author: CHUTZ, J.

text:
    Crystal CARTER, Individually and OBO Carnasia Mims, et al. v. POINTE COUPEE PARISH SCHOOL BOARD/The Republic Group/ and Stephen Lewis
    2018 CA 1035
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: DECEMBER 21, 2018
    Debra Bracey, Baton Rouge, Louisiana, Counsel for Plaintiffs-Appellees, Crystal Carter, individually and o/b/o Carnasia Mims, et al.
    Willie G. Johnson, Jr., Derek E. Elsey, Sophia J. Riley, Baton Rouge, Louisiana, Counsel for Defendants-Appellants, Stephen Lewis and City of New Roads
    BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.
   CHUTZ, J.

Defendants-appellants, Stephen Lewis and the City of New Roads (the City), appeal the trial court's judgment, awarding damages to twenty-two minor plaintiffs-appellees for the injuries sustained at Rosenwald Elementary School in Point Coupee Parish. Finding the claims of seven of the minor plaintiffs prescribed before they were filed, we reverse in part. Additionally, we amend the judgment to award to the minors' representatives the damages sustained by nine minors and, as amended, affirm the trial court's judgment against Lewis and the City.

FACTUAL AND PROCEDURAL BACKGROUND

Lewis was a police officer employed by the City and used by the Point Coupee Parish School Board (PCPSB) at Rosenwald Elementary School as a resource officer on March 6, 2012, pursuant to a contract between PCPSB and the City. According to the testimony adduced at trial and the defendants' stipulation, an incident occurred on campus on March 6, 2012, where at least twenty-two elementary school children were identified as bullies by Lewis, the teacher in the classroom, and/or fellow classmates. Lewis removed the identified children into the hallway and directed them to wait in a line until all the children were gathered. He then ordered them outside and directed the children identified as bullies to kneel in gravel for between ten and forty minutes, with the majority of the students recalling they knelt for between ten and twenty minutes. Some children stated that Lewis yelled at them; others said that when they refused to kneel or squirmed due to the pain, he threatened to keep them kneeling for a longer period of time. All of the children involved in the incident who testified recalled that Lewis was dressed as a police officer and most recalled that he had his gun and handcuffs. Several of those who had been minors involved in the incident stated that during the incident, Lewis made physical contact with them, indicating that as he or she attempted to rise from the kneeling position, Lewis pushed him/her back to the ground, touching his or her shoulders in the process. Some of the children stated that Lewis ordered them to put mud on their faces or to go into a muddy ditch, but ultimately stated he did not follow through on the threats. Eventually, Lewis allowed the children to stand up, and they left as a group.

On March 6, 2013, the mothers of fifteen of the children instituted this lawsuit, naming PCPSB, its insurer, and Lewis as defendants. By amended petition, filed on August 14, 2013, the City was added as a named defendant. The City and Lewis answered the petition and the amending petition. A second amending petition was filed by plaintiffs to set forth the capacity of each plaintiff representing the minor children who were seeking redress. On September 8, 2016, plaintiffs again amended their petition to add additional plaintiffs. The City and Lewis filed a peremptory exception raising the objection of prescription as to the additional plaintiffs named in the third amending petition on December 15, 2017. At a hearing on January 9, 2018, the trial court denied the exception of prescription and subsequently signed a judgment in conformity with its ruling.

The matter proceeded to a trial on the merits commencing on January 16, 2018. On March 5, 2018, the trial court signed a judgment, awarding $5,000 for the damages sustained on March 6, 2012 by each of those who had been identified as a bully and subjected to Lewis's actions. The City and Lewis appeal.

PRESCRIPTION

On appeal, the City and Lewis maintain that the trial court erred in denying their exception of prescription. They urge that when the additional plaintiffs were added four-and-a-half years after the incident occurred, their claims were already prescribed. Thus, they contend, the awards in favor of these added parties are untimely. We agree.

Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiff's claim has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. Kirby v. Field , 2004-1898 (La. App. 1st Cir. 9/23/05), 923 So.2d 131, 135, writ denied, 2005-2467 (La. 3/24/06), 925 So.2d 1230. Because the additional plaintiffs' claims were prescribed on the face of the petition, they bore the burden of proving their claims were not prescribed.

La. C.C.P. art. 1153 sets out the requirements for giving retrospective effect to an amended petition:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.

This article does not refer to parties but to claims or actions. La. C.C. article 2324 provides that interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. Thus, the addition of additional defendants in a suit will relate back to the date of the original suit if the defendants are joint tortfeasors. However, there is no legislative pronouncement involving the addition of plaintiffs with the idea of "relating back." This concept is a jurisprudential creation. In Giroir v. So. Louisiana Med. Ctr., 475 So.2d 1040, 1044 (La. 1985), the supreme court established four criteria that must be satisfied in order to allow for the addition of plaintiffs to an original timely filed petition:

[A]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense.

Boquet ex rel. Billiot v. SWDI, LLC, 2007-0738 (La. App. 1st Cir. 6/6/08), 992 So.2d 1059, 1063-64, writ denied sub nom., Boquet v. SWDI LLC, 2008-2086 (La. 9/4/09), 17 So.3d 958.

The jurisprudence is unequivocal that all four elements set forth in Giroir are required for the amendment adding additional parties to relate back to the original petition. See Delmore v. Hebert, 99-2061 (La. App. 1st Cir. 9/22/00), 768 So.2d 251, 253. We conclude that plaintiffs failed to establish the third jurisprudential element required by Giroir, i.e., that the new and the old plaintiffs are sufficiently related such that the added or substituted party is not wholly new or unrelated.

The circumstances under which the court has allowed amended petitions naming new plaintiffs to relate back are usually those where the new and added plaintiffs are close family members who have a special legal relationship. The Giroir court clearly limited the added family-member plaintiff to the relationships of immediate family of husband-wife and parents-children, and to the legal relationships arising from such familial relationship. A close scrutiny by the Giroir court revealed that the third element was deemed satisfied when the amendment involved a cause of action arising from, or dependent upon, a common tort victim, common to the original and added plaintiff. In other words, the successfully added plaintiffs had divergent claims stemming from a common root, namely the same tort victim. Delmore , 768 So.2d at 255.

Here, there is no common tort victim upon which both the original and added plaintiffs base their claims. The additional plaintiffs' claims are not derivative of those asserted by the original plaintiffs and there is no legal relationship relating the additional plaintiffs' claims to those of the original plaintiffs. As fellow students identified as bullies, the claims of the additional plaintiffs are unrelated from a legal standpoint. Thus, there is no basis under which the amended petition adding these plaintiffs can relate back to the original petition. Therefore, the trial court erred in denying the exception of prescription as to the additional plaintiffs. See Eaglin v. Eunice Police Dep't, 2017-1875 (La. 6/27/18), --- So.3d ----, ----, 2018 WL 3154744, *4-5.

LACK OF PROCEDURAL CAPACITY TO SUE

The record establishes that Alton Albert is a minor whose parents are deceased. The City and Lewis filed a dilatory exception raising the objection of lack of procedural capacity along with their answer to the plaintiffs' original and first amending petition, averring that Rhonda Pichon was not a proper representative to sue on Albert's behalf. On January 7, 2014, the trial court sustained the dilatory exception and ordered an amendment of the petition. Plaintiffs filed a second amending petition on January 23, 2014, naming Pichon on behalf of Albert "in her capacity as the natural tutrix and administrator of the estate of her ... minor [child]." The City and Lewis did not answer Pichon's third amending petition, and no further action is demonstrated in the record until the trial on the merits. On appeal, the City and Lewis challenge the trial court's refusal to dismiss Rhonda Pichon's representation of Albert, who is her nephew.

According to La. District Court Rules, Rule 9.14(a), the method of setting a date for trial shall be determined by each district court as set forth in Appendix 9.14. Appendix 9.14 for the Eighteenth District Court requires that prior to a trial on the merits, a suit must be pre-tried. Additionally, "Any party desiring to assign a case for trial shall ... after disposition of all contemplated or pending ... exceptions ... file a written motion accompanied with an order for a pre-trial conference."

Here, it is undisputed that as of November 11, 2014, the City had actual knowledge that, in support of her representation of Albert, Pichon relied on a form, entitled "PROVISIONAL CUSTODY BY MANDATE," executed by a notary and "Gaynell Theresa Boyd" on October 4, 2013, in her capacity as a co-tutor of Albert. Yet, despite the City's actual knowledge of any deficiencies in the evidence Pichon relied upon to represent her nephew as well as its obligation under Rule 9.14 to dispose of all pending exceptions prior to the trial on the merits, the City chose to wait until the third day of trial, after the plaintiffs had rested to challenge Pichon's representation of Albert. Under these circumstances, we find that the City waived its right to object on the basis of the alleged lack of procedural capacity of Pichon to represent Albert. See La. C.C.P. art. 926B ("All objections which may be raised through the dilatory exception are waived unless pleaded therein."); La. C.C.P. art. 929A ("[T]he dilatory exception ... when pleaded before or in the answer shall be tried and decided in advance of the trial of the case."). Accordingly, we find the trial court correctly declined to dismiss Pichon's representation of Albert.

DAMAGES

On appeal, without challenging the quantum of each award, the City and Lewis assert that because the record is devoid of any medical evidence supporting physical, emotional, and psychological injuries, the trial court erred in awarding any damages to the minors. Thus, they ask that this court reverse the awards of $5,000 as damages sustained by each minor.

In delictual actions the plaintiff bears the burden of proving fault, causation and damages.

Wainwright v. Fonte not, 2000-0492 (La. 10/17/00), 774 So.2d 70, 74. In Lugenbuhl v. Dowling, 96-1575 (La. 10/10/97), 701 So.2d 447, 455, the Louisiana Supreme Court discussed the concept of "dignitary torts." The Lugenbuhl court cited with approval 2 Dan B. Dobbs, Law of Remedies, §§ 7.1-7.3 (1993), in which the author used the term dignitary torts to describe situations in which the law seeks to protect intangible interests in personal integrity and privacy, as well as mental tranquility. The court observed that in the appropriate type of case, "damages for deprivation of self-determination, insult to personal integrity, invasion of privacy, anxiety, worry and mental distress are actual and compensatory." See Lugenbuhl, 701 So.2d at 455 ; see also Patrick v. Lowe's Home Centers Inc., 2013-294 (La. App. 5th Cir. 12/12/13), 131 So.3d 219, 222 (finding the trial court abused its discretion in declining to award any damages in a store customer's delictual action against the store's security guard arising out of incident in which the guard threatened to fire a taser at the customer, where the guard pointed the taser at the customer, and the guard admitted that he ordered the customer off the premises and threatened to "send him to the hospital" or arrest him if he did not comply).

The testimonial evidence admitted at trial established that Lewis's conduct was clearly directed at the children who were singled out of their classrooms for special treatment as a result of having been identified either by Lewis, a teacher, or other students as a bully. Lewis not only threatened them, he also used his supervisory power to order the children to kneel in gravel. Several minors (and those who had been minors on March 6, 2012) as well as their parents testified that the child experienced fear for his or her personal well-being or felt "bad" or otherwise burdened for having been singled out as a bully. Indeed, many of those who testified indicated that they were afraid Lewis would hurt them with his gun or cause them some other type of physical harm. The testimony established that most of the children developed distrust in law enforcement after the incident. A reasonable factual basis exists to support the trial court's implicit finding that Lewis's actions were an affront to the personal integrity and privacy, as well as mental tranquility, of each child and sufficiently caused their damages. Therefore, the trial court's awards are not manifestly erroneous.

THE CITY'S LIABILITY FOR LEWIS'S ACTIONS

The City and Lewis contend that the trial court erred in finding the City liable to the minors for Lewis's conduct. They urge that under the facts of this case, PCPSB was solely responsible for Lewis's actions on March 6, 2012, and as such, the City owed no duty to the children. As such, the City suggests that it cannot be liable to plaintiffs. We disagree.

In Louisiana, employers are vicariously liable for the torts of their employees under La. C.C. art. 2320, which provides:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
In the above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.
The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.

Although Article 2320 provides that employers are only liable when they might have prevented the act that caused the damage, the courts of this state have consistently held that employers are vicariously liable for any torts occasioned by their employees. Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La. 1990).

The evidence in this case established that on March 6, 2012, the City had a contractual relationship with PCPSB whereby the City sent police officers over to PCPSB schools to function as resource officers. And in its answer to the lawsuit, the City admitted that Lewis did not "maintain an employment relationship with [PCPSB]" at the time of the incident. Thus, as the Rosenwald Elementary School Resource Officer, Lewis was PCPSB's "borrowed employee" from the City, the City was Lewis's "general employer," and PCPSB was Lewis's "special employer." Both the general employer and the special employer may be solidarily liable for the torts of the borrowed employee. See LeJeune v. Allstate Ins. Co., 365 So.2d 471, 480-82 (La. 1978).

The general employer has a heavy burden of overcoming the presumption that it retained control (and thus remained liable for his employee's tort) and of proving that "the relationship of master and servant which previously existed between the general employer and employee has been suspended, that a new such relationship has been created between the borrowing employer and that employee, and that such new relationship was in existence at the time the accident occurred." LeJeune , 365 So.2d at 480 (quoting Vincent v. Ryder Enterprises, Inc. , 352 So.2d 1061, 1067 (1977) ). That an employee may have been a borrowed employee of the special employer for some purposes, such as working under the direction of the special employer at the time of the incident, does not relieve the general employer of its liability for its employee's negligent acts done in the pursuance of duties designated for the employee by his general employer, with whom the employee continued in a paying working relationship and who had the sole right to discharge him. This is especially so where the employee was loaned out to another in a continuing arrangement between the employers for their mutual benefit. See LeJeune, 365 So.2d at 481.

In the imposition of vicarious liability for the general employer whose employee was working under the direction of the special employer at the time of the incident, specific conduct may be considered within the scope of employment even though it is done in part to serve the purposes of the special employer. The fact that the predominant motive of the employee is to benefit the special employer does not prevent the act from being within the scope of employment. See Ermert, 559 So.2d at 476-77. If the purpose of serving the general employer's business actuates the employee to any appreciable extent, the general employer is subject to liability if the act is otherwise within the service. Id., 559 So.2d at 477.

The two-master rule is the more sensible rule in cases where the general employer is at least sometimes engaged in the business of lending out people and equipment. In such situations, the general employer's business is being furthered even if it does not control the details of the actual work. Moreover, the special employer benefits: it is its work that is being done as well. In such situations, the relevant enterprise benefitted by the work consists of the combination of the general and special employers. The two-master rule represents a triumph of function over (legal) fiction. See Thomas C. Galligan, Jr., A Primer on the Patterns of Louisiana Workplace Torts, 55 Louisiana Law Review 91 (1994). See also Morgan v. ABC Mfr., 97-0956 (La. 5/1/98), 710 So.2d 1077, 1083 (holding that where a general employer is in the business of hiring its employees out under the supervision of others, the general employer remains liable for the "borrowed" employees' torts under La. C.C. art. 2320 ).

Whether an employee was in the course and scope of his employment at the time of the incident is a factual determination. See Ermert, 559 So.2d at 479. A reviewing court cannot disturb the factual findings of a trial court absent manifest error. To reverse the trial court's factual findings, the appellate court must find from the record that no reasonable factual basis exists for the findings and must determine that the record establishes the findings are clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Thus, the inquiry is whether the factual findings are reasonable, not whether the trier of fact was right or wrong. Id. If, in light of the record in its entirety, the trial court's findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990).

With these precepts in mind, we find no manifest error in the trial court's conclusion that Lewis was in the course and scope of his employment at the time of the March 6, 2012 incident. Thus, the trial court correctly concluded that the City was vicariously liable under Article 2320 to the plaintiffs for Lewis's actions on March 6, 2012. See Ermert, 559 So.2d at 476-77. The evidence established that while acting in his capacity as a resource officer and, more particularly on March 6, 2012, when he removed the minor children from their classrooms and forced them to kneel on gravel in an effort to punish those identified as bullies in the elementary school, Lewis was dressed as police officer of the City. He carried a gun and handcuffs, and a police vehicle, identified as a marked unit of the City, was parked in front of the school while he was on duty as a resource officer. Although the City of New Roads Mayor Anthony R. Daisy testified that while he was administering his duties as a resource officer, Lewis was under the supervision and direction of the Rosenwald Elementary School principal and assistant principal and that the PCPSB paid his salary during those times, the mayor admitted that when police officers are off duty, they are not permitted to either wear a City police uniform or carry their guns or handcuffs. Mayor Daisy also conceded that the City hired Lewis, trained him, and retained the right to fire the police officer. We find the trial court could reasonably infer from the testimonial evidence that the resource officer was at the elementary school at the request of the PCPSB to maintain safety and order on campus, functions that are regular duties of police departments. Accordingly, there is no error in the trial court's conclusion that the City was liable to the plaintiffs for the damages caused by Lewis on March 6, 2012.

CONCLUSION

Although the parties have not pointed out that the judgment was rendered in the names of each minor, rather than in the names of the party representing them, under our authority to correct clerical errors, we amend the judgment to conform to the pleadings. See Jackson v. East Baton Rouge Parish , 331 So.2d 64, 65 (La. App. 1st Cir. 1976) ; Saad v. Anderson , 416 So.2d 188, 192 (La. App. 1st Cir., 1982) ; La. C.C.P. art. 2164 ("The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.").

For these reasons, finding their claims were prescribed at the time they filed their lawsuit, we reverse those portions of the judgment that awarded damages of $5,000 each to plaintiffs-appellants, Devontae Cannon, Daquan Haney, Jeriontai Webb, Kamerson Webb, Toney Washington, Deandre Bergeron and McKenzie Jones. Insofar as the remaining claims, we amend the judgment to award damages of $5,000 each to plaintiffs-appellees Crystal Carter as the natural tutrix and administrator of the estate of Camasia Mims; Tanya Clark as the natural tutrix and administrator of the estate of Prede Albert; Stephanie Derosin as the natural tutrix and administrator of the estate of Travianna Derosin; Shemika McCoy as the natural tutrix and administrator of the estate of Micah Smothers; Rhonda Pichon as the natural tutrix and administrator of the estate of Danny Albert, III; Rhonda Pichon as the proper party representative and administrator of the estate of Alton Albert; Courtney Toussaint as the natural tutrix and administrator of the estates of Joshua Cambell and Elyssia George; Melva Victorian as the natural tutrix and administrator of the estate of Darren Butler; Jonette Pearson as the natural tutrix and administrator of the estate of Jabrielle Pearson; Marquetia Smith as the natural tutrix and administrator of the estate of Simira Howard; and Ashley Stevenson as the natural tutrix and administrator of the estate of Trevonte Stevenson. Because the plaintiffs-appellees, Treyvis Celestine, Travis Franklin, and Jailyn Smith were duly substituted after having reached the age of majority, the awards of $5,000 to each is affirmed. As amended, the judgment is otherwise affirmed. Appeal costs in the amount of $9,184.00 are assessed one-half to plaintiffs-appellees and one-half to defendants-appellants, Stephen Lewis and the City of New Roads.

REVERSED IN PART; AMENDED AND, AS AMENDED, AFFIRMED IN PART.

      Although this defendant's surname is identified as "Louis" in portions of the record, we reference "Lewis," which is the surname used in his answer to the lawsuit.

      The trial court's judgment awards damages to Camasia Mims, Prede Albert, Treyvis Celestine, Travianna Derois, Travis Franklin, Micah Smothers, Danny Albert, III, Alton Albert, Joshua Cambell, Elyssia George, Darren Butler, Jabrielle Pearson, Jailyn Smith, Simira Howard, Trevonte Stevenson, Devontae Cannon, Daquan Haney, Jeriontai Webb, Kamerson Webb, Toney Washington, Deandre Bergeron, and McKenzie Jones.

      The denial of an exception of prescription is interlocutory in nature and generally not appealable; however, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment appealed from. See La. C.C.P. arts. 1841 and 2083 ; Guidry v. USAgencies Cas. Ins. Co., Inc., 2016-0562 (La. App. 1st Cir. 2/16/17), 213 So.3d 406, 420, writ denied, 2017-0601 (La. 5/26/17), 221 So.3d 81.

      The third amending petition, filed on September 8, 2016, averred the following plaintiffs in their respective capacities as the natural tutrix and administrator of the estates of her child or children were entitled to relief from the City and Lewis: Latoya Haney on behalf of Devontae Cannon and Daquan Haney; Lakeshia Webb on behalf of Jeriontai Webb and Kameron Webb; Natasha Washington on behalf of Toney Washington; Ethel Bergeron on behalf of Deandre Bergeron; and Brenda Campbell on behalf of McKenzie Jones.

      The record shows that pre-trial deadlines were established by the trial court on June 13, 2017. On motion of the City and Lewis, the deadlines were extended on September 25, 2017. The pre-trial deadlines did not specifically include cut-off dates for the disposition of all exceptions.

      See also Moore v. Stewart, 47,206 (La. App. 2d Cir. 6/27/12), 94 So.3d 1018, 1025, writ not considered, 2012-1753 (La. 11/2/12), 99 So.3d 660 (citing Moresi v. State Through Dep't of Wildlife and Fisheries, 567 So.2d 1081, 1095-96 (La. 1990) to affirm an award of $5,000 in general damages to a wife's boyfriend despite a lack of physical contact where the husband assaulted the boyfriend by attempting to punch him, holding him at knifepoint, and threatening to kill him).

      See La. C.C.P. art. 683A & B (providing that an unemancipated minor has no procedural capacity to sue and that persons having parental authority over an unemancipated minor must join as proper plaintiffs to sue to enforce a right of the minor); see also La. C.C. art. 221 (stating that the father and mother who are married to each other have parental authority over their minor child during the marriage).

      We set forth the name of this plaintiff and her child as stated in the child's medical records.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    Harold MASON v. Sheriff Kenneth HEDRICK, et al.
    19-113
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    Freeman R. Matthews, Timothy R. Richardson, Ronald S. Bryant, Usry, Week & Matthews, APLC, 1615 Poydras Street, Suite 1250, New Orleans, LA 70112, (504) 592-4600, COUNSEL FOR DEFENDANT/RESPONDENT: Sheriff Kenneth Hedrick
    Donna U. Grodner, Grodner & Associates, APLLC, 2223 Quail Run, B-1, Baton Rouge, LA 70808, (225) 769-1919, COUNSEL FOR PLAINTIFF/APPLICANT: Harold Mason
    Gregory A. Grefer, Miracle & Associates, 1 Sanctuary Blvd., Suite 202, Mandeville, LA 70471, (985) 727-3411, COUNSEL FOR DEFENDANT/RESPONDENT: Sherie Jacobs, Mayor of the Town of Ferriday Officer Anthony Hawkins
    Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

The Plaintiff-Relator, Harold Mason, seeks supervisory writs from the judgment of the seventh judicial district court, the Honorable John Reeves presiding, which denied the Relator's Motion to Proceed in Forma Pauperis and Amended Motion for Notice of Appeal.

STATEMENT OF THE CASE

The instant case arises from injuries sustained by the Relator while trimming trees as an inmate and trusty at the River Correctional Center. While another inmate was operating a chain saw, the Relator's left arm was severed. When the Relator first filed suit for damages, he moved to proceed in forma pauperis as an inmate, and the motion was granted on July 15, 2015. After the Relator was released from prison, he filed a second motion to proceed in forma pauperis which was granted on February 22, 2016. On August 23, 2018, summary judgment was granted in favor of the Defendants, dismissing the Relator's claims.

The Relator sought an appeal of the ruling on August 29, 2018. On September 10, 2018, the Relator was granted a devolutive appeal with a return date of October 25, 2018. On September 13, 2018, the clerk of court issued the estimated costs for a suspensive appeal. In response, on or about October 22, 2018, the Relator filed a Motion to Proceed in Forma Pauperis and an Amended Motion for Notice of Appeal wherein he stated that he was proceeding in forma pauperis and prayed for a devolutive appeal. On November 19, 2018, the motion for pauper status was summarily denied "due to income of Defendant and spouse[,] and there is no affidavit of a witness attached." Also, the amended motion for appeal was denied as filed "as defendant has been denied pauper status by the court and pursuant to CCP 2128 [,] the requested designation of the partial record by defendant is untimely." Notice of the judgments was mailed to the parties on November 21, 2018. The Relator is now before this court on writs seeking review of these two rulings.

ON THE MERITS

The Relator argues that at the time the return date for an appeal was entered, he had a pauper order in place that should have allowed him to proceed in forma pauperis on appeal. The Relator refers to La.Code Civ.P. art. 5185, which reads:

A. When an order of court permits a party to litigate without the payment of costs until this order is rescinded, he is entitled to:
(1) All services required by law of a sheriff, clerk of court, court reporter, notary, or other public officer in, or in connection with, the judicial proceeding, including but not limited to the filing of pleadings and exhibits, the issuance of certificates, the certification of copies of notarial acts and public records, the issuance and service of subpoenas and process, the taking and transcribing of testimony, and the preparation of a record of appeal;
(2)(a) The right to the compulsory attendance of not more than six witnesses for the purpose of testifying, either in court or by deposition, without the payment of the fees, mileage, and other expenses allowed these witnesses by law. If a party has been permitted to litigate without full payment of costs and is unable to pay for witnesses desired by him, in addition to those summoned at the expense of the parish, he shall make a sworn application to the court for the additional witnesses. The application must allege that the testimony is relevant and material and not cumulative and that the defendant cannot safely go to trial without it. A short summary of the expected testimony of each witness shall be attached to the application.
(b) The court shall make a private inquiry into the facts and, if satisfied that the party is entitled to the privilege, shall render an order permitting the party to subpoena additional witnesses at the expense of the parish. If the application is denied, the court shall state the reasons for the denial in writing, which shall become part of the record.
(3) The right to a trial by jury and to the services of jurors, when allowed by law and applied for timely; and
(4) The right to a devolutive appeal, and to apply for supervisory writs.
B. He is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefor.
C. No public officer is required to make any cash outlay to perform any duty imposed on him under any Article in this Chapter, except to pay witnesses summoned at the expense of the parish the witness fee and mileage to which they are entitled.

The Relator also cites La.Code Civ.P. art. 5184, which provides for the traversal of a pauper order as follows:

A. An adverse party or the clerk of the court in which the litigation is pending may traverse the facts alleged in the affidavits of poverty, and the right of the applicant to exercise the privilege granted in this Chapter, by a rule against him to show cause why the order of court permitting him to litigate, or to continue the litigation, without paying the costs in advance, or as they accrue, or furnishing security therefor, should not be rescinded. However, only one rule to traverse the affidavit of poverty shall be allowed, whether the rule is filed by an adverse party or the clerk of court.
B. The court shall rescind its order if, on the trial of the rule to traverse, it finds that the litigant is not entitled to exercise the privilege granted in this Chapter.

The Relator argues that the clerk of court did not file a rule to traverse his pauper order, but instead, simply advised that the record would not be lodged without payment of the estimated costs of the appeal. Further, the Relator asserts that the trial court, upon granting the appeal and setting a return date, may have been divested of jurisdiction to consider such a rule. The Relator refers to La.Code Civ.P. art. 2088, regarding the divesting of jurisdiction of the trial court:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.
B. In the case of a suspensive appeal, when the appeal bond is not timely filed and the suspensive appeal is thereby not perfected, the trial court maintains jurisdiction to convert the suspensive appeal to a devolutive appeal, except in an eviction case.

There is no dispute that the Relator had a pauper order in effect at the time he filed his motion for appeal. Once the trial court granted the Relator a devolutive appeal and set the return date, it no longer had jurisdiction to consider the motions at issue. La.Code Civ.P. art. 2088. Additionally, rather than filing a rule to traverse the Relator's pauper order as provided in La.Code Civ.P. art. 5184, the clerk of court erroneously advised the Relator that the record would not be lodged without payment of the estimated costs of the appeal. Accordingly, the writ is granted, the trial court's rulings vacated and set aside, and the clerk of court ordered to lodge the appellate record per the trial court's September 10, 2018 order granting a devolutive appeal.

WRIT GRANTED AND MADE PEREMPTORY.


text:
    IN RE: Colleen MCDANEL
    18-920
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    Brandon A. Sues, Eugene J. Sues, Sarah S. Couvillon, Gold, Weems, Bruser, Sues, & Rundell, P. O. Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPLICANT: John S. McCabe, M.D.
    Mary K. Beaird, Attorney at Law, 303 East Texas Street, Leesville, LA 71446, (337) 944-0299, COUNSEL FOR PLAINTIFF/RESPONDENT: Colleen McDanel
    Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

Relator, Dr. John S. McCabe, seeks supervisory writs from the judgment of the Ninth Judicial District Court, Parish of Rapides, the Honorable George Clarence Metoyer, Jr., presiding, which denied Relator's exception of prescription.

STATEMENT OF THE CASE

This case involves a medical malpractice action which is still pending before a medical review panel. On September 6, 2016, Relator performed an abdominal panniculectomy with abdominoplasty, or tummy tuck, on Plaintiff, Colleen McDanel. On September 12, 2016, Plaintiff had a follow-up visit with Relator at which time Relator allegedly yanked the tubes out of Plaintiff's stomach, causing her severe pain and emotional anguish. Plaintiff also alleges that when she went to have her stitches removed on September 21, 2016, Relator yanked the stitches so aggressively that he pulled a chunk of her skin off with a stitch. Plaintiff contends that due to Relator's rudeness and roughness with removing her stiches, she began seeing another physician, Dr. Herbert McGuire, for post-operative treatment. Dr. McGuire, who works in the same facility as Relator, advised Plaintiff that she should undergo a follow-up scar revision surgery because she had a "prominent dogear with some skin folds over the dogear." Because Dr. McGuire and Relator work in the same facility, Plaintiff decided to obtain an opinion from a physician who does not work with Relator. On April 4, 2018, Plaintiff began to treat with Dr. Mary Tschoi Kim at University Health of Shreveport. Dr. Kim advised Plaintiff that she needed to undergo a revision surgery and that the tummy tuck surgery should never have been performed on Plaintiff due to a preexisting scar located on her right abdomen.

On October 11, 2017, Plaintiff filed a medical review panel complaint with the Louisiana Patients' Compensation Fund (PCF) against Relator and Rapides Regional Medical Center alleging that her stomach is deformed and has not healed properly due to Relator's negligence. That complaint was deemed invalid on December 22, 2017, due to Plaintiff's failure to pay the filing fee. However, Plaintiff filed a second complaint with the PCF on January 30, 2018. As is permitted by La.R.S. 40:1231.8(B)(2)(a), Relator filed an exception of prescription in the trial court while the case is still pending before the PCF. The trial court denied Relator's exception of prescription, and Relator now seeks review of that ruling.

SUPERVISORY RELIEF

The denial of a peremptory exception is not appealable absent irreparable injury, but the denial can be reviewed on supervisory writs where it fits the criteria of Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc. , 396 So.2d 878 (La.1981) ; Reilly v. State , 533 So.2d 1341 (La.App. 3 Cir. 1988), writ denied , 536 So.2d 1219 (La.1989).

ON THE MERITS

Relator asserts that the trial court erred when it denied his exception of prescription. Relator notes that pursuant to La.R.S. 9:5628(A), medical malpractice actions must be filed within one year from the date of the alleged negligent act or within one year of the date of discovery of the alleged negligent act, provided that the claims be filed no later than three years from the date of the alleged negligent act in order to be considered timely. In the instant case, Relator contends that since Plaintiff's claim arises out of alleged acts of malpractice that occurred when Relator provided medical care to Plaintiff in September 2016, the one-year prescriptive period expired in September 2017. Thus, Relator argues that Plaintiff's malpractice claim against him prescribed well before January 30, 2018, which is when the Plaintiff's second complaint was filed with the PCF. Also, Relator argues that Plaintiff's initial PCF complaint, which was filed on October 11, 2017, and which was subsequently deemed to be without effect due to nonpayment of filing fees, was also filed after the prescriptive period had expired.

Relator asserts that because Plaintiff's complaint is prescribed on its face, the burden shifts to Plaintiff to prove that her claim is not prescribed. Relator argues that the trial court abused its discretion when it allowed Plaintiff, over Relator's objection, to introduce uncertified medical records into evidence at the hearing on the exception of prescription. Relator contends that Plaintiff introduced multiple incomplete and uncertified medical records such as an uncertified office note from Dr. McGuire, an uncertified provider sheet, and uncertified medical records and invoice from Dr. Kim. However, Relator maintains that La.R.S. 13:3714 authorizes the admission of only those medical records which have been certified by a health care provider or signed by the administrator or medical records librarian of a hospital. Relator argues that since Plaintiff's exhibits were not properly signed by the administrator or the medical records librarian of the health care providers at issue, they should not have been admitted and considered by the trial court.

Relator notes that this court has stated the following:

Louisiana Revised Statute 9:5628's one-year prescriptive period commences running on the date the injured party discovers or should have discovered the facts upon which his cause of action is based. In other words, constructive knowledge is sufficient to trigger the running of prescription, and the plaintiff is deemed to know that which he could have learned through reasonable diligence. The heart of the inquiry is the reasonableness of the plaintiff's action or inaction. This inquiry requires consideration of the her [sic] education, intelligence, and the gravity of her condition, as well as the defendant's conduct. Reasonability is a factual determination which an appellate court cannot disturb, absent a finding of manifest error.

Braud v. Cenac , 03-1696, p. 6 (La.App. 3 Cir. 7/14/04), 879 So.2d 896, 902-03, writ denied , 04-2101 (La. 11/15/04), 887 So.2d 484 (citations, footnotes, and internal quotation marks omitted).

In the instant case, Relator asserts that Plaintiff did not present any admissible evidence to prove the date of discovery of her cause of action for her malpractice claim. Nonetheless, Relator contends that even if the inadmissible evidence which Plaintiff submitted was considered, the key inquiry is the reasonableness of Plaintiff's inaction until January 30, 2018, which is when she filed her medical malpractice claim. Relator notes that Plaintiff alleges that her stomach has not healed and is deformed. Relator contends that looking at an unhealed and deformed stomach in the mirror would excite the attention of a reasonable person and cause that person to inquire about possible malpractice. Also, Relator contends that the evidence shows that Plaintiff wanted a second opinion before January 30, 2017, which was a year before her complaint was filed. Relator maintains that Plaintiff was aware of her dissatisfaction with Relator's services and the results of her surgery as early as September 21, 2016, when she terminated her treatment with Relator.

In her opposition to the instant writ application, Plaintiff asserts that the exception of prescription was properly denied. Plaintiff contends that Relator is incorrect in its assertion that La.R.S. 13:3714 serves to ban the admission of evidence. Instead, Plaintiff contends that statute merely dictates the proof of the document's content. Relator also contends that the medical records that she submitted into evidence were admissible under La.Code Evid. art. 803 because they were not introduced to prove the truth of the matter asserted but rather, they were introduced to show that Plaintiff was continuing treatment with Relator and another doctor at the same facility. Also, Plaintiff asserts that the records contain a doctor's electronic signature and, at the very least, were kept in the ordinary course of business.

Furthermore, Plaintiff maintains that the same medical records which Relator did not want Plaintiff to introduce into the record, due to a lack of certification, were introduced, with certification, by Relator. Plaintiff contends that in support of her opposition to the exception of prescription, she merely used an excerpt from the same medical records that Relator has introduced. Plaintiff argues that even if some or all of her exhibits are deemed inadmissible, the certified medical records submitted by Relator should be sufficient to show that Plaintiff had no knowledge of the malpractice until well after the date of her surgery and within a year of the date of filing for her malpractice complaint. In that regard, Plaintiff contends that the records show that Relator told Plaintiff that her surgery had gone well and show that another doctor at Relator's facility (Dr. McGuire) had specifically indicated that there was no malpractice by Relator. Plaintiff maintains that she was prevented from discovering her cause of action for malpractice because Relator's facility was assuring her up to February 7, 2017, that her results were normal for the type of surgery she had undergone. Plaintiff contends that is was at that point that she decided to get another medical opinion and began treating with Dr. Kim on April 4, 2018. Plaintiff maintains that it was during her treatment with Dr. Kim she finally realized that she had a claim for malpractice. Plaintiff contends that she, being a real estate agent with average intelligence, did not conclude that a malpractice had been committed just because she was dissatisfied with the results of her surgery.

Pursuant to La.R.S. 9:5628(A), a medical malpractice action may be brought within one year of discovery that a malpractice has been committed, provided that the claim is filed within three years of the act of malpractice. Therefore, we find that there is merit to Plaintiff's argument that her claim is timely under the discovery rule. We find that although Plaintiff had some dissatisfaction with the outcome of her surgery of September 2016, she was being assured by Relator and Dr. McGuire that the surgery had gone well and that her post-surgery symptoms were normal. We agree with Plaintiff's proposition that such assurances delayed Plaintiff's discovery of the fact that she had been a victim of a malpractice. Inasmuch as her complaint was filed within a year of the alleged discovery of malpractice and within three years after the surgery was performed, we therefore hold that the trial court did not abuse its discretion in denying Relator's exception of prescription. Accordingly, we affirm the trial court's ruling on this issue.

WRIT DENIED. We find no error in the trial court's ruling.


author: PERRY, Judge.

text:
    Warren DOUCET v. SUPERIOR GAUGING SERVICES, INC., et al.
    18-861
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    Anthony C. Dupré, Dupré-Myers, L.L.C., 514 West Main Street, Post Office Drawer F, Ville Platte, Louisiana 70586, (337) 363-3804, Counsel for Plaintiff/Appellant: Warren Doucet
    Kevin P. Merchant, Carolyn C. Cole, NEUNERPATE, One Petroleum Center, 1001 W. Pinhook Road, Suite 200, Lafayette, Louisiana 70503, (337)-237-7000, Counsel for Defendant/Appellee: Superior Gauging Services, Inc.
    Michael G. Lemoine, Jones Walker LLP, 600 Jefferson St., Suite 1600, Lafayette, Louisiana 70501, (337)-593-7600, Counsel for Defendant/Appellee: Shelf Energy, L.L.C.
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
   PERRY, Judge.

In this personal injury lawsuit, Warren Doucet ("Plaintiff") appeals the trial court's grant of summary judgment in favor of the two defendants, Superior Gauging Services, Inc. ("Superior") and Shelf Energy, L.L.C. ("Shelf"), dismissing Plaintiff's claims against the two defendants with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 22, 2015, Plaintiff was allegedly injured when a metal oil tank he was cutting up for scrap struck him. At the time of the accident, Plaintiff was on the property of Lotaire Duhon ("Duhon") in Vermilion Parish, Louisiana. When the accident occurred, the Duhon property was subject to an oil and gas lease wherein Duhon granted certain mineral rights to Shelf. After the wells were no longer producing in paying quantities, Shelf plugged them and began to restore and clean the well site pursuant to the terms of its mineral lease contract with Duhon. In furtherance of its contractual obligations, Shelf contacted Rodney Quibodeaux ("Quibodeaux"), the co-owner of Superior, to perform the clean up operations.

One aspect of the clean-up involved the removal of four large storage tanks that had been used during production. Quibodeaux then contacted Earl Doucet ("Doucet") to look at the tanks and determine if he would be interested in removing them for scrap. Doucet, who was ill, brought Plaintiff, his cousin, to the job site; after examining the tanks, Plaintiff agreed to remove the tanks from service, put them on a trailer, haul them, and sell the metal for scrap. As Plaintiff was using a cutting torch to sever one of the storage tanks, the tank rolled over the chocks that had been placed to secure it and injured him.

Plaintiff filed a petition for damages against Superior and Shelf, contending he suffered personal injury damages while he was performing storage tank demolition and scrap metal services on the Duhon property. After answers were filed to Plaintiff's petition and various depositions were taken, Superior and Shelf each filed motions for summary judgment, on April 5, 2018, and April 11, 2018, respectively, seeking dismissal of Plaintiff's claims; both motions were scheduled for hearing on May 29, 2018. Plaintiff filed his opposition to the motions for summary judgment on May 16, 2018, thirteen days before the hearing date. Superior and Shelf filed a joint motion to strike Plaintiff's opposition for failure to comply with the fifteen-day mandatory deadline provided in La.Code Civ.P. art. 966(B)(2) and La.Dist.Ct.R. 9.9 of the Uniform Rules of the District Court.

Initially, the trial court denied Superior's and Shelf's motion to strike. After hearing argument, the trial court granted Superior's and Shelf's motions for summary judgment and dismissed Plaintiff's claims against those defendants.

Plaintiff filed this appeal, contending the trial court erred when it granted Superior's and Shelf's motions for summary judgment.

ANALYSIS

Louisiana Code of Civil Procedure Articles 966 and 967 govern motions for summary judgment. The legislature has extensively amended these articles in 1996, when it first pronounced that summary judgment procedure is favored. See 1996 La. Acts 1st Ex.Sess. No. 9, § 1; Hayes v. Autin , 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied , 97-281 (La. 3/14/97), 690 So.2d 41. The most recent amendment to Article 966(B) altered the deadlines for filing motions for summary judgment and oppositions thereto. 2015 La. Acts No. 422, § 1. Paragraph (B) now provides:

Unless extended by the court and agreed to by all of the parties, a motion for summary judgment shall be filed, opposed, or replied to in accordance with the following provisions:
(1) A motion for summary judgment and all documents in support of the motion shall be filed and served on all parties in accordance with Article 1313 not less than sixty-five days prior to the trial.
(2) Any opposition to the motion and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.
(3) Any reply memorandum shall be filed and served in accordance with Article 1313 not less than five days prior to the hearing on the motion. No additional documents may be filed with the reply memorandum.
(4) If the deadline for filing and serving a motion, an opposition, or a reply memorandum falls on a legal holiday, the motion, opposition, or reply is timely if it is filed and served no later than the next day that is not a legal holiday.

The standard of review applicable to summary judgment is well known:

Courts of appeal review summary judgments de novo applying the same analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden does not require him to negate all essential elements of the adverse party's claim, action or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action or defense. Thereafter, 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. Hardy v. Bowie, 98-2821 (La. 9/8/99), 744 So.2d 606.

Berard v. Home State County Mut. Ins. Co., 11-1372, p. 2 (La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471-72.

In the present case, it is undisputed that Plaintiff failed to file his opposition memorandum within the timeframe mandated in La.Code Civ.P. art. 966(B)(2). The record clearly reflects Plaintiff's opposition was mailed to the trial court and served on the parties just thirteen days before the scheduled hearing on the motions for summary judgment, far short of the fifteen days provided in La.Code Civ.P. art 966(B)(2). Although, under La.Code Civ.P. art. 966(B), the trial court could have extended the deadline with the agreement of the parties, this condition was not met because Superior and Shelf objected to Plaintiff's late-filed memorandum. As an appellate court who reviews summary judgment matters de novo, we find Plaintiff's opposition untimely. As such, we consider Superior's and Shelf's motions for summary judgment unopposed.

After reviewing the memoranda and attachments de novo, we find the trial court properly granted summary judgment in this matter. It is clear Superior, Doucet, and Plaintiff were independent contractors.

In Thompson v. Winn-Dixie Montgomery, Inc. , 15-477 (La. 10/14/15), 181 So.3d 656, 665, the supreme court stated:

[A] principal is not liable for the offenses committed by an independent contractor while performing its contractual duties. Ellerbe v. Albertsons, Inc., 43,452 (La.App. 2 Cir. 8/13/08), 989 So.2d 303, 305 ; Sys. Contractors Corp. v. Williams & Associates Architects, 99-1221 (La.App. 5 Cir. 9/26/00), 769 So.2d 777, 781 ; Thomas v. Albertsons, Inc., 28,950 (La.App. 2 Cir. 12/11/96), 685 So.2d 1134, writ denied, 97-0391 (La. 3/27/97), 692 So.2d 395 ; Morales v. Davis Brothers Construction Company, Inc., 94-0902 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302, writ denied, 95-0139 (La. 3/17/95), 651 So.2d 271. Two exceptions to this general rule exist: where the work is ultra-hazardous; or if the principal reserves the right to supervise or control the work of the independent contractor. Sys. Contractors Corp., 769 So.2d at 781 ; Ledent v. Guar. Nat. Ins. Co., 31,346 (La.App. 2 Cir. 12/28/98), 723 So.2d 531, 537.

Generally, Shelf as a principal is not liable for the offenses committed by an independent contractor. Thompson , 181 So.3d at 665. As to the two exceptions to the general rule, the motions for summary in the present case showed there was no ultrahazardous work involved and Shelf retained no control or supervision of Plaintiff's work. Likewise, the undisputed facts show Superior neither exercised control over Plaintiff's work nor provided authorization for the work practices Plaintiff chose to utilize in his clean up operation.

Although there is not a per se rule holding that a repairman may never recover while he is repairing the thing he has been hired to remove, see Celestine v. Union Oil Co. of California , 94-1868 (La. 4/10/95), 652 So.2d 1299, the individual circumstances of the present case do not establish that the tank being dismantled presented an unreasonable risk of harm. In the present case, the undisputed evidence shows: Plaintiff had performed similar tasks prior to this accident; he previewed the work site and saw nothing to indicate that cutting the tanks would be unsafe; he admitted he thought he had all the equipment needed to perform the job and placed chocks on the tank to prevent the tank from rolling; he and his cousin felt he was qualified to do the work; and he was familiar with the condition of the tank before he commenced demolition. Moreover, the evidence shows that the tank collapsed when Plaintiff cut the tank with a welding torch, a method he chose to purposefully collapse the tank. Supported by well-established jurisprudence, we find the trial court properly dismissed Shelf and Superior on their motions for summary judgment.

DISPOSITION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Warren Doucet.

AFFIRMED.

      Although Plaintiff sued Lotaire Duhon, other information in the record implies that it was the heirs of Lotaire Duhon who executed the lease and may have inherited the property. For purposes of this opinion, we will simply refer to Duhon as the owner of the property.

      As noted above, Plaintiff also named Duhon as a defendant. The summary judgments granted in the present matter only involve Superior and Shelf. Neither Duhon nor the Duhon heirs are involved in this appeal.

      Although there were two motions for summary judgment, the trial court signed one judgment in which it granted both motions, dismissing Plaintiff's claims.

      "The Courts of Appeal will review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise." Uniform Rules-Courts of Appeal, Rule 1-3 ; (Emphasis added). Plaintiff has not designated assignments of error for us to consider. Rather, Plaintiff argues in brief that because of the language of the contract between Shelf and Duhon, he was a third-party beneficiary of that contract. With this as a legal basis, Plaintiff contends numerous genuine issues of material fact existed which would have made summary judgment improper. Although we could reach this argument in "the interest of justice," we find this argument is not properly before us for reasons more fully explained infra .

      See and compare Buggage v. Volks Constructors , 06-175 (La. 5/5/06), 928 So.2d 536 (per curiam) (holding the time limitation established by La.Code Civ.P. art. 966(B) for the service of affidavits in opposition to a motion for summary judgment is mandatory and finding no abuse of discretion by the trial court's exclusion as inadmissible affidavits not timely filed); Bond v. Your Mom's Restaurant and Bar , 18-924 (La.App. 1 Cir. 12/21/18) (unpublished opinion) (holding that a motion to strike was an appropriate procedural vehicle to attack the admissibility of opposition documents based on their untimeliness); and Lewis v. Old Republic Ins. Co. , 17-456 (La.App. 3 Cir. 8/23/17), 226 So.3d 557 (finding that where the mover filed a motion to strike, the trial court has no discretion to allow a late-filed opposition to motion for summary judgment as mandated by La.Code Civ.P. art. 966(B)(2) when the parties have not agreed otherwise).

      As explained in Celestine , 652 So.2d at 1304 :
      [T]he individual circumstances, including but not limited to the social, moral, economic considerations, the degree of knowledge of the repairman, the incentive or disincentive to the owner to repair the vice or defect, the reasonableness of presuming that a particular repairman is cognizant of the particular risks, and the ability of the repairmen to minimize such risks, should all be factored into and weighed in the "unreasonable risk" calculation.


text:
    Shane R. PIERCE and Kimberly M. Pierce v. Irma M. RODRIGUEZ, et al.
    19-181
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2019
    Fred A. Pharis, Pharis Law Offices, 831 DeSoto Street, Alexandria, LA 71301, (318) 445-8266, COUNSEL FOR PLAINTIFFS/RESPONDENTS: Shane R. Pierce, Kimberly M. Pierce
    Michael E. Parker, Allen & Gooch, P.O. Box 81129, Lafayette, LA 70598-1129, (337) 291-1350, COUNSEL FOR DEFENDANTS/APPLICANTS: RLI Insurance Company, Ballard CLC, Inc., James Bryan Butler
    Randall Brian Keiser, Keiser Law Firm, PLC, P.O. Box 12358, Alexandria, LA 71315, (318) 443-6168, COUNSEL FOR DEFENDANT/RESPONDENT: Irma M. Rodriguez
    Court composed of John D. Saunders, Billy H. Ezell, and Jonathan W. Perry, Judges.
   SAUNDERS, Judge.

Relators, Ballard, CLC, Inc. (Ballard); James Bryan Butler (Butler); and Ballard's insurer, RLI Insurance Company (RLI), seek writs from the denials of two motions for summary judgment in a ruling rendered by the Ninth Judicial District Court, Parish of Rapides, the Honorable Patricia Evans Koch, presiding.

STATEMENT OF THE CASE

Irma M. Rodriguez (Rodriguez) sold a home located at 109 Belle Trace, Lecompte, Louisiana, to Shane and Kimberly D. Pierce (the Pierces). The sale was "as is" without warranties.

On October 1, 2013, a VA appraisal was conducted, and the appraiser noted masonry cracks and recommended an engineer's report. Rodriguez hired Ballard, and an inspection was performed by Butler, an engineer, whose October 8, 2013 report found the house to be "structurally sound."

After being made aware of the VA appraisal's results, Shane called their lender, Public Service Mortgage (PSM), and indicated that they did not wish to purchase the house because of possible foundation problems. The Pierces were allegedly told that they might be subject to penalties and litigation if they backed out of the sale. The sale went through and closed on October 29, 2013.

The Pierces allege that the failure of the foundation caused a build-up of methane gas from the sewer that made the home uninhabitable by January of 2014. They allege that because they could not pay the mortgage due to having to pay rent on another place to live, the loan was placed in default. The home was seized and sold.

The Pierces filed suit against Rodriguez, Ballard, Butler, and PSM, alleging that Rodriguez knew and intentionally chose not to disclose that there were latent defects in the foundation and the sewer, as well as numerous other problems, that existed at the time of sale. Rodriguez filed a motion for summary judgment seeking the dismissal of the Pierces' claims. The motion was denied by the trial court, and this court denied her writ application. Pierce v. Rodriguez , 17-680 (La.App. 3 Cir. 3/14/18) (unpublished writ decision), writ denied , 18-587 (La. 6/1/18), 244 So.3d 436.

Rodriguez filed a third-party demand against Allstate, her homeowner's insurer. Allstate filed a motion for summary judgment alleging that the policy issued to Rodriguez did not provide coverage for a redhibition claim. That motion was denied, and Allstate sought writs. This court granted writs and rendered judgment in favor of Allstate, dismissing both Rodriguez's third-party demand and the Pierces' claim against Allstate. Pierce v. Rodriguez , 17-681 (La.App. 3 Cir. 718/18) (unpublished opinion).

Relators filed motions for summary judgment seeking dismissal of the Pierces' claims of detrimental reliance on Butler's report and their claims for loss of consortium. Rodriguez adopted "by reference" the motion for summary judgment filed by Relators. It is unclear whether she intended to adopt both motions, and she has not filed anything in this court in connection with the instant writ application.

The two motions were denied in open court on February 4, 2019. One judgment was signed on February 12, 2019. Relators timely filed a notice of intent to seek writs and requested a return date. The trial court did not set a certain date, but this writ application was timely filed on February 28, 2019. La.Code Civ.P. art. 1914 and Uniform Rules-Courts of Appeal, Rule 4-3. The Pierces filed an opposition to the writ application.

SUPERVISORY RELIEF

"A denial of a motion for summary judgment is interlocutory, and the only remedy available is to seek supervisory relief." Lewis v. Old Republic Ins. Co. , 17-456, p. 2 (La.App. 3 Cir. 8/23/17), 226 So.3d 557, 558.

ON THE MERITS

"A reviewing court considers a trial court's judgment on a motion for summary judgment pursuant to the de novo standard." Schroeder v. Hanover Ins. Co. , 18-294, p. 3 (La.App. 3 Cir. 9/19/18), 255 So.3d 1123, 1125.

In support of both motions for summary judgment, Relators submitted the original petition for damages and the transcript of Kimberly's deposition taken on March 28, 2017, which is titled "Continuation of Deposition." In a supplemental memorandum, Relators refer to and quote Shane's deposition but do not attach the transcript.

The Pierces' brief in opposition to several motions filed by various parties, including the two motions for summary judgment at issue in this writ application, refers to three exhibits relating to the Pierces' credit expert and to Kimberly's deposition. The copy of this brief attached to the writ application does not include the referenced exhibits.

The court minutes do not reflect that any documents were received into evidence. The Pierces attach portions of the transcript of Kimberly's deposition taken on April 26, 2016, to their opposition to the writ application. This exhibit is not properly before this court because it was not placed into the record at the trial court. Denoux v. Vessel Mgmt. Serv., Inc. , 07-2143 (La. 5/21/08), 983 So.2d 84 ; La.Code Civ.P. art. 966(D)(2).

The documents submitted by the mover must be "sufficient to resolve all material factual issues." Gilbert v. Gottsegen , 14-593, p. 8 (La.App. 5 Cir. 5/21/15), 171 So.3d 289, 294, writ denied , 15-1406 (La. 10/2/15), 178 So.3d 993. " '[F]actual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor.' " Bowdoin v. WHC Maint. Serv., Inc. , 17-150, pp. 4-5 (La.App. 3 Cir. 10/25/17), 230 So.3d 232, 236, quoting Willis v. Medders , 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050. Thus, "even when no opposition is filed to a motion for summary judgment, the court must still determine whether the movant has met its burden of proof on the motion." Rangel v. Vega-Ortiz , 16-146, p. 3 (La.App. 3 Cir. 9/28/16), 200 So.3d 1013, 1016.

For the reasons that follow, we find that Relators have not submitted evidence that resolves all issues of material fact regarding the issues raised in the motions for summary judgment.

Detrimental Reliance

"To establish detrimental reliance, a party must prove three elements by a preponderance of the evidence: (1) a representation by conduct or word; (2) justifiable reliance; and (3) a change in position to one's detriment because of the reliance." Louisiana Office of Risk Mgmt. v. Richard , 13-890, p. 5 (La. 10/15/13), 125 So.3d 398, 402.

In the petition, the Pierces claim that Relators falsely assured them "that there were no problems with the home and that the home was foundationally and structurally sound." They also allege Butler's "materially false and negligent report ... induced them to buy the home which was uninhabitable."

Relators assert that the Pierces' claim for detrimental reliance fails because they made up their minds not to purchase the house before Butler issued his report and thereafter went through with the sale without having seen Butler's report. Relators assert that the decision to go through with the sale was based on threats made by PSM and not on Butler's report.

Kimberly testified in deposition that after she was made aware of the VA appraiser's finding of cracks in the masonry, she called her realtor, Tulena Francis (Francis), and the home inspector that she had hired. She conveyed to them that she was not comfortable with the report and that she did not want to have to do foundation repairs. Kimberly testified that she was told that an engineer was being hired as suggested by the VA appraiser. Before the engineer's report was received, Kimberly told Shane to call PSM and tell them that they were not going to purchase the house because of the foundation problems. When asked why they went through with the sale anyway, Kimberly testified: "[w]e were told that there would be fees, penalties, and we would be subject to a lawsuit, and we just did not have the money at the time for that." She further testified that she was given Butler's report at the closing but had not seen it before then. Based on this testimony, Relators assert that the Pierces cannot prove that they relied upon the Butler report to their detriment.

The Pierces assert that Relators ignored Kimberly's testimony that prior to closing, Francis told her that an engineer had looked at the property and that his report stated that the foundation was "fine, it was superficial, and that they were going to be repairing it." Kimberly testified that when she was given Butler's report at closing, it was consistent with what Francis told her. Kimberly stated: "we accepted the report and took the information that we were given." According to the Pierces, the fact that they had not physically received Butler's report before the closing does not lead to the conclusion that they could not have relied on it to their detriment.

Relators assert that the thing on which the Pierces rely must be known to them prior to making a decision. We find that Kimberly's deposition testimony establishes that the Pierces were aware of the content of Butler's report before closing.

"Issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment." McLin v. HI HO, Inc. , 13-36, p. 6 (La.App. 1 Cir. 6/7/13), 119 So.3d 830, 834 (citations omitted). Summary judgment "is not appropriate for judicial determination of subjective facts, such as motive, intent, good faith, or knowledge that calls for credibility evaluations and the weighing of testimony." Thomas v. Hodges , 10-2637, p. 1 (La. 2/11/11), 54 So.3d 1109, 1109.

We find that Kimberly's deposition testimony does not establish that she and Shane could not have relied on Butler's report to their detriment. Moreover, we find that Kimberly's deposition testimony does not establish that the Pierces based their decision to proceed with the sale only on the alleged threats made by PSM. Accordingly, we find that the trial court did not err in denying Relators' motion for summary judgment on this issue.

Loss of Consortium

"Generally, to be entitled to loss of consortium damages, the petitioner must be a member of a specific class, for example, the spouse of the victim." Morales v. Davis Bros. Constr. Co. , 97-1648, pp. 4-5 (La. App. 4 Cir. 1/28/98), 706 So.2d 1048, 1050 (citations omitted). Relators contend that Kimberly and Shane had to be married at the time of the sale in order to claim loss of consortium damages. They base their argument on Leckelt v. Eunice Superette, Inc. , 555 So.2d 11 (La.App. 3 Cir. 1989), writ denied , 559 So.2d 141 (La.1990), wherein this court held that a spouse who marries a tort victim after the accident cannot maintain a claim for loss of consortium under La.Civ.Code art. 2315. In that case, the plaintiff and his wife lived together for several years prior to the accident and had children together but were not married at the time of the accident. This court went on to state that even if there was a right of action, it failed to see how any damages could be proven because the accident could not have an effect on a marriage that did not exist at the time of the accident.

Kimberly testified in her deposition that at the time of the purchase of the subject property, she and Shane were not married. They had been married and divorced. Kimberly's deposition establishes that she and Shane remarried in May of 2014, after the sale, and that they sought marriage counseling in 2015. Kimberly related the problems in her marriage to the stress caused by the subject incident, children, work, and trust issues.

None of the documents introduced by Relators show when the Pierces were divorced or exactly when they remarried. The closing documents attached to Kimberly's deposition show that Shane and Kimberly signed the mortgage indicating that they were married. Shane gave Kimberly a power of attorney to sign all the documents relating to the purchase of this home for him, and the act of cash sale represents that Shane and Kimberly "are currently married."

None of the documents introduced by Relators shows whether the Pierces were married or divorced when the foreclosure occurred or when the alleged loss of financial reputation affected the Pierces' ability to obtain financing for other purchases.

The petition alleges that Kimberly required medical treatment due to anxiety allegedly caused by this incident. None of the documents introduced by Relators shows whether the Pierces were divorced or married at the time this treatment occurred.

The Pierces contend that unless Relators can show that the Pierces "used marriage just as an artifice to benefit one spouse," the rule of Leckelt , 555 So.2d 11, should not apply. This argument is without merit because a party either does or does not belong to the classes of persons entitled to recover damages for loss of consortium under La.Civ.Code art. 2315.

The Pierces also contend that because the nature of the damages they claim are continuing, summary judgment precluding any damages for loss of consortium is inappropriate. This argument overlooks the fact that continuing damages cannot be separated from the continuing tort doctrine which applies as an exception to prescription where the defendants owe a continuing duty to the plaintiff that they continue to breach, and which causes a continuing injury or damages that arise day to day. See Crump v. Sabine River Authority , 737 So.2d 720 (La.1999), wherein the court found that the act of digging a canal was the single cause of the injury for prescriptive purposes even though there were continuing ill effects from the tortious act. "When a defendant's damage-causing act is completed, the existence of continuing damages to a plaintiff, even progressively worsening damages, does not present successive causes of action accruing because of a continuing tort." In re Med. Review Panel for Claim of Moses , 00-2643, p. 16 (La. 5/25/01), 788 So.2d 1173, 1183. The Pierces do not allege any continuing conduct on the part of Relators. As such, the continuing tort doctrine is not applicable.

We note, however, that in Aldredge v. Whitney , 591 So.2d 1201 (La.App. 2 Cir. 1991), the court held that an exception of no right of action would not be granted on the basis that the marriage occurred after the tortious act where the injuries did not become apparent until after the marriage. In that case, the subject accident occurred in January 1989, and the marriage took place in June 1989. The wife did not begin experiencing back pain until October 1989. The court stated that assuming that his wife's back pain was caused by the accident, Aldredge had a cause of action for loss of consortium.

The motion for summary judgment in this case is analogous to an exception of no right of action. Relators have failed to show that the Pierces do not have claims for loss of consortium based solely on the fact that they were not married on the date of the sale because Relators did not prove that all of the damages claimed were apparent before the Pierces remarried. Even though the Pierces may not be able to prove any damages for loss of consortium at trial, Relators have not shown that the Pierces cannot assert those claims. Accordingly, we find that the trial court did not err in denying the motion for partial summary judgment as to the loss of consortium claims.

WRIT DENIED. We find no error in the trial court's rulings.

      Rodriquez alleges that she had the Rapides Parish Sanitarian and Mike Nugent, a sewer system installer and repairman, perform inspections of the sewer system and that the sewer passed inspection.

      RLI was added as a defendant in the first supplemental petition. State Farm, as the insurer of PSM, and Allstate, as the insurer of Rodriguez, were added as defendants in the second supplemental petition. PSM and State Farm settled with the Pierces and are no longer involved in this litigation.

      This is a violation of Uniform Rules-Courts of Appeal, Rule 4-5(C)(9), but the three exhibits relating to the credit expert are not relevant to this writ application, and Kimberly's deposition transcript is attached to the motion for summary judgment.

      The allegations of the petition are accepted as true when deciding an exception of no right of action. Patriot Constr. & Equip., LLC v. Rage Logistics, LLC , 15-1136 (La.App. 3 Cir. 4/6/16), 215 So.3d 844, writ denied , 16-864 (La. 9/6/16), 205 So.3d 917.