author: J^CIACCIO, J.

text:
    Jo Ann CANIZARO v. TANGIPAHOA PARISH SCHOOL SYSTEM.
    No. 2002 CA 1913.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 17, 2003.

      Ralph Brewer, Baton Rouge, for Plaintiff/Appellant, Jo Ann Canizaro.
    deShea S. Richardson, Hammond, for Defendant/Appellee, Tangipahoa Parish School System.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^CIACCIO, J.

Jo Ann Canizaro appeals a judgment of the Office of Workers’ Compensation dismissing without prejudice her claims for penalties, attorney fees, and workers’ compensation benefits.

FACTS AND PROCEDURAL HISTORY

In April 2000, Canizaro was employed as a custodial worker with the Tangipahoa Parish School System (the School System). On April 21, 2000, while working at Loran-ger Elementary School, a classroom door hit Canizaro’s right elbow causing injury to her right arm. Canizaro alleges that a neck injury, causally related to the accident, subsequently manifested itself.

Within days of the accident, Canizaro sought medical treatment for right arm pain from Dr. Roch Hontas. At trial, Ca-nizaro testified that Dr. Hontas diagnosed her with bruised ligaments, gave her a brace to wear on her injured arm, and instructed her to limit the use of her arm until the tenderness and soreness she was experiencing subsided. Canizaro returned to work on the first work day following the accident. However, she did not file an Employer’s Report of Occupational Injury or Disease with her employer for several months.

After reporting the accident to her employer, Canizaro began treatment with Dr. R.T. McAfee, an orthopedic surgeon. Dr. McAfee diagnosed Canizaro with lateral epicondylitis, degenerative disc disease of the neck and cervical strain. He later recommended that Canizaro consult with a neurosurgeon for evaluation and treatment of her neck. On October 31, 2000, Dr. McAfee determined that Canizaro was unable to work. However, in April 2001, Dr. McAfee concluded that Canizaro’s condition had improved and released her to return to work with light duty restrictions. On July 31, 2001, Dr. McAfee reiterated that Canizaro was released to return to work at a “light physical demand level” and that Canizaro needed to be evaluated by a neurosurgeon.

After receiving notice that Canizaro was released to work with light-duty restrictions, Deborah Browning, the principal of Loranger Elementary School, sent Caniza-ro a letter setting forth a schedule of duties structured to accommodate those restrictions. Browning requested that Ca-nizaro have her doctor approve the schedule | ¡¡after reviewing it to determine whether Canizaro could perform the duties set forth without risk of further injury. Cani-zaro did not respond to Browning’s request and did not return to work.

Ultimately, Browning requested that the School System release Canizaro from her employment. The personnel director of the School System notified Canizaro by letter that a recommendation to terminate her employment would be made to the School Board if she did not return to work by Monday, October 1, 2001. In a letter dated October 2, 2001, the personnel director notified Canizaro that although every effort had been made to accommodate the light duty her doctor had released her under, she chose not to return to work, therefore a recommendation to terminate her employment would be made to the School Board.

The School Board paid Canizaro temporary total disability benefits (TTDs) from the time Dr. McAfee determined that she was unable to work until August 17, 2001. On October 29, 2001, Canizaro filed a disputed claim for compensation benefits against the School System and its workers’ compensation insurer, Littleton Risk Services, contending that wage benefits had been terminated, recommended medical treatment had not been authorized, that she was temporarily or permanently and totally disabled, that no meaningful rehabilitation was offered to her and alleging her entitlement to statutory penalties and attorney fees. On April 18, 2002, the School System reinstated payment of TTDs, paid Canizaro TTDs for the previous six months, and instituted vocational rehabilitation.

Trial in this matter was held June 24, 2002. After hearing the testimony and reviewing the evidence presented, the workers’ compensation judge (WCJ) denied Canizaro’s claim for indemnity benefits because the School Board was already paying TTDs. The WCJ also denied Cani-zaro’s claims for penalties and attorney fees, then dismissed Canizaro’s claims without prejudice, with each party to bear their own costs. Canizaro now appeals.

TTDs

The WCJ stated that she was denying Canizaro’s claim for indemnity benefits, in the form of either TTDs or permanent disability benefits, because the School Board was |4already making such payments. We find this to be legal error. At trial, the School Board stipulated that it would continue to pay Canizaro TTDs until she was either released from vocational rehabilitation or otherwise. Judgment should have been entered reflecting the stipulation. We therefore reverse that portion of the judgment denying Caniza-ro’s claims for benefits and enter judgment based on the stipulation.

VOCATIONAL REHABILITATION SERVICES

The School Board’s stipulation also encompassed payment of vocational rehabilitation services. Therefore, for the same reasons that we enter judgment with regard to indemnity benefits, we enter judgment for vocational rehabilitation services.

PENALTIES AND ATTORNEY FEES

At trial, Canizaro claimed entitlement to penalties and attorney fees for termination of benefits, failure to offer vocational rehabilitation, and refusal to provide medical treatment or benefits. On appeal, Canizaro claims the WCJ erred in determining that she was not entitled to penalties and attorney fees on any of those grounds.

Penalties and attorney fees are recoverable under LSA-R.S. 23:1201 F if the employer or insurer fails to commence payments of benefits timely or to pay continued installments or medical benefits timely, unless the claim is reasonably controverted. Attorney fees are recoverable under LSA-R.S. 23:1201.2 if the employer or insurer arbitrarily discontinues payment of benefits due. These statutes provide for imposition of penalties and attorney fees to discourage indifference and undesirable conduct by employers and insurers, and are essentially penal in nature. Although the Workers’ Compensation Act is to be liberally construed in regard to benefits, penal statutes are to be strictly construed.

|RIn the instant case, there is no dispute regarding timely commencement of TTDs. Rather, Canizaro contends that penalties and attorney fees are due for discontinuation of TTDs. Thus, this claim is governed by LSA-R.S. 23:1201.2 and the only inquiry is whether the employer acted arbitrarily, capriciously and without probable cause in discontinuing the payment of TTDs so as to warrant imposition of attorney fees.

The School System’s decision to discontinue payment of TTDs was based on Canizaro’s release to light duty work by her treating physician. This evidence provided a reasonable basis for the School System’s decision. Therefore, the School System did not act in an arbitrary and capricious manner by discontinuing benefits. We find no error in the WCJ’s determination that no penalties or attorney fees are owed for discontinuation of TTDs.

Canizaro also sought penalties and attorney fees for the School System’s failure to offer vocational rehabilitation or appoint a vocational rehabilitation specialist until shortly before trial. Under LSA-R.S. 23:1226 A, an employee is entitled to prompt rehabilitation services when the employee has suffered an injury that pre-eludes her from earning wages equal to wages earned prior to the injury. Our supreme court has held that vocational rehabilitation is a “claim due” under LSA-R.S. 23:1201.2. Thus, an employee is entitled to attorney fees incurred during the prosecution of a claim against her employer for vocational rehabilitation services after those services have been arbitrarily and capriciously denied.

The purpose of LSA-R.S. 23:1226 is to educate and increase the job marketability of employees who cannot return to their former positions. However, this does not include employees who are able to return to work but refuse to do so. Based hon the evidence presented, including the modified schedule of duties offered to Canizaro by the school principal and Canizaro’s failure to respond to the offer to accommodate her restrictions, we are unable to find that the School System was arbitrary and capricious.

The third ground Canizaro asserted as grounds for entitlement to attorney fees was that the School System refused payment of medical treatment. On appeal, Canizaro contends the School System refused her medical treatment from Dr. Loupe, her treating orthopedic surgeon, between September 12, 2001 and May 23, 2002. However, the WCJ correctly recognized that the record lacks any evidence showing that a request for treatment by Dr. Loupe was denied. Accordingly, there is no basis for imposition of penalties or attorney fees.

COURT COSTS

Finally, Canizaro contends the WCJ erred in assessing court costs equally to each party. However, under LSA-C.C.P. art.1920, a court may render a judgment for costs against any party, as it may consider equitable. Considering the WCJ’s denial of Canizaro’s claims for penalties and attorney fees, we find no error in her decision to assess Canizaro with one-half of the court costs.

CONCLUSION

For the foregoing reasons, we reverse that portion of the judgment denying Cani-zaro’s claim for indemnity benefits and, based on the stipulation entered in open court, enter judgment ordering that the Tangipahoa Parish School System provide Canizaro with vocational rehabilitation services and pay Canizaro temporary total disability benefits until such time as Cani-zaro is released from vocational rehabilitation or otherwise. In all other respects, the judgment appealed from is affirmed. Costs of | ythis appeal in the amount of $528.50 are to be divided equally between Jo Ann Canizaro and the Tangipahoa Parish School System.

REVERSED IN PART; RENDERED; AND AFFIRMED.

      .We note that in her assignment of error, Canizaro raises the issue of entitlement to interest. However, Canizaro did not brief the issue and we therefore deem it abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4.

      . Williams v. Rush Masonry, Inc., 98-2271, p. 7 (La.6/29/99), 737 So.2d 41, 45.

      . Williams, 737 So.2d at 46.

      . See Williams, 737 So.2d at 45.

      . Haynes v. Williams Fence and Aluminum, 2002-0442, 2002-0478, p. 2 (La.4/21/03), 851 So.2d 917, 918.

      . Alexander v. Roy O. Martin Lumber Co., 00-1344, p. 11 (La.App. 3rd Cir.5/9/01), 784 So.2d 872, 880, writ denied, 2001-1684 (La.9/21/01), 797 So.2d 676.

      . Williams v. Kirk's Tire and Performance Co., 546 So.2d 874, 880 (La.App. 1st Cir.1989).

      . We note that in her appellate brief, Caniza-ro cites LSA-R.S. 23:1121 C as the provision under which such attorney fees are due. Louisiana Revised Statute 23:1121 C applies when an employer's failure to consent to an employee's request to select or change treating physicians is determined to be arbitrary, capricious, or without probable cause. We find no evidence in the record to indicate that the School System failed to consent to any such request. Accordingly, there is no basis for an award of attorney fees under LSA-R.S. 23:1121 C.

      .Canizaro also contends the WCJ erred in dismissing her suit, however, because we enter judgment based on the stipulation presented at trial, this issue is moot.


source: Caselaw Access Project

author: h GASKINS, J. |!BROWN, C.J.,

license: Public Domain

text:
    STATE of Louisiana, Appellant, v. Melissa WALKER, Appellee.
    No. 37,493-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 18, 2003.

      McKeithen, Ryland & Champagne, by Dina F. Domangue, for Appellee.
    Iley Evans, District Attorney, Kathleen Peterson, Assistant Attorney General for Appellant.
    Before BROWN, GASKINS and DREW, JJ.
   h GASKINS, J.

The state appeals a decision by the trial court granting a motion to quash the bill of information against the defendant, Melissa Walker, charging her with being a principal to the offense of cruelty to the infirm. For the following reasons, we affirm.

FACTS

On May 9, 2001, an employee of the Lakeview Community Group Home, a facility for mentally disabled individuals, noticed bruises on one of the residents. An investigation revealed that another employee at Lakeview, Frederick Broadnax, Jr., inflicted the injuries. On December 12, 2001, a bill of information was filed, charging Broadnax with cruelty to the infirm.

On April 26, 2002, approximately one year after the incident, the bill of information was amended to add Walker as a co-defendant. Walker was also an employee at the facility. The amended bill of information specified that Broadnax took the victim into the victim’s bedroom, cursed the victim, and intentionally struck the victim on the buttocks with a long, wooden board, all of which was “witnessed by defendant Walker,” which injury caused the victim unjustifiable pain and suffering and/or which conduct amounted to a gross deviation below the standard of care expected to be | ¡maintained by reasonably prudent caregivers under like circumstances, in violation of La. R.S. 14:93.3 and La. R.S. 14:24.

On September 10, 2002, Walker filed a motion to quash the bill of information, arguing that she was charged only with “witnessing” the attack by Broadnax on the victim. She argued that merely witnessing a crime is not an offense punishable under a valid statute, and therefore, she was not a principal to the offense of cruelty to the infirm. She also filed a motion to sever the offenses and to hold a preliminary examination.

A hearing on the pending motions was held on October 21, 2001. On December 20, 2002, the trial court granted the motion to quash, finding that Walker was charged only with witnessing the beating and that no prosecutable crime was charged. Regarding the evidence adduced on the preliminary examination, the court found that there was no probable cause to show that Walker committed the offense of cruelty to the infirm or was a principal to that offense. Walker was relieved of her bail obligation. The state appealed the trial court’s ruling.

MOTION TO QUASH

The state contends that the trial court erred in granting the motion to quash. It asserts that the amended bill charges Walker with a prosecutable crime, and that it contained enough details by which a trier of fact could determine whether the facts alleged constituted a crime. The state maintains that the charge justifies proceeding to trial, enables Walker to prepare her 1 ..¡defense, and protects against double jeopardy from a future prosecution on the same criminal allegation. According to the state, Walker was successful in getting the trial court to rule on the merits of the case without the benefit of trial, by claiming that, as a mere witness, she was not guilty of cruelty to the infirm. Therefore, the state contends that the trial court erred in granting Walker’s motion to quash.

The time for testing the sufficiency of an indictment or bill of information is before trial by way of a motion to quash or an application for a bill of particulars. If the indictment does not charge a valid offense, it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash. A motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable by a valid statute. La. C. Cr. P. art. 532; State v. Legendre, 362 So.2d 570 (La.1978).

The motion to quash is essentially a mechanism by which to raise pre-trial pleas of defense, i.e., those matters which do not go to the merits of the charge. La. C. Cr. P. art. 531-534; State v. Perez, 464 So.2d 737 (La.1985); State v. Thomas, 28,-790 (La.App.2d Cir.10/30/96), 683 So.2d 1272, writ denied, 96-2844 (La.4/25/97), 692 So.2d 1081. In considering a motion to quash, a court must accept as true the facts contained in the bill of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged. |4 While evidence may be adduced, such may not include a defense on the merits. The question of factual guilt or innocence of the offense charged is not raised by the motion to quash. State v. Thomas, supra.

The court shall order the defendant discharged from custody or bail, as to that charge, when it sustains a motion to quash based upon the ground that the offense is not punishable by a valid statute. La. C. Cr. P. art. 538.

The Louisiana constitution provides that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” La. Const, art. 1, § 13. In this matter, the defendant was charged with cruelty to the infirm. La. C. Cr. P. art. 465 provides specific indictment forms for some offenses. However, cruelty to the infirm is not listed in those offenses. Therefore, the state was required to follow La. C. Cr. P. art. 463, which sets forth the form for a bill of information:

The information may be in substantially the following form: In the (Here state the name of the court.) on the _ day of_, 19 — . State of Louisiana v. A.B. (Here state the name or description of the accused.). X.Y., District Attorney for the Parish of_, charges that A.B. (Here state the name or description of the accused.) committed the offense of_, in that (Here set forth the offense and transaction according to the rules stated in this Title. The particulars of the offense may be added with a view to avoiding the necessity for a bill of particulars.) contrary to the law of the state of Louisiana and against the peace and dignity of the same.

La. C. Cr. P. art. 464 provides that the indictment or information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. The indictment must contain all the elements of the crime intended to be charged in sufficient particularity to enable the defendant to prepare for trial, to allow the court to determine the | ¡¡propriety of the evidence which is submitted upon the trial, to impose the correct punishment on a guilty verdict, and to afford the defendant protection from double jeopardy. State v. Finch, 31,888 (La.App.2d Cir.5/5/99), 733 So.2d 716. See also State v. Volentine, 565 So.2d 511 (La.App. 2d Cir.1990).

Cruelty to the infirm is defined in La. R.S. 14:93.3 which provides in pertinent part:

A. Cruelty to the infirmed is the intentional or criminally negligent mistreatment or neglect by any person, including a caregiver, whereby unjustifiable pain, malnourishment, or suffering is caused to the infirmed, a disabled adult, or an aged person, including but not limited to a person who is a resident of a nursing home, mental retardation facility, mental health facility, hospital, or other residential facility.
B. “Caregiver” is defined as any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. Caregiver includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.

Regarding principals, La. R.S. 14:24 provides:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

Only those persons who knowingly participate in the planning and/or execution of a crime are principals. Mere presence at the scene is not enough to “concern” an individual in a crime. Moreover, a person may only | fibe convicted as a principal for the crimes for which he personally has the requisite mental state. State v. Pierre, 93-0893 (La.2/3/94), 631 So.2d 427.

The elements of cruelty to the infirm include: (1) intentional or criminally negligent mistreatment or neglect; (2) by any person, including a caregiver; (3) whereby unjustifiable pain, malnourishment, or suffering; (4) is caused to the infirm, a disabled adult, or an aged person. To be a principal to a crime, La. R.S. 14:24 requires that an offender be “concerned in the commission” of the crime, (1) whether present or absent; and (2) whether they directly commit the act constituting the offense; (3) aid or abet in its commission; or (4) directly or indirectly counsel or procure another to commit the crime. The bill of information in this case charges the following:

Frederick “Fred” Broadnax, Jr. and Melissa Walker, defendants herein, while employed in the course and scope of their supervisory duties at the Lake-view Community Home, Columbia, Louisiana, a mental retardation facility which is required to be licensed and operated under the laws of the State of Louisiana, committed the offence of cruelty to the infirm, in violation of La. R.S. 14:93.3 and La. R.S. 14:24 to wit:
Defendants Frederick “Fred” Broad-nax, Jr. and Melissa Walker, knowingly and intentionally and/or through criminally negligent mistreatment and neglect, committed cruelty upon [victim], D.O.B. 9/27/76, a mentally disabled resident of the facility by defendant Broad-nax taking the victim into the victim’s bedroom, cursing the victim and intentionally striking the victim on the buttocks with a long, wooden board, all of which was witnessed by defendant Walker, which injury caused the victim unjustifiable pain and suffering and/or which conduct amounted to a gross deviation below the standard of care expected to be maintained by reasonably prudent caregivers under like circumstances, in violation of La. R.S. 14:93.3 and La. R.S. 14:24, contrary to the law of the State of Louisiana and against the peace and dignity of the same.

|7While the bill of information states that Walker along with Broadnax committed cruelty to the infirm, the statement of essential facts does not set forth that Walker committed any of the essential elements of that offense or that she was concerned in the commission of the offense. The bill of information charges only that the defendant witnessed the offense committed by Broadnax.

The state reasoned that at trial it must show that the defendant possessed the requisite criminal intent to commit cruelty to the infirm. Further, the state acknowledged that an offender’s mere presence at the scene of a crime was not sufficient evidence standing alone to make one a principal to the criminal acts of a co-defendant. However, according to the state, it is sufficient if the principal is standing by at the scene of a crime ready to give some aid, if needed, if the principal is actually aware of the co-defendant’s intent. The state contended that the bill of information in this case alleges the necessary elements of a crime, which if committed by the defendant, constituted a criminal offense. According to the state, witnessing the beating while possessing the same criminal intent as Broadnax is sufficient.

The trial court was required to determine from the face of the pleadings whether the bill of information charged Walker with conduct ^constituting a criminal offense. The state charged Walker only with witnessing the offense committed by Broadnax. The charge of simply witnessing an offense by another does not constitute the intentional or criminally negligent mistreatment or neglect of the victim. The prosecution did not allege that the defendant actively participated in the offense, that she had a duty to intervene on behalf of the victim, or a duty to report the abuse, and that she failed in that respect.

In defending against the motion to quash, the state contends that witnessing the offense makes Walker a principal to the offense. The bill of information does not allege that Walker directly committed, aided and abetted, or directly or indirectly procured another to commit the crime of cruelty to the infirm.

Simply stated, the prosecution alleged only that Walker witnessed the offense committed by Broadnax. The act of witnessing an offense is not a crime. The bill of information against Walker in this case does not state the essential facts necessary to describe the offense charged. Based upon the pleadings in this case, the trial court correctly granted the motion to quash the bill of information against Walker due to the state’s failure to properly charge her with a criminal offense.

[¿PRELIMINARY EXAMINATION

The state argues that the trial court abused its discretion by finding that, at the preliminary examination, the state faded to produce sufficient evidence linking Walker with the crime of principal to cruelty to the infirm. According to the state, sufficient evidence to establish probable cause was presented and therefore, the trial court should have continued Walker’s bond obligation.

Because in this matter we find that the trial court correctly quashed the bill of information charging the defendant with cruelty to the infirm, we pretermit as unnecessary any discussion of the preliminary examination.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court granting a motion to quash the bill of information against the defendant, Melissa Walker.

AFFIRMED.

BROWN, C.J., dissents with written reasons.

|!BROWN, C.J.,

Dissenting.

The bill of information could have been more clearly written. However, it does charge that “Melissa Walker (while employed in the course and scope of her supervisory duties) ... through ... neglect committed cruelty upon ... a mentally disabled resident ...” by witnessing Broadnax’s specified acts.

A supervisor who watches another employee abuse a mentally disabled resident without intervention would be guilty of neglect. I respectfully dissent.

APPLICATION FOR REHEARING

Before BROWN, C.J., GASKINS, CARAWAY, DREW, and MOORE, JJ.

Rehearing denied.

BROWN, C.J., and CARAWAY, J., would grant rehearing.

      . La. R.S. 14:93.3 specifies that the offense is "cruelty to the infirmed.” We note that this offense, as "cruelty to the infirm,” was added by Acts 1981, No. 850, § 1. In the 1994 amendment, "infirmed” was substituted for "infirm." Acts 1995, No. 841 § 1 and No. 883, § 1 amended the section and "infirm” was substituted for "infirmed." Also in 1995, pursuant to the statutory revision authority of the Louisiana Law Institute, "infirmed” was again substituted for "infirm.” Examination of numerous dictionaries indicates that "infirm” is the preferred term.

      . According to the minutes in this matter, on January 28, 2003, another amended bill of information was filed charging only Frederick Broadnax, Jr. with cruelty to the infirm. On January 29, 2003, he was convicted by a jury of attempted cruelty to the infirm.

      . The trial court judgment reflects that Walker withdrew her motion to sever.

      . La. C. Cr. P. art. 532 provides in pertinent part:
      A motion to quash may be based on one or more of the following grounds: (1) The indictment fails to charge an offense which is punishable under a valid statute.

      . Walker argues that, only at the hearing on the motion to quash did the state present the contention that the victim and other residents indicated that Walker was involved in the offense. The trial court also conducted a preliminary examination in conjunction with the motion to quash. At the hearing, an investigator for the prosecution stated that two residents of the facility and the victim said that Walker entered the victim’s room with Broadnax and was present while Broadnax beat the victim. They also said that Walker later asked the victim, "How did that feel?” or “Did that feel good?” According to Walker, the statements were not included in the materials furnished by the state during open file discovery, including the notes of the investigator. Walker claimed that this information was first made known at the hearing.

      . We note that, under La. C. Cr. P. art. 572, the state has four years from the date of the commission of an offense that is punishable with or without hard labor to institute prosecution. Even though we affirm the grant of the motion to quash, under La. C. Cr. P. art. 576, if the prosecution is able to draft a bill of information which validly charges Walker with a crime, it may be possible to reinstitute prosecution.


author: |, LEON A. CANNIZZARO, JR., Judge.

text:
    Roy A. VANDERHOFF, Sr. v. Doctor David A. BEARY.
    No. 2003-CA-0912.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 2003.
    Rehearing Denied Sept. 15, 2003.

      Roy A. Vanderhoff, Sr., Cottonport, LA, In Proper Person, Plaintiff/Appellant.
    C. William Bradley, Jr., Richard S. Cris-ler, Lemle & Kelleher, L.L.P., New Orleans, LA, for DefendanVAppellee, David A. Beary, M.D.
    (Court composed of Judge MICHAEL E. KIRBY, Judge, MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   |, LEON A. CANNIZZARO, JR., Judge.

The plaintiff in this case, Roy A. Van-derhoff, Sr., is appealing this matter on the grounds that the trial court erred in sustaining the exception of prematurity filed by the defendant, Dr. David Beary, and in dismissing the plaintiffs medical malpractice claim against Dr. Beary. For the reasons set forth in this opinion, this Court affirms the trial court’s decision.

FACTS AND PROCEDURAL HISTORY

Mr. Vanderhoff filed a medical malpractice action against Dr. Beary alleging that Dr. Beary’s unsuccessful attempt to extract one of Mr. Vanderhoff s teeth caused severe pain and other damages. The alleged incident occurred while Mr. Vander-hoff was an inmate at the St. Bernard Parish Prison. At the time, Dr. Beary was a private physician who contracted to provide medical services to the inmates at the prison.

Dr. Beary filed a dilatory exception of prematurity in the malpractice action based on Mr. Vanderhoffs failure to convene a medical review panel prior to filing suit as required by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41 et seq. (the “MMA”). Dr. Beary claimed that he was entitled to a medical review panel, because, at the time of the alleged malpractice, he was a ^qualified health care provider covered by the MMA, as evidenced by a certificate of enrollment issued by the State of Louisiana Patients’ Compensation Fund.

Mr. Vanderhoff opposed Dr. Beary’s exception of prematurity on the grounds that, because he was a prison inmate at the time of the alleged malpractice, the MMA was not applicable to him. He also opposed Dr. Beary’s exception of prematurity on the grounds that Dr. Beary was not covered by the MMA’s provisions, because Dr. Beary’s license to practice medicine was suspended at the time of the alleged malpractice. Alternatively, Mr. Vanderhoff argued that Dr. Beary’s dental care was malpractice per se, because Dr. Beary was a medical doctor, not a dentist.

The trial court sustained Dr. Beary’s exception of prematurity and dismissed Mr. Vanderhoffs suit. Mr. Vanderhoff is now appealing the dismissal of his suit.

STANDARD OF REVIEW

We must determine whether Mr. Vanderhoff is required to convene a medical review panel prior to filing a medical malpractice suit against Dr. Beary. This is question of law. Therefore, we must conduct a de novo review of this case to determine whether the trial court’s ruling on this issue was legally correct. See, e.g., Cleco Evangeline, LLC v. Louisiana Tax Commission, 2001-2162, p. 3 (La.4/3/02), 813 So.2d 351, 353, where the Louisiana Supreme Court stated with respect to an issue of law being reviewed on appeal that “[w]e review the matter de novo, and render judgment on the record, without deference to the legal conclusions of the tribunals below.”

|,DISCUSSION

Applicable Malpractice Statute

There are two statutory schemes that deal with medical malpractice actions in Louisiana. One is the MMA, and the other is the Medical Liability for State Services Act (the “MLSSA”), La. R.S. 40:1299.39. The MLSSA applies to medical malpractice by a “state health care provider”. La. R.S. 40:1299.39(A). The MMA applies to medical malpractice by health care providers to which the MLSSA is not applicable. La. R.S. 40:1299.41(A).

The MLSSA at La. R.S. 40:1299.39(A)(l)(a) defines a “state health care provider”, in pertinent part, to mean the following:

(ii) The state or any of its departments, offices, agencies, boards, commissions, institutions, universities, facilities, hospitals, clinics, laboratories, health care units ... and other state entities which may provide any kind of health care whatsoever, and the ... employees thereof when acting within the course and scope of their duties in providing health care in connection with such state entity; or
(ii) A person acting in a professional capacity in providing health care services, by or on behalf of the state
(aa) Acting within the course and scope of his employment pursuant to a contract with the state, which contract specially names that health care provider and designates him to render such health care services, pursuant to a staff appointment to a state hospital or other state health care facility, or pursuant to an assignment to render such health care services for or on behalf of the state ...

The MLSSA specifically excludes from the definition of “state health care provider” any political subdivision of the state and any health care facility of a political subdivision. La. R.S. 40:1299.39(l)(b). Also excluded from the definition |4are individuals acting in a professional capacity but not providing health care services on behalf of the state. Id.

We find that Mr. Vanderhoffs claim is governed by the provisions of the MMA and not by the provisions of the MLSSA. Dr. Beary was a private physician who contracted to provide medical services to the St. Bernard Parish Prison, which is operated by the Parish of St. Bernard. Because a parish is a political subdivision of the state and political subdivisions are excluded from the scope of the MLSSA, Dr. Beary was not a health care provider acting by or on behalf of the state. Therefore, he did not fall within the scope of the definition of “state health care provider” under La. R.S. 40:1299.39(l)(b), which expressly excludes “any individual acting in a professional capacity in providing health care services not by or on behalf of the state.”

Medical Review Panel

Mr. Vanderhoff has argued that because he is a prisoner, he was not required to convene a medical review panel to evaluate his medical malpractice claim prior to filing suit against Dr. Beary. La. R.S. 40:1299.39(E)(1), which is part of the MLSSA, provides in pertinent part that “[t]he medical malpractice claims of prisoners ... shall be submitted to correctional administrative review procedures established for administrative hearings in the correctional environment or established in accordance with express law ... and the administrative rules and regulations pertaining thereto.” We have determined, however, that Mr. Vanderhoffs claim against Dr. Beary is covered by the MMA, which does not contain a provision similar to the one quoted above from the MLSSA.

The MMA provides that “[n]o 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.” La. R.S. 40:1299.47(B)(l)(a)(i). Because Mr. Van-derhoff did not convene a medical review panel prior to filing the instant suit, Dr. Beary filed a dilatory exception of prematurity under La.C.C.P. art. 926, which is the proper procedural mechanism for a qualified health care provider to invoke when a medical review panel should have been convened but was not. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977, p. 4 (La.2/29/00), 758 So.2d 116, 119. Because Mr. Vanderhoff was required to convene a medical review panel prior to filing suit against Dr. Beary but did not do so, we conclude that the trial court properly granted the dilatory exception filed by Dr. Beary and properly dismissed the suit against him.

Other Issues

Mr. Vanderhoffs suit was premature and was properly dismissed. Therefore, we do not reach the other issues raised in this case.

CONCLUSION

Based on the foregoing discussion, we hold that the trial court properly dismissed Mr. Vanderhoffs malpractice action against Dr. Beary. The decision of the trial court is affirmed.

AFFIRMED.

      . Mr. Vanderhoff has alleged that Dr. Beary's medical license was suspended from 1997 through 2002. The MMA defines a "physician” as "a person with an unlimited license to practice medicine in this state.” La. R.S. 40:1299.41(A)(2). There is nothing in the record, however, to substantiate Mr. Vander-hoffs allegation, and we must base our opinion on what is in the record, which includes the certificate of enrollment issued to Dr. Beary by the Louisiana Patients’ Compensation Fund.


author: hPEATROSS, J.

text:
    A.J. BRADFORD, et al., Plaintiffs/Appellees/Cross-Appellants, v. ONSHORE PIPELINE CONSTRUCTION CO., INC., Defendants/Appellants/Cross-Appellees.
    No. 37,421-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 2003.
    Rehearing Denied Sept. 18, 2003.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., by Carl D. Rosenblum, Alida C. Hainkel, Liskow & Lewis, by Patrick W. Gray, Lafayette, Shotwell, Brown & Sperry, by Edel F. Blanks, Jr., Monroe, for Defendant/Appellants, Eland Energy, Inc. and Delhi Package I, Ltd.; and for Defendants/Appellees, Sun Operating Limited Partnership and Oryx Energy Company.
    Hayden, Moore & Ryan, by Gregory Scott Moore, Lovell E. Hayden, III, for Plaintiffs/Appellants, A.J. Bradford and Vinyard and Sons, Inc. and for Plaintiffs/Appellees Lewis Hubbard and Herman Sandford.
    Before BROWN, STEWART & PEATROSS, JJ.
   hPEATROSS, J.

This appeal arises from a trial court judgment in favor of the plaintiffs, Vinyard and Sons Oil and Gas and A.J. Bradford (collectively “Plaintiffs”), and against defendants, Eland Energy, Inc., individually and as managing general partner for Delhi Package I, LTD (collectively “Eland Energy”) and Onshore Pipeline Construction Co., Inc. (“Onshore”); and dismissing the claims of Plaintiffs against defendants, Sun Operating Limited Partnership (“Sun Limited”) and Oryx Energy Company (“Oryx Energy”). Both Plaintiffs and defendant Eland Energy now appeal the judgment of the trial court. For the reasons stated herein, we affirm in part and reverse in part.

FACTS

On July 15, 1987, Sun Limited entered into a gas purchase contract with Vinyard and Sons Oil and Gas to purchase gas produced from gas wells identified as Vin-yard No. 1, Vinyard No. 2, Vinyard B No. 1, Vinyard C No. 1 and Vinyard D No. I. These wells are located in what is known as the “Big Creek Field.” The “Big Creek Gathering System” gathered the gas produced from the Big Creek Field and transported it to the Delhi gas processing plant. On September 24, 1990, Sun Limited entered into a gas purchase contract with A.J. Bradford to purchase gas from a well identified Las Ben S. Pipes No. I. Meters were installed near the wells owned by both Plaintiffs and the meters became the mutually agreed upon delivery site. After the gas passed through the meter, it became the property of the buyer.

On December 31,1990, Sun Limited sold the Delhi Plant, Big Creek Gathering System and its gas purchase contracts, including Plaintiffs’ contracts, to Eland Energy. As a result of this contract assignment, Eland Energy assumed the obligation to purchase gas from Plaintiffs’ wells under the gas purchase contracts. On May 24, 1991, the gas purchase contract between Sun Limited and A.J. Bradford was amended by Eland Energy and A.J. Bradford to add to the original gas purchase contract the gas wells identified as Lewis Hubbard No. 1, Lewis Hubbard No. 2 and Lewis Hubbard III No. I. Later, on February 25, 1992, Eland Energy transferred the Big Creek Gathering System to Onshore. This assignment stated that it was made “subject to” all of the terms and conditions of the gas purchase contracts existing as of January 1, 1992. Eland Energy retained ownership of the Delhi Plant and the gas purchase contracts.

|,.¡Subsequently, Onshore made a demand on Plaintiffs to sign a new agreement that would result in a transportation fee of fifty cents per MCF for all gas passing through the Big Creek Gathering System. Plaintiffs were also asked to assume line loss of the gas as it passed through the Big Creek Gathering System, which changed the agreement between the parties that, after the gas passed through the meter, it became the property of the buyer. After receiving these demands, Plaintiffs asked to meet with representatives from Eland Energy and Onshore. On March 25, 1992, Eland Energy and Onshore met with Plaintiffs. Refusing to sign the new agreement with Onshore, Plaintiffs demanded that Eland Energy honor the existing contracts to purchase the gas as agreed upon in those contracts. Only one day later, on March 26, 1992, Onshore forwarded a letter to Plaintiffs advising that the gas flow through the meters at their wells was insufficient; and, pursuant to the Unprofitable Gas Clause in the existing gas purchase contracts, Onshore would no longer purchase any gas from them effective April 1, 1992, and the meters would be removed. The Unprofitable Gas Clause states:

Buyer agrees to take gas testing more than 2.50 GPM except as herein provided. Seller shall have the right to dispose of any |4gas not taken or paid for by Buyer, provided that Buyer shall have the right to take any or all such gas at any time hereafter conditioned upon Buyer giving Seller at least thirty (30) days notice of its election to do so. In the event the gas from any well or wells, or from any point of separation of the oil and gas, on said leases becomes insufficient in volume or liquids content, or for any other cause becomes unprofitable for the extraction of liquids therefrom, Buyer shall have the right to cease taking such gas so long as such condition exists. It is further provided that if any time the volume and/or liquids content of the gas available to Buyer, or if any cause beyond its control, shall render the operation of said plant unprofitable, Buyer may, by thirty (30) days written notice and payment, or tender, to seller of Ten Dollars ($10.00), cancel this contract.

In response to Onshore’s letter, Plaintiffs closed the valves on their wells in order to prevent damage to the wells. Eland Energy and Onshore have refused to purchase any gas from Plaintiffs’ wells since the sale of the Big Creek Gathering System in February 1992.

On June 23, 1992, Plaintiffs brought this lawsuit alleging a breach of contract claim against Onshore. Plaintiffs later amended their petition to include Eland Energy, Sun Limited and Oryx Energy as additional defendants, alleging that either Eland Energy or Sun Limited/Oryx Energy failed or refused to purchase gas from their wells as required by the gas purchase contracts. Plaintiffs argued that they had suffered loss of revenue due to the refusals of Sun Limited and Eland Energy to hon- or their contractual obligations to purchase the gas from their wells. In addition to loss of gas revenue, Vinyard and Sons Oil and Gas asserted that it had | ^sustained a loss of oil revenue because it was unable to produce its oil without the production and marketing of the gas from its wells.

In January 1996, Plaintiffs sent a letter to Eland Energy indicating that they intended to commence delivering their gas on February 1, 1996, and threatened to seek injunctive relief if the delivery was interrupted. Eland Energy, in turn, sent written notice to Plaintiffs cancelling the gas purchase contracts after invoking the Unprofitable Gas Clause’s termination provision, with checks attached to the notice for $10 to each Plaintiff.

A trial on the merits was held on March 12, March 13, April 30 and August 16, 2001. At trial, Eland Energy argued that it and Onshore were entitled to cancel the gas purchase contracts under the Unprofitable Gas Clause in 1992 and that it did not have to give 30 days notice to Plaintiffs. The trial judge did not agree with that argument. Specifically, the trial judge found that the Unprofitable Gas Clause was somewhat ambiguous concerning the notice requirements and that it could easily be construed to require a 30-day notice. More importantly, the trial judge concluded that the profitability of the gas had nothing to do with Eland Energy’s decision to terminate the contracts in this case. In support of this conclusion, the trial judge cited the testimony of Thomas H. Hilton, the operations manager for Eland Energy, who stated that Eland Energy only wanted the oil wells on the property and Eland Energy did not intend to process gas, other than lift gas to get oil, at the time it purchased the Delhi properties.

At the conclusion of the trial, the trial judge found that Eland Energy committed a bad faith breach of its obligation to purchase gas from the |fiPlaintiffs’ wells under the terms of the gas purchase contracts, holding that Eland Energy had a right to sell the gathering system, but it had an obligation to purchase the gas from Plaintiffs’ wells at the meters located on their property. Further, he found that Onshore attempted to unilaterally change the terms of Plaintiffs’ gas purchase contracts and, in effect, forced them to shut-in their wells.

The trial judge did find, however, that Eland Energy effectively cancelled the gas purchase contracts with Plaintiffs under the Unprofitable Gas Clause after sending them a letter on February 12, 1996, and tendering to them the requisite $10. The cancellation was effective 30 days after the date of the letter. It was noted by the trial judge that Eland Energy had given the proper 30-day notice of termination to Plaintiffs. The Plaintiffs were awarded damages for loss of production revenue from April 1, 1992, through March 1996.

At trial, both Plaintiffs and Eland Energy provided expert testimony as to the amount of damages at issue. Eland Energy argued that the damages were minimal and that Vinyard and Sons Oil and Gas could not claim for loss of oil production because the contracts were gas purchase contracts. The trial judge found, however, that the trial testimony ^established that Vinyard and Sons Oil and Gas could only produce oil if the gas was produced and purchased. Eland Energy further argued that it acted in good faith when the gas purchase contracts were terminated and that Plaintiffs’ recovery was limited to foreseeable damages and the loss of oil revenue was not foreseeable. The trial judge found that Eland Energy was not in good faith because it interjected Onshore into the gas purchase contracts; was aware of Onshore’s activities; should have required Onshore to honor the existing contracts; allowed Onshore to attempt to unilaterally change the terms of the existing contracts, in effect, shutting-in Plaintiffs’ wells; and Vinyard and Sons Oil and Gas lost oil revenue was foreseeable.

Eland Energy further argued that Plaintiffs failed to mitigate their damages by selling their gas to Onshore at a reduced amount. The trial judge rejected that argument because Plaintiffs were not given time to produce their gas at a reduced amount, considering the fact that Onshore sent the termination letter to Plaintiffs the day after meeting with them.

The expert for Plaintiffs calculated damages for loss of production from Plaintiffs’ wells without deducting costs of production. The expert for Eland Energy made similar calculations for the loss of production, but deducted $400 per month per well as costs of production. The trial judge found that it was the Plaintiffs who performed most of the duties required for maintenance and production with these wells, whereas the estimates by the expert for Eland Energy included reliance on outside interests to perform the work and expenses, such as office space, secretarial staff and | sother expenses that small, independent producers such as Plaintiffs would not incur. Using the calculations provided by Plaintiffs’ expert, the trial judge found that Vinyard and Sons Oil and Gas would only have $1,100 per year per well in actual production cost and that A.J. Bradford would have no production costs because he performed virtually all his own work on the wells. The trial judge deducted from the damages the actual production costs for the wells owned by Vinyard and Sons Oil and Gas and severance taxes on the oil produced.

Eland Energy further asserted that Plaintiffs’ recovery must be limited only to the percentage of their ownership as the mineral lessees. The trial judge was not persuaded by this argument, however, finding that the damages awarded must include the interest of the mineral lessors (the landowners). Citing the obligations of the lease contracts requiring Plaintiffs to pay the mineral lessors, the trial judge found that, if the wells had produced gas and Eland Energy had paid for the production, Eland Energy would not have been entitled to deduct the interest of the mineral lessors when it paid Plaintiffs. The trial judge found that, since Plaintiffs, as mineral lessees, are required to disburse the proceeds to the mineral lessors, then damages, including both the interest of the mineral lessees and the interest of the mineral lessors, must be awarded.

Judgment was awarded to Vinyard and Sons Oil and Gas in the amount of $30,624.08 for damages resulting from its loss of gas and oil production. Further, judgment was awarded to A. J. Bradford in the |flamount of $49,224.68 for loss of gas production. In calculating the damages, the trial judge adopted the calculation of Plaintiffs’ expert, finding that only limited costs and expenses of production were to be deducted from the damages. The damages awarded by the trial judge were calculated to include not just the interest of the Plaintiffs as mineral lessees, but also the interest of the mineral lessors (the landowners of the property). Damages were awarded to include interest from the date of judicial demand. The trial judge dismissed Sun Limited and Oryx Energy from the case. Following the judgment, Eland Energy moved for a new trial, but this motion was denied. Eland Energy now appeals the judgment of the trial court, raising the following assignments of error (verbatim):

1. Although the trial court correctly found that it was unprofitable for Eland to take plaintiffs’ gas, it erred by rewriting a contractual provision to improperly impose a thirty-day notice requirement on Eland, disregarding Eland’s contractual right to cease taking gas, without notice, based on unprofitability;
2. In the alternative, the trial court erred in calculating damages for lost oil and gas production without deducting proper and reasonable costs and expenses to be incurred by such production;
3. Again alternatively, the trial court erred in awarding damages to plaintiffs for property interests in the oil and gas leases that plaintiffs did not own; and
4. Finally, in the alternative, the trial court erred in awarding legal interest running from the date of judicial demand on plaintiffs’ prospective breach of contract damages.

| inPlaintiffs also appeal the judgment of the trial court, raising the following assignments of error (verbatim):

1. The trial court committed reversible error when it failed to find Sun liable for the bad faith breach of contract; and
2. The trial court committed reversible error by finding that Eland had a right to cancel the plaintiffs’ contracts on March 1996 by written notice and tender of $10.00 when the Delhi plant had excess capacity to process additional gas.

DISCUSSION

Termination of Gas Purchase Contract

Eland Energy argues that the trial judge did not properly interpret and apply the Unprofitable Gas Clause of the gas purchase contracts between it and Plaintiffs and that it should not have been required to give 30 days notice to Plaintiffs before suspending taking gas from their wells. Further, Eland Energy contends that the standard of review for an appellate court in interpreting a contract requires the court to independently determine whether the trial court’s decision was legally correct or legally incorrect. Irrespective of Eland Energy’s arguments, however, the trial judge did not find that the gas extracted from Plaintiffs’ wells had become unprofitable to Eland Energy, but, instead, found that the profitability of the gas extracted from Plaintiffs’ wells actually had nothing to do with Eland Energy’s decision to terminate the contracts in this case. If unprofitability had nothing to do with Eland Energy’s decision, then it is unnecessary to interpret the Unprofitable Gas Clause in this case. We agree with the trial judge’s finding of fact and we will review the trial court’s judgment under the manifest error standard of review.

InA court of appeal should not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dept. of Transp. & Development, 617 So.2d 880 (La.1993). The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must, instead, review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601 So.2d 1349 (La.1992). If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990)).

Eland Energy cannot have the Unprofitable Gas Clause applied in the case sub judice unless it proves that unprofitability was the reason it terminated the gas purchase contracts with Plaintiffs. In reviewing the record, we find that Eland Energy did not prove that, subsequent to April 1, 1992, when the contracts were terminated, it was unprofitable for it to extract gas out of Plaintiffs’ wells and it did not prove that it ceased purchasing gas from Plaintiffs’ wells for that reason.

The great weight of the evidence supports the trial judge’s conclusion in this case. The President of Eland Energy, Tim Allen (“Allen”), told | ^Plaintiffs that Eland Energy needed as much gas as it could get from Plaintiffs. After the gathering system was sold to Onshore, Allen told Plaintiffs that they would have to go through Onshore to get their gas to the Delhi Plant. Eland Energy attempted to change its contractual obligations to Plaintiffs by placing Onshore in the middle of the transactions with Plaintiffs. When Onshore began dealing directly with Plaintiffs, Onshore attempted to change the contract by adding the extra charge for using the gathering system.

Eland Energy asserts that, very soon after it acquired the right to purchase gas from Plaintiffs’ wells, it recognized that the deal was unprofitable. The facts of the case do not support this assertion. If the deal was unprofitable, then Eland Energy certainly would have enforced the Unprofitable Gas Clause immediately upon discovering this fact rather than continuing to take gas from Plaintiffs’ wells. Eland Energy continued, however, to take gas from Plaintiffs’ wells for more than a year and it amended the contract with A. J. Bradford to add the three “Hubbard” wells, which were also in the Big Creek Field. Further, if Plaintiffs’ wells were unprofitable as Eland Energy claims, then surely Onshore would not have purchased the gathering system without assurances from Plaintiffs before the purchase was completed that a transportation fee would be acceptable to keep the gathering system and plant operational. In addition, in Onshore’s purchase of the gathering system, it agreed to allow Eland | ^Energy to continue to take ten percent of the price paid for the gas. This fact does not support the argument that this deal was unprofitable; because, indubitably, if profits were non-existent, then, from the very beginning of the assignment, Onshore would not have wanted to give ten percent to Eland Energy. Eland Energy asserts that the Delhi Plant as a whole became unprofitable to operate; but, if it were to cancel its contract with Plaintiffs on this basis, then it had to give 30 days notice to Plaintiffs and tender $10.

The facts support the conclusion that Eland Energy replaced itself with Onshore in an attempt to change the contractual obligations of the parties. On March 24, 1992, Onshore sent a letter to Plaintiffs informing them of the additional charge of using the gathering system, a charge that did not exist in the original gas purchase contracts between Sun Limited and Plaintiffs. Onshore also wanted Plaintiffs to assume the line loss of any gas escaping from the gathering system while the gas traveled to the Delhi Plant. At this time, no mention of unprofitability was made to Plaintiffs concerning their wells. On March 25, 1992, a meeting was held between Eland Energy, Onshore and Plaintiffs. Onshore discussed with Plaintiffs various alternatives to the terms of the original contract, but Plaintiffs rejected any changes in the contract. It was only one day later, on March 26, 1992, that Onshore sent a letter to Plaintiffs stating that taking gas from their wells was unprofitable. This is the first mention ever made of unprofitability. Onshore and Eland Energy attempted to change the contract; and, when the Plaintiffs refused to approve the changes, it was only then | uthat unprofitability became an issue. We agree with the trial judge that profitability had nothing to do with the decision to terminate the contracts with Plaintiffs. Eland Energy’s first assignment of error is without merit.

Damages Awarded

An award for damages should not be disturbed by a reviewing court absent a showing of a clear abuse of discretion vested in the trial court. Carroll v. St. Paul Insurance Company, 550 So.2d 787 (La.App. 2d Cir.1989). The appropriate procedure for testing whether the trier of fact has abused its discretion by making an excessive award is to determine whether the award can be supported under the interpretation of the evidence most favorable to the plaintiff which reasonably could have been made by the fact finder. Graham v. Edwards, 614 So.2d 811 (La.App. 2d Cir.1993), writ denied, 619 So.2d 547 (La.1993).

Damages and Production Costs

In Eland Energy’s second assignment of error, it argues that the trial judge erred by not deducting the correct production costs from the damages awarded to Plaintiffs. Finding that the Plaintiffs’ expert witness established actual costs versus the estimated costs provided by Eland Energy’s expert witness, the trial judge adopted the actual costs. We agree with the trial judge’s conclusion.

The trial judge deducted no production costs from the damages to A.J. Bradford, finding that, due to his extensive experience in dealing with gas wells, he was able to perform the work himself on his wells. It was established at trial that these wells were only gas wells and did not develop Imparaffin buildup that occurs in oil wells. Further, the trial judge deducted $1,100 per year per well for the Vinyard and Sons Oil and Gas wells and deducted that cost from the damages awarded to Vinyard and Sons Oil and Gas. Plaintiffs’ expert testified at trial that these were the actual production costs for these wells. Vinyard and Sons Oil and Gas was able to provide much of the labor itself on its wells. Moreover, Eland Energy’s expert witness estimated the production cost and included costs that small operators such as Plaintiffs would not normally incur. Weighing the credibility of both experts and the testimony of Plaintiffs, the trial judge found Plaintiffs’ expert to be more credible. The trial judge did not abuse his discretion in awarding damages, deducting only limited production costs based on the calculations of Plaintiffs’ expert; and, therefore, Eland Energy’s second assignment of error is without merit.

Damages Including Interests of Mineral Lessors

Eland Energy argues in its third assignment of error that the trial judge should not have included the interest of the mineral lessors (the landowners of the property) when damages were awarded. Further, Eland Energy asserts that the mineral lessors were not parties to this lawsuit and that the mineral lessees, the Plaintiffs, were given damages based on interests that they did not own. In addition, Eland Energy contends that royalties paid to the mineral lessors must be paid only when gas is produced; and, because there was no production here, then no royalties are owed under the leases. The trial judge did not agree with Eland Energy’s arguments, finding that Plaintiffs are still obligated to pay the mineral | ^lessors out of the damages received from this lawsuit. We agree with the trial judge’s finding.

First, the Royalty Clause in the gas purchase contracts states:

Seller agrees to account and pay to the lessors, royalty owners and owners of other interests under the committed leases, in strict accordance with the applicable agreements, the royalty and other interests in the gas sold and delivered hereunder to Buyer.

The Oil, Gas and Mineral Lease agreed to by the mineral lessors and the mineral lessees states, in pertinent part, in paragraph four:

The royalties to be paid by Lessee are ... on gas sold at the wells the royalty shall be one-eighth of the amount realized from such sale.... (Emphasis added.)

In Frey v. Amoco Production Company, 603 So.2d 166 (La.1992), the supreme court held that the mineral lessee, after receiving a settlement in a dispute with the gas buyer, had to pay the mineral lessor his interest from the damages awarded to the mineral lessee. The court found that:

The lease (between the mineral lessor and the mineral lessee) represents a bargained-for exchange, with the benefits flowing directly from the leased premises to the lessee and the lessor, the latter via royalty. An economic benefit accruing from the leased land, generated solely by virtue of the lease, and which is not expressly negated, see La. R.S. 31:3, is to be shared between the lessor and lessee in the fractional division contemplated by the lease.

Amoco Production Company, the mineral lessee in this case, made the same argument that Eland Energy now makes before us, that there must be an actual sale of gas produced in order for the mineral lessor to be included in the award of damages. The supreme court rejected this argument and we are constrained to follow the supreme court’s holding on this issue.

117The court in Frey, supra, further found that the settlement was part of the “amount realized” portion of the mineral lease and, therefore, subject to the lessor’s royalty clause. Moreover, the court found that the proceeds of the settlement constituted economic benefits which are derivative of the mineral lessee’s right to develop and explore the leased property, a right conferred by and dependent upon the lease between the mineral lessor and mineral lessee. The court cited La. R.S. 31:122 in support of its analysis. La. R.S. 31:122 provides, in pertinent part:

A mineral lessee is ... bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual beneñt of himself and his lessor. (Emphasis added.)

The mineral lessor assumes a passive role after it enters into a lease with a mineral lessee and the lessee assumes a superior position according it exclusive control over the development and management of the property for the production of minerals. This development and management includes the exclusive ability to sue for breach of contract if the purchaser of the gas breaches its contract with the mineral lessee, as occurred in the instant case. The court in Frey, supra, held that the mineral lessee should not be able to exclusively enjoy the benefits of the settlement while refusing to share the benefits with the mineral lessor; and, thus, the settlement inures to the mutual benefit of both the mineral lessee and the mineral lessor. We reject Eland Energy’s arguments here and find that the trial judge correctly | ^awarded damages to Plaintiffs by including damages for the mineral lessor. Eland Energy’s third assignment of error is without merit.

Damages for Legal Interest from Date of Judicial Demand

Eland Energy argues that the trial judge erred when Plaintiffs were awarded damages with legal interest from the date of judicial demand. In support of its argument, Eland Energy cites the case of Corbello v. Iowa Production, 02-0826 (La.2/25/03), 850 So.2d 686. Eland Energy argues that the supreme court in Corbello, supra, found that legal interest is recoverable on debts arising ex contractu (debts arising from a contract) from the time they become due and the debt in this case arose from a contract. Further, Eland Energy contends that the decision in Corbello, supra, expressly overruled the existing supreme court precedent found in Trans-Global Alloy Limited v. First National Bank of Jefferson Parish, 583 So.2d 443 (La.1991) and Alexander v. Burroughs Corporation, 359 So.2d 607 (La.1978). We do not agree.

In Trans-Global Alloy Limited, supra, the supreme court held that, in a breach of contract case, a prevailing party is entitled to legal interest from date of judicial demand even though damages are not ascertainable until the date of judgment. The supreme court in Alexander, supra, similarly held that, in a breach of contract case, a plaintiff is entitled to legal interest from date of judicial demand. The court in Alexander, supra, rejected the defendant’s argument that the plaintiffs’ suit was grounded in contract and |19that La. 13:4203 did not apply. The court found that it did not matter that the suit had a contractual rather than a delictual source.

We find that the supreme court in Cor-bello, supra, did not expressly overrule Trans-Global Alloy Limited, supra, and Alexander, supra. The Corbello, supra, court did not hold that interest is recoverable on debts arising in all breach of contract cases only from the time they become due. The court’s general discussion of ex delicto and ex contractu in Corbello, supra, was just that, a general discussion of those two theories under which many causes of action exist. In addition, the discussion was based on the citation to a line of very specific contracts cases and a very specific code article, La. C.C. art.1938. The issue in the instant case does not concern that code article, nor does it concern the issue prevailing in Corbello, supra, or the cases cited therein. The trial judge in the case sub judice did not abuse his discretion in any of the damages awarded to Plaintiffs; and, therefore, Eland Energy’s final assignment of error is without merit and interest in this case is due from date of judicial demand.

Dismissal of Sun Limited from Lawsuit

Plaintiffs argue on cross appeal that the trial judge should not have dismissed Sun Limited from the lawsuit. Even though Sun Limited sold the gas purchase contracts to Eland Energy, the Plaintiffs assert that they never released Sun Limited from any of its obligations under the contracts. As | ^previously stated, the Assignment Clause of the gas purchase contracts provides, in pertinent part, that:

This contract shall extend to and be binding upon the parties hereto, their heirs, administrators, successors and assigns.

Further, as previously noted, La. C.C. art. 1821 provides, in pertinent part:

An obligor and a third person may agree to an assumption by the latter of an obligation of the former.
The obligee’s consent to the agreement does not effect a release of the obligor.

This is not a case where novation has occurred. La. C.C. art. 1880 provides:

The intention to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed.

When a new obligor is substituted for a prior obligor, novation takes place only when the prior obligor is discharged by the obligee. See La. C.C. art. 1882.

We find no evidence in the record before us that Plaintiffs, as the obligees, released or discharged Sun Limited, as the original obligor, from any of its obligations under the gas purchase contracts. Without such a release or discharge, Sun Limited continues to remain hable to Plaintiffs. The gas purchase contracts were freely assignable, but the law in Louisiana sets forth that, when an obligation is assigned, the original obligor is not released or discharged unless expressly done so by the obligee. We find merit in Plaintiffs’ first assignment of error and, therefore, hold that the trial judge committed reversible error in dismissing Sun Limited from this lawsuit.

_[¿¡Excess Capacity of Plant and Right to Cancel Contracts

Plaintiffs contend that the trial judge erred in finding that Eland Energy had a right to cancel the gas purchase contracts in 1996 even though the Delhi Plant had excess capacity to continue to take gas from Plaintiffs’ wells. The trial judge found that Eland Energy effectively cancelled the gas purchase contracts in 1996. Effective cancellation would occur only if Plaintiffs’ gas wells were unprofitable. The trial judge applied the Unprofitable Gas Clause of the contract to uphold Eland Energy’s cancellation of the contract. Irrespective of the Unprofitable Gas Clause, Plaintiffs argue that the Obligation to Take Clause preempts the Unprofitable Gas Clause. The Obligation to Take Clause of both contracts states:

Any other provision herein to the contrary notwithstanding, Buyer, acting for itself and as agent of each of the other owners of the gasoline plant as provided herein above agrees to take gas hereunder when and only when there is sufficient excess capacity in said plant to process such gas. Excess capacity as herein used shall mean plant capacity over and above that required to process all the casinghead gas produced by the owners of said plant. In the event of excess capacity, Buyer agrees to take ratably from all of the gas connected to its plant produced by Sellers not owning an interest in the plant. It is further provided that if at any time the pressure at the point of delivery exceeds thirty (30) psig, Buyer shall have no obligation to take said gas.

Plaintiffs’ contention is that, even if the gas from their wells is unprofitable, Eland Energy still must take their gas if Eland Energy’s gas plant has excess capacity. We find that this argument would lead to an absurd conclusion.

La. C.C. art.2049 provides:

19?A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not one that renders it ineffective.

Further, La. C.C. art.2050 provides:

Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.

The Unprofitable Gas Clause of the gas purchase contracts and the Obligation to Take Clause arguably conflict with each other. In interpreting the meaning of each clause, however, we find that they are distinct and can coexist with each other to make the contract effective as a whole. The Unprofitable Gas Clause is designed to cancel the contract if the Plaintiffs’ wells become unprofitable to the Buyer of the gas. This is separate and distinct from the intent of the Obligation to Take Clause, which has to do with excess capacity in the plant.

La. C.C. art.2046 further provides:

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. (Emphasis added.)

We find that, if the Obligation to Take Clause were to preempt the Unprofitable Gas Clause, then absurd consequences would occur. Eland Energy would have to take Plaintiffs’ gas in infinity as long as its plant had excess capacity to take the gas, even though Plaintiffs’ gas wells were unprofitable. In effect, this theoretically could lead to Eland Energy’s insolvency if it had to continue to take unprofitable gas forever. The trial judge found that Eland Energy had effectively cancelled the contracts with Plaintiffs in 1996 under the Unprofitable Gas Clause. The Obligation to Ip/Take Clause does not preempt the Unprofitable Gas Clause; and, thus, Plaintiffs’ final assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of Plaintiffs, Vinyard and Sons Oil and Gas and A.J. Bradford, is affirmed as to the liability of Defendants, Eland Energy and Onshore, to Plaintiffs, and as to all damages, including interest from date of judicial demand, awarded for their loss of oil and gas production. Further, the judgment of the trial court is affirmed as to its finding that Eland Energy effectively cancelled the gas. purchase contracts in 1996. The judgment of the trial court is reversed as to its dismissal of Sun Limited from this lawsuit. Costs of this appeal shall be divided one-third (1/3) to Plaintiffs, Vinyard and Sons Oil and Gas and A.J. Bradford, and two-thirds (2/3) to Defendants, Eland Energy, Inc. and Sun Limited.

AFFIRMED IN PART AND REVERSED IN PART.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, PEATROSS, and DREW, JJ.

Rehearing denied.

      . Frank Ray Vinyard, Sr. and Audie Mae Vin-yard entered into Oil, Gas and Mineral Leases with Vinyard and Sons Oil and Gas whereby the property on which the wells were located was leased to Vinyard and Sons Oil and Gas for mineral exploration. Vinyard and Sons Oil and Gas was given the right to enter into gas purchase contracts with potential buyers for gas taken out of all five wells. Mr. and Mrs. Vinyard reserved a one-half (1/2) mineral royalty in Vinyard B No. 1, Vinyard C No. 1 and Vinyard D No. 1, and a one-fifth (1/5) mineral royalty in Vinyard No. 1 and Vinyard No. 2.

      . The Delhi Plant was owned by Sun Limited. The Delhi Plant housed equipment that processed (extracted liquids from) the gas delivered to it.

      . The gas purchase contracts for both Plaintiffs are identical.

      . Ben Scott Pipes, Jr., Balfour Pipes, Guy C. Williamson, Ethel Williamson, Durwood Russell Jinks, Martha Jinks, the First Republic Bank and Sherry Lorraine Silk entered into an Oil, Gas and Mineral Lease with A.J. Bradford whereby their property was leased to A.J. Bradford for mineral exploration. A.J. Bradford was given the right to enter into gas purchase contracts with potential buyers for gas taken out of the gas well known as Ben S. Pipes No. 1. The aforementioned lessors reserved a three-sixteenths (3/16) mineral royalty in Ben S. Pipes No. 1.

      .Lewis Hubbard, III and Laura Hubbard entered into Oil, Gas and Mineral Leases with Lewis Hubbard, Jr. and Doris Hubbard whereby their property was leased to Lewis Hubbard, Jr. and Doris Hubbard for mineral ■exploration. Lewis Hubbard, Jr. and Doris Hubbard were given the right to enter into gas purchase contracts with potential buyers for gas taken out of the gas wells known as Lewis Hubbard No. 1, Lewis Hubbard No. 2 and Lewis Hubbard III No. 1. Lewis Hubbard, III and Laura Hubbard reserved a one-fifth (1/5) mineral royalty in these three wells. Subsequently, Lewis Hubbard, Jr. assigned a "Working Interest” to A.J. Bradford, whereby A.J. Bradford received a fifty percent (50%) working interest in these gas wells. Also, Doris Hubbard later executed a “Ratification and Quitclaim” of this assignment of working interest over to A.J. Bradford.

      . MCF is the total volume of gas that flows through the meter. Gas volume is reported in thousand cubic feet.

      . The Transfer of Title Clause of the gas purchase contracts states:
      Upon receipt of said gas by Buyer, title thereto shall pass to and vest in Buyer at the delivery place described herein.
      The Delivery Place Clause states:
      The delivery of the gas shall be made at a point mutually agreeable to Buyer and Seller.
      Sun Limited and Plaintiffs agreed that the delivery place would be at the meter.

      .In September 1992, however, Onshore did request Vinyard and Sons Oil and Gas to open its valves to allow gas to enter the gathering system so that Onshore could test the system for leaks.

      . Oryx Energy signed the gas purchase contracts as the managing general partner for Sun Limited.

      . Eland Energy is not relieved from its obligations under the gas purchase contract with Plaintiffs just because it made an assignment to Onshore. The Assignment Clause of the contract provides, in pertinent part, that:
      This contract shall extend to and be binding upon the parties hereto, their heirs, administrators, successors and assigns.
      Moreover, La. C.C. art. 1821 provides, in pertinent part:
      An obligor and a third person may agree to an assumption by the latter of an obligation of the former.
      The obligee’s consent to the agreement does not effect a release of the obligor.

      . The expert for Eland Energy also made deductions for the interest of the mineral lessors and severance taxes, whereas, Plaintiffs’ expert did not.

      . The judgment also included an award of $11 for reimbursement of a January 1992 transportation expense charged by Onshore. The judgment was awarded with legal interest from the date of judicial demand until paid and for all costs of the proceedings, including expert witness fees.

      . The judgment also included an award of $921 for reimbursement of a January 1992 transportation expense charged by Onshore. The judgment was awarded with legal interest from the date of judicial demand until paid and for all costs of the proceedings, including expert witness fees.

      . Moreover, if the gas wells were unprofitable, then surely Eland Energy would have done the research to note this fact when it purchased the wells from Sun Limited; and, yet, nothing in the record indicates that anything was mentioned between Sun Limited and Eland Energy that the wells were unprofitable.

      . The mineral lease in Frey, supra, is similar to the mineral lease in the case sub judice, including the provision covering the "amount realized.”

      . Part of this decision was superseded by statute on other grounds.

      . La. R.S. 13:4203 provides,
      Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, "ex delicto,” which may be rendered by any of the courts.


author: |1MAX N. TOBIAS, JR., Judge.

text:
    Lynn B. DEAN, et al. v. DELACROIX CORPORATION, et al.
    No. 2003-C-1352.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 27, 2003.
    Rehearing Denied Sept. 16, 2003.
    James E. Blazek, Donna M. Borrello, New Orleans, LA, for Delacroix Corporation.

      Edward D. Markle, Special Parish Attorney, Plaquemines Parish Government, Maride, Daly & Martinez, New Orleans, LA, and Charles A. Arceneaux, Plaque-mines Parish Government, Belle Chasse, LA, for Plaquemines Parish Government.
    Laurence Edward Best, Susan R. Lar-porte, R. Jeffrey Bridger, Best Koeppel, APLC, New Orleans, LA, for Plaintiffs.
    (Court composed of Judge MICHAEL E. KIRBY, Judge, MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   |1MAX N. TOBIAS, JR., Judge.

We grant the application for supervisory writ of relator, Delacroix Corporation (“Delacroix”), to review a judgment of the trial court denying Delacroix’s declinatory exceptions of lis pendens, no right of action, and no cause of action. For the following reasons, we reverse the trial court’s judgment insofar as same denied the exception of lis pendens against respondents, Lynn B. Dean (“Dean”) and Elevating Boats, L.L.C. (“EBLLC”), render judgment dismissing without prejudice the claims of Dean and EBLLC against Delacroix, and vacate the trial court’s judgment insofar as same denied Delacroix’s exceptions of no right of action and no cause of action.

The record before us reveals that on 30 September 1999, Delacroix filed a petition to enjoin trespass against Dean and Elevating Boats, Inc. (“EBI”) in the 34th Judicial District Court for the Parish of St. Bernard (“the St. Bernard litigation”). The suit sought to prohibit the defendants therein from trespassing on certain immovable property that Delacroix alleged that it owned located in 12Plaquemines Parish. Delacroix alleged that Dean and EBI owned property adjacent to and to the east of their property. Venue was proper in St. Bernard Parish because (a) Dean was domiciled in that parish, (b) EBI had its registered office in St. Bernard Parish, and (c) title to the subject immovable was not per se required to be adjudicated in order to determine whether trespass should be enjoined. Cf, La. C.C.P. arts. 3652, 3656, 42, and 80 A(l). Nevertheless, we note that Delacroix’s suit is in the nature of a petitory action relating to a portion of the eastern side of their property because Delacroix alleges in its petition that it is the owner of the immovable property upon which Dean and EBI (EBLLC) are alleged to be trespassing. In essence, Delacroix confessed that Dean and EBI were in some fashion in possession of a portion of the immovable property in issue. Apparently, the parties attempted to resolve their dispute amicably, but were unable to do so. Dean and EBLLC filed a reconventional demand against Delacroix alleging a possessory action. However, the trial court dismissed the reconventional demand on the grounds that Dean and EBLLC’s possessory action was prescribed. This court affirmed the trial court’s decision on 6 June 2003 in writ application number 2003-C-0624, but on grounds different from those found |3by the trial court. We held that Dean and EBLLC had no right of action to assert a possessory action in the case as pled because “neither a disturbance in fact nor a disturbance in law existed,” which is an essential element of a possessory action under La. C.C.P. art. 3659.

On 11 March 2003, Dean and EBLLC filed suit against Delacroix and the Parish of Plaquemines in the 25th Judicial District Court for the Parish of Plaquemines (“the Plaquemines litigation”). This suit is captioned as a petition for eoncursus and for preliminary injunction. Dean and EBLLC appropriately styled and brought their suit as a petition for eoncursus (see, La. C.C.P. arts. 4651 and 3654); the petition alleges Dean and EBLLC’s ownership of immovable property in Plaquemines Parish of which Delacroix claims ownership of a part thereof. We note that the prayer of Dean and EBLCC’s petition filed in the Plaquemines litigation contains no prayer for relief against the Parish of Plaquemines (“Plaquemines Parish Government”). The dispute between the parties relates to a portion of the Caernarvon Canal; the area in dispute is under water. Apparently the precise boundary between the parties’ properties is uncertain and water bottoms owned by Plaquemines Parish Government may he between their respective properties. Plaquemines Parish is a proper venue because La. R.S. 13:5104 requires suits against a political subdivision to be filed in the parish of the political 1¿subdivision and because La. C.C.P. art. 4653, relative to a eoncursus, states that venue is mandatory in the parish where the immovable in issue is located.

Our reading of the petitions filed by the parties in both parishes places at issue the ownership of immovable property, but in different contexts. We find that the language of the petition in the St. Bernard litigation places the ownership of a portion of the immovable at issue and will be dispositive of who has the right to the immovable at issue. That is, if Delacroix owns the disputed portion of the immovable, then the injunction against trespass would appropriately issue against Dean and EBLLC. If Dean and/or EBLLC own the disputed portion of the immovable, then the injunction against trespass would fail. Accordingly, a resolution of the issue of ownership of the immovable in the St. Bernard litigation will have res judicata effect on the issue of ownership of the immovable. See La. C.C.P. art. 1061 B and La. R.S. 13:4231-4232; Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049.

Additionally, we find that the addition of Plaquemines Parish Government as a party defendant to the Plaquemines litigation does not defeat Delacroix’s exception of lis pendens. This court has recognized and held that the filing of a new suit naming new and additional parties will not defeat an exception of lis pendens. The party to the earlier filed suit is entitled to have the later filed suit dismissed as to him, and the new parties remain in the later filed suit. See Fincher v. Ins. Corp. of America, 521 So.2d 488 (La.App. 4 Cir.1988); Fire & Cas. Ins. Co. of Connecticut v. Sewerage and Water Board of New Orleans, 2001-0898 (La.App. 4 Cir. 5/29/02), 820 So.2d 632; Building Engineering Services Co. v. State, 441 So.2d 417 (La.App. 4 Cir.1983).

For these reasons, we find that the trial court erred when it failed to sustain the exception of lis pendens in the Plaque-mines litigation and dismiss without prejudice the claims of Dean and EBLLC against Delacroix.

In view of our determination that the trial court should have sustained the exception of lis pendens, we vacate the trial court’s denial of the exceptions of no right and no cause of action. Whether Dean and EBLLC have a right or cause of action must be determined in the St. Bernard litigation when and if Dean and EBLLC file answer therein asserting their rights of ownership. We therefore vacate the trial court’s judgment insofar as it denied those exceptions.

Nothing in our decision affects Dean’s and EBLLC’s claims asserted in the petition for eoncursus against the Plaquemines Parish Government because the rights to the immovable between Dean, EBLLC, and the Plaquemines Parish Government can and must be adjudicated in the Plaque-mines litigation and will not be adjudicated in the St. Bernard litigation. See La. C.C.P. art. 4653 and La. R.S. 13:5104.

LWe remand for further proceedings.

SUPERVISORY WRIT GRANTED; JUDGMENT REVERSED IN PART, RENDERED IN PART, AND VACATED IN PART; REMANDED.

      . We are aware from Louisiana’s public records and argument of counsel in brief that on 29 September 2000, Elevating Boats, Inc. was merged into EBLLC.

      . From the briefs filed by the parties, water bottoms in the Caernarvon Canal may be located between the Delacroix’s and the Dean and EBLLC's properties. The Plaquemines Parish Government may own these water bottoms.

      . We noted that articles 3652 and 3656 refer to venue being proper under article "80(1).” This is, however, an apparent error in drafting because La. C.C.P. art. 80 is divided into parts A, B, C, and D, and only part A has subparts of (1), (2), and (3). We interpret articles 3652 and 3656 as referencing article 80 A(l). Also, we are aware of earlier jurisprudence that holds that the venue for a peti-tory action is the parish in which the immovable is located; that jurisprudence, however, has been overruled by the subsequent enactment of the Code of Civil Procedure and amendments thereto.

      .A person who converts a possessory action to a petitory action confesses that his opponent has possession of the property. See La. C.C.P. art. 3657.

      . We did not address therein the issue of whether Dean and EBLLC could assert a peti-tory action in a reconventional demand.

      . We are aware that Garry v. Zor, Inc., 181 So.2d 828 (La.App. 4 Cir.1966), questioned whether ownership to immovable property can be adjudicated in the context of a petition for eoncursus; however, we find the language is dicta because the case was not a eoncursus proceeding and the express language in La. C.C.P. art. 3654 recognizes that a eoncursus proceeding can address the ownership of immovable property. See also La. C.C.P. art. 4651.

      .It appears that Dean and EBLLC filed their suit as a eoncursus because of the mandatory venue provisions of La. C.C.P. art. 4653, all in an effort to change the forum for the trial of the issue of ownership.

      . La. C.C.P. art. 531, respecting lis pendens, reads as follows:
      When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.


author: | JETERS, Judge.

text:
    Elizabeth MONK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 03-742.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 3, 2003.

      Robert Lawrence Beck, Jr., Rivers, Beck & Dalrymple, Alexandria, LA, for PlaintiffyAppellee, Elizabeth Monk.
    Bonita K. Preuett-Armour, Reiehman & Lowrey, Alexandria, LA for Defendant/Appellant, State Farm Mutual Auto Ins. Co.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   | JETERS, Judge.

The Plaintiff-Appellee, Elizabeth Monk, moves to dismiss the suspensive appeal taken by the Defendant-Appellant, State Farm Mutual Automobile Insurance Company, on the ground that the suspensive appeal bond was untimely posted. For the reasons discussed in this opinion, we deny the motion to dismiss as untimely.

By written judgment signed on March 26, 2003, the trial court awarded the Plaintiff thirty-five thousand dollars, together with legal interest from the date of judicial demand until paid, plus court costs and certain other specific fees associated with the action. The clerk’s certificate in the record of this appeal shows that notice of this judgment was mailed to all parties through their respective counsel of record on March 26, 2003. No motion for judgment notwithstanding the verdict or new trial was filed.

The Defendant filed a Motion and Order for Suspensive and Devolutive Appeal on March 31, 2003. The order granting the appeal was signed on April 3, 2003, and read:

CONSIDERING THE ABOVE AND FOREGOING, it is
ORDERED that a suspensive appeal and devolutive appeal be granted to STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, and that the appeal be returnable to the Court of Appeal, Third Circuit, Lake Charles, Louisiana, within sixty (60) days of the signing of this order granted (sic) appeal; and it is further
ORDERED that a bond be posted as security as required by law.

The appellate record was lodged in this court on June 12, 2003. On June 24, 2003, the Defendant posted an appeal bond in the amount of thirty-nine thousand dollars with the trial court. On June 27, 2003, this court lodged a supplemental record in this appeal, the sole contents of which were a copy of |?the appeal bond, a letter from defense counsel addressed to the district court clerk’s office explaining that the bond was being sent to the trial court in this matter with a request for its filing, and the certificate of the clerk of court for the district court certifying that the documents contained in the supplemental record constituted a true and correct copy of the documents filed in this case.

On July 2, 2003, the Plaintiff filed the motion to dismiss which is the subject of this opinion. In the motion the Plaintiff contends that this court should dismiss the Defendant’s suspensive appeal due to the Defendant’s alleged failure to post security for the suspensive appeal timely. The motion asks that this court maintain the appeal as devolutive. The Defendant filed a brief in opposition to the Plaintiffs motion to dismiss on July 10, 2003.

Relying on La.Code Civ.P. art. 2161, the Defendant asks this court to find that the Plaintiffs motion is untimely. In pertinent part, the cited article states, “Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.” The Defendant points out to this court that the record in this appeal was filed on June 12, 2003. Although the record was supplemented on June 27, 2003, the Defendant argues that the error cited by the Plaintiff was apparent from the record filed on June 12. As the Plaintiff did not file the motion to dismiss until July 2, the Defendant contends that the motion is untimely under Article 2161.

We find the Defendant’s argument to be dispositive of this motion. In Wright v. Jefferson Roofing, Inc., 93-1217 (La.1/14/94), 630 So.2d 773, the surety on a supplemental suspensive appeal bond attempted to avoid having to |spay on the bond when the appellant was discharged in bankruptcy during the pendency of the appeal. One of the arguments advanced by the surety was that since the supplemental appeal bond had not been timely posted, the bond was invalid.

In rejecting this argument, the court reasoned:

Accordingly, when the appellant files a suspensive appeal or the security after the thirty-day period provided in La. Code Civ.Proc. art. 2123 for appealing suspensively (but within the sixty-day period for appealing devolutively) and the appellee does not exercise his right to dismiss the suspensive appeal within the three-day period provided in La. Code Civ.Proc. art. 2161, the suspensive appeal remains in effect and the surety remains obligated on the appeal bond. The surety, who bound himself with the judgment debtor for payment of the judgment in return for a fee or for the debtor’s advantage of proceeding with his appeal without threat of execution, cannot use his own untimely action as a basis for defeating his obligation on the bond unless the judgment creditor raises that untimeliness in an Article 2161 motion to dismiss the suspensive appeal filed within the limited three-day period. Any contrary holding in Willswood Plantation, Inc. v. Foret, 391 So.2d 1389 (La.App. 4th Cir.1980) is expressly overruled.
Here, the surety’s filing of the supplemental bond was untimely, giving rise to plaintiffs’ right to obtain dismissal of the suspensive appeal. But when plaintiffs did not exercise this right within Article 2161’s three-day period, the appeal was no longer subject to dismissal, and the surety remained bound on (sic) supplemental bond.

630 So.2d at 776(footnotes omitted).

Thus, in the instant case, the Plaintiff could have sought dismissal of the sus-pensive appeal within three days of the filing of the appellate record in this court. Since the Plaintiff failed to exercise this right within the three day time period set forth in Article 2161, the suspensive appeal was no longer subject to dismissal.

Moreover, we find that the delay for filing the motion to dismiss in this case must be found to have begun to run on the date that the original record |4was lodged in this court, not from the date of the filing of the supplemental record. To rule that the delay under La.Code Civ.P. art. 2161 would begin to run from the filing of the supplemental record would result in punishing the responsible appellant who files the appropriate suspensive appeal bond after the delays have run for the appellee to challenge the untimely filing. Thus, were we to construe the Article 2161 delay as starting from the filing of the supplemental record, the Defendant in this case would have been better off to have never filed the bond. In that manner, the Defendant could have continued to pursue its suspensive appeal with impunity without affording the Plaintiff any protection during the pendency of the appeal. Consequently, for the above reasons, we deny the motion to dismiss the appeal at the Plaintiffs costs.

MOTION TO DISMISS DENIED.