text:
    Melvin GUIDRY and Triege Guidry v. ABC TRUCKING COMPANY, et al.
    18-587 18-588
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2019
    Julius Willis Grubbs, Jr., J. P. D'Albor, Haik, Minvielle & Grubbs, 1017 E. Dale St., New Iberia, LA 70560, Telephone: (337) 365-5486, COUNSEL FOR: Defendant/Appellee - Larsen Intermodal Services, Inc.
    Dennis Ray Stevens, Gibbens & Stevens, 222 W. St. Peter, New Iberia, LA 70560, Telephone: (337) 367-8451, COUNSEL FOR: Intervenors/Appellants - The Hartford Fire Insurance Company and Louisiana Scrap Metal Recycling
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Van H. Kyzar, Judges.
   THIBODEAUX, Chief Judge.

Melvin and Triege Guidry filed suit against Larsen Intermodal Services, Inc. ("Larsen") seeking damages for injuries Mr. Guidry sustained while loading/unloading metal products from a tractor/trailer truck. Because the injury was sustained in the course and scope of his employment, Mr. Guidry also filed a workers' compensation claim against his employer, Louisiana Scrap Metal Recycling (Louisiana Scrap). The Guidrys' suit against Larsen was subsequently dismissed on Larsen's exception of prescription.

Thereafter, Louisiana Scrap and its workers' compensation insurer, The Hartford Fire Insurance Company (Hartford), filed a petition of intervention, seeking to intervene in the Guidrys' dismissed suit and requesting reimbursement from Larsen for compensation paid to Mr. Guidry. At the same time, Louisiana Scrap/Hartford filed a separate suit directly against Larsen, likewise seeking reimbursement for compensation paid to Mr. Guidry. Larsen filed exceptions of prescription in both suits. In opposition, Louisiana Scrap/Hartford argued that, because Louisiana Scrap and Larsen are solidarily obligated to Mr. Guidry, Mr. Guidry's timely-filed workers' compensation claim against Louisiana Scrap interrupted prescription on Louisiana Scrap's/Hartford's suit against Larsen. After a hearing, the trial court granted the exceptions.

Louisiana Scrap/Hartford appealed the judgment, dismissing their intervention, in docket number 18-587, and the judgment, dismissing their separate suit, in docket number 18-588. Upon Larsen's motion, this court consolidated the two appeals.

Having reviewed the record, we find the trial court did not err in granting Larsen's exceptions of prescription or in its reliance upon this court's holding in Deculus v. Augenstein Construction Co., Inc. , 425 So.2d 315 (La.App. 3 Cir. 1982), writ denied , 430 So.2d 658 (La.1983). Accordingly, we affirm.

I.

ISSUE

Louisiana Scrap/Hartford raise a single issue for this court's consideration:

Does a timely filed workers' compensation claim against [ ] an employer/insurer interrupt prescription as to the subsequent claim of the employer/insurer against the third party tortfeasor for the recovery of workers' compensation benefits paid to or on behalf of the employee[?]

We answer in the negative for the reasons that follow.

II.

FACTS AND PROCEDURAL HISTORY

On August 2, 2012, Mr. Guidry, while employed by Louisiana Scrap, was operating a forklift, transporting various metal products into the container portion of a tractor/trailer truck. The truck had been delivered to Louisiana Scrap by Larsen and was, at all pertinent times, in Larsen's possession and control. During the loading/unloading process, the container portion of the truck became disengaged from the ramp, allegedly due to a Larsen employee's failure to properly secure the ramp. The forklift then fell about a foot off the edge of the container, causing injuries to Mr. Guidry for which Louisiana Scrap was required to pay both indemnity and medical benefits in workers' compensation.

Mr. Guidry filed his disputed claim for workers' compensation against Louisiana Scrap in April 2013. The Guidrys then filed a third-party tortfeasor suit in this matter on August 2, 2013. In their petition, the Guidrys named two fictitious entities as defendants: (1) ABC Trucking Company (the owner or lessor of the tractor/trailer truck), and (2) XYZ insurance company (the insurer of ABC Trucking Company).

Because only fictitious entities were named as defendants, the original petition was not served on Larsen or any other entity. Almost three months later, on October 31, 2013, the Guidrys amended their petition, substituting Larsen for ABC Trucking Company. Service was requested on Larsen at that time but was not effected until December 4, 2013. Larsen then filed an exception of prescription, which was heard and granted on May 12, 2014. On that same date, the trial court executed a judgment, dismissing the Guidrys' suit, with prejudice.

The Guidrys fax filed their motion and order for devolutive appeal on July 15, 2014. However, the appeal was subsequently dismissed, by judgment signed on October 20, 2014, on the grounds of abandonment for failure to pay costs.

Meanwhile, on July 11, 2014, Louisiana Scrap/Hartford fax filed a petition for intervention in the previously dismissed suit, seeking reimbursement for compensation and medical benefits paid to and on behalf of Mr. Guidry in connection with the August 2, 2012 accident. That same day, Louisiana Scrap/Hartford fax filed a separate suit against Larsen, likewise seeking reimbursement for compensation and benefits paid to Mr. Guidry.

On January 25, 2018, Larsen filed exceptions of no cause of action and prescription, seeking dismissal of the intervention. It also filed exceptions of lis pendens, no cause of action, and prescription in the separate suit. All of the exceptions were heard on March 26, 2018, at which time the trial court, relying on this court's holding in Deculus , 425 So.2d 315, sustained both exceptions of prescription and denied, as moot, the remaining exceptions. Judgments dismissing both actions were signed on April 9, 2018.

III.

STANDARD OF REVIEW

In Allain v. Tripple B Holding, LLC , 13-673, pp. 9-10 (La.App. 3 Cir. 12/11/13), 128 So.3d 1278, 1285, this court discussed the standard an appellate court applies in reviewing an exception of prescription:

Prescription is a peremptory exception which is provided for in La.Code Civ.P. art. 927. Evidence in support or contravention of the exception may be introduced if the grounds are not apparent from the petition. La.Code Civ.P. art. 931. An appellate court reviews the exception under the manifest error standard of review if evidence is introduced in support or contravention of the exception. Dugas v. Bayou Teche Water Works , 10-1211 (La.App. 3 Cir. 4/6/11), 61 So.3d 826. If not, the appellate court "simply determines whether the trial court's finding was legally correct." Id. at 830. Generally, the burden of proof lies on the party pleading the exception of prescription. Id. However, if it is apparent from the face of the pleadings that prescription has occurred, the burden shifts to the plaintiff to show that the action has not prescribed. Id.

IV.

LAW AND DISCUSSION

Our supreme court has long held that the cause of action at issue herein is subject to the one-year period of liberative prescription applicable to delictual actions, which commences to run from the date of injury:

[The] cause of action against the tortfeasor for the injuries sustained by the employee, which may be instituted either by the employee himself or the employer for reimbursement of compensation paid, ... is governed by the prescription of one year set forth in Article [3492] of the Civil Code. This prescription ... commences to run from the date on which the damage was inflicted.

Marquette Cas. Co. v. Brown , 235 La. 245, 253-54, 103 So.2d 269, 272-73 (1958).

According to the petition, the accident giving rise to Mr. Guidry's injuries occurred on August 2, 2012. Significantly, Louisiana Scrap/Hartford did not file their petition against Larsen until July 15, 2014, almost two years later. As a result, it is apparent from the face of the petition that prescription has run. The burden then fell to Louisiana Scrap/Hartford to show that their action has not prescribed. To do so, Louisiana Scrap/Hartford attempted to prove that prescription was interrupted by Mr. Guidry's workers' compensation claim filed in April 2013.

In their argument to the trial court, as well as to this court, Louisiana Scrap/Hartford have asserted that Louisiana Scrap and Larsen are solidary obligors as to the injured employee, Mr. Guidry. Therefore, Mr. Guidry's timely-filed workers' compensation claim against Louisiana Scrap interrupted prescription as to Louisiana Scrap/Hartford's claim against Larsen for the recovery of workers' compensation benefits paid to or on behalf of Mr. Guidry. As authority, Louisiana Scrap/Hartford have relied exclusively on Williams v. Sewerage & Water Board of New Orleans , 611 So.2d 1383 (La.1993).

In Williams , an employee, while in the course and scope of his employment with the Sewerage and Water Board of New Orleans (S & WB), was fatally electrocuted when he touched a crane that came in contact with an overhead power line on September 2, 1986. His surviving widow and five major children filed suit against S & WB on August 31, 1987, seeking workers' compensation death benefits and tort damages. They also named as defendants the owner of the power line and "ABC Corporation," the manufacturer of the crane. But it was not until their third amended and supplemental petition, filed on August 26, 1988, that the plaintiffs properly named Little Giant as the crane's manufacturer. Little Giant then filed an exception of prescription, which the trial court denied.

Reviewing the appellate court's reversal of the trial court's denial of the exception, the supreme court held:

This case presents the issue of whether an employer sued for recovery of worker's compensation is solidarily bound with a third party tort-feasor for the purpose of interrupting prescription. Because some elements of the damages recoverable from the employer and the tortfeasor are coextensive, we find that they are solidarily bound to that extent. Once prescription is interrupted based on this solidarity, the plaintiffs are free to assert whatever claims they have against the defendants. Thus, in this case, a suit timely filed against the employer for worker's compensation interrupted prescription as to the subsequent claim against the third party tort-feasor for damages.

Id. at 1384-85.

In the language recited above, the Williams court specifically held that the plaintiffs' timely-filed suit against an employer for workers' compensation interrupted prescription as to the plaintiffs' claim against a third-party tortfeasor. Louisiana Scrap/Hartford, however, seek to extend this holding to allow an employee's/plaintiff's timely-filed workers' compensation claim against his employer/defendant to interrupt prescription as to the employer's/defendant's claim for reimbursement against the third-party tortfeasor. We, like the trial court, find that such an extension is not warranted and that Louisiana Scrap's/Hartford's reliance upon Williams is misplaced in light of the facts herein.

This is particularly sound given this court's decision in Deculus , 425 So.2d 315, wherein the court was asked to determine whether an employer's third-party demand against the alleged tortfeasor for reimbursement had prescribed. In that case, the employee, Deculus, filed suit on January 6, 1978, against his employer, Augenstein Construction Co., Inc. (Augenstein), for workers' compensation. Deculus alleged that he experienced numerous medical problems resulting from the inhalation of chemicals, gases, and fumes emitted by an Olin Corporation (Olin) plant, which rendered him totally and permanently disabled and ultimately forced him to terminate his employment on March 14, 1977. Over three years later, on September 25, 1980, the employer filed its third-party demand, naming Olin as a third-party defendant. In response, Olin filed an exception of prescription, which the trial court sustained. This court affirmed the trial court's judgment, reasoning:

On the basis of these holdings we conclude that for the purposes of prescription and LSA-R.S. 23:1101 -03 there is only one principal cause of action which may be asserted by the employer or the employee. Prescription begins to run on this action from the day the damage is inflicted by the tort-feasor. The failure of the employer or the employee to assert its claim within the one year prescriptive period provided by LSA-C.C. Article [3492] is fatal to their claim.
Augenstein's third party demand was not filed until September 25, 1980. The latest date that one might interpret as being the date in which the damage was inflicted by Olin was March 14, 1977, the date of Deculus' termination. Therefore, over three and one-half years lapsed before suit was filed by Augenstein against Olin. Deculus asserted no claim against Olin during this three and one-half year period that would interrupt prescription for the employer's assertion of its rights. Hence, Augenstein's right to assert a claim against the alleged third party tort-feasor, Olin, has prescribed.

Id. at 317.

As the record shows, Louisiana Scrap/Hartford waited until almost two years after the August 2, 2012 accident to file their claim against Larsen. And, although the Guidrys did attempt to file suit against Larsen, their claim was dismissed on the basis of prescription. Consequently, the Guidrys' prescribed claim could no more interrupt prescription on Louisiana Scrap's/Hartford's assertion of their right for reimbursement against Larsen than it could interrupt prescription on the Guidrys' assertion of their own rights against Larsen. It follows, therefore, that because neither the employee nor the employer properly asserted a claim against Larsen within the one-year prescriptive period that would serve to interrupt prescription, Louisiana Scrap's/Hartford's right to assert their claim for reimbursement against Larsen has prescribed.

Based on this reasoning, we find the trial court properly dismissed Louisiana Scrap's/Hartford's separate suit against Larsen on the basis of prescription. Accordingly, we affirm the judgments of the trial court.

V.

CONCLUSION

For the foregoing reasons, the judgments of the trial court granting Larsen's exceptions of prescription are affirmed.

Costs of this appeal are assessed to Intervenors/Appellants.

AFFIRMED.

      Although Louisiana Scrap/Hartford appealed both judgments, they have failed to brief any issues related to the dismissal of their petition for intervention. Accordingly, pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4(B)(4), we "consider as abandoned any assignment of error or issue for review" related to their intervention. Further discussion of these issues is hereby pretermitted.


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    Kelvin LEBEAU v. SAXON MORTGAGE SERVICES, INC., Southern Customs of Louisiana Inc., ABC Insurance Company and XYZ Insurance Company
    NO. 2018-CA-0199
    Court of Appeal of Louisiana, Fourth Circuit.
    APRIL 17, 2019
    Edmond J. Harris, VALTEAU, HARRIS, KOENIG & MAYER, 1010 Common Street, Suite 2700, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT
    Kent A. Lambert, Katie L. Dysart, Matthew C. Juneau, BAKER DONELSON BEARMAN CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, LA 70170, Rachel W. Wisdom, J. Dalton Courson, STONE PIGMAN WALTHER WITTMANN L.L.C., 909 Poydras Street, Suite 3150, New Orleans, LA 70112-4042, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   JUDGE SANDRA CABRINA JENKINS

This is an action for wrongful eviction brought by a mortgagor against his mortgage lender and loan servicer. Kelvin Lebeau appeals the trial court's October 12, 2017 judgment granting the Motion for Summary Judgment filed by defendants Deutsche Bank and Trust Company Americas ("Deutsche Bank") and Saxon Mortgage Services, Inc. ("Saxon") (collectively, "Appellees"). Based on our review of the record, we conclude that Mr. Lebeau was not wrongfully evicted from property located at 11631 West Barrington Drive in New Orleans, Louisiana ("Property"). Instead, we find that Mr. Lebeau abandoned the Property secured by the mortgage. And under the terms of the mortgage, Appellees had the contractual right to physically secure and preserve the Property, while still giving Mr. Lebeau full access to Property. Accordingly, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 26, 2006, Mr. Lebeau entered into an adjustable rate note ("Note") in the amount of $ 117,000.00 plus interest, payable to Novastar Mortgage, Inc. ("Novastar"). The Note was secured by a mortgage ("Mortgage") executed on that date by Mr. Lebeau, which encumbered his Property. Deutsche Bank, as trustee for Novastar, was the holder and owner of the Note and Mortgage. Deutsche Bank retained Saxon to service Mr. Lebeau's Mortgage, which included the right to collect and apply payments received to Mr. Lebeau's mortgage loan, and take steps to secure the Property in the event of default.

On January 4, 2010, after Mr. Lebeau defaulted under the terms of the Mortgage and Note, Deutsche Bank filed a "Petition for Suit on a Note and Enforcement of Mortgage on Real Estate" in Civil District Court for the Parish of Orleans. Saxon retained CoreLogic Field Services ("CoreLogic") to inspect and secure Mr. Lebeau's Property after he defaulted on the loan. CoreLogic contracted with Southern Customs of Louisiana ("Southern Customs") to perform the property inspection and preservation services for Saxon.

In his Petition for Damages, Mr. Lebeau alleged that on January 20, 2010, defendants or their agents broke into his Property and illegally resorted to "self-help" repossession by changing the locks, breaking into the doors, breaking locked gates, and posting signs on the Property. In his Amended Petition, Mr. Lebeau alleged that Deutsche Bank and its agents wrongfully evicted him and illegally took possession of his Property by breaking and entering.

On November 2, 2012, Saxon filed a Motion for Summary Judgment, arguing that the Mr. Lebeau's Mortgage gave Deutsche Bank the right to take whatever steps were reasonable and appropriate to protect Deutsche Bank's interest in the Property, which included securing or repairing the Property. On January 8, 2013, the trial court denied Saxon's Motion for Summary Judgment. This judgment is not at issue in this appeal.

On May 16, 2017, after Mr. Lebeau's deposition was taken, Deutsche Bank filed a Motion for Summary Judgment, seeking dismissal of Mr. Lebeau's claims on the grounds that he had abandoned the Property, which was vacant when Southern Customs secured and winterized the Property on January 20, 2010. On June 22, 2017, Saxon joined in Deutsche Bank's Motion for Summary Judgment. After a hearing on August 31, 2017, the trial court signed a judgment dated October 12, 2017, granting the Appellees' Motion for Summary Judgment, and dismissing Mr. Lebeau's claims against them, with prejudice.

Mr. Lebeau timely appealed.

DISCUSSION

Standard of Review

We apply a de novo standard of review in examining a trial court's ruling on summary judgment. Hare v. Paleo Data, Inc. , 11-1034, p. 9 (La. App. 4 Cir. 4/4/12), 89 So.3d 380, 387. Accordingly, we use the same criteria that govern a trial court's consideration of whether summary judgment is appropriate. Id. "[A] motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). "In determining whether an issue is genuine, courts cannot consider the merits, make credibility determinations, evaluate testimony, or weigh evidence." Fiveash v. Pat O'brien's Bar, Inc. , 15-1230, p. 7 (La. App. 4 Cir. 9/14/16), 201 So.3d 912, 917 (quoting Quinn v. RISO Invest., Inc. , 03-0903, pp. 3-4 (La. App. 4 Cir. 3/3/04), 869 So.2d 922, 926 ).

Burden of Proof

La. C.C.P. art. 966(D)(1) governs the mover's burden on a motion for summary judgment:

The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court 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.

The issues presented for review are whether Mr. Lebeau had abandoned the Property on or before January 20, 2010, when Southern Customs arrived to secure and repair the Property; whether Deutsche and its agents wrongfully evicted Mr. Lebeau from the Property on January 20, 2010; and whether Appellees' affidavits supporting their Motion for Summary Judgment satisfy La. C.C.P. art. 967(A)'s requirement of personal knowledge.

The Mortgage

The first two issues require an analysis of the Mortgage between Mr. Lebeau and Deutsche Bank, which is the law between the parties. Dace v. Novastar Mortg., Inc. , 10-1384, p. 2 (La. App. 4 Cir. 4/13/11) (unpub. ), 66 So.3d 88, 2011 WL 9165407. Section 9 of the Mortgage provides that if Mr. Lebeau abandons the Property, then Deutsche Bank has the right to secure the Property, which includes entering the Property to make repairs, changing the locks, replacing or boarding up doors and windows, draining water from pipes, eliminating dangerous conditions, and having the utilities turned off:

9. Protection of Lender's Interest in the Property and Rights Under this Security Instrument. If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument ... or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and /or assessing the value of the Property, and securing and/or repairing the Property.... Securing the Property includes, but is not limited to, entering the property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations or dangerous conditions, and have utilities turned on or off.

Appellees' Summary Judgment Evidence

Appellees presented the following evidence in support of their Motion For Summary Judgment:

On January 20, 2010, Jerry Jacques, acting on behalf of Southern Customs, inspected the Property and found the house was devoid of furniture, all major appliances were missing, and only a few personal objects remained. According to Southern Customs work orders, Mr. Jacques changed the lock only on the back door of the Property. Mr. Jacques also took photographs of the Property on January 20, 2010, which showed that it was vacant.

Appellees submitted Orleans Parish Sheriff's service records showing that Sheriff's Deputy Robert Jordan found the Property to be "vacant" when he attempted to serve Mr. Lebeau with a foreclosure petition on January 13, 2010. Appellees also offered records provided by Entergy in response to a subpoena showing that in October 2009, electrical service to the Property was "cut out for nonpayment." The records reflect that gas service to the property was shut off in November 2010, and that the electrical meter was removed entirely in April 2011.

Mr. Lebeau's Summary Judgment Evidence

In Opposition to the Motion for Summary Judgment, Mr. Lebeau submitted two of his affidavits, the affidavit of his brother, Keith Lebeau; the affidavit of his neighbor and friend, Tyrone Roby; and the affidavit of his family friend, Patrick Williams. Mr. Lebeau attested that he was working in Baton Rouge on January 20, 2010, when he received a phone call from a neighbor that his home had been broken into. He stated in his affidavit that he drove to New Orleans and confronted two Southern Customs representatives inside his home. In his deposition, Mr. Lebeau was shown the photographs taken by Mr. Jacques and admitted that they accurately depicted the vacant condition of the house on January 20, 2010, even though he stated in his affidavit that the house was full of furniture and appliances. Mr. Lebeau stated in his affidavit that he and his friends removed all of his furniture and appliances on January 21, 2010. After being shown Mr. Jacques's photographs, Mr. Lebeau testified in his deposition that he may have removed the dishwasher and refrigerator from his house on January 18 or 19, 2010 (before the entry by Southern Customs).

Contrary to the physical evidence, Mr. Williams attested that Southern Customs turned off the utilities and the water at the residence when it entered the Property. Keith Lebeau, Mr. Lebeau's brother, attested that he visited Mr. Lebeau several days prior to the entry, and Mr. Lebeau still lived there with full utilities. Keith Lebeau and Mr. Roby also attested that there was bedroom furniture, living room furniture, dining room furniture, kitchen appliances, and a pool table at the residence on January 20, 2010. Contrary to Mr. Lebeau's deposition, all four affiants stated that they moved all of Mr. Lebeau's furniture and appliances out of the house the day after January 20, 2010. All four affiants also declared that Mr. Lebeau was living in the Property on and before January 20, 2010, and that he did not abandon the residence.

Wrongful Eviction

Mr. Lebeau contends that breaking, entering, changing some or all of the locks, and verbally ordering him off the Property constitute wrongful eviction by Appellees.

In Regency Motors of Metairie, L.L.C. v. Hibernia-Rosenthal Ins. Agency, L.L.C., 03-1212, pp. 6-7 (La. App. 5 Cir. 2/23/04), 868 So.2d 905, 909, the court defined an "actual eviction" as "[a] physical expulsion of a person from land or rental property" and held that a wrongful eviction requires "actual impingement on any possessory rights." (quoting BLACK'S LAW DICTIONARY (7th ed. 1999). Louisiana jurisprudence interpreting this term consistently requires that the occupant be actually denied physical entry to the premises. See Pelleteri v.Caspian Group, Inc. , 02-2141, 02-2142, p. 3 (La. App. 4 Cir. 7/2/03), 851 So.2d 1230, 1233 (landlord padlocked the property, preventing the tenant's employees from entering premises); Carson v. Cent. Progressive Bank , 432 So.2d 891, 893 (La. App. 1st Cir. 1983) (bank locked gate to property so that plaintiff had no other useful passageway onto his place of business); Boisdore v. Int'l City Bank & Trust Co. , 361 So.2d 925, 928 (La. App. 4th Cir. 1978) (bank changed the locks and refused to let plaintiff to enter the property to retrieve his movables).

Here, Mr. Lebeau was not denied physical access to the Property. Mr. Jacques of Southern Customs testified that he only changed the back lock of the house, which allowed Mr. Lebeau to enter the house through the front door. A work order from Southern Customs confirms that only the back door lock was changed. Mr. Lebeau admitted that the front door lock had not been changed and that he could freely enter the house, which he did. He offered no evidence to show that he was ever prevented from accessing, entering, or residing at the Property. In fact, Mr. Lebeau never made any effort to move back into the Property, and he testified that he did not want the Property.

Mr. Lebeau also contends that he was wrongfully evicted because Deutsche Bank instituted a wrongful foreclosure proceeding. Mr. Lebeau's Property, however, has never been foreclosed upon, wrongfully or otherwise. The January 4, 2010 foreclosure proceeding remains pending today. Mr. Lebeau admitted that Appellees have never obtained a foreclosure judgment and never taken title to the Property. Because this is not a foreclosure suit, the trial court properly did not address Mr. Lebeau's contentions regarding self-help in violation of Louisiana law. As the trial court did find, Deutsche Bank and Saxon had the contractual right under the Mortgage to protect and secure the Property if it was abandoned and, as discussed below, Mr. Lebeau had in fact abandoned the Property.

Abandonment

With respect to the issue of abandonment, the trial court stated:

[T]he evidence provided by [Appellees] undisputedly shows that the property was abandoned when Southern Customs entered the property in order to determine that it was abandoned and in order to secure the property..... [Mr. Lebeau's] conflicting affidavits are insufficient to create a genuine issue of material fact sufficient to defeat summary judgment.

We agree. The summary judgment record shows that:

• The electricity to the house had been turned off in October 2009 because of non-payment;
• The photographs taken by Mr. Jacques show that the furniture and major appliances had been removed as of January 20, 2010;
• The Orleans Parish Sheriff's records show that the house was vacant when the Sheriff's Deputy tried to serve Mr. Lebeau with a foreclosure petition on January 13, 2010;
• The gas service to the house was turned off in November 10, 2010;
• The electrical meter was removed in April 2011 because the property was vacant.

A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. Chatelain v. Fluor Daniel Const. Co. , 14-1312, p. 3 (La. App. 4 Cir. 11/10/15), 179 So.3d 791, 793 ;

Mandina, Inc. v. O'Brien , 13-0085, p. 9 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 104-05. " 'To affirm a summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court.' " Perniciaro v. McInnis , 18-0113, p. 9 (La. App. 4 Cir. 9/7/18), 255 So.3d 1223, 1231, writ denied , 18-1659 (La. 12/17/18), 259 So.3d 342 (quoting Chanthasalo v. Deshotel , 17-0521, p. 5 (La. App. 4 Cir. 12/27/17), 234 So.3d 1103, 1107 ).

With respect to Mr. Lebeau's summary judgment evidence, the affidavits from neighbors and family members stated that Mr. Lebeau lived in the house and did not abandon the Property. These are ultimate facts and conclusions of law, and cannot be considered in deciding summary judgment. See Farmer v. Reyes , 95-0734, 95-0735, p. 3 (La. App. 4 Cir. 11/16/95), 665 So.2d 129, 131. Mr. Lebeau's affidavit, and those of his family and friends, also contradicts his prior deposition testimony. "A subsequent affidavit in contradiction to prior deposition testimony is not sufficient to create an issue of fact precluding summary judgment without some explanation or support for the contrary statement." McCastle-Getwood v. Prof'l Cleaning Control , 14-0993, p. 7 (La. App. 1 Cir. 1/29/15), 170 So.3d 218, 222. Mr. Lebeau does not offer any explanation for his inconsistent testimony.

Furthermore, " '[s]ummary judgment [is] warranted when a plaintiff has only conclusory, speculative testimony and the physical evidence is uncontroverted.' " Bridgewater v. New Orleans Regional Transit Auth. , 15-0922, p. 14 (La. App. 4 Cir. 3/9/16), 190 So.3d 408, 417 (quoting Jones v. Estate of Santiago , 03-1424 (La. 4/14/04), 870 So.2d 1002 ). Based on the overwhelming physical evidence produced by Appellees -- and the conclusory, conflicting testimony offered by Mr. Lebeau -- reasonable minds must inevitably conclude that Mr. Lebeau will not be able to satisfy his evidentiary burden of proof at trial and, therefore, Appellees are entitled to summary judgment as a matter of law.

Admissibility of Appellees' Affidavits

Finally, Mr. Lebeau contends that the affidavits of William R. Ferguson, who was employed by Saxon; and Todd Crane, who was the previous owner of Southern Customs, were inadmissible because they were not based on personal knowledge. Saxon introduced Mr. Ferguson's affidavit in support of its November 2, 2012 motion for summary judgment, which the trial court denied and which is not at issue on this appeal. Mr. Ferguson's affidavit, thus, need not be addressed by this court.

Mr. Crane's affidavit was introduced in support of the appellees' summary judgment at issue to authenticate business records-the work order forms prepared by a Southern Customs' employee and the photographs submitted with the work order. In his affidavit, Mr. Crane properly authenticated those records, which were attached to it. Given Mr. Crane's personal knowledge regarding Southern Customs' business records, his affidavit was properly considered.

Further, Mr. Lebeau, however, did not object to these affidavits in his opposition memo or in a reply memo. Under La. C.C.P. art. 966(D)(2) :

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. (Emphasis added.)

In the absence of a timely objection from Mr. Lebeau, the trial court did not err in considering the affidavits of Mr. Ferguson and Mr. Crane when deciding whether to grant summary judgment.

This assignment is without merit.

CONCLUSION

For all these reasons, we affirm the trial court's October 12, 2017 judgment granting Appellees' Motion for Summary Judgment, and dismissing Mr. Lebeau's claims against Appellees, with prejudice.

AFFIRMED

      Mr. Crane's affidavit references the attachments as follows: the initial Secure Work Order Completion forms, dated 1/20/10; and photographs of the property dated 1/20/10.

      See Capital One Bank (USA), NA v. Sanches , 13-0003, p. 7 (La. App. 4 Cir. 6/12/13), 119 So.3d 870, 874 (observing that "for purposes of summary judgment, that where affiants attest to facts contained in business records said affiants are not required to demonstrate that they personally prepared the records or have firsthand knowledge of the contents of the records"); Asi Fed. Credit Union v. Certain Underwriters at Lloyd's of London Syndicate 1414 Subscribing to Policy FINFR1503374 , 18-164, pp. 9-10 (La. App. 5 Cir. 11/7/18), 259 So.3d 552, 560 (observing that when "the affiant is merely identifying business records sought to be introduced into evidence" and "the affiant is qualified to identify those records, ... the personal knowledge requirements of La. C.C.P. art. 967 are satisfied).


author: KEATY, Judge.

text:
    Elaine MITCHELL v. ALLIANCE COMPRESSORS
    18-857
    Court of Appeal of Louisiana, Third Circuit.
    May 1, 2019 Rehearing Denied June 12, 2019
    George A. Flournoy, Flournoy Law Firm, 1239 Jackson Street, Alexandria, Louisiana 71309, (318) 487-9858, Counsel for Plaintiff/Appellant: Elaine Mitchell
    Sam N. Poole, Jr., M. Allison Johnson, Gold, Weems, Bruser, Sues & Rundell, Post Office Box 6118, Alexandria, Louisiana 71307-6188, (318) 445-6471, Counsel for Defendant/Appellee: Alliance Compressors, LLC
    Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and Jonathan W. Perry, Judges.
   KEATY, Judge.

In this workers' compensation case, Elaine Mitchell appeals a judgment that granted summary judgment in favor of her former employer, Alliance Compressors (Alliance), and dismissed her claims against it. Finding that Alliance met its burden of proving the absence of any genuine issues of material fact such that it was entitled to judgment in its favor as a matter of law, we affirm.

PROCEDURAL HISTORY

Mitchell filed a Form 1008 Disputed Claim for Compensation (1008) against Alliance on January 9, 2017, alleging that she sustained a workplace injury on December 5, 2016, when her right hand got caught in a machine. In the 1008, Mitchell listed the following items as being in "BONA-FIDE DISPUTE:"

a. Extent and duration of disability and entitlement to indemnity benefits
b. Non-payment or incorrect or untimely payments of TTD benefits and/or SEB
c. Failure to furnish and/or provide authorization for proper medical treatment
d. Non-payment and/or untimely payment of medical and travel related expenses
e. Failure to furnish copies of reports of employer selected physicians within 30 days after written request therefor
f. Failure to provide vocational rehabilitation
g. Wages
h. Discontinuance of benefits
i. Penalties and attorney's fees in accord with LSA 23:1201 and/or:1125 and/or:1142 as a result of b., c., d., e., f., or h.
j. Legal interest on all awards from appropriate date

After prior trial dates had been continued six times, without opposition, by both Mitchell and Alliance, the matter was refixed for an August 9, 2018 trial. In advance of the trial, Alliance filed a Motion for Summary Judgment on June 5, 2018, seeking to have Mitchell's claims against it dismissed. The workers' compensation judge (WCJ) scheduled Alliance's motion for a July 5, 2018 hearing. On July 3, 2018, a flurry of motions was filed. Mitchell filed a Motion to Continue or, Alternatively, Motion to Refer to the Merits, which sought to require Alliance to show cause on July 5, 2018, why Mitchell's motion to continue should not be granted; the WCJ signed the order submitted by Mitchell which resulted in her motion to continue being set on the same day as the summary judgment hearing. Mitchell also attempted to file a pleading titled Opposition to Motion Fo [sic] Summary Judgment. In response, Alliance filed a memorandum in opposition to Mitchell's motion to continue, as well as a response to Mitchell's substantive opposition to its motion for summary judgment.

Neither Mitchell nor her counsel appeared at the July 5, 2018 hearing. The WCJ orally denied Mitchell's motion to continue or refer to the merits, and granted summary judgment in favor of Alliance, dismissing Mitchell's claims against it with prejudice. The WCJ signed a written judgment in conformity with its oral reasons on July 13, 2018. Mitchell timely filed a motion for new trial which the WCJ, following a hearing, denied by judgment dated August 23, 2018. Mitchell appealed, and is now before this court asserting that:

1 The WCJ abused his discretion in refusing to refer the summary judgment motion to a trial on the merits that was only 35 days away when the motion to refer clearly delineated significant factual material issues, which defendant did not dispute.
2 The WCJ erred in granting defendant's motion for summary judgment, failing to thoroughly review the documentary evidence and dismissing plaintiff's claim in its entirety. The grant of summary judgment was erroneously based only on excerpts of plaintiff's deposition, incomplete medical records and without any sworn testimony of plaintiff's treating physician.

DISCUSSION

In order for an employee to recover benefits under the Worker's Compensation Statutes of the State of Louisiana he must show that he received a personal injury by way of an accident arising out of and in the course and scope of his employment, and said injury necessitated medical treatment and/or rendered the employee either temporary totally disabled, permanent totally disabled, entitled to supplemental earning benefits, and/or permanent partially disabled. LSA-R.S. 23:1021 ; 1031; 1203; and 1221.

Alfred v. Mid-S. Mach., Inc. , 594 So.2d 937, 939 (La.App. 3 Cir. 1992).

A claimant will not be entitled to temporary total disability benefits for time she is employed.... A claimant must submit objective medical evidence of the disabling condition to meet his burden of proving entitlement to TTD benefits by clear and convincing evidence.
In Fritz [v. Home Furniture-Lafayette ], 95-1705, p. 3-4 [ (La.App. 3 Cir. 7/24/96),] 677 So.2d [1132,] at 1134, we stated:
However, the issue of disability presents a legal not purely a medical, question which must be determined after considering all of the medical and lay testimony in the record. Walker v. Halliburton Services, Inc., 93-722 (La.App. 3 Cir. 3/1/95), 654 So.2d 365, writ denied, 95-1507 (La. 9/22/95), 660 So.2d 481. In other words, the hearing officer determines whether a claimant has met his burden of proving disability only after weighing all the medical and lay testimony.

Jones v. El Mesero Rest. , 97-636, pp. 4-5 (La.App. 3 Cir. 10/29/97), 702 So.2d 1133, 1135-36 (citations omitted). In Jones , this court found that the claimant, who "continued working for a ten-month period [following her alleged on-the-job accident,] maintaining her normal hours, in her preinjury position, until her termination for unrelated reasons[,]" was not disabled and thus not entitled to indemnity benefits. Id. at 1134.

"When appropriate under Articles 966 and 967, summary judgment is available in workers' compensation cases." Craig v. Bantek W., Inc. , 04-229, p. 5 (La.App. 1 Cir. 9/17/04), 885 So.2d 1241, 1244. See also Potier v. Acadian Ambulance Serv., Inc. , 13-914 (La.App. 3 Cir. 2/12/14), 153 So.3d 1082, writ denied , 14-527 (La. 4/25/14), 138 So.3d 647. "A defendant's motion [for summary judgment] may be filed at any time." La.Code Civ.P. art. 966(A)(1). Louisiana Code of Civil Procedure Article 966 further provides, in pertinent part:

A. (2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
(3) After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
....
B. 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.
....
C. (1) Unless otherwise agreed to by all of the parties and the court:
(a) A contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date.
....
(2) For good cause shown, the court may order a continuance of the hearing.

Was the WCJ's Denial of Mitchell's Request to Refer Alliance's Motion for Summary Judgment to the Merits an Abuse of Discretion?

This court was recently called upon to review the propriety of a trial court's denial of a plaintiff's motion to continue a hearing on a motion for summary judgment filed against it by the defendant. See Miller v. Acadian Ambulance Serv., Inc. , 17-1096 (La.App. 3 Cir. 5/23/18), 248 So.3d 469, writ denied, 18-1452 (La. 11/20/18), 256 So.3d 990. In finding no error in the trial court's denial of the plaintiff's motion, we explained:

Louisiana Code of Civil Procedure Article 1601 provides that "[a] continuance may be granted in any case if there is good ground therefor." Under La.Code Civ.P. art. 1602, a continuance must be granted if "the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance." The court in Suarez v. Acosta , 15-750, pp. 9-10 (La.App. 5 Cir. 3/16/16), 194 So.3d 626, 632 (citations omitted) discussed the trial court's discretion in granting or denying a continuance and stated in pertinent part:
In determining whether to grant a continuance, the trial court must consider the particular facts in each case. Some factors to consider are diligence, good faith, and reasonable grounds. The trial court may also weigh the condition of the court docket, fairness to the parties and other litigants before the court, and the need for orderly and prompt administration of justice. A trial court has great discretion in granting or denying a motion for a continuance under La. C.C.P. art. 1601, and that discretion will not be disturbed on appeal in the absence of clear abuse of discretion .

Id. at 475-76 (emphasis added).

In her appellant brief, Mitchell asserts that the "WCJ was itching to grant defendant's motion for summary judgment [, a]nd, in doing so, he deprived plaintiff of her day in court, which was only 35 days away." Citing this court's decision in Marpco, Inc. v. S. States Pipe & Supply , 377 So.2d 525, 528 (La.App. 3 Cir. 1979), Mitchell claims that the WCJ's denial of her motion to continue or refer to the merits amounted to an abuse of its wide discretion.

Alliance points out that despite the fact that the hearing had been set since early June, the request to continue the July 5, 2018 hearing was not made until just two days before the hearing was set to take place. It directs this court's attention to the transcript of the July 5, 2018 hearing wherein the WCJ referenced a conference it had conducted with both parties' counsel of record on July 2, 2018, wherein the WCJ stated that it would not grant Mitchell's "late request" for a continuance. According to the transcript, the WCJ explained that, after being presented with an order filed by Mitchell's counsel setting a hearing on the motion to continue or refer to the merits to July 5, he signed the requested order, and his office faxed a copy of the signed order to Mitchell's counsel's office. Pointing to La.Code Civ.P. art. 966(C)(1)(a) (emphasis added), which provides that "[u]nless otherwise agreed by all of the parties and the court [a] contradictory hearing on the motion for summary judgment shall be set not less than thirty days after the filing and not less than thirty days prior to the trial date [,]" Alliance asserts that Louisiana law does not permit motions for summary judgment to be "referred to the merits."

Initially, we note that neither Alliance nor the WCJ agreed to continue the summary judgment hearing. Given the fact that the hearing on Alliance's motion for summary judgment had been set since June 5, 2018, we cannot say that the WCJ abused its great discretion in denying a motion to continue that was filed just two days before the scheduled hearing. Moreover, even had Mitchell's request for a continuance been filed earlier, it was within the sound discretion of the WCJ to deny the request as Mitchell "did not allege any peremptory grounds for a continuance." Miller , 248 So.3d at 476. Mitchell's first assigned error lacks merit.

Did Alliance Prove Its Entitlement to Summary Judgment?

An appellate court reviews a trial court's granting of a motion for summary judgment de novo. Duncan v. U.S.A.A. Ins. Co. , 06-363 (La. 11/29/06), 950 So.2d 544. Under this standard of review, the appellate court uses the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Id. "A fact is 'material' when its existence or nonexistence may be essential to [a] plaintiff's cause of action under the applicable theory of recovery." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "[F]acts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Id. (quoting S. La. Bank v. Williams , 591 So.2d 375, 377 (La.App. 3 Cir. 1991), writs denied , 596 So.2d 211 (La.1992) ).
Louisiana Code of Civil Procedure Article 966(D)(1) discusses the mover's burden of proof on summary judgments, and states:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court 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.

Miller , 248 So.3d at 475.

In her second assignment of error, Mitchell asserts that the WCJ's "grant of summary judgment was erroneously based only on excerpts of plaintiff's deposition, incomplete medical records and without any sworn testimony of plaintiff's treating physician." We find no merit to Mitchell's assertion, as it completely ignores the fact that it was her burden to prove her entitlement to workers' compensation benefits.

Mitchell additionally asserts that the WCJ "fail[ed] to thoroughly review the documentary evidence." Given the directive that we perform a de novo review of the trial court's grant of summary judgment in favor of Alliance, what the WCJ did or did not do is of no moment to our review of the appealed judgment. Nevertheless, we point out that according to the July 5, 2017 transcript, the WCJ stated that he had "read [Alliance's] brief thoroughly and reviewed [Alliance's] evidence as submitted," before noting that Mitchell's 1008 "doesn't really set forth any facts, just mostly conclusions." Thus, we find Mitchell's assertion in this regard quite disingenuous.

Alliance's motion for summary judgment sought dismissal of all of Mitchell's claims for the reasons asserted in the attached memorandum and supporting exhibits. Alliance's memorandum contained a twenty-two item Statement of Uncontested Material Facts, each of which was supported by a reference to one or more exhibits. Our review of the record revealed that the exhibits do, in fact, support the uncontested facts attested to by Alliance. Those facts are (footnotes omitted):

1. On December 5, 2016, plaintiff injured her right hand when she reached around a plexiglass guard to clean the center of a running machine - in violation of defendant's safety rules.
2. Plaintiff first received medical treatment following the accident on December 5, 2016, at the Natchitoches Regional Medical Center emergency room. Michael Bridges, defendant's industrial nurse, drove plaintiff to the emergency room in his personal vehicle. There, plaintiff saw Dr. William Zeichner, who diagnosed plaintiff with a crush injury to her right hand and prescribed plaintiff various medications. Dr. Zeichner restricted plaintiff from work until she had an opportunity to follow up with an orthopedic specialist.
3. Plaintiff saw Dr. Steven Kautz, an orthopedic on December 6, 2016. Bridges drove plaintiff to the appointment with Dr. Kautz in one of defendant's vehicles. Dr. Kautz released plaintiff to work without restrictions.
4. Plaintiff asked to see another doctor on December 12, 2016. Plaintiff saw Dr. William Luster, a family medicine physician, on December 16, 2016. Dr. Luster did not make any treatment recommendations, and referred plaintiff to Dr. Bryan Picou. Dr. Luster did not issue any work restrictions.
5. Plaintiff reportedly saw Dr. Bryan Picou on or about December 22, 2016. Dr. Picou instructed plaintiff to care for her wound by soaking it in warm water, and reportedly suggested that plaintiff see a specialist. Dr. Picou did not issue any work restrictions.
6. Between December 6, 2016 and January 5, 2017, plaintiff was released to work without restrictions .
7. Even though plaintiff was released to work without restrictions between December 6, 2016 and January 5, 2017, defendant accommodated plaintiff by allowing her the opportunity to work a light duty position, cleaning machines using only her non-injured left hand. Plaintiff is left handed; thus, this accommodation allowed Plaintiff to work exclusively with her dominant hand.
8. Between plaintiff's accident and the filing of suit, plaintiff worked her usual pre-accident hours, earning her same pre-accident hourly wage rate of $ 14.09 per hour.
9. On Thursday, January 5, 2017, Bridges met with plaintiff and explained to her that she would have to return to her usual job duties on Monday, January 9, 2017, as no medical provider had restricted plaintiff from work in any way. Bridges explained to plaintiff that Friday, January 6, 2017 was an overtime day and her attendance that day would be optional. Plaintiff chose to take Friday, January 6th off.
10. After plaintiff was told that she would have to return to her regular job duties, on account of no medical provider having restricted her from work, she sought legal counsel and filed suit against defendant on January 9, 2017.
11. Defendant took plaintiff's deposition on March 6, 2017.
12. On January 13, 2017, defendant propounded its First Set of Requests for Admissions of Fact, Interrogatories and Requests for Production of Documents to plaintiff. After plaintiff failed to respond to defendant's written discovery requests, defendant conducted a Rule 10.1 conference. Plaintiff did not provide responses to the requests by the agreed-upon date. Accordingly, defendant filed a Motion to Compel responses. That matter was set for hearing before this Court[ ] on April 10, 2017. Prior to the hearing on defendant's Motion to Compel, the parties entered into a consent judgment, which ordered plaintiff to provide responses to defendant's discovery requests within 10 days of the signing of the judgment; this Court signed the judgment on April 3, 2017. As of September 6, 2017, plaintiff still had not responded to defendant's written discovery requests. Defendant, therefore, moved to have its First Set of Requests for Admissions of Fact deemed admitted. This Court signed an Order granting defendant's requested relief, and deeming plaintiff's Requests for Admissions of Fact admitted on or about September 6, 2017.
13. Request for Admission Number 1, which asked: "Do you admit that, as of January 9, 2017, you had received no work restrictions from any medical provider for any injury you sustained on December 5, 2016?" has been deemed admitted by this Court.
14. Request for Admission Number 2, which asked, "Do you admit that, as of January 9, 2017, Alliance had provided transportation for you to any and all medical appointments you had as a result of the December 5, 2016 accident?" has been deemed admitted.
15. Request for Admission Number 3, which asked, "Do you admit that January 9, 2017 was the first time that you or anyone acting on your behalf requested copies of medical reports of physicians selected by defendant?" has been deemed admitted.
16. Request for Admission Number 4, which asked, "Do you admit you are still employed by defendant at the same or greater hourly wage that you received in the four full pay periods before December 5, 2016?" has been deemed admitted by this Court.
17. When suit was filed on January 9, 2017, 60 days had not yet passed from the December 5, 2016 accident.
18. Plaintiff requested to see Dr. Michelle Ritter, for the first time on January 4, 2017. Plaintiff saw Dr. Ritter for an initial evaluation on January 23, 2017.
19. As of the date suit was filed, plaintiff had not submitted any written mileage reimbursement requests.
20. Plaintiff first made a request for the written reports of any employer-selected physicians on January 9, 2017.
21. At the time the written request for the reports of employer-selected physicians was submitted on January 9, 2017, no such reports were in defendant's possession.
22. Plaintiff has never requested vocational rehabilitation benefits since the date of her accident.

In her motion to continue or refer to the merits, Mitchell made the following allegations:

Multiple significant factual issues remain unresolved, e.g., nature and extent of disability resulting from plaintiff's crushing right hand injury[;] non-reimbursement of medical travel to Dr. Luster and the physical therapist, Dr. Wheat[;] non-reimbursement of medications from the NPH-ER, Dr. Ritter and Dr. Luster[;] nonpayment of indemnity benefits[;] untimely payments of work-related medical expenses[;] plaintiff's AWW[;] penalties and attorney fees.

In her appellant brief, Mitchell goes even further, asserting that Alliance "did not argue that the factual issues set forth in her motion were, indeed, disputed[,]" nor did Alliance "oppose the recitation of the disputed factual issues in the motion to refer to the merits."

As mentioned previously, Mitchell's opposition was filed on July 3, 2018, just two days before the scheduled hearing date for Alliance's motion for summary judgment. That same afternoon, Alliance filed a pleading titled Response to Plaintiff's Opposition to Motion for Summary Judgment in which it pointed out the untimeliness of Mitchell's opposition and requested that the trial court not consider the opposition given the mandate in La.Code Civ.P. art. 966(B)(2) that "Any opposition to the motion [for summary judgment] 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." (Emphasis added by Mitchell). At the start of the July 5, 2018 hearing, at which neither Mitchell nor her attorney was present, the WCJ stated on the record that because Mitchell's opposition was "clearly untimely," it would "not consider any opposition attempted to be filed" on her behalf. In light of the preceding circumstances, we again find it extremely disingenuous for Mitchell to assert that Alliance "did not oppose the recitation of the disputed factual issues in the motion to refer to the merits" and that the "WCJ was itching to grant defendant's motion for summary judgment." Suffice it to say that we, too, conclude that Mitchell's opposition to Alliance's motion for summary judgment was untimely and should not be considered.

After having conducted a de novo review of the "motion, memorandum, and supporting documents" that Alliance filed in support of its motion for summary judgment, we find that Alliance overwhelmingly met its burden of proving "the absence of factual support for one or more elements essential to [Mitchell's] claim." See La.Code Civ.P. art. 966(D)(1). Accordingly, the burden shifted to Mitchell "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that [Alliance] was not entitled to summary judgment as a matter of law." Id. She failed to do so. Thus, the record summary judgment evidence indicates that Mitchell was released to work without restrictions since the day after her December 5, 2016 injury; and that, between then and the January 9, 2017 filing of her 1008, Mitchell worked her usual pre-accident hours, earning her same pre-accident hourly wage, during which time Alliance accommodated Mitchell by allowing her to work at light duty. Accordingly, we conclude that Alliance showed the absence of any "genuine issue as to material fact," regarding Mitchell's entitlement to workers' compensation benefits, such that it was "entitled to judgment as a matter of law." La.Code Civ.P. art. 966(A)(3). Hence, we find that summary judgment was properly rendered in Alliance's favor.

DECREE

For the foregoing reasons, the judgment rendered by the WCJ in favor of Alliance Compressors and against Elaine Mitchell is affirmed. Costs of this appeal are assessed against Elaine Mitchell.

AFFIRMED.

      As we will later explain, the WCJ refused to consider Mitchell's opposition and, apparently, did not allow it to be filed into the record. We note, however, that the first page of the opposition appears in the record as Exhibit 5 to Alliance's later filed Memorandum in Opposition to Plaintiff's Motion for New Trial, wherein Alliance describes Mitchell's opposition as being one and one-half pages in length and without any accompanying exhibits.

      Mitchell devolutively appealed from the judgment of July 13, 2018, dismissing her claims and the judgment of August 23, 2018, denying her motion for new trial. Her appellant brief does not include an assignment of error or any argument addressing the denial of her new trial motion. Accordingly, we will consider as abandoned Mitchell's appeal of the August 23, 2018 judgment. See Uniform Rules-Courts of Appeal, Rules 1-3 and 2-12.4 ; Lewis v. Albertson's Inc. , 41,234 (La.App. 2 Cir. 6/28/06), 935 So.2d 771, writ denied , 06-1943 (La. 11/9/06), 941 So.2d 42.

      The July 5, 2018 hearing date was pre-filled in by Mitchell's counsel.

      In support of its motion for summary judgment, Alliance attached the following exhibits: 1) excerpts of Mitchell's deposition; 2) excerpts of Mitchell's certified medical records from Natchitoches Regional Medical Center; 3) a work restriction for Mitchell dated December 5, 2016; 4) Mitchell's certified medical records from Natchitoches Medical Specialists; 5) Mitchell's certified medical records from Dr. William Luster; 6) the June 1, 2018 affidavit of Michael Bridges, an industrial nurse employed by Alliance; 7) the June 1, 2018 affidavit of Michelle Brundige, Alliance's human resources manager, with attachments G1 (Mitchell's Payslips for periods between September 26, 2016 and June 18, 2017), G2 (A Corrective Action Notice from Alliance to Mitchell dated December 8, 2016, which gave her a Written Warning for a "Rule # 22 Violation of Established Safety Rules and Practices." A Notice of Corrective Action dated March 14, 2017, which stated that Mitchell had be given a Written Discussion for leaving early on January 1, 2017, and for being unexcused on March 6 and 13, 2017. A Corrective Action Notice from Alliance to Mitchell dated March 31, 2017, which stated that she had been given a Final Written Warning for her Unsatisfactory Work Performance in violation of Job Performance Rule # 2. A Notice of Corrective Action dated April 10, 2017, which stated that Mitchell had be given a Written Warning for leaving early on March 22, 2017 and being unexcused on April 6, 2017.) and G3 (Mitchell's June 14, 2017 Termination Notice); 8) the June 5, 2018 affidavit of Colleen Vosberg, a Liberty Mutual Insurance Claim's Manager who was assigned Mitchell's workers' compensation claim, with attachments H1 (Mitchell's Medical Cost Summary List) and H12 (Mitchell's Employee Mileage Report); 9) the Motion to Continue Trial and to Deem Facts Admitted, with attachments, filed by Alliance on September 6, 2017; 10) the order signed by the WCJ on September 6, 2017, which ordered that Alliance's "First Set of Requests for Admissions of Fact be and they are hereby deemed admitted as a matter of law;" 11) excerpts of Mitchell's certified medical records from Dr. Michelle Ritter; and 12) Mitchell's 1008.

      As we have verified that the exhibits cited by Alliance do support its assertions of uncontested facts, we will not repeat those specific references.

      Note: because we are repeating what Mitchell filed in the Office of Workers' Compensation (OWC), all references therein to "this Court" refer to the OWC.

      We note that to the extent Mitchell asserts arguments in her appellant brief in opposition to the merits of Alliance's motion for summary judgment, we are prohibited from considering such arguments as they are not a part of the appellate record.


author: GUIDRY, J.

text:
    CABANA PARTNERS, LLC v. CITIZENS BANK & TRUST COMPANY
    NUMBER 2018 CA 0133
    Court of Appeal of Louisiana, First Circuit.
    December 21, 2018
    Scott C. Sinclair, Shreveport, LA, Counsel for Plaintiff/Appellant, Cabana Partners, LLC
    David S. Rubin, Julie M. McCall, George P. Holmes, Baton Rouge, LA, Counsel for Defendant/Appellee, Citizens Bank & Trust Company
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

Cabana Partners, LLC ("Cabana Partners") appeals a final judgment granting Citizens Bank & Trust Company's ("Citizens Bank") motion for summary judgment. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Cabana Partners is a limited liability company organized under the laws of Louisiana. On or about February 16, 2011, Cabana Partners created an operating checking account called the Cabana Account at Citizens Bank. The Cabana Account reflected that Len Kola ("Kola") and George Allen Roth Walsh ("Walsh") were authorized signers on the account. Kola was the manager and a member of Cabana Partners, and Walsh was the designated agent for Cabana Partners.

On or about July 24, 2012, Cabana Partners, through Kola, sent an email notifying Citizens Bank that the relationship between Cabana Partners and Walsh had become adversarial, and Cabana Partners was concerned about being sabotaged by Walsh. Nearly four years later, on July 14, 2016, Walsh directed, via telephone, that $125,000.00 be transferred from the Cabana Account to the CG Walsh Account at Citizens Bank.

On August 2, 2017, Cabana Partners filed a petition for damages against Citizens Bank, alleging that Citizens Bank acted negligently by allowing Walsh to conduct transactions on the Cabana Account, despite the July 24, 2012 written notice. Cabana Partners further alleged that Citizens Bank was at fault for allowing Walsh to conduct transactions on the Cabana Account by telephone without requiring a signature, which resulted in the loss of $125,000.00 from the Cabana Account.

In response to the petition, Citizens Bank filed a motion for summary judgment, wherein it sought to be absolved from liability. Citizens Bank asserted that Walsh was listed as an authorized signatory on the signature card at Citizens Bank when the requested withdrawal was made from the Cabana Account. Citizens Bank further asserted that Cabana Partners did not provide written notification that Walsh's authority had been terminated prior to the transaction. Following a hearing on the motion for summary judgment, the trial court granted the motion and dismissed Cabana Partners' suit with prejudice. Cabana Partners now appeals.

ASSIGNMENTS OF ERROR

In this appeal, Cabana Partners alleges the trial court committed the following errors:

1. The trial court erred in granting summary judgment because there was a genuine issue of material fact as to whether Walsh was authorized to withdraw funds from the account by telephone.
2. The trial court erred in granting summary judgment because there was a genuine issue of material fact as to whether Citizens Bank was notified that Walsh's authority to withdraw funds from the account had been revoked.

DISCUSSION

Summary Judgment

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there are no genuine factual disputes. Diversified Marine Services, Inc. v. Jewel Marine, Inc., 16-0617, p. 7 (La. App. 1st Cir. 6/2/17), 222 So.3d 1008, 1013. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. La. C.C.P. art. 966(A)(4).

On appeal, a motion for summary judgment is subject to de novo review, using the same standards applicable to the trial court's determinations of the issues. Neighbors Federal Credit Union v. Anderson, 15-1020, p. 9 (La. App. 1st Cir. 6/3/16), 196 So.3d 727, 733. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 p. 26 (La. 7/5/94), 639 So.2d 730, 750.

ASSIGNMENT OF ERROR # 1

Authority to Authorize a Transfer by Telephone

In its first assignment of error, Cabana Partners disputes the trial court's finding that there were no genuine issues of material fact regarding Walsh's authorization to withdraw funds from the Cabana Account by telephone. Cabana Partners argues that Walsh's authority as its agent allowed him to only transact business on the account by affixing his signature. Cabana Partners relies on La. C.C. art. 3020, when presenting its argument of liability. Article 3020 provides that the principal is bound to perform the contracts the mandate establishes with a third party when the mandate is acting within the limits of his authority. The essential question before this Court is whether Walsh was acting within the limits of his authority when he transferred $125,000.00 from the Cabana Account to the CG Walsh Account by telephone.

According to La. C.C. art. 2989, a mandate is a contractual relationship where the principal confers authority upon the agent to transact affairs on its behalf. The contract of mandate is not required to be in any particular form, except when the law prescribes a certain form. La. C.C. art. 2993. Pursuant to the Uniform Commercial Code, the rules governing the transfer of funds are set forth in the chapter titled "Funds Transfer." See La. R.S. 10:4A-101 to 4A-507. "Funds transfer" means the series of transactions, beginning with the originator's payment order, made for the purpose of making payment to the beneficiary of the order. The term includes any payment order issued by the originator's bank or an intermediary bank intended to carry out the originator's payment order. A funds transfer is completed by acceptance by the beneficiary's bank of a payment order for the benefit of the beneficiary of the originator's payment order. La. R.S. 10:4A-104(a).

A payment order is an instruction of a sender to a receiving bank, transmitted orally, electronically, or in writing, to pay, or to cause another bank to pay, a fixed or determinable amount of money to a beneficiary. La. R.S. 10:4A-103. The authorization of payment orders are set forth in La. R.S. 10:4A-202, which provides in pertinent part:

(a) A payment order received by the receiving bank is the authorized order of the person identified as sender if that person authorized the order or is otherwise bound by it under the law of agency.
(b) If a bank and its customer have agreed that the authenticity of payment orders issued to the bank in the name of the customer as sender will be verified pursuant to a security procedure, a payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if (i) the security procedure is a commercially reasonable method of providing security against unauthorized payment orders, and (ii) the bank proves that it accepted the payment order in good faith and in compliance with the security procedure and any written agreement or instruction of the customer restricting acceptance of payment orders issued in the name of the customer. The bank is not required to follow an instruction that violates a written agreement with the customer or notice of which is not received at a time and in a manner affording the bank a reasonable opportunity to act on it before the payment order is accepted.
(c) Commercial reasonableness of a security procedure is a question of law to be determined by considering the wishes of the customer expressed to the bank, the circumstances of the customer known to the bank, including the size, type, and frequency of payment orders normally issued by the customer to the bank, alternative security procedures offered to the customer, and security procedures in general use by customers and receiving bank similarly situated. A security procedure is deemed to be commercially reasonable if (i) the security procedure was chosen by the customer after the bank offered, and the customer refused, a security procedure that was commercially reasonable for that customer, and (ii) the customer expressly agreed in writing to be bound by any payment order, whether or not authorized, issued in its name and accepted by the bank in compliance with the security procedure chosen by the customer.
(d) The term "sender" in this Chapter includes the customer in whose name a payment order is issued if the order is the authorized order of the customer under Subsection (a), or it is effective as the order of the customer under Subsection (b).

In the present case, Walsh was the sender and Citizens Bank was the receiving bank. The payment order at issue was the telephone transaction between Walsh and Citizens Bank for the fixed amount of $125,000.00. The Limited Liability Company Banking Resolution Agreement ("Banking Resolution") between Cabana Partners and Citizens Bank authorized both Walsh and Kola as individuals to sign payment orders for Cabana Partners. The Banking Resolution also states:

[A]ny one (1) of the Authorized Signers ("Agents") listed above may enter into any such agreements and perform such other acts as they deem reasonably necessary to carry out the provisions of the Agreement with [Citizens Bank], and those agreements will bind [Cabana Partners], and acting for and on behalf of [Cabana Partners] and as its act and deed be, and they hereby are, authorized and empowered:
...
The above named agents are authorized and empowered to execute such other agreements including but not limited to special depository agreements and arrangements regarding the manner, conditions or purposes for which funds, checks or items of Account Holder may be deposited, collected or withdrawn and to perform such other acts as they deem reasonably necessary, to carry out the provisions of these resolutions. The other agreements and other acts may not be contrary to the provisions contained in this Resolution.

The Banking Resolution further explains that the authority conferred to an agent upon signing the agreement "shall be and remain in full force and effect until written notice of any amendment or revocation thereof shall have been delivered to and received by [Citizens Bank].

Additionally, the Deposit Account Agreement and Disclosure provided by Citizens Bank articulates the manner in which withdrawals and transactions on an account should be handled. Under the "Withdrawal Rules" section of the Deposit Account Agreement and Disclosure, it states in pertinent part:

(A) Manner of Withdrawal. You [defined in the first paragraph of the form as "each and all of the depositors"] may make withdrawals from your Account in any manner that is permitted by us for the type of Account that you have opened.
...
(G) Signatures. You recognize that we have adopted automated collection and payment procedures so that we can process the greatest volume of items at the lowest possible cost to our customer. In light of this, you agree that we do not fail to exercise ordinary care in paying an item solely because our procedures do not provide for the sight examination of items with a face amount below an amount specified by us from time to time. You authorize us to store and use Signature Card information in any reasonable form we deem necessary, including any digitized signature capture process.

Cabana Partners relies on the Banking Resolution and a Case Management Agreement to contend that Walsh was specifically prohibited from conducting account transactions without affixing his signature. The Case Management Agreement was between Cabana Partners and Citizens Bank. The provisions of those documents refer to specific types of transactions, such as the endorsement of checks, drafts, notes, and e-banking; however, none of those provisions relate to the transaction at issue: the verbal transfer of funds by phone. Neither the Banking Resolution nor the Case Management Agreement implicitly or explicitly prohibit a verbal transfer by phone. The Banking Resolution allows the agent broad discretion when acting on behalf of Cabana Partners. Furthermore, the Case Management Agreement only indicates that neither Walsh nor Kola were authorized to perform account transfers through the online portal of E-Banking.

Louisiana Revised Statute 10:4A-202(b) places the risk of loss on the customer if a payment order is accepted by a receiving bank after verification by the bank in compliance with a commercially reasonable security procedure. A payment order received by the receiving bank is effective as the order of the customer, whether or not authorized, if: 1) the banking security procedure is a commercially reasonable method of providing security against unauthorized payment orders; 2) the bank proves that it accepted the payment order in good faith; and 3) the bank proves it complied with the security procedure and any written agreement or instruction of the customer restricting acceptance of payment orders issued in the name of the customer. La. R.S. 10:4A-202(b).

Cabana Partners does not dispute or challenge whether the procedure followed by Citizens Bank was commercially reasonable. The standard for determining whether a bank has acted in good faith is if fraud was not detected because the bank's employee failed to perform acts required by the security procedure. La. R.S. 10:4A-203, Comment 3.

In his affidavit, James R. Purgerson, the Senior Vice President of Citizens Bank, explained the procedure for approving telephone requests from customers. He stated that Citizens Bank employees are instructed to only approve telephonic transaction requests if the customer is known to the employee by voice, provides sufficient proof of identity to the employee, and the person is authorized to conduct the transaction according to the record of the bank. In her deposition, Kelly Alberado, the Citizens Bank employee that processed Walsh's funds transfer request, testified that she was familiar with Walsh from prior business transactions. And although Alberado did not state, in the excerpts of her deposition submitted into evidence, whether she followed the procedure outlined by Purgerson, Purgerson stated in his affidavit that "Ms. Alberado's action in allowing the transfer of funds was ... entirely proper and in accordance with the rules, regulations, policies, and procedures governing checking accounts at Citizens Bank."

The documentation possessed by Citizens Bank indicated that Walsh had actual authority to transact business telephonically because the Banking Resolution granted the agent discretion in "performing any such acts they deem reasonably necessary to carry out the provisions of the Agreement." Also, the signature card conferred the agent actual authority to act on behalf of Cabana Partners. The Deposit Account Agreement and Disclosure reiterates the broad discretion to make withdrawals on the account in "any manner" permitted for the type of account that has been opened. Thus, the record shows telephonic transactions were a permissible form of withdrawal of funds because there was not a limitation placed on using that specific method of transaction. Additionally, the Deposit Account Agreement and Disclosure grants Citizens Bank the authority of utilizing the signature card information in any method that they deem reasonable. The signature card coupled with the aforementioned documentation sufficiently established Walsh's authority to transact business on the Cabana Account by telephone and none of the evidence offered by Cabana Partners refuted this showing. We therefore find no genuine issues of material fact regarding Walsh's authority to withdraw funds from the Cabana Account by telephone. This assignment of error is without merit.

ASSIGNMENT OF ERROR # 2

Termination of Mandate Authorization

In its second assignment of error, Cabana Partners contends that the trial court erred in granting summary judgment because a genuine issue of material fact exists as to whether Citizens Bank was notified that Walsh's authority to withdraw funds from the account was revoked. Cabana Partners argues that the July 24, 2012 email sent by Kola on behalf of Cabana Partners was sufficient notification that Walsh's authority had been terminated. The email reads as follows:

Ms. Miller,
As a follow up to our discussion, due to the adversarial nature that exists between Cabana Partners, LLC and Roth Walsh, we need to have the following done asap in order to move forward without the possibility of being sabotaged[:]
1) I need the address for any correspondence, checks, etc having to do with our two accounts changed ...
2) Peggy Ernest, TW Kleinpeter and Roth Walsh need to be removed from receiving any notice or telephone correspondence for our accounts
3) need the date that last blank checks were sent to Napoleon Street
4) reversal of our telephone payment to Entergy that was rescinded by Roth Walsh this morning

Under Louisiana law, the principal may terminate the mandate and the authority of the mandatary at any time. La. C.C. art. 3025. The principal must notify third persons with whom the mandatary was authorized to contract of the revocation of the mandate or of the mandatary's authority. If the principal fails to do so, he is bound to perform the obligations that the mandatary has undertaken. La. C.C. art. 3028.

In the present case, Citizens Bank appropriately relied on the signature card, the Banking Resolution, the Deposit Account Agreement and Disclosure, and the Cash Management Agreement regarding Walsh's authority to transact business. The language in the Banking Resolution regarding the revocation of an agent's authority reads as follows:

BE IT FURTHER RESOLVED, that the authority hereby conferred upon the above named Agents shall be and remain in full force and effect until written notice of any amendment of revocation thereof shall have been delivered to and received by [Citizens Bank] at each location where an account is maintained. [Citizens Bank] shall be indemnified and held harmless from any loss suffered or any liability incurred by it in continuing to act in accordance with this resolution. Any such notice shall not affect any items in process at the time notice is given.

The Deposit Account Agreement and Disclosure further clarifies the agreement established between the parties regarding notification of any changes to authorized personnel on the account. The Deposit Account Agreement and Disclosure reads, in pertinent part, as follows:

(6) Business Accounts. If the Account is not owned by a natural person (for example, it is owned by a ... limited liability company ...), then the Account Holder must provide us with evidence to our satisfaction of the authority of the individuals who sign the signature card to act on behalf of the Account Holder. On any transaction involving the Account, we may act on the instructions of the person(s) authorized in the resolutions, banking agreement, or certificate of authority to act on behalf of the Account Holder. You agree to notify us in writing of any changes in the person(s) authorized or the form of ownership. If we receive conflicting instructions or a dispute arises as to authorization with regard to the handling of the Account, you agree we may place a hold on the Account until such conflict or dispute is resolved to our satisfaction and we will not be liable for dishonored items as a result of such hold.

The record reflects that Kola properly revoked Walsh's authority only after the July 14, 2016 transaction was made. Cabana Partners did not communicate in the July 24, 2012 email to Citizens Bank a revocation or termination of Walsh's authority to withdraw funds from the Cabana Account. The July 24, 2012 email merely informed Citizens Bank of an adversarial relationship between Cabana Partners and Walsh and only requested action as to Walsh regarding his receiving information about the account and as to a telephone payment to Entergy that was rescinded by Walsh.

Cabana Partners did not terminate Walsh's authority to withdraw funds on the account until July 27, 2016. On July 27, 2016, Kola completed an Account Maintenance form and executed a notarized statement that removed Walsh as an authorized signer on the Cabana Account. The record reflects that Cabana Partners did not comply with Citizens Bank's termination policy by providing the necessary written notice to eradicate Walsh's authority as an agent until July 27, 2016. Therefore, Cabana Partners's remaining assignment of error is also without merit.

CONCLUSION

Accordingly, for the reasons set forth above, we affirm the November 13, 2017 summary judgment in favor of Citizens Bank & Trust Company. All costs of this appeal are cast to the appellant, Cabana Partners, LLC.

AFFIRMED.

      While La. C.C.P. art. 966(A)(1) states that a plaintiff must wait until after the answer has been filed to file a motion for summary judgment, "[a] defendant's motion may be filed at any time." See Edwards v. Larose Scrap & Salvage, Inc., 11-1412, pp. 6-7 (La. App. 3d Cir. 4/4/12), 89 So.3d 1227, 1232, writ denied, 12-1510 (La. 10/12/12), 98 So.3d 870.

      It is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La. App. 1st Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La. 12/18/98), 734 So.2d 637.
      A "material fact" is one that potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute. A "genuine issue of material fact" is a material fact about which reasonable people can disagree; if reasonable people can reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Moore v. Chevron USA, 16-0805, p. 3 (La. App. 1st Cir. 5/25/17), 222 So.3d 51, 54, writ denied, 17-1085 (La. 10/16/17), 228 So.3d 1221.

      The Banking Resolution and several other documents referred to in this opinion were authenticated in the affidavit of James Purgerson, Senior Vice President of Citizens Bank, and thus, are competent summary judgment evidence. See Cupit o/b/o Cupit v. Twin City Fire Insurance Co., 17-918, p. 8 (La. App. 3d Cir. 3/14/18), 240 So.3d 993, 999-1000. But cf. LaBarre v. Occidental Chemical Company, 17-1370, pp. 20-21 (La. App. 1st Cir. 6/4/18), 251 So.3d 1092, 1105.

      It should be noted that Citizens Bank, Cabana Partners, and Cabana Partners's designated signers agreed to the terms and conditions of the Banking Resolution.

      The copy of the Deposit Account Agreement and Disclosure provided by Citizens Bank lists the generic company name of "DOE Business LLC" as "depositor." In email correspondence between Kola and Diana Weems, a vice president and branch manager with Citizen's Bank, Weems explains that the original Deposit Account Agreement and Disclosure is given to the account holder at the time of opening the account.