author:
h SULLIVAN, Judge.
      | ]THIBODEAUX, J., I t MICHAEL G. SULLIVAN, Judge. | THIBODEAUX, C.J.,

text:
    Lydia A. BONNETTE, et al. v. TUNICA-BILOXI INDIANS d/b/a Paragon Casino Resort, et al.
    No. 02-919.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.
    Order on Grant of Rehearing March 24, 2004.

      Jerold Edward Knoll, Jerold Edward Knoll, Jr., The Knoll Law Firm, Marks-ville, LA, William B. Baggett, Wells Talbot Watson, Bagget, McCall, Burgess & Watson, Lake Charles, LA, for Plaintiff/Appellants, Lydia A. Bonnette, et al.
    Shelly D. Dick, Forrester, Jordan & Dick, Baton Rouge, LA, R. Joshua Koch, Jr., Spyridon, Koch & Palermo, Metairie, LA, for Defendant/Appellee, Tunica-Biloxi Indians d/b/a Paragon Casino Resort.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, New Horizon Kids Quest, Inc.
    George D. Ernest, III, Hurlburt, Privat & Monrose, Lafayette, LA,, for Defendant/Appellee, Berg, Inc.
    Patrick J. Hanna, Kay Karré Gautreaux, Rabalais, Hanna & Hebert, Lafayette, LA, for Defendant/Appellee, Tunica Biloxi Construction Company.
    Bonita K. Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendant/Appellee, Glen Moreau d/b/a G.W. Moreau Metal Buildings, Inc.
    Steven C. Judice, Keogh, Cox & Wilson, Baton Rouge, LA, for Defendant/Appellee, Larry Stockwell Heating & Air Conditioning, Inc.
    Richard D. Chappuis, Jr., Voorhies & Labbe, Lafayette, LA, for Defendant/Ap-pellee, Kirby M. Pecot d/b/a Pecot & Company Architects.
    Albert Dale Clary, Attorney at Law, Baton Rouge, LA, for Defendani/Appellee, M & E Consulting, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   h SULLIVAN, Judge.

Plaintiffs in these three consolidated suits allege that they were injured from exposure to toxic mold on premises owned by the Tunica-Biloxi Indians of Louisiana, d/b/a Paragon Casino Resort (the Tribe). They appeal the trial court’s dismissal of their claims against the Tribe based upon sovereign immunity and against other Defendants based upon the inability to join the Tribe as a party necessary for just adjudication under La.Code Civ.P. arts. 641 and 642. They also object to the consolidation of their suits at the trial level. For the following reasons, we affirm the judgment of the trial court.

Procedural History

In the first suit, nineteen employees and nine of their spouses (the Bonnette Plaintiffs) filed an intentional tort claim against New Horizon Kids Quest, IV, Inc. (Kids Quest), a childcare facility within Paragon Casino Resort, and negligence claims against numerous entities involved in the construction of a new hotel at the resort. They alleged that, while working at Kids Quest, the employees sustained personal injury from exposure to toxic mold that developed from the faulty construction, design, and maintenance of the new hotel. In the second suit, Thurman Dunn, a security guard employed by the Tribe, and his wife (the Dunn Plaintiffs) filed an intentional tort claim against the Tribe and negligence claims against the construction entities, alleging that Mr. Dunn was exposed to toxic mold while working in areas of the resort found to contain that substance. The Bonnette and Dunn cases were assigned to Division “B” of the Twelfth Judicial District. In the | ¿third suit, the parents of nine children who were cared for by Kids Quest (the Jeansonne Plaintiffs) filed negligence claims against Kids Quest and the construction entities, except the Tribe and its enterprise, Tuni-ca-Biloxi Construction Company. Kids Quest, however, filed a third-party demand against the Tribe. The Jeansonne case was assigned to Division “A” of the Twelfth Judicial District.

In each suit, various Defendants filed exceptions of lack of subject matter jurisdiction, lis pendens, failure to state a cause of action, and failure to name an indispensable party. Additionally, Kids Quest and Berg, Inc., an engineering firm, filed motions to consolidate all three cases.

After a hearing on April 29, 2002, the trial court granted the motion to consolidate the Jeansonne case, pending in Division “A” with the Bonnette and Dunn cases in Division “B.” The trial court then handed down written reasons, based upon two previous hearings on March 4, 2002 and March 25, 2002, granting the Tribe’s exception to subject matter jurisdiction based upon its sovereign immunity and the exceptions of failure to join an indispensable party filed by some of the other Defendants. Plaintiffs in all three suits appeal.

Sovereign Immunity

In their first assignment of error, Plaintiffs argue, that the Tribal-State compact, which governs the Tribe’s class III gaming activities pursuant to the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701-2721, includes a waiver of tribal sovereign immunity. The trial court disagreed, finding that the compact, instead, preserved the Tribe’s sovereign immunity.

In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S.Ct. 1700, 1702, 140 L.Ed.2d 981 (1998) (emphasis added), the United States Supreme | ¡¡Court reaffirmed that “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity.” Acknowledging that there are “reasons to doubt the wisdom of perpetuating the doctrine,” the Court in Kiowa, nonetheless, refused to limit or restrict the doctrine in deference to Congress’ role in reforming tribal immunity. Id. at 758, 118 S.Ct. at 1704. Accordingly, the Court upheld the Kiowa Tribe’s immunity in a state court suit brought by a payee to collect on a note upon the tribe’s default, stating: “Tribes enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation. Congress has not abrogated this immunity, nor has [the tribe] waived it, so the immunity governs this case.” Id. at 760, 118 S.Ct. at 1705.

Plaintiffs correctly point out that the Supreme Court recently limited a tribe’s civil jurisdiction over nonmembers in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001), by holding that a tribe did not have jurisdiction over a tort claim against state officers who executed a search warrant on a reservation for evidence of an off-reservation crime. However, the Court in Nevada specifically limited its holding to those facts, recognizing that Indian tribes may still exercise civil jurisdiction over nonmembers who maintain consensual relationships with the tribe or its members or when it is necessary to protect tribal self-government or to control internal relations.

The Kiowa Court recognized that Indian gaming, through the IGRA at 25 U.S.C. § 2710(d)(7)(A)(ii), is one area where Congress has restricted tribal immunity. That section authorizes a state “to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact ... that is in effect.” (Emphasis added.) As explained in Florida v. Seminole Tribe of Florida, 181 F.3d 1237 (11th Cir.1999), however, the IGRA abrogates sovereign immunity only in the narrow circumstance where a tribe is conducting gaming operations in violation of an existing compact. Further, by its own terms, that section authorizes only suits by a state to enjoin gaming activities.

To relinquish its sovereign immunity, an Indian tribe’s waiver must be clear. C & L Enters. Inc. v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 121 S.Ct. 1589, 149 L.Ed.2d 623 (2001). A waiver of sovereign immunity cannot be implied, but must be unequivocally expressed. Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260 (10th Cir.1998). In C & L Enterprises, the Supreme Court found such a clear waiver in an arbitration agreement in a roofing contract that provided for the finality of an arbitration award and for the entry of a judgment upon it in any court having jurisdiction. The agreement also contained a choice-of-law clause specifying that the law where the project was located (which was off-reservation) would control. In Ute Distribution Corp., however, the court found that a federal statute did not contain a waiver of sovereign immunity, where it lacked any language expressly authorizing a cause of action in federal court against a tribe. It is with this backdrop that we examine the Tribal-State compact.

The Tribal-State compact begins by recognizing that the Tribe is a “sovereign Indian Nation that possesses powers of self-government” and that the State and the Tribe, through state legislation and tribal resolution, are authorized to enter into this compact “for the conduct of Class III gaming.” Section 2(H) provides: “The jurisdiction and waiver of sovereign immunity provided by this Tribal-State Compact shall be strictly limited to matters and issues arising directly from this Tribal-State Compact.”

IfiSection 3, entitled “TERRITORIAL AND GENERAL JURISDICTION,” provides in part:

(A) The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana recognize and respect all territorial rights and the independent sovereign existence of each other, and shall:
(1) Accord the fullest mutual respect to the legal institutions and cultural traditions of the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana, insofar as they are consistent with preserving and protecting the health, safety, and welfare of all.
(2) Have all necessary and concurrent jurisdiction to fully ensure the protection of the public, the Tunica-Biloxi Indian Tribe of Louisiana, and the State of Louisiana.
(B) The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall retain all sovereignty and immunity to suit while discussing, negotiating, or confecting this Tribal-State Compact. The Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana intend and agree that all issues purely of Tribal law are to be determined in accordance with the legal mechanisms of the Tuni-ca-Biloxi Indian Tribe of Louisiana, and that all other issues are to be determined in accordance with the provisions of this Tribal-State Compact and the legal mechanisms of the State of Louisiana.
(C) In the interest of clarity of authority, and to preserve and to protect the health, safety, and welfare of all, the Tunica-Biloxi Indian Tribe of Louisiana and the State of Louisiana shall:
(1) Preserve the full territorial and subject matter jurisdiction of the Tu-nica-Biloxi Indian Tribe of Louisiana.
(2) Preserve the full territorial and subject matter jurisdiction of the State of Louisiana.

(Emphasis added.)

Section 10, entitled “OPERATION AND MANAGEMENT REGULATIONS,” contains numerous requirements so that “[a]ll Class III gaming shall be conducted in such a manner that ensures, to the maximum extent practicable, that it is secure,

| fihonest, and that the interests of the Tuni-ca-Biloxi Indian Tribe of Louisiana, the State of Louisiana, and the public are protected at all times.” To this end, Section 10 requires that all Class III gaming facilities comply with all state building and fire codes, even though those standards do not apply to other facilities built or owned by the Tribe; that the Tribe shall maintain general liability and workers’ compensation insurance “subject to direct action under the Louisiana law”; and that each such policy shall be deemed to contain “an exclusion that the insurer or the insured shall not be entitled to make any claim of sovereign immunity in defense of liability.” Section 10, in paragraph (A)(6), also provides in part:

Prior to the commencement of Class III gaming and upon the concurrence of the State of Louisiana, the Tunica-Biloxi Indian Tribe of Louisiana shall adopt reasonable procedures for the disposition of tort claims arising from alleged injuries to patrons of its gaming facilities and operation. The Tunica-Biloxi Tribe of Louisiana shall not be deemed to have waived its sovereign immunity from suit with respect to such claims by virtue of any provision of this Tribal-State Compact, but may adopt a remedial system analogous to that available for similar claims arising against the State of Louisiana.

(Emphasis added.)

In finding that the Tribe did not waive its sovereign immunity in the Tribal-State compact, the trial court concluded:

These specific clauses ... clearly confirm to this Court that the Tribe has not waived sovereign immunity. This finding is even more evident when considering that the compact begins with language confirming that the Tunica-Biloxi Indian Tribe of Louisiana is a sovereign Indian nation and further language within the compact acknowledging that the Tribe and the State recognize and respect the territorial rights and independent sovereign existence of each other. Therefore, a review of the above clearly confirms to this Court that this Court does not have subject matter jurisdiction.

Plaintiffs strongly argue that the reference to concurrent jurisdiction in Section 3(A)(2) represents the Tribe’s consent to be sued in state court. The trial court 17disagreed, instead interpreting that section as providing concurrent jurisdiction for suits of the same subject matter in which the Tribe is not a party. We find the trial court’s interpretation reasonable in light of the requirement that a waiver of sovereign immunity be unequivocal. Considering that the compact is an agreement between the Tribe and the State, we do not find the language in Section 3(A)(2) represents the Tribe’s consent to be sued by a third party in state court.

Plaintiffs also contend that other provisions of the compact evidence the Tribe’s consent to be sued in state court, including the requirement that the gaming facilities be subject to state fire and building codes and that the State may conduct independent investigations and have access to the Tribe’s land and buildings at all times. By consenting to some regulation by the State, however, the Tribe has not consented to be sued by a third party in state court.

Plaintiffs also cite the requirement that the insurance policies mandated by the compact not allow the defense of sovereign immunity as to liability. They also argue that the Tribe’s express retention of sovereign immunity with respect to tort claims by gaming patrons is further evidence that their suit is proper in state court because they were not patrons of the casino. We first note that the compact prohibits the insured or insurer from raising the defense of sovereign immunity as to liability, not as to jurisdiction. Per our understanding, the Tribe does not argue that it can never be liable to Plaintiffs; its contention is that tribal court is the only proper forum because of its status as a sovereign nation. Additionally, Plaintiffs’ interpretation of this clause as prohibiting an objection to jurisdiction based upon sovereign immunity appears inconsistent with the Tribe’s retention of sovereign immunity as to the claims of casino patrons. It would seem illogical to prohibit such an objection, then to waive |sthat prohibition for many of those that it was intended to protect. Finally, Plaintiffs’ argument that the Tribe has consented to state jurisdiction in some tort suits because it expressly preserved its immunity in others is inconsistent with the requirement that a waiver of immunity be express and unequivocal. The trial court did not err in granting the exceptions to subject matter jurisdiction in state court.

The Tribe as a Party Necessary for Just Adjudication

In their second assignment of error, Plaintiffs argue that the trial court erred in dismissing their claims against the remaining Defendants based upon their inability to join the Tribe as a party necessary for just adjudication under La. Code Civ.P. arts. 641 and 642. Those articles provide:

Art. 641. Joinder of parties needed for just adjudication
A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.
Art. 642. Determination by court whenever joinder not feasible
If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
| fl(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Plaintiffs argue that Atwood v. Grand Casinos of Louisiana, Inc.—Coushatta, 01-1452 (La.App. 3 Cir. 6/5/02), 819 So.2d 440, writ denied, 02-1873 (La.10/14/02), 827 So.2d 426, a case that had not been decided at the time of the trial court’s ruling, mandates reversal of the dismissal of the remaining Defendants. In Atwood, a former blackjack dealer and a patron of the Grand Casino in Kinder, Louisiana, sued the company that managed the casino for the Coushatta Tribe as well as a tribe employee for defamation after the plaintiffs were accused of cheating while playing blackjack. (The plaintiffs also sued other parties who had been dismissed by the time the trial court considered the remaining defendants’ exception of non-joinder.) In that case, we found that the Coushatta Tribe was not a necessary party under Article 641 and reversed the trial court’s ruling to the contrary. For the following reasons, we find Atwood distinguishable from the present case.

In addition to facing vicarious liability as the employer of all casino personnel, the absent defendant in Atwood, the Coushatta Tribe, could have been solidarity liable as an employer who ratified or authorized an employee’s defamatory statements made in the course and scope of his employment. Even if these facts produced only a joint obligation, we considered that obligation to be indivisible. We then turned to La.Civ. Code art. 1789, which provides in part: “When a joint obligation is indivisible, joint obligors ... are subject to the rules governing solidary obligors.” |in Under La. Code Civ.P. art. 643, “one or more solidary obligors may be sued to enforce a solidary obligation, without the necessity of joining all others in the action.” Accordingly, we found that the Coushatta Tribe was not a necessary party in that litigation.

The present controversy, however, does not involve the Tribe’s vicarious liability for the actions of its employees. The Tribe faces liability as the owner of the premises that allegedly caused the Plaintiffs’ harm and, through its enterprise, the Tunica-Biloxi Construction Company, as the general contractor of the new hotel project. The other Defendants are not tribal employees, but rather are contractors who participated in the construction of the new hotel, including an engineering firm, an architect, a sheetrock contractor, a heating and air-conditioning company, and a sprinkler installation company. Because there is no allegation that the remaining Defendants conspired with the Tribe to commit an intentional or willful act, they are not solidary obligors. La. Civ.Code art. 2324(A). Under paragraph B of Article 2324:

If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.

(Emphasis added.) Thus, under the facts alleged, each Defendant would be liable only for the damages caused by its percentage of fault rather than for the entire amount of damages, as would a solidary or vicarious obligor.

This substantive change in the law, effective April 16, 1996, impacts application of La.Code Civ.P. arts. 641 and 642. The facts as alleged suggest the Impossibility of independent negligence on the part of the Tribe as a joint obligor, but it is immune from suit in state district court. Hence, complete relief for those already parties cannot be achieved because the remaining Defendants would only be responsible for the percentage of fault, if any, that is apportioned to them. Additionally, the Tribe’s absence would impair its ability to protect its interest in the litigation and would subject the remaining parties to the risk of multiple or inconsistent obligations, should the matter be pursued in tribal court. Under Article 642, a judgment rendered in the Tribe’s absence would be inadequate because of the trial court’s inability to adjudicate its fault among other joint obligors. Further, the Plaintiffs do have an adequate remedy in tribal court. Accordingly, we find no error in the trial court’s dismissal of Plaintiffs’ suits under Articles 641 and 642.

We also note that two federal district court cases have reached similar results in applying Federal Rule of Civil Procedure 19 in cases of Indian sovereign immunity. In Havekost v. Grand Casinos of Louisiana, 00-2204 (W.D.La.12/8/00), 2000 WL 38909243, the plaintiff alleged that she was injured when her chair at the casino broke. After discussing Rule 19, which contains the same factors that are in Articles 641 and 642, the court concluded that the plaintiffs inability to join the Coushatta Tribe in her suit against several other gaming entities required dismissal for non-joinder. In so doing, the court stated: “It is clear from the facts of this case that The Tribe is an indispensable party and it is equally clear that The Tribe is immune from suit and cannot be joined. The plaintiff has previously filed suit in the Tribal Court. This Tribal Court is the proper procedural venue.” Id. at p. 2. In Gore v. Grand Casinos of Louisiana, 98-1253A (W.D.La.9/29/98), 1998 WL 1990523, which arose from a slip-and-fall accident in a casino, the court also found the tribal L«.owner of the premises, which was immune from suit in state or federal court, was an indispensable party whose nonjoin-der required dismissal of the plaintiffs’ suit against the casino management company. The court concluded:

In light of the Tribe’s potential liability, adjudication without its joinder will result in prejudice. The Gores have not suggested, nor does the court perceive, any way to tailor relief to avoid that prejudice. Due to the potential liability of the Tribe, any judgment will be inadequate without the Tribe’s participation. Finally, the Gores do have an adequate remedy if this case is dismissed. The proceedings in Tribal Court provide a forum in which to air the Gores’ grievances. Constitutional rights denied in that court, should that fact exist, may allow the Gores to seek review and relief in this court. In sum, the Tribe is an indispensable party that cannot be joined.

Id. at p. 5.

Consolidation

In their final two assignments of error, Plaintiffs argue the trial court erred in transferring the Jeansonne case from Division “A” and consolidating it with the other cases pending in Division “B.” Because La.Code Civ.P. art. 1561 refers to consolidation for trial, Plaintiffs argue that the trial court erred in immediately dismissing Jeansonne upon consolidation. Plaintiffs also argue that the trial court ordered consolidation without finding that common issues of law and fact predominate and without considering potential prejudice to the parties and jury confusion.

Article 1561 provides:

A. When two or more separate actions are pending in the same court, the section or division of the court in which the first filed action is pending may order consolidation of the actions for trial after a contradictory hearing, and upon a finding that common issues of fact and law predominate.
B. Consolidation shall not be ordered if it would do any of the following:
11g(l) Cause jury confusion.
(2) Prevent a fair and impartial trial.
(3) Give one party an undue advantage.
(4) Prejudice the rights of any party.

“A trial court has wide latitude with regard to the consolidation of suits pending in the same court.” Ferguson v. Sugar, 00-2528, p. 7 (La.App. 4 Cir. 12/19/01), 804 So.2d 844, 848. Because the trial court’s power to consolidate under Article 1561 is discretionary, its decision is reviewed under an abuse of discretion standard. See Kimble v. Reason, 626 So.2d 6 (La.App. 1 Cir.1993).

Before ruling on the motion to consolidate, the trial court entertained detailed argument from all sides that included a discussion of each factor in Article 1561. The trial court also compared the allegations of each petition “side-by-side,” then concluded that “[t]his, to me, is not even a close question as to ‘consolidation.’ ” Although Plaintiffs argue that the trial court failed to make a finding that common issues of fact and law predominate, such a finding can be inferred from its reasons. Further, we find that the decision to consolidate is supported by the record.

The resolution of all three cases will require one factual determination: which party’s (or parties’) conduct, if any, was responsible for the presence of toxic mold. All three cases involve claims of negligence. Although not all Defendants are named in each suit, the factual allegations against the Defendants, when they are named, are substantially similar in each case. The two cases pending in Division “B” contain both intentional tort and negligence claims; hence, consolidation with the third suit, which contains only a negligence claim, should not confuse the jury, since both theories would be presented to the same jury even without consolidation. We further |udisagree with Plaintiffs’ argument that their number of over forty would confuse the jury, when it is clear that each Plaintiff belongs to a distinct group. Although the jury will have to determine each Plaintiffs damages individually, we do not find their number overwhelming. Plaintiffs have not demonstrated how consolidation will prejudice their rights or prevent a fair and impartial trial.

Plaintiffs also argue that the trial court erred in dismissing the Jeansonne case immediately after consolidation, when consolidation should be for trial only. However, in Ferguson, 804 So.2d 844, the court permitted the consolidation of a petition for discovery purposes pursuant to La.R.S. 40:1299.47(2)(a) assigned to one division with the underlying medical malpractice claim pending in another. Even though the discovery petition was not consolidated “for trial,” the court permitted consolidation upon a finding that common issues of fact and law predominated on the issue of prescription. Further, the trial court dismissed the Jeansonne case only after Plaintiffs stipulated that the evidence previously heard in the Bonnette and Dunn cases applied to it. We find no error in the trial court’s consolidation of these three cases.

Decree

For the above reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

THIBODEAUX, J., concurs in part and dissents in part with written reasons.

| ]THIBODEAUX, J.,

dissenting in part.

I dissent from the majority’s view that the Tribe is a party necessary for just adjudication under La.Code Civ.P. arts. 641 and 642.

The 1995 amendments to Articles 641-646 were intended to codify Louisiana State, Department of Highways v. Lamar Advertising Co. of La., Inc., 279 So.2d 671 (La.1973). See Comments to La.Code Civ.P. art. 641. Lamar emphasized the necessity for a factual analysis prior to the determination of a party’s status. Speaking to the differences in the procedural rules regarding indispensable versus the necessary parties, the court observed that “great care must be exercised to ensure a proper factual analysis of the party’s interest in the case before a determination of the party’s classification is made.” Id. at 675. In Lamar, the trial and appellate courts arrived at the determination that certain landowners were indispensable parties on the basis of the pleadings and arguments of counsel. In disapproving this procedure, the Louisiana Supreme Court explained:

Clearly, no factual analysis of the rights of the parties and absent persons could have been made. Thus, it is difficult to determine how the previous courts arrived at the conclusion that the property rights of the landowners would be detrimentally affected by a judgment in these | ¡.proceedings, in the absence of any evidence to support such a conclusion.

Id. The fact that the rights of the various parties in this case, including the Tribe, may be affected is insufficient to support a holding that the Tribe is indeed a party necessary for just adjudication.

The trial court held:

In the case at bar the relationship between the Tribe and New Horizon’s Kid’s Quest is one that clearly shows that the alleged liability of the Tribe is indispensable to the claims of Kid’s Quest. The same holding also applies to the various other defendants as contractors and/or sub-contractors. The Tribe owns the property where the alleged tortious acts occurred and the Tribe was the party responsible, as alleged in the Petition, for the planning and construction of the new hotel. Their actions and their relationships between the various defendants are issues which must be determined by a trier of fact. Since this Court lacks jurisdiction to sit in judgment on the activities conducted by the Tribe, the entirety of this litigation must be dismissed in State Court with farther prosecution to proceed in Tribal Court or any other court of proper jurisdiction.
Accordingly, the Exception of Lack of Indispensable Party is granted based on the provisions of Code of Civil Procedure Articles 641 and 642.

It is true that the relationships of the various parties in this litigation have to be determined by a trier of fact. Before the “actions and their relationships between the various defendants” are determined, however, the trial court must decide who those defendants are. It must conduct an evidentiary hearing to determine if those factors in La.Code Civ.P. arts. 641 and 642 are satisfied. The trial court failed to conduct such a hearing. The hearing conducted on March 4, 2002, focused on the exceptions of lis pendens and the lack of subject matter jurisdiction. It appears that the only empirical evidence was the Tribe’s ownership of the facility. That in my view does not satisfy the close factual analysis which must be given for a determination of |awhether a party is one that is necessary for just adjudication. Indeed, in Lamar, the supreme court reversed the trial and appellate courts because those courts “did not engage in a close factual analysis to determine whether or not the absent landowners were in fact indispensable to the litigation.” Lamar, 279 So.2d at 677.

As I indicated earlier, the fact that the rights of the party may be affected is too speculative. As Lamar poignantly explained:

The result of such a rule, if upheld, is to permit skillful counsel, by filing conclu-sory pleadings and by artful argument, to convince a trial judge that property rights of an absent third person may be affected and therefore have a plaintiffs suit delayed or dismissed, without any factual determination whether these contract rights will in fact be affected by the court’s action, or to what extent they will be affected.

Id. at 676. (Emphasis in original).

I would, therefore, reverse the trial court’s judgment adjudicating the Tribe as a party necessary for just adjudication on the basis that the court had insufficient evidence to decide this issue. I would remand for the purpose of conducting a hearing where sufficient facts could be presented to the court for that ultimate determination.

For the foregoing reasons, I respectfully dissent.

ON REHEARING

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.

I t MICHAEL G. SULLIVAN, Judge.

Rehearing was granted in the captioned matters and was referred to a five-judge panel.

After considering the arguments of counsel, we conclude that the original opinion was correct. Judgment of the trial court is affirmed. Costs are assessed to Plaintiffs/Appellants.

AFFIRMED.

THIBODEAUX, C.J., concurs in part, dissents in part, and assigns reasons.

| THIBODEAUX, C.J.,

concurring in part and dissenting in part.

I would deny in part and grant in part the application for rehearing filed by the plaintiffs.

While there is some support for a waiver of immunity by the Tribe in the Tribal-State Compact, that support is too ambiguous. A waiver of immunity must be clearly expressed and unequivocal. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998), though somewhat critical of the extension of sovereign immunity to non-traditional tribal enterprises such as gaming, nonetheless concluded that legislative action was necessary to extinguish tribal sovereign immunity. Like the United States Supreme Court, I entertain serious doubts about the propriety of sovereign immunity under the circumstances of this case. I am not prepared, however, to judicially impose limits where doubts still exist.

I continue to feel that the trial court’s joinder of the Tribe as a party necessary for just adjudication is incorrect. In fact, I would go even further than the views expressed in my original dissent. Rather than remand for a full hearing to establish the relationship of the parties, I would reverse and render judgment.

| ¡.Articles 641 and 642 of the Louisiana Code of Civil Procedure are patterned after Rule 19 of the Federal Rules of Civil Procedure. While there is a slight difference in language, the substance is substantially the same. Thus, Temple v. Synthes Corp., Ltd., 498 U.S. 5, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990), is highly instructive. The Tribe is a potential joint tortfeasor just as the doctor and hospital were potential joint tortfeasors in Temple. The United States Supreme Court explained:

It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that “a tortfeasor with the usual ‘joint-and-several’ liability is merely a permissive party to an action against another with like liability.” ... There is nothing in Louisiana tort law to the contrary.

Id. at 7, 111 S.Ct. 315. (Citations omitted).

Louisiana Civil Code Article 2324 does not change the result. Article 2324 states that if liability is not solidary pursuant to paragraph A of that Article, then it is joint and divisible. In other words, Article 2324 changed the relationship of the parties in a tort action and thus affected the legal consequences flowing from that relationship. It does not say that all joint tortfeasors are necessary parties. In fact, as I see it, the companion to Article 2324, Article 2323, supports the plaintiffs. The majority opinion states that “[t]he facts as alleged suggest the possibility of independent negligence on the part of the Tribe as a joint obligor, but it is immune in state district court.” However, Articles 2323 and 2324 both say that fault will be determined regardless of immunity.

While it is true that defendants other than the Tribe will be responsible only for their respective percentages of fault, the parties to the action (the plaintiffs and the remaining named defendants) will have complete relief vis-a-vis each other. If complete relief cannot be had except by joinder of all parties, that is, all joint latortfeasors, then how does one join a phantom tortfeasor? Does every party whose fault or negligence causes injury have to be joined? No. Neither Article 2323 nor La.Code Civ.P. art. 1812(C) requires this. In fact, La.Code Civ.P. art. 1812(C)(2)(a) specifically refers to a “non-party” whose fault can be determined and placed on a jury verdict sheet.

A likely interpretation of the majority opinion on the joinder of the Tribe is that all parties whose liability is joint and divisible must be parties necessary for just adjudication and, therefore, must be joined. While that tenuous conclusion may be reached on the basis of our decision today, it certainly is not the law and should not be the law.

Temple did not remand. Temple concluded that because the threshold requirements of Rule 19(a) (similar to Article 641) had not been met, no inquiry was necessary under Rule 19(b). (Similar to Article 642). Thus, rather than remanding. I would simply reverse.

I would also grant a rehearing and reverse on the question of consolidation. The error in joining the Tribe in the Jean-sonne case is particularly glaring because the Tribe was not sued. The plaintiffs sued only Kids Quest. Kids Quest then filed a third party demand against the Tribe. The plaintiffs are seeking 100% of the damages against Kids Quest. Presumably, Kids Quest is seeking indemnity or contribution from the Tribe in the event it becomes liable in damages. The Tribe is not needed for complete relief. If Kids Quest is burdened with liability and damages, it can then proceed against the Tribe in tribal court, or state court for that matter. The Tribe will then assert any defenses it would have. Thus, it is not being prejudiced. Further, to allow the trial court to consolidate by comparing the petitions “side by side” in drawing a conclusion with regard to the existence of Leommon issues of law and fact does not equate to a hearing and a finding as contemplated by La.Code Civ.P. art. 1561.

For the foregoing reasons, I respectfully concur in part and dissent in part.

      . The other Defendants are the Tribe, the owner of the premises; Tunica-Biloxi Construction Company, the general contractor of the project; Berg, Inc., an engineering firm; Kirby Pecot d/b/a Pecot & Company Architects; Glen Moreau d/b/a G.W. Moreau Metal Buildings; JES, Inc., a sheetrock contractor; Larry Stockwell Heating and Air-Conditioning, Inc., and Jefferson Sprinkler, Inc. Additionally, M & E Consulting, Inc. intervened as a Defendant in the Bonnette case.


source: Caselaw Access Project

author:
SULLIVAN, Judge.
      MICHAEL G. SULLIVAN, Judge. THIBODEAUX, C.J.,

license: Public Domain

text:
    Thurman William DUNN, et al. v. TUNICA-BILOXI INDIANS d/b/a Paragon Casino Resort, et al.
    No. 02-920.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.
    Order Affirming on Rehearing March 24, 2004.
    Jerold Edward Knoll, Jerold Edward Knoll, Jr., The Knoll Law Firm, Marks-ville, LA, William B. Baggett, Wells Talbot Watson, Bagget, McCall, Burgess & Watson, Lake Charles, LA, for Plaintiff/Appellants, Lydia A. Bonnette, et al.
    Shelly D. Dick, Forrester, Jordan & Dick, Baton Rouge, LA, R. Joshua Koch, Jr., Spyridon, Koch & Palermo, Metairie, LA, for Defendant/Appellee, Tunica-Biloxi Indians d/b/a Paragon Casino Resort.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, New Horizon Kids Quest, Inc.
    George D. Ernest, III, Hurlburt, Privat & Monrose, Lafayette, for Defendant/Ap-pellee, Berg, Inc.
    Patrick J. Hanna, Kay Karré Gautreaux, Rabalais, Hanna & Hebert, Lafayette, LA, for Defendant/Appellee, Tunica Biloxi Construction Company.
    Bonita K. Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defendant/Appellee, Glen Moreau d/b/a G.W. Moreau Metal Buildings, Inc.
    Steven C. Judice, Keogh, Cox & Wilson, Baton Rouge, LA, for DefendanVAppellee, Larry Stockwell Heating & Air Conditioning, Inc.
    Richard D. Chappuis, Jr., Voorhies & Labbe, Lafayette, LA, for Defendant/Ap-pellee, Kirby M. Pecot d/b/a Pecot & Company Architects.
    Albert Dale Clary, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, M & E Consulting, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   SULLIVAN, Judge.

For the reasons expressed in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 2003 WL 21229282, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs-Appellants.

AFFIRMED.

THIBODEAUX, J., concurs in part and dissents in part with written reasons.

ON REHEARING

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.

MICHAEL G. SULLIVAN, Judge.

For the reasons expressed in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 2003 WL 21229282, on rehearing, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs/Appellants.

AFFIRMED.

THIBODEAUX, C.J.,

concurs in part and dissents in part for the reasons assigned in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 2003 WL 21229282.


author: MICHAEL G. SULLIVAN, Judge. MICHAEL G. SULLIVAN, Judge. THIBODEAUX, C.J.,

text:
    Terry and Shannon JEANSONNE, et al. v. NEW HORIZON KIDS QUEST, INC., et al.
    No. 02-921.
    Court of Appeal of Louisiana, Third Circuit.
    May 28, 2003.
    Order Affirming on Rehearing March 24, 2004.
    Jerold Edward Knoll, The Knoll Law Firm, Marksville, LA, William B. Baggett, Wells Talbot Watson, Bagget, McCall, Burgess & Watson, Lake Charles, LA for Plaintiffs/Appellants, Lydia A. Bonnette, et al.
    Shelly D. Dick, Forrester, Jordan & Dick, Baton Rouge, LA, R. Joshua Koch, Jr., Spyridon, Koch & Palermo, Metairie, LA, for Defendant/Appellee, Tunica-Biloxi Indians d/b/a Paragon Casino Resort.
    James H. Gibson, Allen & Gooch, Lafayette, LA, for Defendant/Appellee, New Horizon Kids Quest, Inc.
    George D. Ernest, III, Hurlburt, Privat & Monrose, Lafayette, LA, for Defen-danVAppellee, Berg, Inc.
    Patrick J. Hanna, Kay Karré Gautreaux, Rabalais, Hanna & Hebert, Lafayette, LA, for Defendant/Appellee, Tunica Biloxi Construction Company.
    Bonita K. Preuett-Armour, Armour Law Firm, Alexandria, LA, for Defen-dani/Appellee, Glen Moreau d/b/a G.W. Moreau Metal Buildings, Inc.
    Steven C. Judice, Keogh, Cox & Wilson, Baton Rouge, LA, for Defendant/Appellee, Larry Stockwell Heating & Air Conditioning, Inc.
    Richard D. Chappuis, Jr., Voorhies & Labbe, Lafayette, LA, for Defendant/Ap-pellee, Kirby M. Pecot d/b/a Pecot & Company Architects.
    Albert Dale Clary, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, M & E Consulting, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   MICHAEL G. SULLIVAN, Judge.

For the reasons expressed in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 2003 WL 21229282, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs Appellants.

AFFIRMED.

THIBODEAUX, J., concurs in part and dissents in part with written reasons.

ON REHEARING

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY H. EZELL, Judges.

MICHAEL G. SULLIVAN, Judge.

For the reasons expressed in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 2003 WL 21229282, on rehearing, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiffs/Appellants.

AFFIRMED.

THIBODEAUX, C.J.,

concurs in part and dissents in part for the reasons assigned in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, 2003 WL 21229282.


author: | ¡.CARTER, C.J.

text:
    Clotiel R. NELSON v. RITE AID HDQTRS. CORPORATION and Pamela Jackson.
    No. 2002 CA 2042.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Leonard Cardenas III, Baton Rouge, for Plaintiff/Appellee, Clotiel R. Nelson.
    John T. Culotta, Metairie, for Defendant/Appellant, Rite Ad Corporation.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡.CARTER, C.J.

Clotiel R. Nelson slipped and fell in a Rite Aid store in Baton Rouge on November 29, 2000. She filed suit against Rite Aid Corporation (defendant) on January 9, 2002. On February 26, 2002, a default judgment was rendered against defendant in the sum of $106,939.81.

The trial court denied defendant’s motion for new trial. Defendant appeals, alleging the trial court erred in confirming the default judgment and in denying its motion for new trial. In support of its motion for new trial, defendant argued that plaintiff failed to present a prima facie case that she was entitled to recovery because her claim was prescribed on the face of the petition, and she submitted insufficient evidence at the confirmation hearing to prove defendant tacitly acknowledged the debt. Defendant reurges the same argument on appeal.

The trial court correctly rejected this argument in denying the motion for new trial, and we likewise reject it. The court cannot supply the objection of prescription, which must be specially pleaded, even if it appears to the court that the claim has prescribed. LSA-C.C.P. art. 927 B; Perry v. City of Bogalusa, 2000-2281, pp. 3-4 (La.App. 1st Cir.12/28/01), 804 So.2d 895, 898. Defendant failed to timely answer this lawsuit and thus did not properly plead the exception raising the objection of prescription at the trial court level. Plaintiff certainly had no obligation to prove, as part of her prima facie case, a defense to an exception that had not been pleaded.

The exception raising the objection of prescription can be pleaded at the appellate level before the case is submitted for decision. Louisiana Code of Civil Procedure article 2163 specifically provides that the appellate court may consider the peremptory exception filed for the first time on appeal. The appellant in this case has timely filed the plea of prescription in our court. We may consider the exception of prescription even when the defendant raises no defenses in the trial court. See, e.g., Lewis Roy Motors, Inc. v. Pontier, 204 So.2d 423, 424 (La.App. 3 Cir.1967).

lalf prescription is pleaded for the first time in this court, the case may be remanded to the trial court for trial on the exception. LSA-C.C.P. article 2163. Although there is some testimony in the record regarding plaintiffs allegations of “lulling” by defendant’s representative, we feel the interest of justice would best be served by remanding this case to the trial court to take evidence on this issue.

ORDER AND INSTRUCTIONS

This matter is hereby remanded to the trial court for an evidentiary hearing on defendant’s exception raising the objection of prescription within 45 days of the date of this order. The record on appeal shall then be supplemented with the evidence taken at that trial within 15 days after conclusion of the hearing. This appeal is stayed for 60 days from the date of this order or until the record is supplemented, whichever is sooner. The matter shall then be resubmitted for decision by this court on the exception. Assessment of costs is deferred pending a final decision in this matter.

REMANDED WITH ORDER AND INSTRUCTIONS.

      . Plaintiff erroneously referred to defendant as Rite Aid Hdqtrs. Corporation in the petition. Plaintiff also sued Pamela Jackson, a Rite Aid employee, but was unable to serve her.


author: LGAIDRY, J.

text:
    Deloris McKNIGHT, Individually and as Surviving Parent of Leroy McKnight v. D & W HEALTH SERVICES, INC., et al.
    No. 2002 CA 2552.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.

      David L. Bateman, Baton Rouge, Counsel for Plaintiff/Appellee Deloris McKnight.

      Gregory L. Ernst, New Orleans, Counsel for Defendani/Appellant D & W Health Services, Inc.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

This appeal is taken by the defendant, D & W Health Services, Inc. (D & W), a nursing home operator, from the trial court’s judgment overruling its dilatory exception raising the objection of prematurity. In denying the exception on the grounds that a nursing home could not be a qualified health care provider entitled to a medical review panel under the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. (the MMA), the trial court plainly erred. We accordingly reverse its judgment, but remand the case to the trial court for further proceedings consistent with this opinion.

FACTS

The present civil action is brought by Deloris McKnight (plaintiff), the mother of the late Leroy McKnight, a nursing home resident, who died on April 13, 2001. Plaintiff filed a petition for damages against D & W and its alleged liability insurer, Campania Management Company, Inc., alleging that Mr. McKnight died of injury, heat exhaustion, exposure, and other causes after wandering off the premises of Hillhaven Nursing Centers East, a nursing home operated by D & W. Plaintiff alleges that her son’s death was caused by D & W’s negligence and fault, and seeks “all available damages” for his wrongful death and the physical pain and suffering and mental anguish she claims he sustained prior to his death. She further alleges that D & W’s acts and omissions also constituted abuse or neglect, entitling her to “additional damages, including penalties [sic] and attorneys’ fees” pursuant to the Nursing Home Residents’ Bill of Rights, La. R.S. 40:2010.8, et seq. (the NHRBR).

The defendants filed a responsive pleading combining dilatory and peremptory exceptions and their answer to the petition. In their dilatory exception, the defendants objected to plaintiffs petition on the grounds of 13prematurity, alleging that D & W is a qualified health care provider entitled to the benefit of a medical review panel prior to filing of suit, as provided by La. R.S. 40:1299.47.

On D & W’s motion, its dilatory exception was set for hearing on August 19, 2002. Following argument of counsel, the trial court overruled the exception, on the grounds that a nursing home did not fall within the statutory definition of “health care provider” in La. R.S. 40:1299.41(A)(1) at the time of the alleged tort. Its judgment overruling the exception was signed on September 18, 2002. From that judgment, D & W instituted this appeal.

JURISDICTION

Appellate courts have the duty to examine their subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058, p. 3 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260.

The dilatory exception of prematurity is the proper procedural vehicle invoked by a qualified health care provider sued by a plaintiff who has not submitted a medical malpractice claim to a medical review panel. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. A judgment overruling a dilatory exception of prematurity is an interlocutory judgment. See La. C.C.P. art. 1841. Interlocutory judgments are not appealable in the absence of a showing of irreparable injury. La. C.C.P. art. 2083. A judgment overruling a dilatory exception of prematurity and requiring a health care provider to forgo the benefit of a medical review panel is considered appealable in that the panel proceedings cannot be adequately replicated after reversal on appeal. Lange v. Earl K. Long Medical Center, 97-1661, p. 3 n. 1 (La.App. 1st Cir.6/29/98), 713 So.2d 1195, 1196 n. 1, writ denied, 98-2061 (La.11/13/98), 730 So.2d 935; Cashio v. Baton Rouge General Hospital, 378 So.2d 182, 183 (La.App. 1st Cir.1979). We therefore have jurisdiction to consider this appeal.

ANALYSIS

The character of plaintiffs cause of action must be determined from an examination of her petition’s allegations. Plaintiff has alleged in her petition that D & W, as owner and operator of a “nursing home facility,” had the “care, custody and control” of her son, a “resident” and “patient” of Hillhaven Nursing Centers East prior to the day he died. She further alleged that while a resident and patient, her son “was generally in a confused state of mind and was physically unable to care for himself.” Plaintiff expressly alleged that D & W’s actions in allowing her son to wander off its premises and in failing to locate him and “return him to proper care” constituted “abuse and/or neglect,” entitling her to “additional damages, including penalties and attorneys’ fees” under the NHRBR. (Our emphasis.) The allegations thus set forth both a delictual cause of action founded upon negligence and a concurrent, “cumulative” cause of action under the NHRBR. See La. R.S. 40:2010.9(B). The question becomes, is either alleged cause of action based upon “medical malpractice,” so as to justify D & W’s assertion of the right to a medical review panel under the MMA?

“Malpractice” for purposes of the MMA is defined as “... any unintentional tort or any 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 the handling of a patient, including loading and unloading of a patient .... ” La. R.S. 40:1299.41(A)(8). “Health care” means any act, or treatment performed or furnished, or which should have been performed or furnished, |Kby any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement. La. R.S. 40:1299(A)(9). The MMA does not define “handling” of a patient. The words of a law must be given their generally prevailing meaning. La. C.C. art. 11. As used above, “handling” may be therefore defined as the management or having overall responsibility for supervising or directing a patient. Merriam-Webster’s Collegiate Dictionary 526 (10th ed.1998).

Initially, we address the trial court’s conclusion that D & W, as a nursing home, was not statutorily qualified to be a “health care provider” under the MMA at the time of Mr. McKnight’s death. The Louisiana Supreme Court definitively answered the question in Richard v. Louisiana Extended Care Centers, Inc., 02-0978 (La.1/14/03), 835 So.2d 460. The cause of action in that case also arose prior to the effective date of Acts 2001, No. 108, § 1, which amended La. R.S. 40:1299.41(A)(1) to specifically add “nursing home” to its listing of persons or entities entitled to seek licensure as qualified health care providers. The court noted that “[i]t is undisputed that a nursing home is a ‘health care provider’ under the MMA,” and that even prior to the 2001 amendment, the MMA’s statutory definition of “hospital” included a “nursing home.” Richard, 02-0978 at p. 9 n. 6, 835 So.2d at 466. See also Francis v. Health Care Capital, Inc., 933 F.Supp. 569, 572 (E.D.La.1996).

Here, it is apparent that the alleged negligent conduct would, if proven, amount to “a dereliction of professional skill.” Plaintiff has alleged | fithat D & W failed to properly supervise and restrain her late son from leaving its premises, yet invokes the NHRBR as the basis for the duty alleged to have been violated. The NHRBR promotes “the least restrictive environment possible” for nursing home residents, with freedom from “physical and chemical restraints” and the “right of self-determination.” La. R.S. 40:2010.6, 40:2010.8. The duties imposed upon nursing homes in that regard obviously require them to maintain a delicate balance between patients’ freedom from restraint and the need for protective restraint of impaired patients. The exercise of such competing duties necessarily should be subject to professional standards of skill and care. It is therefore likely that expert testimony will be required in this case as to such standards and whether any were breached by D & W.

In Price v. City of Bossier City, 96-2408 (La.5/20/97), 693 So.2d 1169, the Louisiana Supreme Court held that although malpractice may involve the rendition of professional services, the patient must be receiving “health care” when the negligent rendition of such services occurs, meaning that the negligence must occur “during the patient’s medical care, treatment or confinement.” Price, 96-2408 at p. 6, 693 So.2d at 1172-73. We conclude that plaintiffs allegations clearly bring her claims within the requisite context of “health care” rendered to a “patient” during his “confinement” at a nursing home.

The Louisiana Supreme Court has adopted a six-factor test for determining whether alleged negligent conduct constitutes “malpractice,” as opposed to other fault. The factors to be considered include:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill;
1?(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
(3) whether the pertinent act or omission involved assessment of the patient’s condition;
(4) whether the incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
(5) whether the injury would have occurred if the patient had not sought treatment; and
(6) whether the tort alleged was intentional.

Coleman v. Deno, 01-1517, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-16. Based upon our review of plaintiffs petition, the first, second, fourth, fifth, and sixth factors militate in favor of the conclusion that plaintiffs claims are grounded in malpractice, and the third factor may very well favor this conclusion.

The fact that plaintiff may assert alternative theories of liability against D & W does not remove her cause of action from the penumbra of the MMA, if her allegations state a claim for medical malpractice. Cashio, 378 So.2d at 185. Likewise, the fact that plaintiff may have concurrent and overlapping causes of action for both medical malpractice and violation of the NHRBR does not change the fact that most, if not all, of the alleged wrongful acts fall within the parameters of the MMA. (Our emphasis.) The issue then becomes whether plaintiff may proceed to present her parallel claims brought under the NHRBR without submitting them to a medical review panel.

The Louisiana Supreme Court, in the Richard case, cited supra, squarely held that “any claim of medical malpractice [asserted under the NHRBR] against a qualified health care provider is encompassed within the MMA and must be reviewed by a medical review panel prior to suit.” |s Richard, 02-0978 at p. 11, 835 So.2d at 467. Discussing the requirement that the injury occur during “medical care, treatment or confinement,” the court took cognizance of the fact that in the case of a nursing home, a resident is not always receiving medical care or treatment, but may always be said to be “confined” to the nursing home. The court concluded that even if a patient was “confined” or was being “handled” at the time of the alleged negligence, the legislature intended that the negligence “must be related to the nursing home resident’s medical treatment,” under the Coleman test, to constitute malpractice. Richard, 02-0978 at pp. 13-14, 835 So.2d at 468-69. Because the record was insufficient to permit the determination of whether the patient “was placed in the nursing home for treatment of a particular condition, rather than 24-hour custodial shelter,” or was en route to or from medical treatment at the time of her fall, the court remanded the case to the trial court for determination of those issues. Richard, 02-0978 at p. 13, 835 So.2d at 469.

Unlike the allegations in Richard, plaintiffs allegations here are sufficient to permit the determination that a medical malpractice claim has been asserted under both the MMA and the NHRBR. See, e.g., McLemore v. Westwood Manor Nursing and Rehabilitation, L.L.C., 37,450, pp. 5-6 (La.App. 2nd Cir.8/20/03), 852 So.2d 1170, 1174. Plaintiffs petition alleges that Mr. McKnight was a resident of the nursing home because he “was generally in a confused state of mind and was physically unable to care for himself’ and therefore in need of “adequate care.” These allegations support the conclusion that the alleged negligence was “treatment related,” as the care of physically and mentally incapacitated patients is the type of health 19care for which nursing homes are generally dedicated. The essence of plaintiffs allegations is that D & W did not provide enough supervision (or “handling”) of Mr. McKnight. As was observed in Coleman, “[c]ommon sense indicates that a claim based on failure to provide enough treatment is clearly linked to treatment.” Coleman, 01-1517 at p. 22, 813 So.2d at.318.

However, we cannot determine from plaintiffs petition or the record before us whether D & W’s authority to operate and conduct of business of Hillha-ven Nursing Centers East was in the capacity of a qualified health care provider within the meaning of La. R.S. 40:1299.42, nor whether the medical review panel procedure was in fact completed prior to the institution of suit. The petition is silent as to those relevant facts, and the record contains no competent evidence upon which such a factual determination may be made.

Louisiana Code of Civil Procedure article 930 provides in pertinent part:

On the trial of the dilatory exception, evidence may be introduced to support or controvert any of the objections Impleaded, when the grounds thereof do not appear from the petition.

Here, the trial court did not have the benefit of evidence as to D & W’s status and, assuming it was a qualified health care provider, whether the medical review panel procedure was accomplished prior to suit being filed. Evidence as to the existence of those predicate facts is crucial to the proper disposition of the exception. See La. R.S. 40:1299.41(D) and La. R.S. 40:1299.47.

As the trial court’s determination of the exception was based upon its error of law as to the applicability of the MMA to nursing homes, its decision in that regard is not entitled to deference from this court. Our de novo review leads us to the conclusion that reversal of the trial court’s judgment and remand for an evidentiary hearing is appropriate. See Richard, 02-0978 at pp. 13-14, 835 So.2d at 468-69; Pender v. Natchitoches Parish Hospital, 01-1380, pp. 4-5 (La.App. 3rd Cir.5/7/03), 844 So.2d 1107, 1110.

DECREE

The judgment of the trial court overruling the dilatory exception of prematurity of the defendant, D & W, is reversed, and the case is remanded to the trial court for an evidentiary hearing to determine whether D & W was in fact a qualified health care provider under La. R.S. 40:1299.42 at the time of the alleged tort and, if so, whether a medical review panel procedure was completed prior to the filing of plaintiffs petition. The costs of this appeal are assessed equally between the opposing parties.

REVERSED AND REMANDED.

      . La. R.S. 40:1299.41(A)(4). This statute includes any "nursing home" or "home" as defined in La. R.S. 40:2009.2 within the definition of "hospital." The latter statute defines "nursing home” or "home” as "a private home, institution, building, residence or other place ... which undertakes ... to provide maintenance, personal care, or nursing for persons who, by reason of illness or physical infirmity or age, are unable to properly care for themselves."

      . See La. R.S. 40:2009.2(1) and n. 1, supra. In Cashio, the plaintiffs’ decedent died of a "hospital staph” infection following surgery. The plaintiffs sought to characterize the basis of the hospital's liability as the negligence of a premises owner, rather than malpractice. The Louisiana Supreme Court noted that the term "treatment” is not defined in the MMA, and declined to "attempt to supply a universal definition of treatment.” Cashio, 378 So.2d at 184. It nevertheless rejected the plaintiffs' “limited and very selected definition” of treatment as encompassing only those acts immediately involved with the surgery there involved, holding that "[a] plaintiff cannot control the progress and procedure of his claim by semantically designating one capacity of two or more belonging to the defendant as the desired one.” Id.

      . The trial court’s judgment states that it was rendered after the trial court considered "the stipulations ... [and] evidence.” D & W attached copies of its Certificate of Enrollment with the Louisiana Patients’ Compensation Fund, plaintiff’s petition, and correspondence relating to plaintiff’s request to convene a medical review panel as exhibits to its memorandum in support of its exception. But the record and minute entries reveal that those documents were not introduced into evidence at the hearing, nor was any testimony or stipulation presented. See Pyburn v. Walle Corporation, 454 So.2d 1128, 1130 (La.App. 4th Cir.1984). We may not consider the exhibits attached to the memorandum in determining the issues on appeal, as they are not evidence and therefore not properly part of the record on appeal. Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1st Cir.1991), writ denied, 584 So.2d 1169 (La.1991).

      . See also Hebert v. Chateau Living Center, L.L.C., 02-462, p. 2 (La.App. 3rd Cir.9/30/03), 836 So.2d 489.


author: | .CARTER, C. J.

text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana v. AUTOZONE PROPERTIES, INC.
    No. 2003 CA 0492.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 5, 2004.
    Order Denying Rehearing Feb. 27, 2004.

      John J. Weiler, Cloyd F. Van Hook, Nicole F. Gould, New Orleans, for Plaintiff-Appellant, State of Louisiana, Department of Revenue.
    Frederick W. Bradley, Nicole Crighton, New Orleans, for Defendant-Appellee, Au-toZone Properties, Inc.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | .CARTER, C. J.

In this appeal, the Louisiana Department of Revenue challenges a judgment dismissing its suit against AutoZone Properties, Inc. due to a lack of personal jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

In 1995, AutoZone, Inc. (AZI), a Nevada corporation engaged in the nationwide retail sale of automobile parts, changed its corporate structure. AZI itself became a holding company that provides management services for several subsidiaries. The ownership of AZI’s retail stores was placed in AutoZone Development Corporation (Development), a corporate real estate investment trust (REIT). The operation of the retail stores was placed in AutoZone Stores, Inc. Development leased the retail store premises to AutoZone Stores, Inc. As a REIT, Development is required to distribute almost all of its income to its beneficial owners, and a majority of its shares were owned by AutoZone Properties, Inc. (Properties), another AutoZone corporation formed in Nevada for the sole business purpose of holding shares in Development.

During taxable years 1996 through 1998 (taxable period), there were at least 68 AutoZone retail stores in Louisiana that paid approximately $20 million in rental income to Development. On its Louisiana tax return, AutoZone Stores, Inc. took a deduction for rent paid to Development. Although Development filed a Louisiana return, it reported no income because of the dividends-paid deduction it took for the dividends paid to Properties. Properties filed no Louisiana tax return for the taxable period.

laThe Louisiana Department of Revenue (Department) conducted a corporate income and franchise tax audit of AZI, Au-toZone Stores, Inc., Development, and Properties for the taxable period. The Department assessed taxes against Properties for the dividends it received from Development. After Properties did not pay the amount assessed, the Department filed this suit under LSA-R.S. 47:1561(3) and the Louisiana Long Arm Statute, LSA-R.S. 13:3201. In response, Properties filed a declinatory exception pleading the objection of lack of personal jurisdiction. After a hearing, the trial court signed a judgment sustaining the exception and dismissing the Department’s petition against Properties. The trial court determined Properties did not have sufficient minimum contacts with the State of Louisiana to support the exercise of personal jurisdiction over it.

The Department appeals, contending the trial court manifestly erred in sustaining Properties’s exception of lack of personal jurisdiction. The Department’s position is that Louisiana has personal jurisdiction over Properties, because Properties received a “large, regular and continuing stream of untaxed rental income” attributable to AutoZone retail stores located in the state. On the other hand, Properties contends the judgment is correct, because Properties has no contacts with Louisiana. Properties claims it is merely a shareholder in Development, a corporation that does business in Louisiana, and this is insufficient to establish the minimum contacts necessary to subject it to this state’s jurisdiction.

PERSONAL JURISDICTION

Jurisdiction over a person is the legal power and authority of a court to render a personal judgment against a party to an action. LSA-C.C.P. art. 6 A. A court of this state may exercise personal jurisdiction over a |4nonresident on any basis consistent with the United States and Louisiana Constitutions. LSA-R.S. 13:3201 B; LSA-C.C.P. art. 6 B. Thus, the limits of the Louisiana Long Arm Statute and of constitutional due process are coextensive, and the sole inquiry into jurisdiction over a nonresident is whether it comports with constitutional due process requirements. Alonso v. Line, 02-2644 (La.5/20/03), 846 So.2d 745, 750, cert. denied, — U.S.-, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003). Our review of the legal issue of personal jurisdiction over a nonresident is de novo. Eusea v. Blanchard, 01-2229 (La.App. 1 Cir. 12/20/02), 836 So.2d 333, 336, writ denied, 03-0210 (La.3/28/03), 840 So.2d 575.

The Due Process Clause requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax. The income attributed to the state for tax purposes must also be rationally related to values connected with the taxing state. Quill Corp. v. North Dakota, 504 U.S. 298, 112 S.Ct. 1904, 1909-1910, 119 L.Ed.2d 91 (1992) (Citations omitted). If a foreign corporation purposefully avails itself of the benefits of an economic market in the forum state, it may subject itself to the state’s personal jurisdiction even if it has no physical presence in the state. Id., 112 S.Ct. at 1911.

Relationship Between Properties and Development

A proper analysis in this case requires a more detailed look at the relationship between Properties and Development. Development is a Nevada corporation that owns all AutoZone retail store premises located in Louisiana. Development is registered to do business in Louisiana and files tax returns in Louisiana. Development collects rent from AutoZone Stores, I RInc., the operator of the AutoZone retail stores, in the amount of 8% of AutoZone Stores, Inc.’s gross sales. As a REIT, Development is required to distribute at least 95% of its taxable income as dividends to its shareholders. Development, having elected REIT status, is treated as a conduit of income, and the incidents of tax are imposed on its shareholders. 34 Am. Jur.2d, Federal Taxation (2000) ¶ 20560.

Development’s majority shareholder is Properties. Properties was established as a holding company whose business purpose is to hold shares in Development. So, for the taxable period, Development collected rent from AutoZone Stores, Inc. and paid that income out as dividends to its shareholders, including Properties. Development paid no taxes on the distribution. As a Nevada corporation, Properties paid no income taxes in that state on the dividends it received from Development because there are no such taxes in Nevada. Properties also filed no tax returns in Louisiana^ This corporate structure resulted in substantial tax savings for Properties. According to Department calculations, the corporate income and franchise taxes allegedly owed by Properties to Louisiana for the taxable period were approximately $1 million.

“Economic Presence” Test

Many nationwide corporations have used corporate structures similar to that employed by AutoZone, including the use of “passive investment companies” and “intangible holding companies,” for the purpose of reducing their taxable state income. See Hammack, 5 J. Multistate Tax’n 112, Taxing Out^of-State Entities with Intangible Assets: What Hath Geoffrey Wrought? (1995); Comeau, Noonan, Sabol, 10 J. Multistate Tax’n 6, Intangible Holding Companies: There is Life After Geoffrey (2001).

In an effort to combat these perceived tax avoidance abuses, some states have aggressively sought to exert personal jurisdiction over foreign entities with no physical presence in the state by finding a taxable nexus based on the entities’ “economic presence” within the state. The most notable of these cases was Geoffrey, Inc. v. South Carolina Tax Comm’n, 313 S.C. 15, 437 S.E.2d 13 (S.C.), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993), in which the South Carolina Supreme Court found that Geoffrey, Inc., an out-of-state subsidiary of Toys “R” Us, Inc., was subject to the state’s taxation jurisdiction, even though Geoffrey had no physical presence in the state. Geoffrey had been formed for the purpose of holding and managing the trademarks of Toys “R” Us and licensed them to Toys “R” Us, Inc., for use |7in most states, including South Carolina. Toys “R” Us paid Geoffrey a royalty of 1% of net sales pursuant to their license agreement.

In concluding the Quill due process nexus had been met, the Geoffrey court found Geoffrey had purposefully directed its activity to South Carolina’s economic market by allowing the use of the trademarks in the state and by possessing intangible assets in the state in the form of the license agreement and account receivables. Id., 437 S.E.2d at 21. Further, the Geoffrey court concluded Geoffrey had received “protections, benefits, and opportunities” from South Carolina as was manifested by the fact that it earned income in South Carolina. Id., 437 S.E.2d at 22.

Several other states have adopted the expansive Geoffrey “economic presence” position by jurisprudence or by adopting rules or regulations allowing taxation of income derived from intangible assets having situs in the state. See Hammack, 5 J. Multistate Tax’n at 123-126. There is a crucial difference, however, between the Geoffrey rationale and the facts before us. Under Louisiana law, the Development shares owned by Properties,' as well as the dividends received by Properties from these shares, are not present in Louisiana.

The Louisiana Supreme Court has noted that intangible property has no actual physical location, which has led to the development of three separate and distinct doctrines applicable to its taxation. United Gas Corp. v. Fontenot, 241 La. 488, 129 So.2d 748, 752, 758 (1961); United Gas Corp. v. Fontenot, 241 La. 564, 129 So.2d 776, 778-779 (1961). First, intangible property is normally taxable at the legal domicile of the owner, which in the case of a corporation, is the state of incorporation. United Gas Corp., 129 So.2d at 758. If the intangible property is used in another state in such a way as to become an integral part of a business carried on within that state, the intangible property acquires a “business situs” in that state and is subject to taxation. Id. Lastly, where the business of the, corporation is actually managed and functioning in a state other than the state of incorporation, a “commercial domicile” exists in the state where the corporation’s principal place of business is, and the corporation’s intangibles may be taxed there. Id., at 756, 758; United Gas Corp., 129 So.2d at 778.

Applying these principles, we conclude the dividends received by Properties from its ownership of Development shares have not acquired a business situs in Louisiana. They were not acquired by Properties in the course of any business conducted in Louisiana. There is no indication that |3any physical evidence of the share ownership or receipt of dividends has ever occurred in Louisiana. No accounting records of the dividends have been kept in Louisiana. Properties plays no part in the decision-making process of Development with respect to the payment of dividends. Thus, the ownership and control of the shares remained in Properties, and there has been a complete lack of localization or integration of the dividends within Louisiana, which legally is of the essence of “business situs” for purposes of taxation. See McNamara v. George Engine Co., Inc., 519 So.2d 217, 222-223 (La.App. 5 Cir.1988); Gay v. Bessemer Prop., 159 Fla. 729, 32 So.2d 587, 591 (1947).

Likewise, it is clear that Properties’s commercial domicile is not in Louisiana, because it is a Nevada corporation, and its principal place of business is located in Nassau, The Bahamas, where all of its activities take place and are managed. A Bahamian employee, who is also a member of Properties’s board of directors, is employed at the corporate office to maintain the company’s books and records. The remaining members of Properties’s board are employees of AutoZones, Inc., the Au-toZone corporation that employs all Auto-Zone employees. Annual meetings of Properties’s board of directors are held at the corporate office. All minutes of meetings and financial documents are filed in the corporate office in The Bahamas.

Further, Properties is not qualified to do business in Louisiana and conducts no business activities here. It owns no property in Louisiana, has no office or employees in Louisiana, and has never solicited business from or contracted with Louisiana residents. None of Properties’s officers or directors reside or work in Louisiana, and no business meetings have been |1nheld here. Compare Pelto Oil Co. v. Collector of Rev., 384 So.2d 533, 539 (La.App. 4 Cir.1980) (“Commercial domicile” found in Louisiana where books and records of day-to-day operations, as well as secretarial, bookkeeping, leasing, geological, and engineering staff were located in New Orleans).

Thus, even under the expansive “economic presence” approach adopted in Geoffrey, Properties does not have a sufficient nexus with Louisiana to satisfy the Due Process Clause. Aside from a clear lack of tangible or physical presence in this state, Properties’s receipt of dividends from Development also does not constitute intangible property in this state. This is so even though that dividend income is derived from rental income from AutoZone retail stores located in Louisiana.

CONCLUSION

For the foregoing reasons, we conclude the trial court correctly sustained Properties’s exception pleading the objection of lack of personal jurisdiction. The judgment sustaining the exception, and dismissing the In Department’s petition, is affirmed. Costs of this appeal in the amount of $2,320.73 are assessed to the Louisiana Department of Revenue.

AFFIRMED.

On Application for Rehearing

In footnote ten of our original opinion we cited Kevin Assoc., L.L.C. v. Brett Crawford, 01-2652 (La.App. 1 Cir. 11/8/02), 834 So.2d 465. We note that the supreme court recently reversed Kevin, finding that a non-resident parent corporation had commercial domicile in Louisiana and was therefore subject to jurisdiction and taxation in Louisiana. See Kevin Assoc., L.L.C. v. Brett Crawford, 03-0211 (La. 1/30/04), 865 So.2d 34. However, we find that case distinguishable from the facts in the instant case, because the parent corporation in Kevin had a much more pervasive presence in Louisiana.

We further note that all arguments raised by the Department in this application for rehearing were previously considered and found to be without merit. We reiterate that the Department’s remedy appears to lie with the legislature.

      . At the hearing, Marsha Rankin, the Department's senior agent assigned to the AutoZone audit, testified there were 68 AutoZone retail stores in Louisiana during the taxable period. However, Donald Rawlins, Properties’s president, testified there were over 3,000 retail stores nationwide, and in its appellate brief, Properties indicated that approximately 7% of the 3,000 stores, or 210, were located in Louisiana.

      . Although Due Process Clause nexus requirements do not mandate a physical presence, the Quill court noted that physical presence is still required under a Commerce Clause nexus analysis. 112 S.Ct. at 1916. No Commerce Clause issue has been raised in this case.

      . REITs are authorized as "a recognized form of association for the conduct of business” in Louisiana, and the income tax imposed on REITs is the same imposed on corporations but only on that part of the net income of the trust that is subject to federal income tax. LSA-R.S. 12:491-493. and LSA-R.S. 47:188. Generally,
      a REIT is an entity that receives most of its income from passive real estate related investments and receives conduit treatment for income that is distributed to its shareholders. If an entity meets the qualifications for REIT status, a portion of its income generally is taxed to the investors without being subject to tax at the REIT level. The REIT is subject to a corporate level tax only on the income that it retains and on certain income from property that qualifies as foreclosure property. Thus, the Code provisions dealing with REITs require that substantially all of the income must be passed through to its shareholders on a current basis. The conduit effect, taxed at the shareholder level rather than the corporate level, is achieved through the mechanism of the dividends paid deduction. A REIT, in computing its real estate investment trust taxable income, reduces that amount by deduction for dividends paid thereby allowing the REIT to distribute untaxed ordinary income and capital gains to its shareholders. Further, to qualify for taxation as a REIT an organization must distribute as dividends for the taxable year, as defined in Section 561 but determined without regard to capital gains dividends, at least the sum of 95% of the real estate investment trust taxable income for the taxable year.

        Corporate Property Invest. v. Director, Div. of Tax., 15 N.J.Tax 205, 207-208 (Super.A.D.1995) (quoting 10 J. Mertens, Law of Federal Income Taxation § 41A.42 at 84-85 (1988) (footnotes omitted)).

      .Properties owns all of Development's common stock and most of its preferred stock. The remaining stock is owned by AutoZone employees who receive a $10 dividend per year for the one share of stock they each own.

      . The South Carolina statute under which Geoffrey was taxed allowed taxation of out-of-state corporations "having an income within the jurisdiction of this State ...S.C.Code § 12-7-230 (Supp.1992).

      . In a ruling decided after the facts of the case before us, the Louisiana Department of Revenue, targeting trademark holding companies, declared that an out-of-state corporation's use of intangible property in the state will subject it to income taxation when the intangibles generate income in the state, the income-generating activity is purposeful, and the corporation’s presence, as indicated by its intangibles, is more than de minimus. La. Dept, of Rev. Rui. No. 02-001 (May 13, 2002).

      .For further discussion of the Geoffrey case and its aftermath, see Gaggini, Bick, Bots, 540 PLI/Tax 169: State Taxation of Passive Income Subsidiaries (October-November, 2002); J. Hellerstein & W. Hellerstein, State Taxation: Presence of Intangible Property in the State as a Basis for lurisdiction to Tax Income from Such Property, ¶ 6.11 (3d Ed.2003) (W.G. & L).

      . The first United Gas Corp. case cited, 129 So.2d 748, dealt with corporate income taxes, and the second United Gas Corp. case cited, 129 So.2d 776, dealt with corporate franchise taxes — both of which are at issue here.

      . Although not cited by the Department, these concepts are embodied in LSA-R.S. 47:243, which applies to income taxation of nonresident corporations and provides, in pertinent part:
      A. Items of gross allocable income shall be allocated directly to the states from which such items of income are derived, as follows:
      (4) Other interest, dividends and profits from sales and exchanges of capital assets consisting of incorporeal property or rights shall be allocated to the state in which the securities or credits producing such income have their situs, which shall be at the business situs of such securities or credits if they have been so used in connection with the taxpayer's business as to acquire a business situs, or, in the absence of such a business situs, shall be at the ... commercial domicile of the taxpayer in the case of a corporation; provided that dividends upon stock having a situs in Louisiana received by a corporation from another corporation which is controlled by the former, through ownership of fifty percent or more of the voting stock of the latter, shall be allocated to the state or states in which is earned the income from which the dividends are paid, such allocation to be made in proportion to the respective amounts of such income earned in each state ....
      Corporate franchise taxes are similarly computed. See LSA-R.S. 47:606 A(l)(i).

      . Some courts have used an "alter ego” theory as an alternative means of finding that an out-of-state parent corporation has a taxable nexus with the taxing state based on its control of an in-state subsidiary's operations. See Teknika Elec. Corp. v. Satellite Earth Stations, 95-663 (La.App. 3 Cir. 4/17/96), 673 So.2d 1129, writ denied., 96-1268 (La.6/28/96), 675 So.2d 1125, and Copeland v. Gordon Jewelry Corp., 288 So.2d 404 (La.App. 4 Cir.), writ denied, 290 So.2d 911 (La.1974). The "alter ego” theory does not apply to this case, because the evidence shows Properties did not control Development's operations within Louisiana. A non-resident parent company is not subject to the jurisdiction of Louisiana merely because its subsidiary has a presence in the state. Kevin Assoc., L.L.C. v. Crawford, 01-2652 (La.App. 1 Cir. 11/8/02), 834 So.2d 465, 469, writ granted, 03-0211 (La.4/21/03), 847 So.2d 1177. Further, a company holding securities is not doing business in a state when it receives dividend income from those securi-hes. North Baton Rouge Dev. Co., Inc. v. Collector of Rev., 304 So.2d 293, 298 (La.1974).

      . We recognize that a business decision by an entity, such as AutoZone, to structure its organization within the parameters of a tax exception, so as to minimize its tax liability, is valid. See United States v. Carlton, 512 U.S. 26, 114 S.Ct. 2018, 2024, 129 L.Ed.2d 22 (1994) (O’Connor, J., concurring). We also note, however, that the AutoZone conglomerate is operating a significant number of retail stores in Louisiana and paying an inordinately low amount of taxes on this operation. It is unfortunate for the State of Louisiana that AutoZone has contrived a legal way to avoid paying what most would consider a fair share of taxes to the state. The Department’s remedy in this case seems to lie with the legislature.