NOT DESIGNATED FOR PUBLICATION

DENNIS R. BAGNERIS, Sr., Judge.

Plaintiff, Daniel Johnson, Sr., filed suit against defendants BP Products North America, Inc., Danos & Curole Marine Contractors, L.L.C., Ameri-Force, Inc., and Hong Le, seeking damages for injuries sustained while working aboard a vessel engaged in oil spill cleanup activities in the Gulf of Mexico. Defendant Ameri-Force Inc., and its insurer, National Union Fire Insurance Company, filed a motion for summary judgment alleging that it is not plaintiff's employer and that plaintiff cannot prevail under any theory of liability against it. After a hearing, the trial court granted summary judgment in favor of defendant Ameri-Force, Inc. and dismissed it, with prejudice, from the suit. After a review of the record, we amend the judgment of dismissal to be without prejudice,1 and hereby affirm the trial court judgment as amended.

FACTS

According to the record, Danos & Curole Marine Contractors, L.L.C. ("Danos & Curole") contracted with non-party Ameri-Force Craft Services, Inc. ("Craft Services") to provide contract labor services. Following the massive oil spill in the Gulf of Mexico in April of 2010, plaintiff filed an application2 with Craft Services and began working to remove pollutants from the water. On June 5, 2010, plaintiff was struck in the head by a hard boom on a vessel while he was in the process of removing oil filled pads from the water. On March 17, 2011, plaintiff filed this suit seeking damages for the injuries he sustained while working on the vessel.

Thereafter, Ameri-Force, Inc. ("Ameri-Force") filed a motion for summary judgment arguing that non-party, Craft Services was plaintiff's employer, and that plaintiff cannot prevail under any theory of liability against it. In support of the motion for summary judgment, Ameri-Force attached the following as exhibits: (1) excerpts from plaintiff's deposition; (2) Craft Services' employment application; (3) Craft Services' payroll election form; (4) Craft Services' medical forms; (5) plaintiff's W-2 form; (6) Craft Services' paycheck stubs; (7) Craft Services' hours paid report; (8) excerpts from Michelle Shirley's deposition; (9) excerpts from Donald Self's deposition; (10) excerpts from James Worley's deposition; (11) the master contract between Craft Services and Danos & Curole; (12) affidavit of John Goldberg, Corporate Risk Manager and Human Resources Manager of Ameri-Force Management Services, Inc.; (13) affidavit of Phillip Wheeler, Branch Manager of Craft Services; and (14) Craft Services' responses to plaintiff's subpoena duces tecum.

In opposition to the summary judgment motion, plaintiff argued that there are genuine issues of fact that preclude summary judgment and that Ameri-Force and Craft Services are a single business enterprise. Plaintiff attached the following exhibits in opposition to the motion for summary judgment; (1) his deposition; (2) the depositions of Michelle Shirley, Donald Self, and James Worley; (2) Craft Services' payroll election form; (3) a May 19, 2010 certificate of training by Ameri-Force; and (4) various documents and pictures regarding Ameri-Force and its subsidiary, Craft Services.

On November 21, 2013, plaintiff filed a motion for leave to file a supplemental and amending petition to add the following paragraph:

After a hearing on the motion for summary judgment, the trial court granted the motion "finding that Johnson [plaintiff] was hired by Craft Services after he filled out the application" and that "the defendants have put forward personal and tax documents establishing that Craft Services was the employer." Plaintiff now appeals this final judgment.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo under the same criteria governing the district court's consideration of whether summary judgment is appropriate. Hare v. Paleo Data, Inc., 11-1034, p. 9 (La. App. 4 Cir. 4/4/12), 89 So.3d 380, 387. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. If the motion for summary judgment is denied, the court should provide reasons for the denial on the record, either orally upon rendition or in writing sua sponte or upon request of a party within ten days of rendition." La. C.C.P. art. 966(B)(2). "The burden of proof remains with the movant." La. C.C.P. art. 966(C)(2). "However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant'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 that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense." Id. "Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact." Id.

A material fact is one that potentially insures or precludes recovery, affect's a litigant's ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. A genuine issue is a "triable issue." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94; 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id. "In determining whether an issue is `genuine,' courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence." Smith, p. 27, 639 So.2d at 751.

DISCUSSION

On appeal, plaintiff's sole assignment of error is that the trial court erred in granting summary judgment because there are genuine issues of material fact regarding whether Ameri-Force and Craft Services are part of a single business enterprise. In support of his argument, plaintiff cites to Green v. Champion Ins. Co., 577 So.2d 249 (La. App. 1st Cir. 1991), and Miller v. Entergy Services, Inc. 04-1370 (La. App. 4 Cir. 7/13/05); 913 So.2d 143, for the proposition that "Louisiana courts have applied the single business enterprise theory when affiliated corporations that are not directly involved in causing a plaintiff's damages attempt to escape liability based on the fragmented nature of their business." However, it is worth noting at this time that we do not find these cases necessarily on point because unlike in Green and Miller, whereby both the parent corporation and the subsidiaries were parties to the suit, plaintiff in this case only timely sued the parent corporation, Ameri-Force,3 and failed to sue the subsidiary, his employer, Craft Services.4

In Louisiana, the single business enterprise concept was first addressed in Green, where the Louisiana First Circuit Court of Appeal stated as follows:

577 So.2d at 257. In Green, the First Circuit listed the following factors that can be used to support an argument that a group of entities constitutes a single business enterprise:

577 So.2d at 257-258. The First Circuit further stated that the list is not intended to be an exhaustive list of all relevant factors and that no one factor is dispositive in determining whether there is a single business enterprise. Id. Further, because plaintiff is alleging liability based on the single enterprise theory, an exception to the general rule that a corporation, as a juridical person, has a separate and distinct existence apart from its shareholders, officers, and related corporations, he must prove the existence of a single business enterprise by clear and convincing evidence. See Grayson v. R.B. Ammon & Associates, Inc., 99-2597, p. 14 (La. App. 1 Cir. 11/3/00); 778 So.2d 1, 18.

Although mere assertions are insufficient to establish genuine issues of material fact; assertions substantiated with factual support sufficient to establish that the evidentiary burden of proof is able to be satisfied at trial, raise genuine issues of material fact. Ameri-Force supported their motion for summary judgment by showing that it is separate and distinct by providing evidence to establish: (1) defendant Danos & Curole Marine Contractors contracted with nonparty Craft Services to provide contract labor services in connection with the oil spill response; (2) Craft Services provided contract labor to Danos & Curole pursuant to the Master Services Contract; (3) plaintiff was hired, employed, and paid exclusively by Craft Services for all hours worked in connection with the spill response; and (4) Craft Services is a distinct corporate entity that maintains its own books and records, separate and apart from Ameri-Force. The burden then shifted to plaintiff to show that exceptional circumstances and/or factors exist which establish a single enterprise among the two corporations. Although plaintiff claims that Ameri-Force and Craft Services (1) share officers and directors; (2) share a common corporate address, (3) share a single business website, and (4) use the same line of credit, he does not prove by clear and convincing evidence that Ameri-Force exercised excessive control over Craft Services or that Ameri-Force's operations are illegally and/or excessively fragmented. Further, the record before us is void of any evidence of fraud or inequity on the part of Ameri-Force and Craft Services. Accordingly, although some of the factors established in the Green case may be present, we do not find, based on the totality of the evidence, that plaintiff's evidence raises a genuine issue of material fact as to whether Ameri-Force and Craft Services constitutes a single business enterprise. Unlike in the Green case whereby the First Circuit Court disregarded the concept of corporate separateness to extend liability to each of the affiliated corporations to prevent fraud or to achieve equity, there is simply no wrongdoing or other extraordinary circumstances present in the relationship between Ameri-Force and Craft Services that justifies disregarding the law of Louisiana corporations. As such, we cannot say that the trial court erred in granting the defendant's motion for summary judgment and thus, we hereby affirm the judgment of the trial court. However, under the authority of La. C.C.P. art. 2164, requiring the appellate court to render judgment which is legal and proper upon the record before it, we find that, under the circumstances of this case, the judgment to dismiss defendant Ameri-Force should be without prejudice because the single business enterprise theory might become relevant once defendant Craft Services is sued. Accordingly, we amend the trial court judgment of dismissal to be without prejudice and affirm the trial court judgment as amended.

AMENDED AND, AS AMENDED, AFFIRMED.