author: MOORE, J. GASKINS, J.,

text:
    FLEET FUEL, INC. dba Fuelman, Plaintiff-Appellant, v. MYNEX, INC. and W. James Singleton, Defendant-Appellees.
    No. 38,696-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Bodenheimer, Jones, Szwak & Winchell, LLP by David A. Szwak, Shreveport, for Appellant.
    Davis Law Office, LLC, by S.P. Davis, Sr., for Appellees.
    Before GASKINS, MOORE and HARRISON (Pro Tempore), JJ.
   MOORE, J.

Plaintiff, Fleet Fuel, Inc., d/b/a Fuelman (“Fuelman”), appeals the Shreveport City Court’s judgment sustaining exceptions of no cause of action and no right of action raised by the defendant, W. James Singleton, chairman of the bankrupt corporation Mynex, Inc., also a named defendant. On the day of the scheduled trial, the court instead held an evidentiary hearing on the exceptions, and subsequently granted both, dismissing Fuelman’s suit against Mr. Singleton as the “guarantor” of debts incurred by Mynex, Inc. Plaintiff appeals, raising several assignments of error. We reverse and remand to the trial court for trial.

Facts

Fuelman is in the business of supplying companies who operate a fleet of commercial vehicles in their business with a management service and accounting program for their gasoline purchases. By using an access card system, Fuelman provides detailed fuel accounting for each fleet vehicle and driver, as well as accounting details for the entire fleet.

Mynex, Inc. provides medical transportation services for medical patients. The chairman of the board of Mynex, Willie James Singleton, stated that Mynex “is a corporate entity owned by a number of different people and performed [sic] certain services.”

Plaintiff alleged that Mynex applied for “access cards” from Fuelman. These cards would allow Mynex to purchase gasoline via Fuelman on open account. Upon request for the cards by Mynex, a Fuel-man sales representative, Melissa Penuell, called on Mynex and delivered a credit account application to Mynex. The application was completed and returned | ¡.to Ms. Penuell, who returned it to Fuelman. The application contained a signature line for a “Guarantor,” with the terms of the agreement and guaranty explained on page 2, the back of the document — specifically, that the guarantor agrees to be held liable unconditionally, jointly and severally and solidarily liable with the customer for any sums due to Fuelman by virtue of the agreement.

After making purchases and payments over time, Mynex eventually failed to pay a balance due of $7,336.53 to Fuelman. My-nex filed for bankruptcy and Fuelman looked to Mr. Singleton for payment. Mr. Singleton, an attorney, initially denied in his answer to the petition that he signed the agreement in his personal capacity, but signed only in his capacity as chairman of Mynex. Subsequently, however, on the day of trial, he filed exceptions of no right of action and no cause of action wherein he denied altogether that he signed the documents, and he denied that he had any knowledge or anything to do with authorizing the account with Fuelman.

Mr. Singleton testified that the signature of his name on the credit application as Guarantor, Exhibit P-4A and his signature as “chairman” on a corporate verification form, Exhibit P-4B, were not his. He said he did not know who made the signatures and did not recall authorizing opening an account with Fuelman. He said he was not involved in the day-to-day operations of Mynex, but merely served on the board of directors for the corporation.

| aPIaintiffs counsel introduced several documents or writings containing Mr. Singleton’s signature. Mr. Singleton stated that he was more than sure that he signed the articles of incorporation of Mynex, Inc.; however, when counsel presented him with a copy of the articles of incorporation, Mr. Singleton denied his signature and the signatures of other members of the incorporators, including his counsel’s signature.

Plaintiff produced two checks payable to Fuelman for charges to Mynex — one for $2,611.94 and one for $6,970.96 — which had Mr. Singleton’s signature as the maker of the checks. Mr. Singleton denied that these signatures were his.

Plaintiff introduced into evidence copies of Singleton’s signatures'from his personal driver’s licenses issued by the Department of Motor Vehicles for the years 1991, 1995, 1999 and his current license issued in 2003. Singleton admitted that those signatures were his own. Plaintiff also introduced Singleton’s First Supplemental Answer to the petition in which he alleged that he signed the credit application with Fuelman in his capacity as chairman of Mynex and not in his personal capacity.

Plaintiff submitted into evidence a copy of Singleton’s application for a marriage license signed by him in two places. Mr. Singleton admitted these signatures, but denied his signature on pleadings he filed in a separate case (Exhibit P-15) in which represented a client. He said the signatures were made by his secretary. Mr. Singleton denied that he signed Exhibits P-16, P-17, P-18, P-19 and P-20, although the signor signed his name.

|4Mr. Singleton admitted that Exhibit P-21, a pleading in a case in which he was counsel, was his own. However, P-21 was merely another copy of the same document introduced in Exhibit P-8, which was submitted in a request for admissions of fact, which Mr. Singleton denied he had signed.

Plaintiff submitted other exhibits of Mr. Singleton’s signature for a total of twenty-four exhibits, including the contract in question. The court did not admit P-22 through 24.

Melissa Penuell, a sales representative for Fuelman, testified that she was initially contacted by telephone by Jeanette Clark of Mynex. She met with Ms. Clark and Bibra Edwards at Winward Hospital. Ms. Penuell presented the Fuelman program and left a credit application for access cards. Ms. Clark returned the completed application to her. She stated that Ms. Clark told her that the guarantor signature was Willie Singleton. Ms. Penuell stated she never met with Mr. Singleton, and she did not personally witness Mr. Singleton sign the application.

Bibra Edwards testified that she worked for Mr. Singleton for two years. Contrary to Mr. Singleton’s testimony, she stated that Mr. Singleton signed their paychecks and required that all checks for purchases be signed by him. Also contrary to Mr. Singleton’s testimony, she stated that he was involved in the day-to-day operations of Mynex. However, she never actually witnessed Mr. Singleton sign anything. Submitted documents for signature were returned to her by Ms. Anna Franklin. She stated that the Fuelman access card application was given to Ms. Franklin for Mr. | ^Singleton's approval.

Anna Franklin testified that she was vice-president of operations, and in charge of hiring and managing the business operations, including the transportation division of the business. Ms. Franklin stated that she could not recall the Fuelman application, although she admitted that it probably passed through her hands or through Mr. Thomas’s hands to Mr. Singleton for approval. She stated that Mr. Thomas worked side by side with her. She said she would have likely given the document to Mr. Singleton’s secretary, Angela Howard, for approval by Mr. Singleton.

Ms. Jeanette Clark, the director of the transportation division, testified that she filled out the application and signed her name as the authorized representative. She identified the guarantor’s signature as the signature of Mr. Singleton. She did not actually see him sign the document, but she said she recognized his signature from other documents. She said Anna Franklin brought documents to Mr. Singleton to be signed.

Angela Howard, Mr. Singleton’s secretary and the person who Ms. Franklin said she gave documents to be signed by Mr. Singleton, did not appear to testify. Fuel-man issued a subpoena for her appearance, but service was not accomplished.

Robert G. Foley, plaintiffs handwriting expert, testified regarding each of the signatures. He concluded that the person who signed P-1, P-2, P-3, P-5 and P-8 through P-24 was not likely the same person who signed P-4B, which is the Corporate Verification on the back or page two of the application. By contrast, however, he believed that the person who signed | fiP-l) P-2, P-3, P-5 and P-8 through P-24 was the same person who signed P-4A, the “guarantor” portion of the application.

After taking the matter under advisement, the court rendered judgment in favor of Mr. Singleton, granting the exceptions with a finding that he did not sign the guarantor portion of the application in his personal capacity. Plaintiff raises several assignments of error on appeal.

No Cause of Action

A peremptory exception of no cause of action is used by the defendant to test the legal sufficiency of the petition by determining whether the law affords a remedy to the plaintiff on the facts that are alleged in the petition. Stevenson v. Lavoteo, Inc. 28,020 (La.App. 2 Cir. 02/28/96), 669 So.2d 608, 610, writ denied, 96-0828 (La.05/17/96), 673 So.2d 611. In determining whether a plaintiff has stated a cause of action, the court looks to the facts set out in the petition, accepting them as true without regard to extrinsic evidence. La. C.C.P. art. 931; Montalvo v. Sondes, 93-2813 (La.05/23/94), 637 So.2d 127. The purpose of the exception is only to determine if a cause of action is pled and not whether the plaintiff will ultimately prevail at trial. When it can reasonably do so, the court should maintain a petition against a peremptory exception so as to afford the litigant an opportunity to present his evidence. Kuebler v. Martin, 578 So.2d 113, 114 (La.1991).

An appellate court reviews a trial court’s ruling on an exception of no cause of action de novo because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition, City of New Orleans v. Board of Com’rs of the Orleans Levee Dist, 93-0690 (La.07/05/94), 640 So.2d-237.

In this instance, the petition alleges that James Willie Singleton signed the credit application as the guarantor of Mynex’s debt. If this allegation is accepted as true solely for purposes of the exception, then the trial court erred when it granted the exception of no cause of action. The law affords a creditor a cause of action against the guarantor of the debt when the primary debtor has not paid. La. C.C. art. 1758.

No Right of Action

Next, the exception of no right of action contests whether the plaintiff is in the class to which the law extends a remedy. Greenbriar Nursing Home, Inc. v. Pilley, 93-2059 (La.5/23/94), 637 So.2d 429; Frazier v. Green Steel Bldg., Inc., 409 So.2d 1290 (La.App. 2 Cir.1982); Gustin v. Shows, 377 So.2d 1325 (La.App. 1 Cir. 1979). Evidence is admissible in support of or opposition to an exception of no right of action. La. C.C.P. art. 931; Frazier, supra. The factual evidence admissible is restricted to that which relates to whether or not the plaintiff falls into a class having a legal interest to sue upon the cause of action sued upon. Bielkiewicz v. Rudisill, 201 So.2d 136 (La.App. 3 Cir.1967). The exception of no right of action is not to be used to urge that the plaintiff is without interest simply because the defendant has a defense to the action. Anderson v. Collins, 26,142 (La.App. 2 Cir. 1/6/95), 648 So.2d 1371, writ denied, 95-0629 (La.4/21/95), 653 So.2d 576; Frazier, supra; Bielkiewicz, supra.

[RAssuming the petition pleads a valid cause of action, the peremptory exception of no right of action questions whether the particular plaintiff is a party to whom the law affords a remedy. La. C.C.P. art. 927; Greenbriar Nursing Home, Inc., supra; Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972).

In Selber Bros., Inc. v. Bryant, 406 So.2d 251 (La.App. 3 Cir.1981), the creditor’s petition sought to recover from the defendant amounts past due on an open account, a right clearly afforded by law to the plaintiff. The defendant argued that she did not sign the charge slips, and, since she did not make the purchases, she argued the plaintiff had no right of action. The court held that the allegation that the defendant’s daughter-in-law made the purchases by signing defendants signature to the charge sale slips is an affirmative defense. See La. Civil Code art. 1838. Accordingly, the court held that the defendant may not use the exception of no right of action to urge that plaintiff has no right of action because she has a defense to the claim. Anderson, supra; Bielkiewicz, supra; Gustin, supra.

Thus, the exception of no right of action asks whether the suit involves the right plaintiff, and is not used to determine if the suit involves the right defendant or to assert some defense. In this instance, Singleton argues that he did not sign the guarantee. As a result, he argues that the plaintiff has no right of action. As stated above, the exception of no right of 19action cannot be used to urge that the plaintiff is without interest simply because the defendant has a defense to the action. Greenbriar Nursing Home, Inc., supra; Frazier, supra; Bielkiewicz, supra. Fuelman has alleged in its petition that it and the defendant are the parties to a guaranty contract which the defendant has breached. The evidence submitted, namely Exhibit P-4A and P 4B, supports this allegation. Accordingly, the petition sets forth a cause of action and that the plaintiff is the proper party to assert it.

Because we determine by our de novo review the trial court erred in granting the exceptions of no cause of action and no right of action under the applicable legal standards, we deem it unnecessary to consider the appellant’s other assignments of error.

We observe that this is a case involving the denial of a signature on a guaranty or surety agreement. In the trial on the exceptions, the plaintiff submitted several examples of the defendant’s previous signatures on documents, requests for admissions regarding the authenticity of signatures, and expert handwriting testimony over numerous defense objections. The Louisiana Civil Code provides that in a case such as this, a party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his. La. C.C. art. 1888. When the signature is denied, the Civil Code further provides that any means of proof may be used to establish that the signature belongs to the denying party. Id. Our jurisprudence has established that these means include, but |10are not limited to, the testimony of witnesses who saw the party write the signature in controversy, or testimony by witnesses who know the signature of the party, or by comparison of signatures. In the last instance, when a signature has been denied, the court may examine and compare the denied signature with other admitted signatures of the denying party. Hardcastle v. Ravia, 14 So.2d 295 (La.App. 1 Cir. 1948). See also, Saul Litvinoff, 5 La. Civ. L. Treatise: The Law of Obligations, (2d ed.2001) § 12.31.

In the event the signature is determined to be authentic, as the court’s ruling implied, then the guaranty contract should be interpreted under the special rules for the contract of suretyship, and where those rules are silent, the rules for contracts in general apply. McKesson Chemical Co. v. Tideland Chemical Co., 471 So.2d 812 (La.App. 3 Cir.1985).

Conclusion

For the reasons set forth herein above, we reverse the judgment of the trial court granting the exceptions of no cause of action and no right of action. We remand this case to the trial court for further proceedings consistent with this opinion. Costs of this appeal are assessed against Willie James Singleton.

REVERSED AND REMANDED.

GASKINS, J., concurring with reasons.

GASKINS, J.,

concurring.

I respectfully concur with the majority’s opinion. I consider a more serious issue in this case to be Mr. Singleton’s exception that the plaintiff has no cause of action because the document, on its face, does not constitute a guarantee. In the box “Guarantors of Payment,” only the name Mynex, Inc. was filled out, yet at the bottom of the document under “Guarantor’s Signature,” the purported signature of Mr. Singleton is signed.

Rather than finding that conflicting guarantee information,- such as found here, negates a guarantee, I think that the issue becomes one of credibility on what the signor meant by his signature. Such an issue can only be resolved on the merits. See Homer National Bank v. Springlake Farms, Inc., 24,604 (La.App.2d Cir.03/31/93), 616 So.2d 255.

      . La. C.C. art. 1838 states:
      A party against whom an act under private signature is asserted must acknowledge his signature or deny that it is his.
      In case of denial, any means of proof may be used to establish that the signature belongs to that party.

      . The Code of Civil Procedure provides that a party may serve upon the other party a written request for admissions regarding the authenticity of documents. La. C.C.P. art. 1466.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Carolyn JOHNSON, et al., Plaintiff-Appellants, v. GLENWOOD REGIONAL MEDICAL CENTER and ABC Blood Center, Defendant-Appellees.
    No. 38,614-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.
    Nelson & Hammons by John L. Ham-mons, Cornell R. Flournoy, Shreveport, for Appellants.
    Watson, Blanche, Wilson & Posner by Chris J. LeBlanc, Peter T. Dazzio, Baton Rouge, for Appellees.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

Carolyn and Wayne Johnson appeal a judgment sustaining Glenwood Regional Medical Center’s exception of prematurity and dismissing without prejudice their claim for damages arising from blood transfusions. For the reasons expressed, we affirm.

Procedural Background

According to the petition, Mrs. Johnson was hospitalized at Glenwood in April and May 1978; during her stay, she received blood products. In March 2000, diagnostic tests revealed that she has Hepatitis C. The Johnsons filed this suit against Glen-wood and an unknown regional blood center in June 2000. They alleged, inter alia, that their damages were wholly outside the medical malpractice act (“the Act”). They also alleged that La. R.S. 9:5628 and 5628.1 violated the Louisiana Constitution.

In October 2000, Glenwood filed exceptions of prematurity and, in the alternative, prescription. An accompanying memorandum argued only the dilatory exception of prematurity; however, the Johnsons filed a formal opposition to both exceptions. In September 2003, Glenwood moved to set only its exception of prematurity for a hearing. By memorandum, Glenwood again argued only the exception of prematurity, and attached a certifícate showing that Glenwood was enrolled as a health care provider in the Patients’ Compensation Fund at the time of Mrs. Johnson’s transfusions.

The district court set the exception of prematurity for hearing in October 2003. After the hearing, the court sustained the exception of prematurity and dismissed Glenwood without prejudice. The court also ruled that Glenwood’s pending exception of prescription was moot.

I ¡/The Johnsons have appealed devolu-tively, urging (1) R.S. 9:5628.1 requires them to bring their claim in a court of competent jurisdiction, (2) the Act did not require them to take this claim to a medical review panel (“MRP”), and (3) the court should have ruled on the exception of prescription.

Discussion: The Act’s Application to Defective Blood Claims

The dilatory exception of prematurity is a procedural device to defer a lawsuit when applicable law has created an alternative method for the claimant to seek administrative relief before resorting to judicial action. Yokem v. Sisters of Charity, 32,402 (La.App. 2 Cir. 6/16/99), 742 So.2d 906. Generally, the person aggrieved in such a case must exhaust all administrative remedies before being entitled to judicial review.

The Act, La. R.S. 40:1299.41, et seq., creates such a mechanism. Section 1299.47 A(l) and B(l)(a)(i) provide:

All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section.
No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.

This administrative procedure affords the MRP an opportunity to render its expert opinion on the merits of a complaint. Yokem v. Sisters of Charity, supra.

The Johnsons have not challenged Glen-wood’s status as a qualified health care provider at the time of the alleged harm; rather, they contend 1¡¡that Mrs. Johnson’s harm fell outside the Act.

The Act defines malpractice as follows:

“Malpractice” means any unintentiom al tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely * * *, and also includes all legal responsibility of a health care provider arising from * * * defects in blood, tissues, transplants, drugs and medicines[.]

La. R.S. 40:1299.41 A(8) (emphasis added). The emphasized language was added to the statue by La. Acts 1976, No. 183, effective October 1, 1976. Calvert v. Sisters of Charity, 32,553 (La.App. 2 Cir. 8/18/99), 738 So.2d 1237, writ denied, 99-2722 (La.11/24/99), 750 So.2d 990.

By a plain reading of this section, the Johnsons’ claims against Glenwood — a qualified provider — for allegedly defective blood received in 1978 are medical malpractice claims and must be presented to an MRP before bringing suit. The other courts of appeal are unanimous in reaching this conclusion. Webre v. Hospital Service Dist. No. 1, 2000-0926 (La.App. 1 Cir. 6/22/01), 798 So.2d 176; DeBlanc v. Touro Infirmary, 96-1965 (La.App. 4 Cir. 12/27/96), 686 So.2d 1015; Sonnier y. Opelousas General Hosp., 95-1560 (La.App. 3 Cir. 5/8/96), 688 So.2d 1040; Landry v. Ochsner Foundation Med. Center, 95-883 (La.App. 5 Cir. 2/27/96), 671 So.2d 24.

For these reasons, the Johnsons’ contention that their claims do not fall under the Act lack merit.

\ ¿Application of the Prescription Statute

The Johnsons further argue their suit is properly before the district court, even without an MRP, because of one phrase in a special prescription statute regulating actions for liability from the use of blood or tissue:

No action for damages against any healthcare provider as defined in this Section, whether based upon negligence, products liability, strict liability, tort, breach of contract, or otherwise, arising out of the use of blood or tissue as defined in this Section shall be brought unless filed in a court of competent jurisdiction within one year from the date of the alleged cause of action or other act, omission, or neglect, or within one year from the date that the alleged cause of action or other act, omission, or neglect is discovered or should have been discovered; however, except as provided in Subsection B, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed, at the latest , within three years from the date of the act, omission or neglect.

La. R.S. 9:5628.1 A (emphasis added).

We find that the emphasized portion of this section does not supersede the requirement of an MRP in medical malpractice cases. This section merely fixes the prescriptive and peremptive periods for cases involving blood products; it does not purport to alter the administrative procedure of the Act. Moreover, subsection 5628.1 B refers to a “forum of competent jurisdiction,” and subsection 5628.1 F(l) specifically refers to the Act and the patients’ compensation fund. Simply put, this.section sets a time restriction on actions arising from blood and tissue transfusions and obviously supplements the procedures established by the Act.

The Johnsons’ contention that R.S. 9:5628.1 A permits them to forgo an MRP lacks merit.

| ^Finally, we note that the only issue presented for decision in the district court was prematurity, not prescription. There is no error in the court’s ruling that the exception of prescription is moot.

Conclusion

For the reasons expressed, we affirm the judgment of the district court. Costs are assessed to the appellants, Carolyn and Wayne Johnson.

AFFIRMED.

      . At oral argument, counsel for the Johnsons also argued that submitting this claim to an MRP would cause their case to prescribe, as by the time the MRP might rule, the prescriptive or peremptive period of 9:5628.1 would have elapsed. However, filing this request for an MRP would explicitly suspend prescription until 90 days after the MRP provides notice of its decision. La. R.S. 40:1299.47 A(2)(a); Le-Breton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226; Holmes v. Lee, 35,021 (La.App. 2 Cir. 9/28/01), 795 So.2d 1232.


author: LOLLEY, J.

text:
    Gerald Garrett SMITH, et al., Plaintiffs-Appellants, v. John B. SLATTERY, Jr., et al., Defendants-Appellees.
    No. 38,693-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Frank M. Ferrell, Shreveport, for Appellants.
    Cook, Yancey, King & Galloway by Herschel E. Richard, Jr., Douglas Lee Har-ville, Samuel W. Caverlee, Shreveport, for Appellees, John B. Slattery, Jr. & McConnell & Slattery, P.C.
    Wiener, Weiss & Madison, by John M. Madison, Jr., for Appellees, James M. Johnson & Campbell, Campbell & Marvin.
    Before GASKINS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

Gerald Garret Smith, Michael B. Smith, and Timothy Lane Smith (“the Smiths”) appeal from a judgment of the First Judicial District Court, Parish of Caddo, Louisiana, sustaining a peremptory exception of prescription/peremption from a legal malpractice claim they brought against attorneys John B. Slattery, Jr. (“Slattery”) and Jimmy Johnson (“Johnson”). For the following reasons, we affirm.

Facts and Procedural History

This lawsuit arises from an allegation that the defendant attorneys, Slattery and Johnson (collectively, the “appellees”) committed legal malpractice in their handling of a medical malpractice case (the “medical malpractice suit”) against Wallace H. Brown, M.D. (“Dr.Brown”) and John D. Gladney, M.D. (“Dr.Gladney”) for the death of Dorothy Garrett Smith (“Mrs. Smith”) as a result of an allegedly unsuccessful surgical procedure she underwent. Originally, the medical malpractice suit was filed on behalf of Mrs. Smith’s surviving husband, who died during the course of the medical malpractice suit, and her surviving sons, the Smiths. The original counsel for the Smiths was Slattery, who agreed to represent them in their claim against Drs. Brown and Gladney. Johnson also appeared of record on behalf of the Smiths. Slattery had a long-standing, but intermittent, business relationship with the Smiths’ late father. Slattery filed a timely Petition To Impound Medical Review Panel and For Damages, and |2the medical review panel met and returned an opinion favorable to the physicians on May 5,1993.

On August 2, 1993, Slattery filed a petition for damages in the First Judicial District Court, Caddo Parish, Louisiana, seeking damages from both physicians based on the allegation that they had performed the surgery in a negligent manner, breached the appropriate standard of care, and caused the death of Mrs. Smith.

Subsequent to the petition for damages being filed on behalf of the Smiths, no further efforts to move the medical malpractice suit toward prosecution were made by Slattery or Johnson. There is no evidence in the record that appellees even responded to discovery requests filed by Drs. Brown and Gladney. There is some indication that Slattery contacted other attorneys requesting assistance in the case, but nothing in the record shows that any other attorneys became officially involved.

On July 13, 1998, the medical malpractice suit was dismissed following a motion to dismiss for want of prosecution filed on behalf of the physicians. Sometime between the dismissal of the medical malpractice suit and December 10, 1999, the record shows that a meeting between the Smiths and Slattery was held regarding other legal matters Slattery was handling for the Smiths. Both parties agree that at some point during this meeting, the subject of the medical malpractice suit was discussed. The parties are in conflict regarding the actual content of the discussion, but the parties do not dispute that at that meeting, Slattery told the Smiths that there | ¡¡was nothing further he could do in the medical malpractice suit and that “time had run out.”

The record shows that on December 10, 1999, Gerald Smith (“Gerald”) signed a receipt acknowledging file materials, pleadings and other information from Slat-tery, regarding the medical malpractice suit. The receipt signed by Gerald does not show that among the copy of the pleadings attached that there was a copy of the motion and order for dismissal based on abandonment. The legal malpractice lawsuit, sub judice, was not brought against Slattery and Johnson until May 31, 2001.

On August 8, 2003, Slattery and Johnson filed an exception of prescription/peremption pursuant to La. R.S. 9:5606, stating that the suit against them was not filed within the one year prescriptive period that began on December 10, 1999. Oral arguments were heard and the trial court sustained Slattery’s and Johnson’s exception. The trial court stated in written reasons that the depositions clearly showed that by December 10, 1999, the Smiths knew that the time to pursue the medical malpractice case had “run out.” This appeal ensued.

DISCUSSION

On appeal, the Smiths raise two assignments of error. In their first assignment of error, they allege that the trial court erred in finding December 10, 1999, (the date when Gerald picked up the medical malpractice file from Slattery), was the “knew or should have known” date that put the Smiths on notice that they had a potential legal malpractice suit.

|4When the peremptory exception of prescription is pleaded before the answer, it shall be tried and decided in advance of the trial of the case. La. C.C.P. art. 929(A). On the trial of a peremptory exception pleaded prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. When evidence has been introduced, the court is not authorized to accept the plaintiffs allegations as true. Schoen v. Walling, 31,598 (La.App.2d Cir.02/24/99), 728 So.2d 982, 985. When evidence is received on the trial of the peremptory exception, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard as articulated in Stobart v. State Through Dept, of Transp. and Devel opment, 617 So.2d 880 (La.1993); Masters v. Fields, 27,924 (La.App.2d Cir.01/24/96), 666 So.2d 1333. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed evidence differently. Sto-bart, supra.

Prescription on claims for legal malpractice is governed exclusively by La. R.S. 9:5605 which provides, in pertinent part, as follows:

A. No action for damages against any attorney at law duly admitted to practice in this state, ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest | ¿within three years from the date of the alleged act, omission, or neglect.
B.The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

In Cardneaux v. Dollar, 31,718 (La.App.2d Cir.03/31/99), 731 So.2d 928, this court summarized the Louisiana Supreme Court’s review of this malpractice statute as follows:

The recent opinion of our supreme court in Reeder v. North, 97-0239, (La.10/21/97), 701 So.2d 1291, provides primary guidance for the interpretation of this statute which was first enacted in 1990. The court in Reeder strictly applied the statutory language specifying “the date of the alleged act, omission, or neglect” as the triggering event for the running of the three-year period of limitation. In so ruling, the court determined that the so-called “continuous representation rule” of the pre-1990 jurisprudence did not apply to delay the three year peremptioin. Additionally, the court’s ruling effectively rejected the former realization of damages analysis applied in pre-1990 settings. Id. at 1298. Under the earlier analysis, the courts fixed the running of prescription, not from the time of the negligent act of malpractice, but from the time that “appreciable and actual harm” began to flow to the client in an underlying action where the malpractice of the attorney is used by the opposing litigant to defeat the client’s suit. Brand v. New England Ins. Co., 576 So.2d 466 (La.1991).

Reeder specifically addressed the application of the three-year limitation; however, the same statutory “date of the alleged act, omission, or neglect” triggers the running of the one-year period of per-emption assuming the client can immediately recognize that the act of malpractice occurred. The one-year limitation begins to run only from date of discovery, where the client’s discovery of the act of malpractice occurs at a later date. Nevertheless, whether or not the malpractice is discovered at all, it does not | ^prevent the running of the three-year peremptive period. Creighton v. Bryant, 34,893 (La.App.2d Cir.06/20/01), 793 So.2d 275.

The Smiths contend that at a meeting held prior to December 10, 1999, but subsequent to the July, 1998, dismissal of the medical malpractice suit, Slattery failed to informed them that their case had actually been dismissed for want of prosecution and that was the reason Slattery was unable to do any thing further in the case. They argue that Slattery was “vague and obtuse” in reporting the actual status of the case at this meeting. It is their position that at no time did Slattery disclose to them that the suit could no longer be prosecuted.

Appellees contend that at that meeting Slattery made it clear to the Smiths that he had allowed “time to run out” and that he further informed them that “there was nothing left that could be done.” They argue that after that meeting, it should have been obvious to the Smiths that the medical malpractice case was no longer viable and that they should have known that they had a potential legal malpractice suit against them. Appellees maintain that because the legal malpractice claim was not filed until May 31, 2001, more than a year after the conduct complained of (i.e., appellees’ alleged acts, omissions, and neglect related to the Medical Malpractice Suit), the action had prescribed.

In written reasons for ruling, the trial court found that the Smiths had “sufficient factual basis that they should have known that Slattery had not done what he could have done to prevent dismissal by abandonment.” Michael Smith (“Michael”) testified that during the meeting 17he and his brothers had with Slattery, they were told by Slattery that “time had run out” and that there was nothing further Slat-tery could do in the ease. Michael testified that he recalled asking Slattery if they should try to find another attorney to represent them in the medical malpractice suit and was told by Slattery they could if they wanted to. The Smiths reason that had Slattery made it clear to them that the medical malpractice suit had been dismissed, they would not have asked him if they should seek the advice of another attorney to handle the medical malpractice suit. Michael testified that Slattery previously informed them that he was having trouble finding an expert witness willing to testify against Dr. Brown and that they would have to wait until the elderly Dr. Brown died to pursue the matter. Following the death of Dr. Brown, but prior to the date Gerald retrieved the medical malpractice suit file, Slattery informed the Smiths that he had let “time run out on the case.” Michael further testified that he and his brothers were upset with Slat-tery upon learning the status of the suit against the physicians. After retrieving the file from Slattery on December 10, 1999, the Smiths maintain that they contacted an attorney in Lake Charles who referred the case to another attorney in Alexandria. According to the Smiths’ testimony, this attorney obtained the official court record and ultimately they were notified on January 11, 2001, that the medical malpractice case had been dismissed from lack of prosecution and that they had lost their right to proceed. The Smiths argue that the prescription period should commence on that date. We disagree.

|sThe depositions in the record indicate that the Smiths were aware prior to December 10, 1999, that there were major problems with the medical malpractice suit such that would put a reasonable person on notice. The testimony was to the effect that the Smiths were upset with Slattery at the meeting held prior to December 10, 1999, because he allowed “time to run.” We do not find that the trial court was manifestly erroneous in its finding of fact that the Smiths knew or should have known no later than December 10, 1999, that a potential cause of action against Slattery and Johnson existed for legal malpractice based upon the medical malpractice suit being dismissed for non-prosecution. Accordingly, we find no merit to the first assignment of error.

In the second assignment of error, the Smiths contend that the trial court erred in granting the exception of prescription/peremption without considering their allegations of fraud (silence or inaction) on the part of Slattery. They argue that a finding of fraud would establish an exception to the peremptive period set out in La. R.S. 9:5605(E) which states that the peremptive period provided for in Subsection A shall not apply in cases of fraud, as defined in C.C. art.1953 which provides that:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

In cases of legal malpractice, the jurisprudence applying this article does so in cases where it was the fraudulent act itself that constituted the malpractice, and not for fraud in the actions taken after the legal malpractice | nhas occurred. See Shreveport Credit Recovery, Inc. v. Modelist, 33,369 (La.App.2d Cir.05/15/00), 760 So.2d 681, writ denied, 2000-2159 (La.10/27/00), 772 So.2d 125 (where the alleged fraud was in the confection and assignment of a promissory note); Atkinson v. LeBlanc, 03-365 (La.App. 5th Cir.10/15/03), 860 So.2d 60, Ratcliff v. Boydell, 93-0362, 92-0630 (La.App. 4th Cir.04/03/96), 674 So.2d 272, amended as to interest on rehearing, (La.App. 4th Cir.05/31/96) (where the alleged fraud involved the attorney’s misrepresentation of the value of a structured settlement to obtain an excessive fee).

The Smiths argue that because Slattery did not give them a copy of the motion and order to dismiss their medical malpractice suit when the file was retrieved, Slattery committed fraud. They also contend his statements concerning the status of the medical malpractice suit were obtuse and unclear to the unskilled lay person and that as an attorney he should be held to a higher standard.

Appellees argue that the alleged legal malpractice occurred when they allowed the Smiths’ medical malpractice suit to be abandoned without their knowledge or consent. There is no assertion that this alleged legal malpractice involved fraud, only that Slattery subsequently engaged in fraudulent conduct by silence or inaction regarding the fact that the suit was dismissed. They contend that the Smiths’ fraud assertions do not create an exception to the one-year peremptive period set forth in La. R.S. 9:5605 pursuant to Atkinson, supra. We agree.

| tnIn the instant case, the particular allegations of fraud alleged by the Smiths concern only Slattery’s actions after the alleged legal malpractice occurred, namely, the neglect to take timely action in the medical malpractice case. We, therefore, find no merit to the second assignment of error.

Although, the evidence is controversial regarding the clarity of Slattery’s statements regarding the dismissal of the suit, what is clear from the evidence is that Slattery gave the Smiths enough information that would place a reasonable person on notice that something was very wrong with their case. It is not the intent of this court to excuse Slattery from the poor manner in which this case was handled, but to look at the situation in its entirety and determine if there was sufficient evidence in the record upon which the trial court based its finding of fact. The record clearly shows that the Smiths were upset with Slattery when he reported on the status of their case prior to December 10, 1999, and therefore, they had adequate warning to place them on notice that they should seek the advice of another attorney long before the prescriptive period expired.

In conclusion, we find the trial court was not manifestly erroneous in holding that by December 10, 1999, the Smiths had a sufficient factual basis to know that Slat-tery had not what he could have done to prevent dismissal of the medical malpractice suit by abandonment.

Accordingly, for the reasons stated above, we affirm the judgment of the trial court granting the exception of prescription/peremption in favor of appellees and assess costs to the Smiths.

AFFIRMED.

      . The original petition was signed by Slattery, an attorney with the law firm of McConnell & Slattery and Johnson, an attorney with the law firm of Campbell, Campbell & Johnson, predecessor to the firm of Campbell, Campbell & Marvin.


author:
h CARAWAY, J.
      h GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. David Lee ROCHELLE, Appellant.
    No. 38,633-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Frank E. Brown, Jr., for Appellant.
    Walter E. May, Jr., District Attorney, Jonathan M. Stewart, Assistant District Attorney, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   h CARAWAY, J.

• This court granted a supervisory writ to review the ruling revoking defendant’s probation to address issues regarding the admissibility of certain hearsay evidence and sufficiency of the evidence to revoke probation. Although we find that two of the conditions of probation were shown to have been violated, the court erred in finding that a third, and more serious, violation was proven by the hearsay evidence presented by the state. Accordingly, we remand for the trial court to reconsider the revocation of probation and sentence imposed in view of the defendant’s violation of the two conditions of probation.

Facts

On May 14, 2003, David Lee Rochelle pled guilty to DWI, third offense, and was sentenced to five years in prison with all but 30 days suspended. Rochelle was placed on supervised probation with 27 general and special conditions.

On October 20, 2003, Rochelle’s probation officer, Shirley Daniels-Warren, filed a motion and order for hearing to revoke probation. The motion listed the specific conditions of probation that Rochelle allegedly violated and the facts of the violations as follows:

13. Participate in a Court approved driver improvement program at his expense.
Rochelle Has Failed to Attend the Driver Improvement Class. He Was Scheduled to Attend on Two Different Occasions (7-12-03 & 10-11-03)
14. Be evaluated to determine nature of substance abuse disorder. Substance abuse treatment at inpatient facility.
1 ..Rochelle has been on probation since May 2003 and has not completed an inpatient program.

On November 4, 2003, a pre-probation revocation hearing was conducted and the trial court, on Daniels-Warren’s recommendation, ordered that Rochelle be incarcerated without bond pending the outcome of the revocation hearing as he had that day tested positive for marijuana and cocaine use. The following day, November 5, 2003, Daniels-Warren amended the motion for revocation to add the following alleged probation violation:

Refrain from criminal conduct and pay a supervision fee to defray the costs of probation supervision.
COUNT 1: Rochelle failed to refrain from criminal conduct in that on 11/4/03 he tested positive for the use of marijuana and cocaine.

Trial of the matter occurred on December 16, 2003. The state’s sole witness was Daniels-Warren who affirmed her status as Rochelle’s probation and parole officer and testified to her knowledge of Rochelle’s probation conditions. Rochelle, who was represented by counsel, did not testify at the hearing or present evidence contrary to the state’s evidence.

1 ^Regarding the allegation that Rochelle failed to complete an inpatient program, Daniels-Warren testified that after Rochelle was evaluated by the Northwest Regional Center for Addictive Disorders, he was told that he would be placed on a list for bed availability and was required to attend a group session to remain on the list until then. She stated that when a bed became available, Rochelle would go to a specific treatment facility. In the meantime, Rochelle was scheduled to participate in outpatient group therapy beginning June 24, 2003. Rochelle’s counsel objected to this testimony on the grounds that it constituted hearsay evidence of which Daniels-Warren had no personal knowledge. The trial court noted the objection, allowing Daniels-Warren to continue her testimony., When asked whether she knew if Rochelle had attended the meetings, Daniels-Warren referred to four letters (dated July to October 2003), addressed to her from the Department of Health and Hospitals (“DHH”), which indicated that Rochelle had not attended any of the outpatient meetings. Again Rochelle’s counsel objected to the testimony as hearsay. The court allowed the objection to be continuing and overruled it. Daniels-Warren was then specifically questioned regarding the DHH letter, indicating that Rochelle had been evaluated on June 19, 2003, and was scheduled to attend group meetings beginning June 24, 2004. The state then examined Daniels-Warren extensively as to the content of the DHH letters which demonstrated Rochelle’s lack of attendance at group meetings. In fact, the documents showed that DHH ultimately closed Rochelle’s case for such noncompliance. Daniels-Warren testified that in spite of his noncompliance [4with this probation requirement, Rochelle reported to her monthly. Daniels-Warren discussed this problem with him on October 16, 2003, and he received photocopies of the letters as well. After this testimony was elicited, Rochelle’s counsel objected to the introduction of the DHH letters as hearsay evidence because the custodian of the records did not certify the documents. Nevertheless, the letters were permitted to be introduced into evidence.

Daniels-Warren also testified regarding Rochelle’s failure to attend driving improvement training. She identified a letter she wrote to Rochelle, which he signed to acknowledge, advising him to report to the Bienville Parish Sheriffs Office on July 12, 2003, for a Driver Improvement Class. Daniels-Warren then identified a second letter she wrote to Rochelle on August 6, 2003, reminding him of his failure to attend the previous training and requiring him to attend the training on October 11, 2003. Rochelle did not attend either meeting.

As for the state’s final allegation of grounds to revoke probation, Daniels-Warren testified that Rochelle submitted a urine sample on November 4, 2003. Daniels-Warren was not present when the test was given. Daniels-Warren received the results of the test by observing the “top of the cup” which indicated that Rochelle had tested positive. Rochelle’s counsel objected to Daniels-Warren’s lack of qualification as an expert witness in chemical analysis and the court required the state to lay a further foundation for the testimony. Daniels-Warren explained that she received drug test kit training, including instruction on obtaining samples and reading the drug kit results. The kit used by Rochelle was a new type which she was | Ralso trained to utilize. Daniels-Warren said that she read Rochelle’s test which was positive for cocaine and marijuana. Rochelle did not request that the urine be submitted to the lab nor did he deny that the test was positive. Rochelle’s counsel continued to object to the lack of Daniels-Warren’s certification. The trial court consistently overruled the objection. Daniels-Warren then explained that after the test results were obtained, Rochelle was allowed to return to the court room for the scheduled pre-revocation hearing and he was arrested that day.

On cross-examination, Daniels-Warren testified that the drug cup utilized for the test did not contain the defendant’s name or an identification number. She stated that the only time a cup is labeled is when it is sent to the lab at a defendant’s request. She admitted that she did not know if anybody was present when Rochelle was given his test because she was in court and Specialist Armond of the La. Department of Probation and Parole administered the test. Daniels-Warren did not know if anyone else was present when Rochelle urinated into the cup. She knew that Rochelle should have come out of the bathroom and taken the cup to a probation officer. Armond would have kept the cup in her custody. Yet, other people were tested that day and the specimens would have been left in an unlocked office. Daniels-Warren further stated that she did not recall if she informed Rochelle that he could have the test submitted to a lab.

Regarding the new kit utilized for Rochelle’s urinalysis, Daniels-Warren testified that the test was activated by tilting the cup and either the officer or the defendant could do so. Daniels-Warren also stated that the | (¡specimens are destroyed if no request for a lab evaluation is made. Daniels-Warren testified that she is certified to read the test results and can tell whether a cup is positive or negative. She explained that the cup has two lines and a positive or negative result registers within the lines within a five-minute period. Her policy is to complete the test, show the defendant, and if he or she does not want further testing, to destroy the cup. Daniels-Warren admitted that she was not in the room when Rochelle brought his urine cup to Armond. She saw it later and could not recall if she or Armond activated the test. She said she knew it was Rochelle’s test because he “brought it back to Ms. Armond.”

Based upon this evidence, the court ruled that the state had adequately shown that Rochelle had violated three conditions of his probation, in failing (i) to refrain from criminal conduct by testing positive for cocaine and marijuana use, (ii) to attend his driver improvement program, and (iii) to attend inpatient group programs. Accordingly, the court imposed the original five-year term of Rochelle’s sentence. Rochelle objected to the ruling and has pursued this appeal.

Discussion

On review Rochelle raises issue with the adequacy of the evidence to sustain the revocation on the basis of his objections to the hearsay evidence and non-expert nature of Daniels-Warren’s testimony.

The provisions guiding the trial court in the context of a probation revocation hearing are contained in La. C. Cr. P. art. 900. Those provisions provide in pertinent part:

|7A. If the court decides that the defendant has violated, or was about to violate, a condition of his probation it may:
(1) Reprimand and warn the defendant.
(2) Order that supervision be intensified.
(8) Add additional conditions to the probation.
(4) Order the defendant, as an additional condition of probation, to be committed to a community rehabilitation center operated by, or under contract with, the Department of Public Safety and Corrections for a period of time not to exceed six months, without benefit of parole or good time....
(5) Order that the probation be revoked. In the event of revocation the defendant shall serve the sentence suspended, with or without credit for the time served on probation in the discretion of the court. If the imposition of sentence was suspended, the defendant shall serve the sentence imposed by the court at the revocation hearing.
(6) Extend the period of probation, provided the total amount of time served by the defendant on probation for any one offense shall not exceed the maximum period of probation provided by law.
D. When a court considers the revocation of probation, the court shall consider aggravating and mitigating circumstances in the case, including but not limited to the circumstances stated in Article 894.1. If the court revokes the probation of the defendant, the court shall issue oral or written reasons for revocation which shall be entered into the record. The oral or written reasons for revocation shall state the allegations made by the probation officer concerning a violation or threatened violation of the conditions of probation, the findings of the court concerning those allegations, the factual basis or bases for those findings, and the aggravating circumstances, or mitigating circumstances, or both, considered by the court.

Louisiana courts have interpreted this provision to vest the trial judge with wide discretion when a condition of probation is violated and have held that the legislature intended punishment for probation violations to be tailored to the facts of the case, the seriousness of the misdeed, and the needs |sof the probationer. State ex rel. Robertson v. Maggio, 341 So.2d 366 (La.1976); State v. Sussmann, 374 So.2d 1256 (La.1979).

Likewise, this provision is interpreted as providing for an informal and summary hearing. State v. Lucas, 385 So.2d 253 (La.1980). Nevertheless, the Code of Criminal Procedure clearly contemplates that the defendant be given an opportunity to explain mitigating circumstances relating to the violation before the judge decides on whether to revoke probation. Id.

A probation revocation hearing is not a stage of a criminal proceeding, but does result in a loss of liberty. Therefore, the full panoply of rights due defendant in such proceedings does not apply. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Breiver, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); State v. Black, 97-0774 (La.12/12/97), 706 So.2d 423. See also, State v. Duhon, 95-2724 (La.5/21/96), 674 So.2d 944. This law applies to Louisiana revocation proceedings as well. State v. Harris, 368 So.2d 1066 (La.1979); Baggert v. State, 350 So.2d 652 (La.1977); State v. O’Conner, 312 So.2d 645 (La.1975). The hearing is subject to due process safeguards, including an adequate notice and opportunity to present evidence. State v. O’Conner, supra. Additional rights include the opportunity to be heard in person and the right to confront and cross-examine adverse witnesses. Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. 2593; Gagnon v. Scarpelli 411 U.S. at 786, 93 S.Ct. 1756. Because the revocation hearing is in no way equated with a criminal prosecution, the process should be flexible enough to consider evidence including letters,_[¿affidavits and other material that would not be admissible in an adversary criminal trial. Id.

Regarding the application of the Louisiana Rules of Evidence to various proceedings, La. C.E. art. 1101 provides in pertinent part:

B. Limited applicability. Except as otherwise provided by Article 1101(A)(2) and other legislation, in the following proceedings, the principles underlying this Code shall serve as guides to the admissibility of evidence. The specific exclusionary rules and other provisions, however, shall be applied only to the extent that they tend to promote the purposes of the proceeding.
(1) Worker’s Compensation cases.
(2) Child custody cases.
(3) Revocation of probation hearings.
(4) Preliminary examination in criminal cases, and the court may consider evidence that would otherwise be barred by the hearsay rule.
C. Rules inapplicable. Except as otherwise provided by Article 1101(A)(2) and other legislation, the provisions of this Code shall not apply to the following:
(1) The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by Article 104.
(2) Proceedings with respect to release on bail.
(3) Disposition hearings in juvenile cases.
(4) Sentencing hearings except as provided in Code of Criminal Procedure Article 905.2 in capital cases.
D. Discretional applicability. Notwithstanding the limitations on the applicability of this Code stated in Paragraphs A, B and C of this Article, in all judicial proceedings a court may rely upon the provisions of this Code with respect to judicial notice, authentication and identification, and proof of contents of writings, recordings, and photographs as a basis for admitting evidence or making a finding of fact.

Specifically, the courts have held that the formal rules of procedure and evidence are not employed in a probation revocation hearing. State v. Davis, 375 So.2d 69 (La.1979), citing Gagnon v. Scarpell 411 U.S. at 786-787, 93 S.Ct. 1756; State v. Fields, 95-2481 (La.App. 1st Cir.12/20/96), 686 So.2d 107. See also State v. Black, supra, noting the relaxation of the rules of evidence in a probation revocation hearing. For example, the Miranda rule has not been extended to probation hearings. State v. Lassai, 366 So.2d 1389 (La.1978); State v. Edwards, 440 So.2d 845 (La.App. 2d Cir.1983). Nor is the exclusionary rule generally applicable in probation revocation hearings and evidence derived from an unreasonable search and seizure is admissible in such hearings. State v. Black, supra; State v. Davis, supra. The double jeopardy protections of the United States Constitution do not apply to revocation hearings because revocation sanctions are part of the original sentence. United States v. Wyatt, 102 F.3d 241 (7th Cir.1996), cert. denied, 520 U.S. 1149, 117 S.Ct. 1325, 137 L.Ed.2d 486 (1997), cited with approval in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000); State v. Black, supra; State v. Curtis, 28,309 (La. App.2d Cir.8/21/96), 679 So.2d 512, writ denied, 96-2322 (La.2/7/97), 688 So.2d 496. There is also no requirement that strict adherence to the formal rules governing certification or authentication of documents is necessary in a probation revocation hearing. State v. Pearson, 424 So.2d 399 (La.App. 2d Cir.1982).

Both before and after the enactment of Article 1101(B) of the Code of Evidence, the jurisprudence has indicated that hearsay evidence is admissible in a probation revocation hearing. State v. Black, supra; State v. Fields, supra; State v. Sussmann, supra; State v. Harris, supra; State v. Lassai, supra; See also Baggert v. State, supra (involving a parole revocation hearing). Some of this jurisprudence has indicated, however, that hearsay evidence alone is insufficient proof of criminal activity upon which to base a revocation. State v. Fields, 686 So.2d at 110, citing State v. Sussmann, supra. Additionally, in State v. Lassai, the court indicated that a “urinalysis” document was improperly introduced without the supporting testimony of its author. The court indicated that the introduction of the hearsay document “violated minimum due process rights of confrontation and examination of witnesses.” 366 So.2d at 1391. Later, recognizing the “difficulties” with that rationale pitting an allowance for hearsay against the right of confrontation, the court noted in State v. Harris:

We do not hold that the defendant will in all cases be entitled to compulsory process in order to have live witnesses present at the hearing. We do not intend to prohibit use, where appropriate, of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence. (See Gagnon quoted above.) However, this use of documentary evidence must be reconciled with the defendant’s right to confront and cross-examine witness in all cases unless the hearing officer specifically finds good cause for not allowing confrontation.

368 So.2d at 1073, fn. 13.

The Louisiana Supreme Court has not specifically addressed the use and weight of hearsay evidence in probation revocation proceedings since the enactment of Article 1101(B). In Chaisson v. Cajun Bag and Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, the court did consider the use of hearsay in worker’s compensation proceedings which also have the relaxed evidentiary standard under Article 1101(B). The court concluded that the | shearing officer has discretion to admit hearsay evidence so long as the evidence exhibits some degree of reliability and trustworthiness and is of the type upon which reasonable persons would rely. Id. at 382.

The federal courts have adopted a balancing test regarding the admissibility of hearsay evidence in revocation proceedings which weighs the defendant’s interest in confronting a particular witness against the government’s good cause for denying it, particularly focusing on the indicia of reliability of a given hearsay statement. United States v. Kindred, 918 F.2d 485 (5th Cir.1990). Other courts have considered the importance of the hearsay evidence to the court’s ultimate finding and the nature of the facts to be proven by such evidence in this balancing approach to the admissibility of hearsay evidence in revocation proceedings. United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The federal courts have generally allowed the admission of drug test reports through the testimony of a probation officer because these reports are “the regular reports of a company whose business it is to conduct such tests,” and the government has an interest in minimizing the difficulty and expense of procuring witnesses for revocation hearings. Thus, in the absence of any evidence tending to contradict the defendant’s drug use or the accuracy of the lab tests, a defendant’s confrontation rights are not infringed by the admission of the urinalysis test results through a probation officer’s testimony. United States v. Kindred, supra, citing United States v. Penn, 721 F.2d 762 (11th Cir.1983) (which allowed as proof in a revocation proceeding the hearsay testimony of a probation officer and the lab reports and letter from the | ^president of the lab). Regular business reports, like the urinalysis test, are ordinarily more reliable than oral hearsay statements. United States v. Kindred, 918 F.2d at 487, fn. 2. Courts have, however, found that hearsay testimony which consists of a witness reporting another person’s unsworn verbal statements was not reliable in the context of revocation proceedings. United States v. Comito, 177 F.3d at 1171. Courts have also questioned the reliability of police reports when presented through the testimony of police officers. United States v. Comito, supra; Farrish v. Mississippi State Parole Bd., 836 F.2d 969 (5th Cir.1988). Letters written to a probation officer in the form of an official report from the federal program coordinator of a well-established organization have been held to be reliable hearsay under the subject balancing test. United States v. McCallum, 677 F.2d 1024 (4th Cir.1982).

In this case, two of defendant’s probation violations were adequately established by Daniels-Warren’s testimony and the documentary evidence. The evidence of Rochelle’s failure to attend the driver improvement programs involved no hearsay evidence which was objected to at the hearing and is therefore uncontested in this appeal. Rochelle’s failure to attend inpatient group programs was established by the direct testimony of Daniels-Warren and by the DHH letters written on state letterhead indicating the governor’s seal. The letters, which were copied to Rochelle at a specified address, informed him that he was on the inpatient waiting list, “however, this patient must participate in the outpatient group listed below until the bed becomes available.” Daniels-Warren testified that when Rochelle was in her | uoffice on June 19, 2003, he was told to begin attending the outpatient meetings. She also discussed noncompliance with him on October 16, 2003. Accordingly, we find that the hearsay evidence used as proof of this violation is competent evidence exhibiting a degree of reliability and trustworthiness. In combination with the testimony of Daniels-Warren providing direct evidence of the instructions provided to defendant about outpatient and inpatient services, this probation violation was properly established by the evidence.

In contrast, the last probation violation concerning the failed drug test was established entirely by hearsay evidence. Although Daniels-Warren’s testimony was uncertain at one point about her role in the procedure, she indicated that the test was conducted almost exclusively by the other probation officer, Armond, who did not testify. No affidavit or contemporaneous report of the procedure was prepared by Armond and introduced at the hearing. Thus, Daniels-Warren testified to information Armond told her about Rochelle’s urinalysis kit result. Under the Louisiana jurisprudence, we therefore find that evidence of this subsequent criminal activity resting on the hearsay evidence in this case was insufficient to establish the probation violation. State v. Lassai, supra; State v. Sussmann, supra; State v. Fields, supra.

In reaching this conclusion, we note that the defendant, who was present at the hearing, gave no testimony disputing the drug test. Since this 11Kwas not a criminal prosecution, his Fifth Amendment privilege was not necessary for his protection, and like a sentencing hearing, he might be expected to offer evidence in mitigation or directly dispute the hearsay evidence of his prior actions offered against him. Nevertheless, from our review of the above law, there is no requirement that the defendant dispute in any manner the hearsay evidence presented against him even though he possessed direct knowledge of the actions indicated by the hearsay evidence. The court must consider the nature of the hearsay testimony and determine whether it is sufficient for proof of the probation violation.

Since we find that the trial court erred in finding that Rochelle violated his probation by the criminal conduct attempted to be proven concerning the drug screen, we remand this case for reconsideration of the revocation sentence imposed for the violations of the other two conditions of probation which were proven in the proceedings. As noted above, double jeopardy protections are not applicable, and the state is not precluded from further action regarding the third alleged probation violation.

REMANDED FOR FURTHER PROCEEDINGS.

GASKINS, J., concurs with reasons.

h GASKINS, J.

I respectfully concur with the majority’s opinion. I agree with the majority that the testimony from the defendant’s probation officer, regarding the information she received from the other probation officer, was so sketchy regarding the timing of the test and the identification of the test cup that her testimony did not have the indicia of reliability, and therefore should not serve as a basis for revocation. However, had the probation officer been able to testify how the test was given and received by the other probation officer, and was able to satisfactorily testify that the positive cup was indeed the test given by the defendant, then I would find the hearsay testimony alone would be sufficient to revoke the defendant’s probation.

I agree with the majority that the revocation should be remanded for the trial judge to reconsider the revocation in light of this decision. I would note, however, the other affirmed probation violations would suffice for the probation to be revoked, if the trial court judge so decides.

      . The specific provisions of Rochelle's special conditions of probation contained two clauses pertaining to substance abuse treatment that read as follows:
      13. Undergo an evaluation to determine the nature and extent of substance abuse disorder. Treatment shall include substance abuse treatment at an inpatient facility recommended by La. Dept, of Health & Hospitals and approved by the La. Dept, of Corrections for a period of not less than four weeks, or more than six weeks.
      14. Successfully perform and complete any outpatient follow up substance abuse treatment recommended by treating physician for a period not to exceed twelve months.

      . The record contains no transcript of this proceeding. The minute entry from the hearing shows that Rochelle was present in court and that Daniels-Warren testified regarding the drug test.

      . We do not reach the issue in this case of whether an affidavit or contemporaneous report by the officer conducting the drug test might be adequate proof via hearsay evidence of a probation violation in the absence of any direct evidence to the contrary by the defendant. The jurisprudence of the Louisiana Supreme Court prior to the enactment of La. C.E. art. 1101(B) indicates that such proof would be inadequate or a violation of defendant's confrontation rights.


author: |-i CARAWAY, J.

text:
    Martha E. ALSTON, Plaintiff-Appellant, v. Ron Christopher STAMPS, Defendant-Appellee.
    No. 38,628-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Martha E. Alston, In Proper Person.
    Sheva M. Simms, for Appellee.
    Before CARAWAY, PEATROSS and DREW, JJ.
   |-i CARAWAY, J.

The plaintiff in this case is a disbarred lawyer who was employed by defendant in his law firm. After the plaintiffs employment ended, defendant reported alleged acts of plaintiffs misconduct to the Louisiana Attorney Disciplinary Board (“Board”) and to the police. Plaintiff responded by filing this suit for malicious prosecution. Following a hearing on exceptions filed by the defendant, the trial court dismissed this suit. For the following reasons, we affirm.

Facts

Martha E. Minnieweather Alston (“Alston”) filed this suit against Ron Christopher Stamps (“Stamps”), alleging damages arising from the circumstances of her former employment at Stamps’ law firm. Alston is a disbarred lawyer. See, In re Minnieweather, 94-1782 (La.12/9/94), 647 So.2d 1092. She was hired by the firm in 1998 in the capacity of office manager/secretary and/or paralegal.

The petition alleges that after Alston left the law firm, Stamps notified the Board by letter dated June 13, 2000, of Alston’s conduct at the firm. The purpose of the letter was “to report potential unauthorized practice of law and/or theft of clients’ funds,” which allegedly occurred while Alston was employed by the law firm. On June 19, 2000, Stamps also reported the | ^alleged theft of funds from the firm by Alston to the Shreveport Police Department.

On March 14, 2001, the Board responded to Stamps’ complaint by pointing out that, “[i]f and when a disbarred attorney makes application for readmission, he or she bears the burden of proving by clear and convincing evidence that he or she has not engaged nor attempted to engage in the unauthorized practice of law during the period of disbarment.” Nevertheless, the Board advised that the evidence submitted by Stamps in his complaint to the Board “was not clear and convincing that Ms. Minnieweather engaged in ethical misconduct and violated the Rules of Professional Conduct ... [accordingly, no formal disciplinary action is appropriate and your complaint is dismissed.”

In 2002, Stamps was notified pursuant to the Board’s procedure of Alston’s application for readmission to practice law. In response, he filed a letter with the Board on June 28, 2002, re-urging his complaints regarding Alston’s alleged misconduct with the law firm.

Alston’s petition as supplemented and amended alleged that Stamps acted in a malicious and defamatory way, and falsely accused her of fraudulent conduct, resulting in both injury to her reputation in the community and in her occupation. The substance of her charges are best set forth in the following paragraphs of her first supplemental and amending petition:

_J^24.
After filing a Complaint with the Office of Disciplinary Counsel on June 13, 2000, defendant Stamps filed a false criminal complaint against the petitioner with the Shreveport City Police on June 19, 2000. The same and/or similar allegations were made against the petitioner as those made in the complaint to the Office of Disciplinary Counsel. Stamps offered no evidence to substantiate the criminal complaint, resulting in no action being taken. (See Plaintiffs exhibit #3).
25.
Then acting with malice, ill will and an intent to cause harm, defendant filed the letter of June 28, 2002, with the Office of Disciplinary Counsel, advancing the same false charges that the Disciplinary Counsel had found without merit in his complaint of June 13, 2000, and the same Criminal charges filed with the Shreveport City Police Department on June 19, 2000, that resulted in no action being taken due to the absence of evidence to support these false accusations. Without doubt, the filing of these multiple false complaints and false criminal charges against the petitioner clearly shows that defendant Stamps has attempted to misuse the legal process by attempting to obtain a result not proper under the law....
26.
Although defendant Stamps is guilty of defamation, it is the acts of Malicious Prosecution, without probable cause and Abuse of Process that is subject of this action. Defendant Stamps has employed the malicious misuse or misapplication of the legal process to accomplish a purpose not warranted by law. Moreover, the filing of multiple false complaints against the petitioner by defendant Stamps constitutes the malicious perversion of the legal process seeking a result not lawfully or properly obtainable under the law.

In response to the suit, Stamps filed “Exceptions of Lack of Jurisdiction and No Right of Action” and the matter was set for a contradictory hearing. After hearing testimony from Stamps and argument, the trial court granted Stamps’ exceptions. Additionally, the court sustained an exception of no cause of action on its own motion. It is from this judgment that Alston appeals.

14Discussion

We consider the factual assertions contained in Alston’s petition as amended to be based upon Stamps’ actions in two settings. The first concerns Stamps’ letters to the Board. The second concerns his June 19, 2000 report to the police of Alston’s alleged theft from the law firm. Although the amended petition made a very general reference to Stamps’ false communications to “other members of the community that [Alston] was responsible for [the law firm’s] woes,” the petition expressly states that defamation is not the subject of the action. Instead, Alston labels the nature of her claim to be one of “malicious prosecution and abuse of process.”

The jurisprudence recognizes a civil cause of action, based on fault under La. C.C. art. 2315, in favor of one “whose liberty has been interfered with in an unwarranted manner.” Like any other delict under Article 2315, such an “interference” must be based on fault of the defendant which causes the damage complained of in order for the plaintiff to recover. Jones v. Soileau, 448 So.2d 1268 (La.1984).

The unreasonableness of the defendant’s actions is the key to determining fault in a malicious prosecution case, just as in any other case based on La. C.C. arts. 2315, 2316. Id. The elements of a malicious prosecution action are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for the original proceeding; (5) the presence of malice therein; and (6) damage resulting to |fiplaintiff. Jones v. Soileau, supra; Plessy v. Hayes Motor Co. Inc., 31,947 (La.App.2d Cir.6/16/99), 742 So.2d 934. Probable cause does not depend merely upon the actual facts of the case, but upon the defendant’s honest belief of the facts when making charges against the plaintiff. Plessy, supra. Some courts have held that either an affidavit or bill of information charging plaintiff is necessary for proof of malicious prosecution. Craig v. Carter, 30,625 (La.App.2d Cir.9/23/98), 718 So.2d 1068, writ denied, 98-2698 (La.12/18/98), 734 So.2d 636.

Whether considered under the exception no cause of action, the exception of no right of action, or the exception of lack of subject matter jurisdiction, the trial court was correct in dismissing the claims concerning Stamps’ letters to the Board because of the immunity afforded to him and the exclusive jurisdiction of the Louisiana Supreme Court and the Board concerning disciplinary complaints against attorneys.

The supreme court has exclusive original jurisdiction of disciplinary proceedings against a member of the bar. La. Const. Art. 5, § 5(B). Singer Hutner Levine Seeman & Stuart v. Louisiana State Bar Ass’n, 378 So.2d 423 (La.1979); Herbert v. Regan, 522 So.2d 1157 (La.App. 4th Cir.1988), writ denied, 523 So.2d 1312 (La.1988). That provision is not a restriction on the court’s inherent power but rather confers upon the court plenary power in the area of disciplinary proceedings. Singer, supra; Bester v. Louisiana Supreme Court Comm, on Bar Admissions, 00-1360 (La.2/21/01), 779 So.2d 715. Supreme Court Rule 19 establishes the applicable parameters and grants broad jurisdiction over complaints concerning attorneys. In particular, Rule 19, § 6 provides as follows:

Section 6. Jurisdiction
A. Lawyers Admitted to Practice. Any lawyer admitted to practice law in this state, including any formerly admitted lawyer with respect to acts committed prior to resignation, suspension, disbarment, or transfer to inactive status, or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of these Rules or of the Rules of Professional Conduct or any other Rules or Code subsequently adopted by the court in lieu thereof, and any lawyer specially admitted by a court of this state for a particular proceeding, as well as any lawyer not admitted in this state who practices law or renders or offers to render any legal services in this state, is subject to the disciplinary jurisdiction of this court and the board.

Thus, the handling of complaints concerning attorneys is a quasi-judicial function under the original and exclusive jurisdiction of the Louisiana Supreme Court. See, Herbert v. Regan, supra; Louisiana State Bar Ass’n v. Chatelain, 513 So.2d 1178 (La.1987). Moreover, Rule 19, § 12 provides for the following immunity: “Communications to the board, hearing committees, or disciplinary counsel relating to lawyer misconduct or disability and testimony given in the proceedings shall be absolutely |7privileged, and no lawsuit predicated thereon may be instituted against any complainant or witness.”

Following Stamps’ complaint to the Board in 2000, an investigation was conducted, and in the opinion of the Board, the allegations of Aston’s misconduct did not demonstrate by clear and convincing evidence that Aston had engaged in ethical misconduct. Nevertheless, Stamps was advised in the Board’s response that in the event of an application for readmission to the bar by Aston, “you are urged to re-raise this issue again.” On June 28, 2002, after Alston’s application for readmission, Stamps did in fact re-urge the matter to the Board.

Alston’s argument that Stamps’ complaints represent an abuse of process overlooks the fact that such alleged abusive or malicious conduct was being directed to and reviewed by the very Board which could also impose disciplinary action upon Stamps for unfounded and inappropriate charges against Alston. The Board’s March 14, 2001 response to Stamps clearly reflects that his confidential reporting of Alston’s conduct to the Board was appropriate. Moreover, as demonstrated by the above provisions governing the Board and witnesses and complainants before the Board, Alston’s charges regarding Stamps’ actions with the Board are precluded from resolution in the district court. We, therefore, agree with the district court’s determination that Alston has stated no cause of action regarding Stamps’ complaints to the Board.

Finally, although Alston’s argument for malicious prosecution to the trial court and this court primarily center on Alston’s actions with the Board, |sshe also alleges Stamps’ June 19, 2000 report to Shreveport police in support of her claims of Stamps’ misconduct. Nevertheless, her allegations and the police report attached to the amended petition also do not demonstrate a cause of action. Stamps’ statements to the police are not shown to have resulted in any action by the police. Alston was not arrested or in any manner detained. She makes no allegation of any damages flowing from the incident. Accordingly, we find that a criminal proceeding was not commenced in such a manner to support the claim of malicious prosecution in this case.

Conclusion

For the above reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to appellant.

AFFIRMED.

      . We note that Rule of Professional Conduct 5.5, effective July 1, 2002, and "[applying] to all lawyers who are suspended or disbarred by any Order, Judgment, or Decree of the Court which becomes final after the effective date” provides that a lawyer shall not employ, contract with as a consultant, engage as an independent contractor, or otherwise join in any other capacity, in connection with the practice of law, any person the attorney knows or reasonably should know is a disbarred attorney, during the period of disbarment ...”

      . Excerpted from Exh. P-2 attached to Plaintiffs First Supplemental and Amending Petition.

      . The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. It questions whether the law provides a remedy to the plaintiff against the defendant for the complaints set forth in the petition. All well-pleaded allegations must be assumed as true, and any doubt is to be resolved in favor of the petition. In reviewing a trial court’s sustaining an exception of no cause of action, the reviewing court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Robertson v. Caddo Parish, Louisiana, 36,540 (La.App.2d Cir. 12/11/02), 833 So.2d 1139; Fortenberry v. Hibernia Nat’l Bank, 37,-266 (La.App.2d Cir.8/20/03), 852 So.2d 1221.

      . The essential function of an exception of no right of action is to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(A)(5). Its purpose is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. It assumes that the petition states a valid cause of action and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Simmons v. Chambliss, 37,461 (La.App.2d Cir.8/20/03), 852 So.2d 1237; Caddo-Bossier Parishes Port Comm’n. v. Arch Chemicals, Inc., 36,505 (La.App.2d Cir. 10/23/02), 830 So.2d 498 (citing Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015 (La.11/30/94), 646 So.2d 885).


author: GASKINS, J.

text:
    Lula M. LACURE, Plaintiff-Appellant, v. BROOKSHIRE’S STORES, et al., Defendant-Appellee.
    No. 38,627-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 23, 2004.

      Margrett Ford, for Appellant.
    Lunn, Irion, Salley, Carlisle & Gardner by James A. Mijalis, Shreveport, for Ap-pellee.
    Before GASKINS, PEATROSS, and HARRISON (Pro Tempore), JJ.
   GASKINS, J.

In this slip-and-fall case, Lula Lacure is appealing a summary judgment in favor of Brookshire’s Grocery Company (Brook-shire’s). Lacure alleges that the trial court abused its discretion by refusing to afford her “a fair opportunity to present the factual circumstances in this case required to defeat a Motion for Summary Judgment.” For the following reasons, we affirm.

FACTS

In January 2001, Lacure slipped and fell at a Brookshire’s grocery store in Shreveport, Louisiana. In January 2002, shortly before her claim would have prescribed, she filed a pro se complaint in Shreveport City Court. Subsequently, she obtained legal representation, and her attorney successfully moved to have her case transferred to the First Judicial District Court, alleging that her damages exceeded $50,000.

On May 16, 2003, Brookshire’s filed a motion for summary judgment asserting that Brookshire’s had no actual or constructive notice of the liquid spill that allegedly caused Lacure to slip and fall. Brookshire’s noted that Lacure asserted that she slipped and fell as a result of “liquid that was on the floor” and that Brookshire’s was negligent in failing to maintain a safe shopping environment. However, Brookshire’s furnished affidavits of two store employees indicating that they were in the area of the incident shortly before its occurrence, and that, at that time, there was no liquid on the floor. After the incident, the employees both noticed that soft drink cans in the area had either been cut or punctured and that the liquid on the floor appeared fresh. Under these circumstances, Brookshire’s alleged that | ?Lacure could present no evidence to show that Brookshire’s had notice of the spill. Therefore, she could not meet the burden of proof required under the provisions of La. R.S. Q^SOOA. On May 20, 2003, the district court signed an order setting a hearing on the motion for summary judgment for July 7, 2003.

On May 27, 2003, Lacure’s counsel filed a motion to withdraw which the trial court granted the following day. Attached to the motion to withdraw was a letter dated October 7, 2002, from Lacure’s counsel to Lacure. That letter informed Lacure that while counsel had been successful in removing her case from city court to district court, counsel would be unable to continue representation. The appellate record also contains a letter written on November 11, 2002, from Lacure’s counsel to the deputy clerk of the First Judicial District Court, indicating that counsel no longer represented Lacure. A copy of counsel’s motion to withdraw was attached to the letter. Thus, it appears that counsel had intended to withdraw in late Lautumn 2002, but did not officially do so until May 2003. The record does not indicate any activity in the case between late autumn 2002 and May 2003.

On September 4, 2003, new counsel enrolled on behalf of Lacure; that same day, Lacure’s new counsel filed an opposition to the motion for summary judgment. The opposition asserted that although the incident occurred in January 2001, Lacure had only retained new counsel within the past month and that very little, if any, substantive discovery had been undertaken on La-cure’s behalf. The opposition also stated that Lacure had been required to represent herself during the “initial and critical stages” of the litigation, that her first lawyer had too heavy a caseload to undertake Lacure’s representation, and that at least two other attorneys had found it necessary to withdraw their representation of Lacure for various reasons. Asserting that La-cure genuinely believed she could introduce credible evidence to defeat summary judgment if given the opportunity to conduct an investigation and to conduct discovery, Lacure’s opposition to summary judgment requested additional time to meet the burden imposed by La. R.S. 9:2800.6. The opposition indicated that La-cure required an additional 45 to 60 days in which to conduct the necessary investigation and discovery. There was no evidence of any kind included with the opposition, and the opposition made no other arguments against summary judgment.

|40n September 8, 2003, a hearing was held on the motion for summary judgment. At the beginning of the hearing, the court noted that the motion was originally set for hearing on July 7, 2003. At that time, Lacure made an oral motion for a continuance which the trial court had granted over objection by Brookshire’s. The court had allowed Lacure an additional 30 days to obtain counsel and had continued the case until August 11, 2003. On that .date, Lacure’s new counsel was present, and the trial court again continued the ease until September 8, 2003. Given this procedural history, the court stated:

So between August 11 and September 8, there would have been, it seems to me, time to prepare some opposition to a motion for summary judgment. I think [your current attorney] is an excellent lawyer, but this matter has been pending for a good, long time, and there have been previous continuances granted, and I cannot grant another continuance period.... The fact of the matter is that the plaintiff cannot move forward, cannot move forward with any positive evidence to prove even a scintilla of evidence regarding actual notice or constructive notice. At a certain point, this matter needs to be decided, and we have been back and forth to court since July 7, 2003. It is now sixty-one days or so after the initial argument date and several months or so since the motion was filed and Ms. Lacure was served. So the request for additional time comes far too late, there was no opposition to the motion for summary judgment; therefore, the court concludes that there are no genuine issues of material fact, the motion for summary judgment is accordingly granted.

This appeal followed.

DISCUSSION

Summary judgment principles applicable in this case are found in the provisions of La. C.C.P. art. 967:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the [^affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
C. If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
D. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney fees. Any offending party or attorney may be adjudged guilty of contempt.

In the instant case, the summary judgment motion filed by Brookshire’s was made and supported as provided in La. C.C.P. art. 967. Accordingly, Lacure could not rest on the mere allegations or denials of her pleadings; instead, she had two alternatives. First, either through affidavits, or as otherwise provided in La. C.C.P. art. 967(A), she could have set forth specific facts showing there was a genuine issue for trial. La. C.C.P. art. 967(B). Alternatively, she could have submitted affidavits in opposition | fistating reasons why she could not present by affidavit facts essential to justify her opposition. La. C.C.P. art. 967(C). Lacure submitted no affidavits in opposition to the motion for summary judgment. Because argument alone was insufficient, the court properly granted summary judgment against her.

There is no absolute right to delay an action on a motion for summary judgment until discovery is completed. The fact that discovery is incomplete does not procedurally bar the defendant from seeking a summary judgment, and the trial court has the discretion to either issue a summary judgment or order more discovery. Green v. State Farm General Insurance Co., 35,775 (La.App.2d Cir.4/23/02), 835 So.2d 2; Coleman v. Acromed Corporation, 34,354 (La.App.2d Cir.2/7/01), 779 So.2d 1060, writ denied, 2001-0625 (La.4/27/01), 791 So.2d 636. The only requirement is that the parties be given a fair opportunity to present their claims and unless a plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of material fact. Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908 (La.1986); Berzas v. OXY USA, Inc., 29,835 (La.App.2d Cir.9/24/97), 699 So.2d 1149.

In the case at' bar, Lacure’s action was initially filed in January 2002, and the motion for summary judgment was filed in May 2003. As noted by the trial court, the summary judgment hearing was originally set for July 7, 2003, and was continued until August 2003 over objection by Brook-shire’s. Then, in August 2003, the trial court granted another continuance until the |7matter came on for hearing on September 8, 2003. Thus, the record reflects that Lacure had substantial time in which to develop her case at least to the point of being able to defeat a motion for summary judgment.

Regardless of Lacure’s self-representation in the initial stages of litigation, and regardless of the reasons for her succession of attorneys later in the litigation, we cannot ignore the fact that, even in her September 2003 memorandum in opposition to the motion for summary judgment, she offered nothing but the assertion that, given the opportunity to conduct an investigation and to conduct discovery, it was her “genuine belief’ that she could introduce credible evidence to avoid dismissal of her lawsuit. Lacure never set forth a single fact to suggest why, more than three years after the incident, we should share her belief that she can gather credible evidence to counter the affidavits of the Brookshire’s employees.

Even if her assertions in opposition to the motion for summary judgment had been submitted in affidavit form, we would conclude that the trial court did not abuse its discretion in granting the motion for summary judgment. Brookshire’s showed that the liquid on the floor was a fresh spill. The plaintiff failed to demonstrate that she could make a positive showing of actual or constructive notice of the alleged hazardous condition.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is affirmed at appellant’s costs.

AFFIRMED.

      . La. R.S. 9:2800.6(B) provides:
      B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
      (1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
      (2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
      (3)The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

      . The record shows that Ms. Lacure was originally represented by Anthony Hollis with the law firm of Piper and Associates. A letter to the plaintiff stated that the firm would not be able to continue representing her. The motion to withdraw was signed by Cloyd Benjamin, Jr., also with the firm of Piper and Associates.