court in favor of Leger.

CONCLUSION:

The Taylors raised three assignments of error, that the trial court was improper in granting Leger’s motion for summary judgment, in granting Carubba’s exception of no right of action, and in failing to allow the Taylors to amend their petition. We affirm the summary judgment granted to Leger, but reverse the exception of no right of action granted to Carubba. The Taylors’ assignment of error related to amending their petition is rendered moot by our reversal of Carubba’s exception. All costs of this appeal are assessed equally between the Taylors and Carubba.

AFFIRMED IN PART, REVERSED IN PART.

DECUIR, J., concurs in the result.