Donald Lee Heine, M.D. VS Wayne J. Pharo, Individually, Wayne J. Pharo, M. D., A Professional Medical Corporation, and Heart Center of Lafourche and ABC Insurance Company
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST LIRCUIT NO 2013 CA 0379 DONALD LEE HEINE M D VERSUS WAYNE J PHARO INDIVIDUALI WAYNE J PHARO M A Y D PROFESSIONAL MEDICAL CORPORATION AND HEART CENTER OF LAFOURCHE AND ABC 1NSilRANCE COMPANY Judgment Rendered j I N 1 20 3 On Appeal from the 17th Judicial District Court In ancI for the Parish of Lafourche State of Louisiana Trial Cou No 90672 rt Honorable Jerome J Barbera III Judge Presiding Michael S Zerlin ttorney for Plaintiff Appellant Thibodaux Donald Lee Heine M D LA Carl T Conrad Kenneth Watkins Houma LA Thomas K Watkins Jr Attorneys for Defendants Appellees Wayne J Pharo M Individually D Wayne J Pharo M A Professional D Medical Corporation and Heart Center of Lafourche Houma LA BEFORE KUHN HIGGINBOT AND THERIOT JJ AM f HIGGINBOTHAM J On February 1 1998 plaintiff Danald Lee Heine M and defendant D Wayne J Pharo M entered into a Physician Employment Agreement and D partnership The Agreement was mutually terminatecl in May 1999 On February 13 2001 Dr Heine filed a for Breach of Contra Damages and Petitian t Temporary Restraining Order against Wayne J Pharo M individually Wayne D J Pharo A Professional Medical Corporation and the Heart Center of Lafourche In his petition Dr Heine contends that defendants breached the terms of the Agreement in failing to provide Dr Heine with an accounting of all income received by the Heart Center of Lafourche and by failing to remit all monies due and owing plaintiff pursuant to the Agreement Dr Heine further alleges defendants breached the fiduciary responsibility in failing to properly and timely file insurance claims failing to appeal disallowed medical claims and insurance claims and in failing to properly maintain an accounts receivable account On August 10 2012 defendants filed a motion for summary judgment contending there were no genuine issues of material facts and therefore they were entitled to summary judgment in support of defendants motion for summary judgment they attached an affidavit of Dr Pharo stating that per the Agreement Dr Heine received an accounting of all the income and Dr Pharo timely filed insurance claims and appealed disalfowed medical claims and insurance claims that had been discovered in accordance with his standard operating policy and procedures during the period of employment with Dr Heine The motion for summary judgment was heard on October 15 2012 Heine did not introduce any evidence in opposition Dr Judgment was signed on October 28 2012 granting summary judgment in favor of defendants and dismissing Dr Heine claims wiYh prejudice s It is from this judgment that Dr Heine has appealed contending thaE the trial court erred 2 A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no enuirAe issue of material fact Gonzales v Kissner 2154 2008 La App lst Cir 9i11 4 So3d 214 217 Summary judgment is Q9 properly granted if the pleadings depositions answers to interrogatories and admissions on file togetner with affidavits if any show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law La Code Civ P Art 966 Summary judgment is favored and is designed to B secure the just speedy and inexpensive determination of every action La Code Civ P art 966 Aucoin v Rochel 2008 La App lst Cir 12 2 A 1180 08 23 5 So3d 197 200 writ denied 2009 La 35 So3d 143 0122 09 27 On a motion for summary judgment the burden of proof is on the mover If however the mover will not bear trie burden of proof at trial on the matter that is before the court on the motion for summary judgment the mover burden on the s motion does not require that all essential elements of the adverse party claim s action or defense be negated Instead the mover must point out to the court that there is an absence of factual support far one or more elements essential to the adverse party claim action or defense s Thereafter the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial If the adverse party fails to meet this burden there is no genuine issue of material fact and the mover is entitled to summary judgment La Code Civ P ark 966 Robles v ExxonMobile 2002 2 C 0854 La App lst Cir 3 844 So 339 341 03 28 2d In determining whether summary judgment is appropriate appellate courts review evidence de novo under the same criteria that govern the trial court s determination of whether summary judgment is appropriate Boudreaux v Vankerkhove 2007 La App lst Cir 8 993 So 725 729 2555 08 11 2d 730 An appellate court thus asks the same questions as does the trial court in 3 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 Ernest v Petroleum Service Corp 2002 La App 1 st Cir 2482 03 19 11 868 So 96 97 writ denied 2003 La 2866 So 830 2d 3439 04 20 2d After a de novo review af the record we find that defendants satisfied their initial burden of proof on the motion for summ judgment with Dr Pharo ary s affidavit Dr Heine failed to produce any factual support to establish that he will be able to satisfy his evidentiary burden of proof at trial Louisiana Civil Code article 1831 provides in pertinent part A party who demands performance of an obligation must prove the existence of the obligation Dr Heine introduced no evidence at the summary judgment hearing The Agreement that defendants allegedly breached is not in the record The petition indicates that Dr Heine attached a copy of the Agreement to his petition however it is not attached to the petition and no party offered it into evidence at the hearing Arguments and pleadings are not evidence In re Melancon 2005 La 1702 06 10 7 935 So 661 666 Thus not only did Dr Heine fail to produce any 2d evidence that defendants breached the Agreement he also failed to prove the existence of the obligation on the pa rt o f th e de f n dants e When a motion for summary judgment is made and supported as provided in La Code Civ P art 967 an adverse party may not rest on the mere allegations or denials of his pleadings but must respond with affirmative evidence See Thomas v Hodges 2010 La App lst Cir 10 48 So3d 1274 1281 writ 0678 29 denied 2010 La 254 So 1 T09 2637 11 11 3d Dr Heine failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial See La Code Civ Proc art 966 The record is devoid of any evidence that defendants breached any 2 C Agreement Therefore the motion for summary judgment was properly granted 4 For the foregoing reasons the judgment of the trial court is affirmed All costs of this appeal are assessed to plaintiff Dr Donald Lee Heine appeliant AFFIRMED 5
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