author: CRAIN, J.

text:
    Alvin JACKSON v. The CITY OF ZACHARY, Louisiana and Americana Development Company, LLC
    NO. 2017 CA 1583
    Court of Appeal of Louisiana, First Circuit.
    AUGUST 06, 2018
    Alexis A. St. Amant II, Sacha S. Tessier, Chimene St. Amant, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant, Alvin Jackson
    Loretta G. Mince, Sharonda R. Williams, Jeanette A. Donnelly, New Orleans, Louisiana, Attorneys for Defendant/Appellee, Americana Development Company, LLC
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   CRAIN, J.

Alvin Jackson appeals a summary judgment dismissing his claims against Americana Development Company, LLC. We reverse and remand for further proceedings.

FACTS

Jackson instituted suit for declaratory and injunctive relief, as well as damages, against Americana and the city of Zachary (the City) after Americana constructed a traditional neighborhood development (TND) on property across Highway 64 from Jackson's home. Pursuant to a cooperative endeavor agreement between Americana and the City, the TND was annexed into the City, Highway 64 was widened, and a roundabout was installed in front of Jackson's home. This eliminated Jackson's access to his home from Highway 64. Jackson complains the defendants caused his property to be inaccessible by any public street and altered the natural drainage of rainwater, causing his property to become the servient estate receiving rainwater from the dominant estate and flooding when it rains.

In response to Jackson's original petition, Americana filed an exception of no cause of action, arguing it is a private entity and not liable for the City relocating Jackson's right of way or for damages caused by the improvements to Highway 64, which the City owns. The trial court sustained the exception and dismissed Jackson's claims against Americana, but afforded Jackson the opportunity to amend his petition. Jackson's amended petition added allegations that Americana and the City entered a joint venture for the roadwork, in which Americana was a willful and voluntary participant. Americana then filed another exception of no cause of action and an alternative motion for summary judgment, again arguing it is a private entity and not liable for the City's actions.

Subsequent to Americana filing its exception and motion, Jackson retained new counsel and sought leave to file a second amended petition, which Americana opposed. The request was set for contradictory hearing on the same date as Americana's exception and motion for summary judgment. After Americana argued the allegations of the new petition were not new, the trial court allowed the filing pursuant to the parties' agreement that Americana's exception and motion for summary judgment would apply to the new petition without delaying the hearing. Americana then clarified it was proceeding with the motion for summary judgment rather than the exception of no cause of action.

Based on the arguments of the parties and the evidence presented, the trial court granted the motion for summary judgment, dismissed Jackson's claims against Americana, and denied the exception of no cause of action as moot. Jackson now appeals.

DISCUSSION

After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show no genuine issue as to material fact and mover is entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966A(3). The summary judgment procedure is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria governing the trial court's determination of whether summary judgment is appropriate. In re Succession of Beard, 13-1717 (La. App. 1 Cir. 6/6/14), 147 So.3d 753, 759-60.

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue 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 to the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966D(1). Factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing a motion for summary judgment, and all doubt must be resolved in the opponent's favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049, 1050.

A fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam ); Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Hines, 876 So.2d at 765 ; Smith, 639 So.2d at 751. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material must be viewed in light of the substantive law applicable to the case.

Bryant v. Premium Food Concepts, Inc., 16-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 82, writ denied , 17-0873 (La. 9/29/17), 227 So.3d 288.

On appeal, Jackson argues that although the trial court allowed Americana's motion for summary judgment to apply to its newly-filed second amended petition, the trial court failed to consider the allegations of that petition, and instead considered only the allegations of the original and first amended petitions that were not reasserted in the second amended petition. Louisiana courts have long acknowledged the wording used in an amended petition may have the effect of superseding and replacing the allegations in an original petition. State by and through Caldwell v. Teva Pharmaceuticals Industries, Ltd., 17-0448 (La. App. 1 Cir. 2/8/18), 242 So.3d 597, 604. Here, the second amended petition states it "amends the original petition as previously amended and supplemented so that it now reads as follows." Amended petitions containing similar language have been held to supersede prior petitions, abandoning claims not reasserted therein. See Bologna Bros. v. Stephens, 23 So.2d 645, 646-47 (La. App. 2 Cir. 1945). However, language adopting and incorporating prior petitions has been interpreted as a preservation of prior claims. See State by and through Caldwell, 242 So.3d at 605. Jackson's second amended petition contains no such incorporating language. Americana correctly points out the second amended petition's inclusion of the conclusory statement that Jackson is entitled to injunctive relief enjoining the defendants from further interfering with his First Amendment right to free speech, a claim asserted in the prior petitions. On appeal, Jackson clarifies his second amended petition did not reassert the constitutional claim, and he considered it dismissed. Consequently, the question presented is whether Americana established its entitlement to summary judgment dismissing the specific claims of the second amended petition.

Jackson's second amended petition alleged Jackson was in peaceful possession of his property from 2004 until "the defendants" disturbed his possession by their actions, including blocking access to Jackson's property via Highway 64, which may result in his property being landlocked, and changing the natural servitude of drainage. Jackson farther alleged the City arbitrarily and capriciously issued permits allowing the disturbance of his use of the property, effectively allowing "Americana to take certain property rights .... without expropriation proceedings," which he averred also constituted a disturbance of his possession. Jackson contended:

Defendants' disturbances have interfered with the plaintiff's possession of The Property; interfered with plaintiff's access to and from The Property; made it impassable when it rains; and other damages as of yet undetermined for which they are entitled to be compensated in a reasonable sum.
...
Plaintiff is seeking a declaratory judgment which finds plaintiff is entitled to possession of The Property; that this is an illegal TND; that the plan includes spot zoning; that it effectively rezones plaintiff's property into becoming part of the TND without his wanting to do so; that defendants' actions interfered with plaintiff's access to and from The Property; that defendants' actions made access to The Property impassable when it rains; and other damages as of yet undetermined [i]ncluding attorney's fees for which they are entitled to be compensated in a reasonable sum.

Americana's exception and motion were directed at Jackson's 1) First Amendment claims, 2) claims under Louisiana Civil Code article 655 regarding the natural servitude of drainage, 3) negligence claims, and 4) claims under Louisiana Revised Statute 9:2800 regarding the liability of public bodies. Americana's memorandum in support of its exception and motion for summary judgment argued Jackson's amended petition should be dismissed for the same reason the trial court dismissed the original petition, i.e., Americana is a private entity not subject to First Amendment claims and because Americana is not responsible for actions of the City or damages arising from Highway 64, which the City owns. Americana contended Jackson's claim that it is a quasi-governmental entity that performed a public function by funding and constructing public roads and roundabouts is proven false by its summary judgment evidence; namely, the cooperative endeavor agreement between the City and Americana, an agreement between the City and East Baton Rouge Parish for reimbursement of costs of certain roadwork, and an agreement by which the state transferred ownership of the relevant portion of Highway 64 to the City. Consequently, Americana argued the trial court's prior findings and holding should apply with equal force. Americana then addressed the First Amendment claims, arguing Jackson could not show it is a state actor.

Americana further asserted Jackson's allegations failed to state a claim against it under any law. Americana argued Jackson purported to bring claims based on interference with the natural servitude of drainage, but failed to allege the natural flow of water before the roadwork, and therefore is not legally entitled to the relief he seeks. It further set forth that the basis of Jackson's negligence claims was the City's filling of his ditches, and that Jackson had not alleged Americana caused the damages. With respect to claims related to removing Jackson's access to Highway 64, Americana argued Jackson had not alleged and could not establish any facts to support his claim Americana was responsible for the City's actions, noting Jackson alleged the relocation was "unilaterally" performed by the City. Finally, Americana contended it is a private entity and could not be held liable under Louisiana Revised Statute 9:2800, which Jackson cited in his original and amended petition, as that statute applies to public entities.

Louisiana Code of Civil Procedure article 966F provides, "A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time." Therefore, although the trial court allowed Americana's motion to apply to the second amended petition pursuant to the agreement of the parties, summary judgment was limited to the issues raised in the motion itself. Americana's motion for summary judgment does not specifically address the possessory action asserted in the second amended petition based on a disturbance of peaceful possession by the combined efforts of Americana and the City that removed Jackson's access to Highway 64 and caused his property to flood. A possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. La. Code Civ. Pro. art. 3655. To maintain the possessory action, the plaintiff must allege and prove: 1) he had possession of the immovable property at the time of the disturbance; 2) he and his ancestors in title had possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; 3) the disturbance was one in fact or in law, as defined in Louisiana Code of Civil Procedure article 3659 ; and 4) the possessory action was instituted within a year of the disturbance. La. Code Civ. Pro. art. 3658 ; Horrell v. Barrios, 16-1547, p. 14 (La. App. 1 Cir. 3/15/18), 2018 WL 1373653 ; Lambert Gravel Company, Inc. v. Parish of West Feliciana, 15-1225 (La. App. 1 Cir. 9/20/16), 234 So.3d 889, 906. Since the motion for summary judgment did not address the possessory action, summary judgment dismissing that claim was precluded. See La. Code Civ. Pro. art. 966F.

We note Americana argued Jackson failed to allege facts to show Americana, as opposed to the City, altered Jackson's access to Highway 64 or is responsible for changes to his property's drainage, which the second amended petition asserts constitute a disturbance of his possession. Even if this argument could be construed as an attempt to point out an essential element of Jackson's possessory action, thereby placing the possessory action at issue, we find Americana failed in its burden of proof. The second amended petition includes allegations aimed at the conduct of both Americana and the City in developing the TND and the related road construction, which he claims have caused his property to flood and denied his right of passage. Americana's summary judgment evidence establishes ownership of Highway 64 was transferred to the City, the City was responsible for the roadwork, and the City installed the roundabout. Americana's summary judgment evidence further establishes the defendants entered into a cooperative endeavor agreement for the development of the TND. However, Americana did not point out an absence of factual support for Jackson's claims that Americana's actions, together with those of the City, caused a disturbance of Jackson's possession of his property.

Nor do we find Americana's argument that it cannot be held liable under any legal theory sufficient to carry its burden on the motion. Americana's motion for summary judgment was filed as an alternative to its exception of no cause of action, which tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged. See Carr v. Sanderson Farms, Inc. , 16-1064 (La. App. 1 Cir. 2/17/17), 215 So.3d 437, 440. However, the trial court denied the exception as moot upon granting the summary judgment. While an appellate court may raise the peremptory exception of no cause of action sua sponte, we decline to do so here, finding it more appropriate to remand this matter for further proceedings and allow the trial court to consider Americana's arguments should they be reasserted.

CONCLUSION

The judgment of the trial court granting summary judgment and dismissing Jackson's claims against Americana is reversed, and this matter is remanded for further proceedings. Costs of this appeal are assessed to Americana Development Company, LLC.

REVERSED AND REMANDED.

      The trial court also granted the City's exception of no cause of action and dismissed the First Amendment claims Jackson asserted against it; however, Jackson's other claims against the City remain outstanding. Jackson's claims against the City are not at issue in this appeal.

      Jackson's original and first amended petitions included allegations that during the roadwork, he exercised his First Amendment rights by placing a large sign on his property reading, "I AM BEING DENIED THE AMERICAN DREAM, THE ENJOYMENT OF MY HOME! YOU COULD BE NEXT." He claimed his constitutional rights were violated by the placement of construction equipment in a manner blocking the sign. Jackson asked for injunctive relief enjoining the defendants from further interfering with his First Amendment right to free speech and peaceful protest without ensuing threats.

      Jackson did not object to consideration of these documents for purposes of the motion for summary judgment; therefore, the exhibits must be considered by this court in conducting de novo review. See La. Code Civ. Pro. art. 966D(2); Thompson v. Center for Pediatric and Adolescent Medicine, L.L.C., 17-1088 (La. App. 1 Cir. 3/15/18), 244 So.3d 441, 448, writ denied, 18-0583 (La. 6/1/18), 243 So.3d 1062.


source: Caselaw Access Project

license: Public Domain

text:
    STRATEGIC PLANNING ASSOCIATES, L.L.C. v. CORE CONSTRUCTION SERVICES, L.L.C., Jason Bruzik, and Travelers Casualty and Surety Company of America
    NO. 2018-CA-0176
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 19, 2018
    Lloyd N. Shields, Adrian A. D'Arcy, SHIELDS MOTT L.L.P., 650 Poydras Street, Suite 2600, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT
    Steven B. Loeb, BREAZEALE SACHSE & WILSON, L.L.P., One American Place, 23rd Floor, P.O. Box 3197, Baton Rouge, LA 70821-3197, Jason C. Bruzik, CORE CONSTRUCTION SERVICES, LLC, 3131 N. I-10, Service Road, East, Suite 401, Metairie, LA 70002, Stephen E. Richman, DICKINSON WRIGHT PLLC, 1850 N. Central Avenue, Suite 1400, Phoenix, AZ 85004, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins )
    Judge Roland L. Belsome In this construction contract case, the plaintiff, Strategic Planning Associates, LLC (SPA), appeals the Civil District Court's judgment, which confirmed an arbitration award in favor of the defendants, Core Construction Services, LLC (Core) and Travelers Casualty and Surety Company of America. For the following reasons, the trial court's judgment is affirmed.
    STATEMENT OF FACTS AND PROCEDURAL HISTORY
    In November 2014, SPA and Core entered into a subcontract for the fabrication and erection of steel for the Sophie B. Wright High School renovation project. SPA was required to provide performance and labor and material payment bonds, which were issued by United States Specialty Insurance Company (USSIC) and incorporated as a necessary part of the subcontract. SPA had also executed a General Indemnification Agreement (GIA) with USSIC.
    As the project fell behind schedule, disputes arose between Core and SPA. Core subsequently placed SPA in default and terminated the subcontract on December 22, 2015. As a result, USSIC filed an indemnity lawsuit against SPA in the United States District Court for the Eastern District of Louisiana. In the same court, Core filed suit against USSIC over the bond.
    In August 2016, Core submitted a Demand for Arbitration with the American Arbitration Association (AAA), to which SPA lodged an objection. Later that month, SPA filed a Petition to Enforce Sworn Statement of Claim and for Damages against Core in the Civil District Court for the Parish of Orleans, the case from which this appeal arises. In response, Core filed an Exception of Prematurity and Alternative Motion to Stay State Litigation. In response to the exception, the parties agreed to: (1) stay the state litigation pending the arbitration and (2) stay the arbitration pending mediation. Mediation was unsuccessful.
    During the pendency of the arbitration proceedings, Core reached a settlement with USSIC, acting on behalf of itself and SPA through its power of attorney set forth in the GIA. Core then moved to dismiss the arbitration with the AAA. SPA objected, disputing the validity and authority of the arbitrator to review the settlement and GIA. After a hearing on the briefs, the arbitrator dismissed the arbitration, finding that the Settlement Agreement disposed of all claims between the parties.
    With the dismissal of the arbitration, the parties returned to Civil District Court. Core moved to lift the stay of arbitration, to confirm the arbitration award, and to dismiss the case, while SPA moved to vacate or modify the arbitration award. After a hearing, the trial court confirmed the arbitration award and dismissed the lawsuit. This appeal followed.
    STANDARD OF REVIEW
    An appellate court reviews a district court judgment confirming an arbitration award de novo . Favalora Constructors, Inc. v. Grillot Elec. Co., Inc. , 16-550, p. 3 (La. App. 4 Cir. 11/30/16), 204 So.3d 1064, 1066. Arbitration is favored, and an arbitration award is res judicata . Montelepre v. Waring Architects , 00-671, 00-672, p. 4 (La. App. 4 Cir. 5/16/01), 787 So.2d 1127, 1130 (citations omitted). The burden of proof is on the party attacking the award. Id.
    La. R.S. 9:4209 requires that a district court confirm the arbitration award upon application by any party unless grounds pursuant to La. R.S. 9:4210 or 9:4211 exist. Bottle Poetry, LLC v. Doyle Rest. Grp. Franchise Co., LLC , 13-406, p. 3 (La. App. 4 Cir. 1/15/14), 133 So.3d 60, 64, writ denied , 14-335 (La. 4/11/14), 138 So.3d 606 (citation omitted). In addition to the grounds enumerated in La. R.S. 9:4210 and 4211, a litigant may attack an arbitration award on the basis of a "manifest disregard of the law," a judicially created ground for vacating an arbitration award. Id. "A manifest disregard of the law refers to error which is obvious and capable of being readily and instantly perceived by an average person qualified to serve as an arbitrator." Id.

      La. R.S. 9:4210 provides that the courts can vacate the award:
      A. Where the award was procured by corruption, fraud, or undue means.
      B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
      C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
      D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
      La.R.S. 9:4211 states the award can be modified:
      A. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
      B. Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.
      C. Where the award is imperfect in matter of form not affecting the merits of the controversy.

   In the absence of statutory or agreed to procedures, the arbitrator has broad discretion in conducting arbitration proceedings. Southern Tire Services v. Virtual Point Dev., 00-2301, p. 6 (La. App. 4 Cir. 9/26/01), 798 So.2d 303, 307. The appellate court's function is to determine if the arbitration proceedings have been fundamentally fair. Id.

DISCUSSION

On appeal, SPA asserts that the trial court erred in confirming the arbitration award. In granting Core's motion to dismiss, the arbitrator made two rulings: 1) he had authority to consider and rely on the GIA and Settlement Agreement in ruling on the motion to dismiss the arbitration; and 2) a settlement existed between the parties.

First, concerning the arbitrator's authority to consider the GIA and Settlement Agreement submitted by Core, the issue is whether the settlement dispute and related documents fall within the scope of the arbitration agreement. See Lakeland Anesthesia, Inc. v. United Healthcare of La., Inc. , 03-1662, p. 9 (La. App. 4 Cir. 3/17/04), 871 So.2d 380, 388 (finding arbitration should be ordered unless the arbitration clause is not susceptible of an interpretation that covers the asserted dispute).

SPA argues that the arbitrator exceeded his authority and violated its due process rights when he ruled on matters not covered in the narrow language of the arbitration demand." The arbitration provision states:

all claims, disputes, and other matters in question between the Contractor and the Subcontractor, arising out of , or relating to this Subcontract or the breach thereof shall be decided by arbitration ... (emphasis added).

Despite SPA's argument to the contrary, the jurisprudence has referred to similar arbitration provisions as "broad" in nature:

Both the Supreme Court and this court have characterized similar arbitration clauses as broad arbitration clauses capable of expansive reach. See Prima Paint Corp., v. Flood & Conklin Mfg. Co. , 388 U.S. 395, 397-98, 87 S.Ct. 1801, 1802-03, 18 L.Ed.2d 1270 (1967) (labelling as 'broad' a clause requiring arbitration of '[a]ny controversy or claim arising out of or relating to this Agreement'); Nauru Phosphate Royalties, Inc. v. Drago Daic Interests, Inc. , 138 F.3d 160, 164-65 (5th Cir.1998) (holding that when parties agree to an arbitration clause governing '[a]ny dispute ... arising out of or in connection with or relating to this Agreement,' they 'intend the clause to reach all aspects of the relationship.'). Pennzoil Exploration & Prod. Co., v. Ramco Energy, Ltd. , 139 F.3d 1061, 1067 (5th Cir.1998).

Rain CII Carbon LLC v. ConocoPhillips Co. , 12-203, pp. 10-11 (La. App. 4 Cir. 10/24/12), 105 So.3d 757, 764, writ denied , 12-2496 (La. 1/18/13), 107 So.3d 631. Moreover, both the federal and state jurisprudence hold that any doubt as to whether a controversy is arbitrable should be resolved in favor of arbitration. J. Caldarera & Co. v. Louisiana Stadium & Exposition Dist. , 98-294, p. 4 (La. App. 5 Cir. 12/16/98), 725 So.2d 549, 551.

A review of the record reveals that Core filed a motion to dismiss based on the purported settlement of the claims in arbitration. As evidence, Core submitted the GIA and settlement documents. The GIA was incidental to the bonded subcontract. In addition, the Settlement Agreement arose out of the alleged breach of the subcontract claims. In his decision, the arbitrator determined that the documents at issue were "ancillary to the issues related to the subcontract;" therefore, he found that he could review and rely on the documents when ruling on the motion to dismiss.

We agree. The arbitration agreement was broad enough to encompass the consideration of the settlement dispute, as well as the related documents. Therefore, we do not find that the arbitrator exceeded his authority when considering and ruling on these documents in connection with the motion to dismiss. Accordingly, SPA has not met its burden of demonstrating that these issues were beyond the scope of arbitration as contemplated by the arbitration agreement.

Second, concerning the arbitrator's finding that a settlement existed between the parties, the issue turns on whether the arbitrator correctly interpreted the GIA. There is no dispute that USSIC entered into a settlement with Core on SPA's behalf. The relevant portions of the GIA are as follows:

IV. ASSIGNMENT
A. As security for all of the provisions of this Agreement and any other indebtedness or liabilities of the Principal and Indemnitor to the Surety, whenever and however incurred, the Principal and Indemnitor do hereby assign, transfer, pledge, convey and set-over to the Surety the property, rights, and entitlements, and any proceeds thereof, whether such property, rights, entitlements or proceeds shall be now owned or hereafter acquired, described herein below:
...
6. All right, title and interest of any Principal or Indemnitor in and to any causes of action, claims, demands, or actions of whatsoever kind or nature which any Principal may have or acquire against any party to any Contract, or causes of action, claims, demands, or actions of whatsoever kind or nature arising out of or connected with any Contract, including but not limited to, actions against any owner, obligee, design professional, subcontractor, supplier, laborer, material man or any other person or entity performing or providing labor, materials or services in connection with any work called for in connection with any Contract.
...
VI. ATTORNEY IN FACT
The Principal and Indemnitor hereby irrevocably nominate, constitute, appoint and designate the Surety as their attorney-in-fact with the right, but not the obligation, to exercise all of the rights of such Principal and Indemnitor assigned, transferred and set over to the Surety in this agreement, and in the name of such Principal and Indemnitor to make execute, and deliver any and all additional or other assignments, documents or papers deemed necessary and proper by the Surety in order to give full effect to the Surety under all other provisions of this agreement.
...
IX. SETTLEMENTS
The Surety shall have the right, in its sole and absolute discretion, to adjust, settle, prosecute, defend, compromise or appeal any claim, demand, suit, award or judgment on or in connection with any Bond or Bonded Contract.

In his decision, the arbitrator noted that SPA signed the GIA. The GIA clearly gave USSIC the right to enter into settlement agreements related to the bonded contract. The arbitrator further noted that SPA gave USSIC an irrevocable power of attorney and assignment of rights. Accordingly, he found that a settlement between the parties existed and dismissed the arbitration.

Considering that the plain terms of the GIA support the arbitrator's conclusion, there was no manifest disregard of the law that would provide grounds for reversal. Accordingly, the arbitrator did not err in acknowledging the existence of a settlement and dismissing the arbitration. Moreover, errors of fact or law do not invalidate a fair and honest arbitration award. St. Tammany Manor, Inc. v. Spartan Bldg. Corp. , 509 So.2d 424, 427 (La. 1987).

CONCLUSION

After a careful review of the record, we find SPA failed to sustain its burden of establishing jurisprudential or statutory grounds to vacate or modify the arbitration award, pursuant to La. R.S. 9:4210 or 4211. There is no evidence to indicate that the proceedings were fundamentally unfair or the arbitrator exceeded his authority. For these reasons, the judgment of the trial court confirming the arbitration award and dismissing the lawsuit is affirmed.

AFFIRMED

JENKINS, J., CONCURS IN THE RESULT

      This Court has made it clear that due process violations require a reviewing court to vacate the award. Johnson v. 1425 Dauphine, L.L.C. , 10-793, p. 10 (La. App. 4 Cir. 12/1/10), 52 So.3d 962, 968-69. However, the four grounds which require a reviewing court to vacate an arbitrator's award are broad in scope and provide sufficient leeway to correct fundamental due process violations. Pittman Constr. Co., Inc. v. Pittman , 96-1079, 96-1498, p. 13 (La. App. 4 Cir. 3/12/97), 691 So.2d 268, 274.

      While these documents did not specifically contain an arbitration provision, Section XX of the GIA provided:
      The Principal [SPA] and Indemnitor hereby consent to enforcement of this Agreement and submit themselves to personal jurisdiction in any and all jurisdictions in which (a) the Surety may sustain or pay any loss for which the Principal and Indemnitor may be liable; (b) the Surety may be sued or be subject to suit or arbitration as a consequence of having issued any Bond on behalf of the Principal; (c) any construction project may be located which is the subject of any Bonded Contract; and/or (d) any assets of any Principal or Indemnitor may be located.

      Furthermore, SPA has not demonstrated that the arbitrator awarded on a matter not submitted. Rather, the dismissal of the arbitration directly related to the matters submitted.


author: PERRET, Judge.

text:
    Bea ANGELLE v. CITY OF KAPLAN-KAPLAN POLICE DEPARTMENT
    18-108
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Theodore G. Edwards, IV, Jordan T. Precht, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, LLP, 810 South Buchanan Street, Lafayette, LA 70502, (337) 237-1660, COUNSEL FOR PLAINTIFF-APPELLANT: Bea Angelle
    Christopher R. Philipp, Attorney at Law, P.O. Box 2369, Lafayette, LA 70502, (337) 235-9478, COUNSEL FOR DEFENDANT-APPELLEE: City of Kaplan-Kaplan Police Department
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   PERRET, Judge.

In this workers' compensation case, plaintiff/employee, Bea Angelle, appeals the judgment of the Workers' Compensation Judge ("WCJ") finding that she is not entitled to supplemental earnings benefits ("SEBs"). For the following reasons, we affirm.

Facts and Procedural History:

On November 3, 2011, Ms. Angelle was hired as a police officer by defendant/employer, the City of Kaplan Police Department ("City of Kaplan"). It is undisputed that on October 18, 2012, Ms. Angelle sustained a back injury while in the course and scope of her employment. Ms. Angelle testified that she strained her lower back while assisting a handicapped lady get back into her bed after having fallen in her home. Following the accident, the City of Kaplan accommodated Ms. Angelle by placing her in various positions of light-duty work until she stopped working on February 13, 2013. The City of Kaplan paid Ms. Angelle temporary total disability benefits ("TTDs") at the rate of $305.14 per week from the date of the accident until April 28, 2015; thereafter, Ms. Angelle's TTDs were converted to SEBs. On June 23, 2015, Ms. Angelle's SEBs were terminated based on her alleged earning capacity as established by Dawn Marroquin, a vocational rehabilitation consultant.

On July 28, 2015, Ms. Angelle filed a Disputed Claim for Compensation Form 1008 disputing the City of Kaplan's decision to terminate her SEBs. On August 5, 2015, the City of Kaplan filed an answer to the claim and requested a preliminary determination hearing. After a hearing was held on July 21, 2016, the WCJ made a preliminary determination that Ms. Angelle "is not entitled to Supplemental Earnings Benefits as of June 23, 2015." Ms. Angelle objected to the preliminary determination and requested a trial on the merits.

This matter was tried on March 9, 2017. At trial, the parties introduced as evidence the entire record of the July 21, 2016 preliminary hearing. Ms. Angelle provided additional testimony at trial explaining why she thought she was entitled to SEBs after June 23, 2015. At the end of the trial, the WCJ left the record open for the deposition of Dr. Michael Berard, Ms. Angelle's treating psychologist, to be taken. Dr. Berard was deposed on March 31, 2017, after which the parties were allowed twenty days to submit post-trial memoranda.

On May 19, 2017, the WCJ stated the following reasons for its denial of Ms. Angelle's request for SEBs:

The Court finds, after review of the evidence, that the plaintiff is not entitled to supplemental earnings benefits. This is based on the medical information provided to the Court, specifically the opinions of Dr. Miller, Dr. Appley and Dr. Michael Berard. Dr. Miller has released Ms. Angelle to light-duty work with no heavy lifting or frequent bending. Dr. Appley's evidence provides that she is not a surgical candidate. The latest tests have been an EMG nerve conduction study, was read as normal. There is ample evidence that Ms. Angelle is capable of engaging in some type of employment. The basis for which Ms. Angelle has stated that she cannot engage in employment is the opinion of Dr. Michael Berard, a psychologist. Dr. Berard is a long-time medical provider to Ms. Angelle. She first saw him in 2010 and has continued to see him on an off-and-on basis since then. Her contention is that she has a mental injury caused by a physical injury, and therefore this allegation must be shown by clear and convincing evidence. The Court also notes that Dr. Berard finds that Ms. Angelle would not be able to work because of the degree of her mental injury. It is also important to note that Dr. Berard's medical records were entered into evidence and Dr. Berard's clinical diagnosis of Ms. Angelle's condition was done in accordance with the DSM IV, which is not the latest issue of the DSM. Therefore[,] this calls into question his opinion concerning her disability. The Court does not find that Ms. Angelle has shown a mental disability caused by physical injury. Therefore, the Court has determined that Ms. Angelle is capable of engaging in gainful employment and has not shown that supplemental earnings benefits are owed to her.

On June 16, 2017, the WCJ signed the judgment denying Ms. Angelle SEBs, and dismissed her claim with prejudice. Ms. Angelle now appeals this judgment. In her sole assignment of error, Ms. Angelle alleges that the WCJ ignored the uncontradicted testimony of Dr. Berard finding that the October 18, 2012 accident caused her to have a psychological condition that prevented her from returning to work. Thus, Ms. Angelle argues that the record supports the continuation of her SEBs.

In response, the City of Kaplan argues that the WCJ correctly denied the continuation of SEBs because (1) Ms. Angelle was actively looking for work, (2) Dr. Roland Miller, her treating orthopedic surgeon, released her to perform light-duty work with no heavy lifting or frequent bending, (3) Dr. Stephen Staires, her pain management doctor, was no longer prescribing her pain medications, and (4) her EMG nerve condition study was normal. Further, the City of Kaplan alleges that it was unaware that Dr. Berard had been treating Ms. Angelle throughout the workers' compensation proceedings because Ms. Angelle chose to pay for the counseling sessions herself and had not sent any of the medical records to the City.

Standard of Review:

In workers' compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. La. Dep't of Corr. , 93-1305 (La. 2/28/94), 633 So.2d 129. In applying this standard, the appellate court must not determine whether the trier of fact's conclusion was right or wrong, but that it was reasonable. Stobart v. State, Dep't of Transp. & Dev ., 617 So.2d 880 (La.1993). Where there are two permissible views of the evidence, a fact finder's choice between them can never be manifestly erroneous. Id. Therefore, if the fact finder's "findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Rosell v. ESCO , 549 So.2d 840, 844 (La.1989).

Discussion:

Louisiana Revised Statutes 23:1021(8)(c) and (d) establishes the employee's burden of proof in cases where mental injury or illness develops subsequent to a physical work-related injury. Those provisions read as follows:

(c) Mental injury caused by physical injury . A mental injury or illness caused by a physical injury to the employee's body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

Thus, in order to obtain compensation benefits for a mental injury caused by a physical injury, (1) Ms. Angelle must prove by clear and convincing evidence that the physical injury caused the mental injury, (2) the mental injury must be diagnosed by a licensed psychiatrist or psychologist, and (3) the diagnosis must meet the most current criteria established by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

The " 'clear and convincing' standard is a heavier burden of proof than the usual civil case of 'preponderance of the evidence' standard but is less burdensome than the 'beyond a reasonable doubt' standard of a criminal prosecution." Bundren v. Affiliated Nursing Homes, Inc. , 94-808, p. 2 (La.App. 3 Cir. 2/1/95), 649 So.2d 1177, 1179. In order to "prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable; that is, much more probable than its nonexistence." Id. Furthermore, this court "must analyze claimed disability caused by mental conditions with utmost caution in view of the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned." Westley v. Land & Offshore , 523 So.2d 812, 813 (La.1988).

Here, the record reflects that Ms. Angelle suffered from psychological problems both before and after the October 18, 2012 accident. In her April 5, 2016 deposition, Ms. Angelle testified that she began monthly psychological counseling sessions with Dr. Berard in January 2010. When asked whether workers' compensation paid for her medical treatment with Dr. Berard, Ms. Angelle responded: "No. I did not indicate that I was seeing Dr. Berard simply because I've been seeing him for a number of years, and at the time I had medical insurance." At trial, Ms. Angelle testified that she currently pays for her medical treatment with Dr. Berard, but that she qualified for Medicare as of January 2017. When asked how her work-related injury affected her psychological well-being, Ms. Angelle's testimony focused primarily on the emotional distress associated with her inability to secure a job, rather than a mental injury caused by the October 2012 accident. Specifically, Ms. Angelle testified that the process of finding a job was very difficult on her and made her feel as though she "wasn't necessary" and "wasn't needed." She testified that Dr. Berard prescribed Wellbutrin for her depression and to help her deal "with the daily issues of whatever my situation brings."

Regarding her physical injury, Ms. Angelle testified that both Dr. Miller and Dr. Staires released her to return to light-duty work with no lifting of more than twenty pounds. Although Ms. Angelle testified that she continues to suffer from "[c]hronic pain, generally going down both legs, but predominately in the left leg[,]" she has weaned herself off the narcotic pain medications in order to start the work rehabilitation process. She further testified that she began vocational rehabilitation with Ms. Marroquin in February 2014, and that she continues to actively seek out employment opportunities.

Ms. Marroquin testified that she was hired in February 2014 to help Ms. Angelle return to work with the City of Kaplan or to find another job. She stated that she did an initial vocational interview with Ms. Angelle on March 19, 2014, and that she met with both Dr. Miller and Dr. Staires throughout the rehabilitation process to discuss job opportunities that suited Ms. Angelle's physical limitations. When asked whether she knew Ms. Angelle was being treated by Dr. Berard in relation to the October 18, 2012 injury, Ms. Marroquin responded that she did not have any notes or knowledge of Ms. Angelle receiving psychological treatment with Dr. Berard during the workers' compensation proceedings.

Ms. Shelton, an employee with Risk Management, testified that she handled Ms. Angelle's workers' compensation claim against the City of Kaplan. She testified that her decision to terminate Ms. Angelle's SEBs as of June 23, 2015 was based on Ms. Marroquin's vocational rehabilitation findings that Ms. Angelle could earn ninety percent or more of her average weekly wage. When asked whether she considered Dr. Berard's psychological treatment of Ms. Angelle or his opinion regarding her ability to return to work in making the decision to terminate benefits, Ms. Shelton responded that she did not have any medical records from Dr. Berard.

In his March 31, 2017 deposition, Dr. Berard testified that his treatment of Ms. Angelle began in the 1970s or 1980s while she was going through a divorce. Following the divorce, Dr. Berard testified that he treated Ms. Angelle in January 2010 because of "stressful conditions in response to an aging mother who needed continuous care and supervision; a husband who also was disabled and presented with additional needs and care; orthopaedic symptoms correlated with a 2009 injury; and the overall stressors dealing with the combination of those variables."

Dr. Berard testified that he treated Ms. Angelle again in January 2013 for the "work-related injury that occurred in 2012, and the complications that she faced in coping with additional orthopaedic neurological symptoms." Specifically, Dr. Berard testified that Ms. Angelle "was faced once again with the construct of chronic pain[,] which alters sleep patterns, creates agitation, aggravation, the beginning of catastrophic ideation about her future, and the overall anxiety relative to her future with the department and her future in general." When asked how Ms. Angelle's treatment proceeded since 2013, Dr. Berard testified as follows:

Well, the treatment in globo involving Dr. Miller and Dr. Staires, along with other physicians who were part of that journey in providing second and third medical opinions, is consistent with a gradual progression of psychiatric symptoms correlated with the complexity of the unresolved orthopaedic and neurological conditions. Therefore, the diagnostic impression that I've rendered and is part of the documents ... include a gradual progression of diagnostic findings that lead to more complicated psychiatric entities; that is[,] she was initially diagnosed in 2013 with an adjustment disorder. In 2014[,] I shifted to a depressive disorder, NOS [not otherwise specified], all of which is connected to a pain disorder with related psychological features. And then with the administering of the additional inventories that provided more detail in depth of her psychiatric status, the diagnosis shifted to a major depression ; a single episode without psychotic features. There was additional diagnosis of generalized anxiety disorder, and the third diagnosis, which has been consistent throughout reflects a pain disorder with related psychological factors.

Although Dr. Berard was aware that Ms. Angelle was receiving workers' compensation benefits and that her medical doctors approved her to return to light-duty work, he testified that he was not consulted by the work rehabilitation counselor on whether Ms. Angelle was fit from a psychological standpoint to perform gainful employment. Nonetheless, Dr. Berard testified that, in his opinion, Ms. Angelle's psychological diagnosis affects her ability to work and that her escalated psychological difficulties are a result of the October 2012 injury. Specifically, Dr. Berard stated:

So[,] in my opinion, based on experience and recent findings from imaging studies, it is absolutely essential that we evaluate the total person. And in doing so, when you incorporate that, she's also experiencing a disease of the brain correlated with chronic pain and the changes that occur in the brain and all the different nuclei, along with the fact that she has unresolved orthopaedic and neurological entities correlated with come element of pain, along with the psychiatric entities which is a major depression, all three diagnoses along with generalized anxiety disorder places her in a position of being totally, completely unreliable in fulfilling any part or full-time employment demands.

Dr. Berard further testified that on September 2, 2014, he diagnosed Ms. Angelle with major depressive disorder using the criteria established in the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM-IV"). Although Dr. Berard acknowledged that the revised fifth edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-V")

was released in 2015, he testified that his diagnosis of Ms. Angelle's condition in 2014 was rendered "in accordance with the actual up-to-date diagnostic manual that were [sic] accepted by the professionals" at that time.

Considering the heightened burden placed on a claimant seeking compensation benefits for a mental injury caused by a physical injury, we find that Ms. Angelle failed to prove by clear and convincing evidence that she suffered a mental injury caused by the October 18, 2012 work-related injury. Although Dr. Berard's medical records from 2010 through 2016 indicate that Ms. Angelle suffered from anxiety and depression before and after the work-related accident in 2012, Ms. Angelle ultimately chose to pay for her psychological counseling throughout these years and failed to share Dr. Berard's medical records with either the City of Kaplan, Ms. Marroquin, or Ms. Shelton. Moreover, we find that Dr. Berard could have easily testified in his deposition as to whether his diagnosis of Ms. Angelle using the DSM-IV in 2014 would have stayed the same under the more current DSM-V that was being used at the time of trial.

Accordingly, we find no error in the WCJ's conclusion that Ms. Angelle failed to carry her burden of proving by clear and convincing evidence that she suffered a mental injury caused by the October 18, 2012 work-related injury. For the foregoing reasons, the WCJ's June 16, 2017 judgment that denied Ms. Angelle SEBs and dismissed her claim with prejudice, is affirmed. Costs of this appeal are assessed to Ms. Angelle.

AFFIRMED.


author: CONERY, Judge.

text:
    IN RE: Anthony Allen WARNER, et ux Applying for Intrafamily Adoption
    18-279
    Court of Appeal of Louisiana, Third Circuit.
    September 26, 2018
    Mayson James John, Concordia Parish Correctional, 26356 Highway 15, Ferriday, Louisiana 71334, (318) 757-1865, PRO-SE DEFENDANT/APPELLANT: In Proper Person.
    Paul E. Brown, Attorney at Law, Post Office Drawer 1370, Eunice, Louisiana 70535, (337) 457-4116, COUNSEL FOR PETITIONERS/APPELLEES: Anthony Allen Warner, Samantha Maria Smiley Warner.
    Court composed of Marc T. Amy, John E. Conery, and Van H. Kyzar, Judges.
   CONERY, Judge.

In this appeal, an incarcerated biological father questions the validity of the trial court's judgment granting the intrafamily adoption of his daughter by her step-father. Finding that the record lacked criminal records check returns required by La.Ch.Code art. 1243.2 and La.Ch.Code art. 1253, we vacate the trial court's judgment and remand the matter to that court for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

Anthony Warner, husband of Samantha Warner, petitioned the court for intrafamily adoption of his step-daughter R.C.J. on December 28, 2017. R.C.J. is the biological child of Ms. Warner and pro se Appellant, Mayson John. Mr. John was personally served on January 12, 2018 with the petition and a citation to appear in open court on February 12, 2018. He did not file an answer, opposition, or any other responsive pleading.

An in-chambers adoption hearing occurred on February 12, 2018. Judgment terminating Mr. John's parental rights to R.C.J. and granting the adoption of R.C.J. by Mr. Warner was signed that day. Mr. John timely appealed the trial court's February 12, 2018 judgment and is now before us asserting four assignments of error. We will not be addressing the merits of these errors in this opinion because the record does not contain a return on the criminal records check on the adoptive parent, Anthony Allen Warner, as mandated by La.Ch.Code art. 1243.2 and La.Ch.Code art. 1253.

DISCUSSION

"Adoption statutes are in derogation of the natural right of the parent and must be strictly construed." In re B.J.C. , 49,852, p. 7 (La.App. 2 Cir. 4/15/15), 163 So.3d 905, 910, citing , Myers v. Myrick , 34,970 (La.App. 2 Cir. 5/17/01), 787 So.2d 546. Intrafamily adoptions are governed by title XII of the Louisiana Children's Code, which provides specific procedures for the adoption of a child by certain relatives. Applicable to this case are the provisions and procedures for the adoption of a child by his or her step-parent when the step-parent is presently married to one of the child's biological parents. In an intrafamily adoption, both parents-unless their parental rights have been judicially terminated-must consent to the adoption or (voluntarily) relinquish their parental rights. La.Ch.Code art. 1193 and La.Ch.Code art. 1244.

Louisiana Children's Code Article 1243.2(A)(1) requires the trial court to order the following:

"[T]he local sheriff or the office of state police, Louisiana Bureau of Criminal Identification and Information, [to] conduct a record check for all federal arrests and convictions and all state arrests and convictions for each of the prospective adoptive parents. Prospective adoptive parents shall submit a set of fingerprints to the sheriff or the office of state police."

Subsection C of La.Ch.Code art. 1243.2 requires "[t]he sheriff or the office of state police, Louisiana Bureau of Criminal Identification and Information, and the department [to] accord priority to these orders and [to] provide a certificate indicating all information discovered, or that no information has been found."

Louisiana Children's Code Article 1253(B)(4) provides:

At this hearing the court shall consider:
....
(4) The report of any criminal records concerning the petitioner, including the nature of the offenses, the number of offenses, and the length of time between the offenses and between the last offense committed and the petition for intrafamily adoption. The existence of a criminal record of the petitioner shall not be automatic grounds for the court to refuse to grant an intrafamily adoption.

The appeal record does not contain a criminal records search certificate as required by La.Ch.Code art. 1243.2(C). Additionally, the supplemental record we ordered contains the July 10, 2018 affidavit of St. Landry Parish Deputy Clerk of Court Christine Stelly, which states: "[a]fter a diligent search, there are no exhibits or background checks that were introduced into evidence, therefore; the supplemental record is being forwarded to court of appeal-third circuit absent of these pleadings." Without the required background check, the adoption must be nullified, and the case remanded.

CONCLUSION

We hereby vacate the trial court's February 12, 2018 judgment granting Mr. Warner's petition for intrafamily adoption of R.C.J. This matter is remanded to the trial court for proceedings consistent with the Children's Code and this opinion. Anthony Allen Warner is cast with all costs of this appeal.

JUDGMENT VACATED AND REMANDED.

      Louisiana Children's Code Article 1193 contains three classifications of "fathers":
      ....
      (2) The father of the child, regardless of the child's actual paternity, if any of the following apply:
      (a) The child is a child born of the marriage in accordance with the Louisiana Civil Code or its legal equivalent in another state.
      (b) The father is presumed to be the father of the child in accordance with the Louisiana Civil Code or its legal equivalent in another state.
      (3) The alleged father of the child who has established his parental rights in accordance with Chapter 10 of Title XI.
      (4) The biological father of the child whose paternity has been determined by a judgment of filiation and who has established his parental rights in accordance with Chapter 10 of Title XI.

      We note that on remand the defendant Mayson John must be properly served and notified pursuant to the wording outlined in La.Ch.Code art. 1247.