Opinion
NO. 2014 CA 0132
09-19-2014
RAYMOND M. LeBOUEF v. ROCKIN "D" MARINE SERVICES, L.L.C.
SCOTT H. FRUGE' BATON ROUGE, LA ATTORNEY FOR PLAINTIFF-APPELLEE RAYMOND M. LEBOUEF JENNA S. ARD ROBERT S. REICH METAIRIE, LA ATTORNEYS FOR DEFENDANT-APPELLANT ROCKIN "D" MARINE SERVICES, LLC.
NOT DESIGNATED FOR PUBLICATION Appealed from the 17th Judicial District Court in and for the Parish of Lafourche, Louisiana
Trial Court No. 113076
Honorable Jerome J. Barbera, III, Judge
SCOTT H. FRUGE'
BATON ROUGE, LA
ATTORNEY FOR
PLAINTIFF-APPELLEE
RAYMOND M. LEBOUEF
JENNA S. ARD
ROBERT S. REICH
METAIRIE, LA
ATTORNEYS FOR
DEFENDANT-APPELLANT
ROCKIN "D" MARINE SERVICES,
LLC.
BEFORE: KUHN, PETTIGREW, AND WELCH, JJ.
PETTIGREW, J.
In this suit for unpaid wages, the plaintiff, Raymond M. LeBouef (Mr. LeBouef), obtained a preliminary default judgment on March 5, 2010, and subsequently a confirmation of the default judgment on July 2, 2010, ordering the defendant, Mr. LeBouef's former employer, Rockin "D" Marine Services, L.L.C. (Rockin "D"), to pay him penalty wages in the amount of $22,500.00 and attorney's fees in the amount of $2,500.00, together with legal interest and court costs. A little more than two years later, on October 25, 2012, Rockin "D" filed a motion for new trial. That motion was denied in open court on October 10, 2013, and by judgment signed November 22, 2013. This is an appeal by Rockin "D" of that judgment. After a thorough review of the record and applicable law, we vacate a portion of the judgment, and otherwise, affirm.
The judgment was rendered in favor of Raymond LeBouef and Lisa LeBouef (his wife). However, inasmuch as Mr. LeBouefs wife was not a named party in the suit, the rendition of the judgment in her favor was erroneous. Accordingly, we vacate that portion of the judgment rendered in favor of Lisa LeBouef.
BACKGROUND FACTS AND PROCEDURAL HISTORY
On September 24, 2009, Mr. LeBouef filed a Petition for Unpaid Wages against Rockin "D", alleging he was an employee of Rockin "D" in March 2009, but he was not paid the full amount of wages owed to him for the pay period through March 25, 2009. The petition sought recovery from Rockin "D" of the unpaid salary, damages, and penalties, including reasonable attorney's fees and costs as provided by La. R.S. 23:631 and 632. Attached to the petition was a handwritten letter by Mr. LeBouef dated April 6, 2009, making amicable demand on Rockin "D" for his full pay; the letter stated in the subject line "cut a half a day," and the letter itself stated that Mr. LeBouef was supposed to have been issued a "9½ day check" and demanded payment. (Later testimony revealed that this letter was delivered by hand to Rockin "D" by Mr. LeBouefs wife, Lisa LeBouef.)
We note that the petition erroneously references the statutes La. R.S. 22:631 and La. R.S. 22632. It is apparent that the plaintiff intended to cite La. R.S. 23:631 and 632, which are applicable to this matter. Inasmuch as Louisiana's Code of Civil Procedure uses a system of fact pleading, see Emigh v. West Calcasieu Cameron Hosp., 2013-2985 (La. 7/1/14), ___ So.3d ___, the plaintiff's inadvertent citation to incorrect statutes is of no significance, and he may be granted any relief to which he is entitled under the fact pleading and evidence. Therefore, we apply the correct statutes to our analysis, contained later herein.
The petition requested service on Rockin "D"'s agent for service of process, Mark Detillier, at the address of 508 Hamilton Street, Larose, Louisiana. The record contains a return on that citation, reflecting personal service on Mark Detillier on October 7, 2009, at 2:24 p.m. (The return reflects service was effected on Mr. Detillier at 508 Hamilton Street, Lockport, La.)
On March 2, 2010, Mr. LeBouef filed a motion for preliminary default, asserting that the original petition had been served on the defendant on October 7, 2009, and that no answer or other responsive pleadings had been filed, and no appearance had been made. A judgment of preliminary default was signed on March 5, 2010.
On June 14, 2010, the trial court held a hearing on a confirmation of the default judgment, at which time, only the plaintiff, his witness, and his counsel were present. Testimony and evidence were presented, following which the trial court confirmed the default judgment pursuant to La. C.C.P. art. 1702, in a judgment signed on July 2, 2010, finding Rockin "D" liable to the plaintiff (and erroneously, his wife - see footnote 1) in the amount of $22,500.00 in penalty wages, plus attorney's fees in the amount of $2,500.00, together with judicial interest and costs. The record reflects that notice of said judgment was sent to Rockin "D", through Mark Detillier on July 6, 2010, at the Hamilton Street address in Lockport, the same address at which the original petition was served, as evidenced by that service return. However, the record also reflects that the notice of judgment was returned, inexplicably marked "Return to Sender, No Such Street, and Unable to Forward."
Also, following rendition of the default judgment, a certified letter dated March 1, 2011, was sent by counsel for plaintiff to Rockin "D" via Mark Detillier to the Lockport address (the same address the court had used), with an attached copy of the final default judgment rendered against it and requesting Rockin "D" to contact him to discuss payment. The record contains a copy of this letter together with the signed confirmation of receipt thereof dated March 3, 2011. (Again, inexplicably, this letter was received by Detillier, despite that the court's notice of judgment sent to the same address was returned undeliverable.)
According to counsel for plaintiff, following receipt by Detillier of the certified letter seeking to discuss payment of the default judgment, Rockin "D" engaged the services of counsel, Mr. Robert S. Reich, who contacted plaintiff's counsel to discuss resolution of the matter. The record contains a letter dated August 14, 2012, from counsel for the plaintiff that was faxed to Mr. Reich, as counsel for Rockin "D", confirming their prior discussions regarding resolving the matter, and informing him that plaintiff was seeking to move forward with the judgment debtor rule if the parties were unable to reach resolution of the matter.
On September 21, 2012, the judgment remained unpaid and, apparently, no response was made by Rockin "D" or its counsel to the plaintiff's attempts to resolve the matter. Thus, the plaintiff filed a motion to examine the judgment debtor, Rockin "D". Service of the motion again was requested on Mark Detillier, as agent for service of process for Rockin "D", at the Hamilton Street address in Larose, Louisiana. The accompanying order citing Rockin "D" to appear and be examined as judgment debtor on November 7, 2012, reflects that it requested service on Mark Detillier at the Hamilton Street address in Larose, Louisiana.
On October 25, 2012, through counsel, Rockin "D" filed its first pleading in the litigation -- a motion for new trial and a request for a stay of the judgment debtor hearing. Rockin "D" alleged that the notice of default judgment was not mailed in accordance with law (La. C.C.P. art. 1913(C) ) because it was sent to an address different than the one where the original petition had been served. Rockin "D" further asserted that the judgment was granted "under color of ill practices by plaintiff's counsel and fundamental errors of law which require re-examination." In a memorandum in support of the motion, Rockin "D" further asserted that a new trial should be granted because the plaintiff failed to make a prima facie case necessary to support a cause of action upon which Rockin "D" could be held liable, and that allowing the judgment to stand would result in a miscarriage of justice, warranting a new trial pursuant to La. C.C.P. art. 1973. The plaintiff opposed the motion on the merits, and also asserted that it was untimely.
Louisiana Code of Civil Procedure art. 191.3(C) provides that notice of the signing of a default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.
A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law. La. C.C.P. art. 1973.
A hearing on the motion for new trial was held on October 10, 2013, following which the trial court held that the motion was timely. and then denied the motion by judgment dated November 22, 2013. Notice of said judgment was sent to counsel for Rockin "D" on November 25, 2013, and this appeal of that judgment by Rockin "D" followed.
APPLICABLE LAW
Default Judgment
If a defendant fails to answer within the time prescribed by law, judgment by default may be entered against him. La. CCP. art, 1701(A). A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P.. art. 1702(A). For a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant, i.e., evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, 820. A plaintiff seeking to confirm a default must prove both the existence and the validity of his claim. A default judgment cannot be different in kind from what is demanded in the petition and the amount of damages must be proven to be properly due. La. C.C.P. art. 1703.
Payment to Employee After Termination of Employment
Louisiana's Labor and Worker's Compensation Law provides for payment of wages to a terminated employee in La. R.S. 23:631, in pertinent part, as follows:
A. (1)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.(Emphasis added.)
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United- States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee's or laborer's current address as shown In. the employer's records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
Additionally, an employer's liability for failure to pay wages in accordance with La. R.S. 23:631 is provided in La. R.S. 23:632, which at the applicable time stated as follows:
Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.
New Trial
A new trial shall be granted when the verdict or judgment appears contrary to the law and the evidence. La. C.C.P. art. 1972. Moreover, it is well settled that he who seeks to have a default judgment against him set aside must allege and prove that he has good reasons for his nonappearance and for his failure to appear and timely plead. In other words, he must allege and prove facts which would excuse his failure to plead any defense that he might have had. Schaff v. Cardinal Services, Inc., 2000-1164 (La. App. 5 Cir. 2/14/01), 778 So.2d 1278, 1282, writ denied. 2001-1035 (La. 6/1/01), 793 So.2d 196.
Standard of Review
When the trial judge has refused the defendant a new trial in a default judgment case, the appellate court should not disturb that ruling, regardless of the fact that the defendant may urge in his motion for a new trial that he has a meritorious defense to the merits, unless the defendant has shown to the trial judge a good excuse for his failure to appear to defend the suit. The granting or refusal of a motion for a new trial is within the discretion of the trial judge, and his action in granting or refusing the new trial will not be disturbed by a court of appeal unless it clearly appears that he has abused his discretion. Id., citing De Frances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951).
Further, there is a presumption that a default judgment is supported by sufficient evidence, but this presumption may be rebutted by the record upon which the judgment is rendered. Arias, 9 So.3d at 820. When reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment, and the determination is governed by the manifest error standard of review. Louisiana Workers' Compensation Corp. v. Fowler, 2010-1367 (La. App. 1 Cir. 2/11/11), 56 So.3d 1250, 1252.
ASSIGNMENTS OF ERROR!!!
Rockin "D" asserts five assignments of error as follows:
1. The trial court erred by denying Rockin "D"'s motion for new trial on November 22, 2013. The default judgment rendered against Rockin "D" was contrary to law and evidence, and therefore good grounds existed for the court to grant Rockin "D" a new trial, pursuant to La. C.C.P. [art.] 1972.
2. The trial court erred by hot vacating the default judgment after it was shown that the judgment was contrary to law and evidence because the plaintiff failed to present a prima facie case, as he was required to do.
3. The trial court erred in granting the default judgment based upon inadmissible and hearsay evidence which was improperly submitted at the hearing to confirm the default.
4. The trial court erred in its July 10, 2010, default judgment by granting a judgment different in kind, than that which was demanded in the petition, and in its award of attorney's fees.
5. The trial court erred in awarding attorney's fees in the default judgment, or in the alternative, in awarding attorney's fees in an
amount not commiserate with the plaintiff's counsel's time and efforts in the case.
DISCUSSION AND ANALYSIS
Assignment of Error Number 1 - New Trial
Rockin "D" asserts the trial court erred in not granting a new trial because the default judgment rendered was contrary to the law arid evidence, warranting a new trial pursuant to La. C.C.P. art. 1972A(1). However, the arguments set forth in support of this assignment of error pertain to the alleged failure of the plaintiff to present a prima facie case entitling him to penalty wages pursuant to La. R.S. 23:631 and 632. (These arguments are addressed below, in the discussion of Rockin "D"'s assignment of error number two, that the plaintiff failed to present sufficient evidence to establish such a prima facie case.) As to the trial court's denial of Rockin "D"'s motion for new trial, we apply the law, previously set forth herein, that one who seeks to have a default judgment against him set aside must allege and prove good reasons for his non-appearance which would excuse his failure to plead any defenses that he, might have had. Schaff, 778 So.2d at 1282.
The trial court found that Rockin "D" failed to provide gooa reasons for its nonappearance, and our review of the record reveals that its finding was not an abuse of discretion. The record reveals that service of the original petition, to which Mr. LeBouefs handwritten demand letter was attached, was made personally on Mark Detillier, agent for service of process for Rockin "D". Notably, Rockin "D" does not dispute or attack the return of service of process of the original petition on its agent for service of process. Therefore, the trial court found that Rockin "D" had actual notice of the filing of the petition and the demands made therein. Moreover, contrary to Rockin "D"'s arguments that it had no notice of the plaintiff's demands .and that the demands made were not specific, as found by the trial court, we also find those demands were specific enough for Rockin "D" to subsequently attempt to pay Mr. LeBouef the correct amount for a half-day's wages. Thus, Rockin "D" cannot now claim that it did not have notice of the plaintiff's demands. Furthermore, Rockin "D" claims to have believed that the matter had been "settled," based on its two alleged attempts to issue to Mr. LeBouef a check for a half-day's pay. However, Rockin "D" offered no evidence to prove that the check sent to Mr. LeBouef, or the subsequent check issued to Mr. LeBouef via his counsel of record, was negotiated; indeed, the second check, sent to Mr. LeBouefs counsel, was never negotiated, and the first check was voided for failure to be picked up.
Accordingly, the trial court did not abuse its discretion in refusing to find Rockin "D"'s belief that the matter had settled reasonable. Moreover, the trial court did not abuse its discretion in denying the motion for new trial because there was no other evidence presented at the hearing on that motion to prove facts that would excuse Rockin "D'"s failure to appear and timely plead. Accordingly, this assignment of error has no merit. Assignment of Error Number 2 - Prima Facte Case .
To recover penalty wages under La R.S. 23:632, as it read at the time in question, a claimant must show that (1) wages were due and owing, (2) demand for payment was made where the employee was customarily paid, and (3) the employer did not pay the wages owed upon demand. At the confirmation hearing held on June 14, 2010, the plaintiff introduced into evidence "the entire record," consisting of the original petition together with the attached handwritten letter by Mr. LeBouef, dated April 6, 2009, demanding payment of his unpaid half-day wages; the verification of personal service of the petition on Mark Detillier, as agent for service of process for Rockin "D", at an address in Larose, Louisiana; and the preliminary default judgment. Mr. LeBouef also testified and established that he began working for .the defendant on February 20, 2008, at a rate of pay of two hundred fifty ($250) dollars a day. Also introduced into evidence, in corroboration of the plaintiff's testimony, were his checking account statements reflecting that he was paid by Rockin "D" during his employment by direct deposits on the first and fifteenth of each month, thus establishing the manner in which he was paid. Additionally, copies of Mr. LeBouefs pay stubs, which were mailed to Mr. LeBouef by Rockin "D" when the direct deposits were made, were also entered into evidence, corroborating Mr. LeBouefs testimony regarding his rate and time of pay. The last of these pay stubs is dated March 31, 2009; Mr. LeBouefs termination was on March 25, 2009. Mr. LeBouef testified that when he was terminated on March 25, 2009, he was escorted off the premises, but that the March 31, 2009 paycheck shorted him a half a day's pay for the time he worked on March 25, 2009. He also testified that he wrote the handwritten demand for that half-day's pay to Rockin, "D" (attached to the originai petition) that was delivered by hand to Rockin "D" by his wife, Lisa LeBouef. Ms. LeBouef testified at the hearing that she delivered the aforementioned demand letter to Rockin "D"'s secretary, Dusty Allemand, with verbal instructions for her to deliver it to Mark Detillier, the owner of Rockin "D".
Plaintiff also submitted into evidence a copy of an envelope marked "certified mail" and postmarked October 14, 2009 that had been sent by Rockin "D" to counsel for Mr. LeBouef. The contents of that envelope included a check written out to Mr. LeBouef, dated October 12, 2009 (after service of the original petition), in the amount of $112.80, sent to his counsel, purportedly in satisfaction of the demand for wages due and unpaid. However, this check was never cashed or deposited by Mr. LeBouef. (Notably, the issuance of that check to Mr. LeBouef via. his counsel was not In compliance with the statutory requirement that payment be made in the same manner and place, as Mr. LeBouef was customarily paid throughout his employment.) Also submitted into evidence as an inclusion in the envelope sent to counsel for Mr. LeBouef was a copy of a voided check in that same amount, dated April 6, 2009, which had been voided after ninety days for failure to negotiate, This check contains a handwritten notation that Mr. LeBouef never came to pick it up. The LeBouefs both testified that they were never contacted by Rockin "D" about the checks; nor were they otherwise informed that a check had been issued or that Rockin "D" was waiting for Mr. LeBouef to pick it up. Moreover, these checks were obviously not paid in the normal manner of payment, i.e., direct deposit, in violation of the requirements set forth in La. R.S. 23:631.
Based on the foregoing evidence, the trial court found that Mr. LeBouef was due a half-day's wages; and, in violation of La. R.S. 23:631, those wages were not paid to him on or before the last regular payday (or fifteen days after termination, if that period of time was shorter); Rockin "D"'s purported attempts to pay him by check were not made in the normal manner of payment (direct deposit), nor were they made to him by U.S. mail. Thus, the trial court found that Mr. LeBouef made a prima facie showing that, pursuant to La. R.S. 23:632, he was entitled to ninety days penalty wages, in the amount of $22,500.00, and directed that confirmation of default judgment be granted. We find no manifest error in that ruling. Accordingly, this assignment has no merit.
Assignment of Error Number 3 - Inadmissible Hearsay
We recognize that the rules of evidence generally apply in hearings to confirm a default judgment, even though there is no opponent. The plaintiff and the trial court should be vigilant to assure that the judgment rests on admissible evidence, and inadmissible evidence may not support a default judgment even though it was not objected to because the defendant was not present. Arias, 9 So.3d at 820. However, Rockin "D'"s arguments that the default judgment, in this case was rendered based on inadmissible hearsay evidence are misplaced and unsupported. Rockin "D" erroneously asserts that the default judgment, rendered in part on a finding that it failed to pay Mr. LeBouef in the same place and manner as he was customarily paid while employed, was based on inadmissible hearsay, i.e., unauthenticated bank statements entered into evidence showing that Mr. LeBouef was paid by direct deposit. However, Rockin "D" ignores that in conjunction with those bank statements, Mr. LeBouef himself testified that he was paid on the 1st and the 15th of each month, by direct deposit, followed by the mailing to him of his pay stubs. There is nothing in the record to contradict this testimony, and the trial court did not manifestly err in finding that this requirement for the award of penalty wages pursuant to La. R.S. 23:631 and 632 was met by the plaintiff's evidence. We also find no merit to Rockin "CPs' argument contesting the legitimacy of the checks it issued in purported satisfaction of the plaintiff's demands. Accordingly, this assignment of error has no merit.
Assignment of Error Number 4 - Judgment Different in Kind?
Rockin "D" asserts the trial court erroneously granted a judgment different in kind than that which was demanded in the petition. This argument essentially incorporates Rockin "D'"s earlier arguments that the demands made by the plaintiff in the handwritten letter and in the petition were not sufficiently specific to apprise it of the demands made against it. Also, as noted earlier, and as found by the trial court, any merit in this argument is wholly belied by Rockin "D" s subsequent purported attempts to "settle" the dispute by issuing Mr. LeBouef two separate checks in the same amount, comprising what is undisputedly a half-day's pay owed to Mr. LeBouef. Mr. LeBouefs handwritten letter and the petition allege that he was owed a half-day's wages for March 25, 2009. The two checks Rockin "D" purportedly attempted to pay Mr. LeBouef are in an amount equal to half a day of the wages earned by Mr. LeBouef during his employment with Rockin "D". The default judgment rendered against Rockin "D" is for the amount demanded by Mr. LeBouef in his handwritten letter and in the subsequent petition filed by him, togetner with a calculation of the penalty wages, based, on an application of La. R.S. 23:632. Accordingly, there is no manifest error in the trial court's judgment, and this assignment has no merit.
However, although not argued by any party, we note on our own that the judgment rendered by the trial court is different in kind than that which was demanded insofar as it is rendered in favor of Mr. LeBouef and his wife, Lisa LeBouef. As noted earlier in footnote one, Mrs. LeBouef was not a named party in this suit; therefore, the judgment rendered in her favor is, indeed, different In kind than that which was requested. Accordingly, we vacate that portion of the judgment.
We further note our authority under La. C.C.P, art. 2164 to vacate a part of the appealed judgment to delete Mrs. LeBouef from the judgment as a nonparty See Fagan v. LeBianc, 05-1845 (La. App. 1 Gr 2/10/06), 928 So.2d 576; Donley v. Hudson's Salvage LLC, 13-1499, p. 2. (La. App. 1 Cir. 3/21/14) (unpublished).
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Assignment of Error Number 5 - Attorney's F-ees
Rockin "D" asserts the trial court erred in awarding attorney's fees in the default judgment, or in the alternative, that the award of attorney's fees is not commiserate with the plaintiff's counsel's time and effort. Ignoring the dictates of La. R.S. 23:632, which provides, in part, "[reasonable attorneys fees shall be allowed" (emphasis added), to an employee who is successful in a suit for unpaid wages, Rockin "D" relies on the apparent typographical error in the plaintiff's petition, erroneously referencing La. R.S. .221632 as the basis for plaintiff's demands. The erroneously, typed statute is an insurance code provision that has no application to the facts pied in, plaintiff's petition. As noted earlier herein, Louisiana uses a system of fact pleading, and the facts of the petition applied throughout this entire litigation render abundantly dear that the plaintiff's demands are based on La. R.S. 231632, which .explicitly, provides for an award of attorney's fees to a successful claimant. Therefore, there is no merit to Rockin "D"'s assertion that an award of attorney's fees in this matter was erroneous. Moreover, the trial court has much discretion in fixing an award of attorney's fees and its award will not be modified on appeal absent a showing of an abuse of discretion. Graves v. Babin, 2013-1311 (La. App. 1 Cir. 5/2/14), ___ So.3d ___. The trial court awarded the plaintiff $2,500.00 in attorney's fees, an amount well within the discretion of the trial court commensurate with the time and effort expended in obtaining the preliminary default and the subsequent confirmation of said default judgment. Accordingly; this assignment has no merit.
CONCLUSION
For all the foregoing reasons, we find no manifest error in the trial court's judgment denying the defendant, Rockin "D", a new trial and in refusing to vacate the default judgment herein. We find the trial court erred in rendering said judgment in favor of a non-party, Lisa LeBouef. Accordingly, that portion of the judgment is hereby vacated, and the judgment of the trial court is otherwise affirmed. All costs of this appeal are assessed to Rockin "D" Marine Services, L.L.C.
VACATED IN PART; AFFIRMED IN PART.
KUHN, J., concurring.
I concur in the result reached by the majority. Since she was not a party, Mrs. LeBouef should be deleted from the judgment on appeal. La. C.C.P. art. 2164; Fagan v. LeBlanc, 05-1845 (La. App. 1st Cir. 2/10/06), 928 So.2d 576; Donley v. Hudson's Salvage LLC, 13-1499, p. 2 (La. App. 1st Cir. 3/21/14) (unpublished).