author: 11 WILLIAM H. BYRNES III, Chief Judge.

text:
    Sister Carol FRANCIS, Individually, and on Behalf of Her Father, Jacob Francis, Sr. v. LAFON NURSING HOME OF the HOLY FAMILY and Sisters of the Holy Family.
    No. 2002-CA-1863.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 2003.
    Rehearing Denied April 15, 2003.

      D. Briana Rivera, Law Office of D. Briana Rivera, San Diego, CA, and Jack W. Harang, Smith & Harang, Mandeville, LA, for PlaintiffAppellant.
    Richard A. Bordelon, Ralph J. Aucoin, Denechaud & Denechaud, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   11 WILLIAM H. BYRNES III, Chief Judge.

On February 7, 1994, plaintiff-appellant, Sister Carol Francis, individually and on behalf of her father, Jacob Francis, Sr. sued the defendants, Lafon Nursing Home of the Holy Family (Lafon) and the Sisters of the Holy Family (Sisters) claiming that Mr. Jacob was “mistreated, neglected and inappropriately discharged and his care was not provided adequately.”

On January 11, 2002, Sister Carol Francis filed an amended petition noting that she “was duly appointed administrator of the Estate of Jacob Francis ...” This amended petition alleged claims founded in breach of contract, negligence, breach of fiduciary duty, damages and attorney’s fees under La. R.S. 40:2010.9, and violation of the Louisiana Unfair Trade Practices and Consumer Protection Act, La. R.S. 51:1401, et seq.

Pursuant to the defendant’s motion for summary judgment, on February 8, 2002, the trial court rendered a judgment dismissing the defendant, Lafon Nursing Home, from the case.

On February 14, 2002, the trial court issued a revised judgment dismissing the other defendant, the Congregation of the Sisters of the Holy Family, for the 12reason that the failure of the original judgment to do so was inadvertent and there was no reason not to grant the judgment in favor of the Congregation of the Sisters of the Holy Family as well as Lafon Nursing Home.

The trial court provided no written reasons supporting the merits of its decision to dismiss either of these defendants.

Appellate courts review summary judgment de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/2000), 755 So.2d 226, 230. The supporting documentation submitted by the parties should be scrutinized equally, and there is no longer any overriding presumption in favor of trial on the merits. Id., 755 So.2d at 231; Johnson v. State/University Hosp, 01-1972, p. 5 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 369.

Essentially, plaintiffs claim is one for the mental distress her father endured as a result of being moved from Lafon to strange surroundings in a new facility, Easthaven Care Center (Easthaven), although her petition also included allegations that Mr. Francis was assaulted at the new facility.

A nursing home is not a resident’s insurer. McCartney v. Columbia Heights Nursing Home, Inc., 25,710 (La.App. 2 Cir. 3/30/94), 634 So.2d 927, 933.

The plaintiffs case is founded in the defendants’ breach of duties arising from the following statutes and federal and state regulations: Plaintiff cites C.F.R. § 431.220(3) in support of the contention that Mr. Francis was entitled to a hearing when “he or she believes a skilled nursing facility or nursing facility has erroneously determined that he or she must be transferred or discharged.” Plaintiff cites C.F.R. § 483.12 in support of the contention that: (1) Mr. Francis and a |3family member were entitled to be notified in writing of his discharge and transfer; (2) Mr. Francis and a family member should have been notified of his right to appeal the discharge and transfer; (3) Mr. Francis and a family member should have been given notice of the name, address and telephone number of the State long term care ombudsman; (4) and Mr. Francis and a family member should have been notified concerning Lafon’s bed-hold policy. These same requirements can be found in the State of Louisiana Department of Health and Human Resources “Standards For Payment — SNF/ICF.” In addition to general tort law, La. R.S. 40:2010.9 specifically provides nursing home residents with a private cause of action for damages.

To be actionable the defendant(s)’s conduct must be both the cause-in-fact and a legal cause of the plaintiffs damages. Succession of Harvey, 97-2815, p. 4 (La.App. 4 Cir.1998), 716 So.2d 911, 914. Conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm, i.e., but for the defendant(s)’s conduct, the plaintiff would not have sustained the injury. Id. In other words, it is not enough for the plaintiff to prove tortious conduct on the part of the defendant(s); the plaintiff has the burden of establishing a causal connection between the defendant(s)’s act or omission and the plaintiffs damages.

It is undisputed that Lafon did not give Mr. Francis or a family member written notice of intent to discharge him, including the reasons for the discharge, the date of discharge, his right of appeal, Lafon’s bed-hold policy and contact information for the State long term care ombudsman. The defendants in their motion for summary judgment and on this appeal have not challenged the plaintiffs reading of these state and federal regulations. Rather, the defendants contend that Mr. Francis required skilled care which Lafon could not provide.

14From this, the defendants argue that even if the plaintiff is able to prove that Lafon failed to comply with all of the above cited state and federal regulations, i.e., Lafon breached one or more duties to Mr. Francis, the breach of that duty or duties was not the cause of Mr. Francis’ alleged damages because, even had Lafon done all of the things the plaintiff contends Lafon should have done, Mr. Francis’ need for skilled care would have necessitated his discharge from Lafon and transfer to Eas-thaven that occurred in this case. Therefore, any distress Mr. Francis may have suffered as a result of his discharge and transfer was the inevitable consequence of his condition and could not have been prevented by compliance with regulatory notice requirements and appeal procedures, etc.

The defendants explained this argument in their brief:

On February 15, 1993, after Mr. Francis had been discharged by University Hospital and transferred by University Hospital to its skilled nursing facility, Lafon noted in its record that Mr. Francis had been discharged to his family because of this reclassification as being in need of skilled care.... It was not Lafon’s decision to transfer Mr. Francis to a skilled nursing home. That determination was made by University Hospital and was not Lafon’s decision to question. It is undisputed that Mr. Francis was discharged by University Hospital to a skilled nursing facility. Since Lafon is not a skilled nursing facility, Mr. Francis could not return to Lafon. Lafon did not make the determination that Mr. Francis required skilled care. That was a decision made by University Hospital. There was no decision made by Lafon which Mr. Francis or his family could appeal. The decision was made by University Hospital.
University Hospital subsequently transferred Mr. Francis into another nursing home [Easthaven]. Lafon again had no part in that decision. [Emphasis added.]
[A]ny alleged breach of the alleged notification requirements are not casually connected to the damage claims of the appellant. In other words, it is undisputed that it was not Lafon that caused or determined that Mr. | ^Francis needed skilled care. It was not Lafon that transferred Mr. Francis to a skilled nursing facility on February 9, 1993. It was not Lafon that discharged Mr. Francis from that skilled nursing facility into yet another facility on March 3, 1993. Any written notification to appellant would not have changed the undisputed facts that it was determined by Mr. Francis’ independent health care providers that he needed skilled care and that Lafon was not a skilled care nursing home. Any failure in notification is of no consequence and does not support the claims for damages alleged by appellant, whether based in negligence, breach of contract or otherwise.

In other words, Lafon contends that if Lafon did not provide the type of health care services Mr. Francis required at the time of his discharge and had no duty to provide that type of health care services, then Lafon’s failure to meet some bureaucratic notice and procedural requirements was not a cause of any of the damages that the plaintiff claims in this suit. However, the defendants’ contention that, “Lafon again had no part in that decision,” referring to Mr. Francis’ transfer by University Hospital from its skilled care facility to Easthaven, is not quite true. What the defendants fail to mention is that there is evidence in the record supporting a finding that one of the reasons that the independent health care providers transferred Mr. Francis to the East Haven nursing home is that Lafon refused to take him back, which implies that the decision of Mr. Francis’ “independent health care providers” to transfer him elsewhere may have been influenced by more than just the level of health care that Lafon could or should have provided. Dr. Kumar’s deposition testimony and the medical records he discussed indicate that while Lafon may not have directed University Hospital to send Mr. Francis first to University Hospital’s skilled care facility and then to Eas-thaven, both of those decisions were significantly impacted by Lafon’s vindication that Mr. Francis should not be returned to its facility. Lafon concedes in its brief that Lafon’s records note that on February 15, 1993, Mr. Francis was, “Discharged to Family reclassified as skilled.” Lafon does not contest the fact that at the time of his discharge, Mr. Francis was paid through the end of the month. The issue then becomes one of whether Lafon could or should have provided the types of health care services required by Mr. Francis.

The defendants’ argument that Mr. Francis required skilled care which they could not provide is founded on the document annexed to their motion for summary judgment indicating that Mr. Francis had a need for “heparin monitoring, oxygen, and aerosol treatment and monitoring.”

The plaintiff points out that Mr. Francis no longer required heparin after February 16, 1993. Therefore, the reimbursement certifications signed between February 16, 1993 and March 3, 1993, which are based in part on Mr. Francis’ heparin needs, are not based on accurate information. To counter the defendants’ argument that regardless of the cessation of Mr. Francis’ need for heparin he still needed skilled care for the administration of oxygen and aerosol treatments, the plaintiff contends that the administration of oxygen and aerosol treatments required skilled care only at the outset. Plaintiff cites 42 C.F.R. § 409.33(d)(10) in support of the proposition that “routine administration of medical gases after a regime of therapy has been established” is considered a personal care service which does not require the skills of qualified technical or professional personnel.

j7The deposition of Dr. Prem Kumar, offered by the defendants in support of their motion for summary judgment, supports the plaintiffs argument that even if Mr. Francis required skilled care services initially, such a requirement could have been of short duration. Dr. Kumar was one of Mr. Francis’ treating physicians at University Hospital. Dr. Kumar noted from the hospital medical records that:

Case was discussed with social workers, who stated the patient was unable to receive nebulizer treatments in the La-fon Nursing Home. [Emphasis added.]
The patient was felt to require nebulizer breathing treatments via face mask due to his inability to cooperative [sic] with portable aerosol treatments.
The patient was transferred to skilled nursing facility for nebulizer treatments and placement in appropriate skilled nursing home.
As best as I can remember — and this is all from recollection — I don’t think they [Lafon] were giving the nebulizer treatments.

Dr. Kumar explained that many patients administer the nebulizer treatments to themselves or have family members do it. Dr. Kumar testified that, “It’s very simple.” Dr. Kumar was questioned further on this matter:

Q. You had mentioned earlier that you thought that Lafon did not take residents who needed nebulizer treatments. Is that your understanding?
A. That is just my recollection. But this is a simple treatment, and even, like I said, patients and their families can deliver the treatment at home. But as best as I can recall, Lafon did not deliver that treatment.
* * *
|sBut in this particular instance, I think the patient was sent to a skilled care facility at University itself. And perhaps one of the reasons was that Lafon may have said that they would not be able to deliver that treatment. [Emphasis added.]
Like I said, many of our asthmatic patients and patients with chronic obstructive lung disease who do require these treatments can do it at home themselves, and their family members can be trained to do it. So that being the case, I would assume that any nurse can be trained in doing that.
Frankly speaking, I don’t think you need really very high skills to be able to deliver that treatment. If the patient can do it at home and the families can do it at home, surely, it can be done in any facility. [Emphasis added.]

Dr. Kumar went on to testify that Mr. Francis was discharged from University Hospital with the notation that, “The chronic obstructive pulmonary disease resolved with residual hypoxia requiring home oxygen.” Dr. Kumar explained that by hypoxia he meant that Mr. Francis’ oxygenation was poor, and that “even in the skilled nursing facility, his arterial blood gases were abnormal.” Mr. Francis’ hospital discharge indicates, “02 two liters per nasal cannula.” Dr. Kumar testified that, as in the case of the nebulizer, a competent patient could administer the oxygen to himself or have it administered to him in his home by a home care nurse who usually just set the level of the oxygen which the patient then administered to himself. According to Dr. Kumar, even with Mr. Francis’ limitations all he would have to do would be “to stick it in his nose to use it by nasal cannula.” In fact, Dr. Kumar testified that:

At home, many of the patients get home oxygen like they do in the nursing homes, the only thing is that the nurses visit periodically to ensure that the patient is getting ^appropriate oxygen through the appropriate delivery system that he needs.

At the time of discharge, Mr. Francis was in need of continuous oxygen. Dr. Kumar did not know if the applicable laws and regulations for an intermediate care nursing facility would allow for continuous oxygen treatments but:

I do know, though, from my past recollection that if a patient required oxygen that we would generally be told that the patient may have to go to a skilled facility-

When asked why, Dr. Kumar explained that:

Well, basically, we were told that this is something that an intermediate care facility doesn’t do.

Moreover, the patient’s arterial blood gases would have to be monitored periodically, which would be done by drawing arterial blood samples. Dr. Kumar testified that the drawing of arterial blood samples requires “real skill” and must be done by people who are well trained in drawing arterial samples, unlike the drawing of venous blood which “is very simple.” He would expect such skills to be found in a skilled nursing facility. It requires a registered nurse. Dr. Kumar added that skilled facilities are normally fairly close to the acute care hospital which is important because “the measurements are to be done in a certified laboratory.” At this point we note that the record contains a copy of a Lafon brochure promoting the fact that it had registered nurses on staff.

Dr. Kumar testified that he takes care of the patients when they get to hospital, but that the nursing home physician tends to them in the nursing home.

Later, Dr. Kumar testified that if the patient’s oxygen levels are good and the patient is feeling well he might need to be tested no more often than every 15 days or once a month. This is significant, because the plaintiff notes that the Louisiana [^Standards for Payment § XI(B)(b)(ii)— (iii) classifies such services as requiring skilled care only if they must be performed on a regular basis (such as five or seven days a week) by licensed personnel, and it must also be necessary to perform them on an inpatient basis with the skilled nursing facility.

As further evidence of Mr. Francis’s condition requiring skilled care at the time, the defendants cite the Standards for Payment list, “use of oxygen occasionally,” as an example of Intermediate Care I service. Thus, according to the defendants, continuous oxygen, with its extensive professional monitoring requirements would, by implication, be a skilled service.

Sister Augustine, Lafon’s Administrator, states in her affidavit that the administration of continuous oxygen is a treatment that requires skilled care that Lafon, an Intermediate care provider, legally cannot provide:

4) Lafon Nursing Home is, and has been since 1982, a Louisiana licensed nursing home certified to provide Intermediate Care I and II nursing care. Lafon was licensed as such during the residency of Jacob Francis, Sr. [Emphasis added.]
6) “Continous oxygen,” or the administration of continous oxygen is treatment that constitutes skilled care that Lafon, as an Intermediate care I and II provider, cannot legally provide to its residents. Further, in accord with the Admission Policy of Lafon, “Conti-nous Oxygen” is a medical problem that is cause for denial of admission to La-fon. [Emphasis added.]

This is a legal conclusion that Sr. Augustine is not competent to make for this Court.

The plaintiff counters that Louisiana’s Standards for Payment § XI(B)(b)(iii)(vxxx) indicate that skilled nursing care may be required for the Ininitial phases of a treatment program involving medical gases such as bronchodi-lator therapy, but this implies that after the initial phase, skilled care would no longer be necessary. The plaintiff contends that Mr. Francis had completed the initial phase no later than February 25, 1993, because Easthaven Care Facility, an Intermediate Care II facility was prepared to accept him on February 24, 1993, and Dr. Kumar on February 25, 1993, noted that Mr. Francis was scheduled to be discharged from the University Hospital Skilled Nursing Facility on February 26, 1993.

The admission form to Easthaven Care Center, the nursing home to which Mr. Francis was transferred from the University Hospital skilled care facility, indicates that the level of care specified for Mr. Francis was “ICFII”, i.e., Intermediate Care II, not skilled care. This creates a genuine issue concerning why, if the reason Mr. Francis was transferred to Eas-thaven and not back to Lafon was because he needed skilled care, would his admission to Easthaven call for the lowest level of intermediate care rather than skilled care.

Section XI of the Department of Health and Human Resources “Standards for Payment” defines the applicable Title XIX Long Term Care standards as follows:

Skilled Nursing Care:
This is the maximum Level of Care provided to Title XIX clients in Long Term Care facilities. The conditions requiring this level of care are characterized by a need for intensive, frequent, and comprehensive monitoring by professional staff.
Intermediate Care I:
This is the medium level of care provided to Title XIX clients in Long Term Care facilities. The conditions 112requiring this level of care are characterized by a need for monitoring of moderate intensity.
Intermediate Care II:
This is the level of care provided to Title XIX clients in Long Term Care facilities characterized by the need for monitoring of less intensity than a Skilled Facility or Intermediate Care I Facility.

Considering the foregoing, we note the following unresolved issues:

1. Was the decision that Mr. Francis could not be returned to Lafon based on the erroneous assumption that he required Heparin treatments?

2. Had Mr. Francis passed the initial phase of continuous oxygen treatment such that his monitoring requirements were sufficiently infrequent that Lafon could have reasonably provided the service?

3. Did Lafon influence University Hospital’s decision to send Mr. Francis to Eas-thaven or was University Hospital’s decision truly independent?

4. How do the defendants explain the ability of Easthaven to deliver the level of care required by Mr. Francis but Lafon could not, when the only relevant evidence in the record indicates that Easthaven is only an Intermediate Care II provider offering the least skilled level of care, while Lafon holds itself out as an Intermediate Care I provider, i.e., Lafon holds itself out as an offering a higher level of care than Easthaven apparently does?

5.Why could Lafon not have offered Mr. Francis nebulizer treatment when, according to the deposition testimony of Dr. Kumar offered by the defendants in connection with their motion for summary judgment, such treatments require very little skill and are often self-administered or administered by family members?

| 1sThus, we see many questions and no definitive answers. The defendants have failed to show an absence of factual support for one or more elements of the plaintiffs claim. The thrust of the defendants’ motion for summary judgment was lack of causation based on the contention that La-fon could not provide the level of care that Mr. Francis required. The defendants have failed to carry the burden of proof at this stage of the proceedings to show an absence of factual support for an essential element of the plaintiffs claim — the essential element in this case being causation. La. C.C.P. art. 966 B(2). Therefore, it was error for the trial court to grant the defendant’s motion for summary judgment.

II. THE PLAINTIFF’S CLAIMS AGAINST THE CONGREGATION OF THE SISTERS OF THE HOLY FAMILY

The defendants contend that:

[Njowhere in the record is there any evidence to support any claim against the Congregation of the Sisters of the Holy Family; nor does appellant give any reason for maintaining this action against the Congregation of the Sisters of the Holy Family. Plaintiffs alleged claims are solely against Lafon Nursing Home.

This is not entirely true. Plaintiffs brief contends that the Sister of the Holy Family “operated” the nursing home and throughout plaintiffs brief are references to the “defendants” in the plural form. However, neither the plaintiffs original petition, nor her amended petition makes any allegations from which any kind of legal relationship between the plaintiffs and Mr. Francis can be inferred; nor do those pleadings make any allegations from which any relationship between the nursing home and the Congregation of the Sisters of the Holy Family can be 1 uinferred. The only reference to the Sisters of the Holy Family in the original petition is found in paragraph “III”:

Defendant, Sisters of the Holy Family is a non-profit corporation licensed to and doing business in Louisiana.

There is nothing in this allegation from which a claim against the Sisters might be established. Similarly, in the prayer for relief at the end of the original petition relief is requested against the nursing home only. There is no mention made of the Sisters.

However, in the plaintiffs amended petition, the tenth of the plaintiffs “General Allegations” alleges that, “Defendants operated a skilled nursing home facility ...,” a reference that would include the Congregation of the Sisters of the Holy Family. Many of the allegations refer to the “defendants” in the plural form. Moreover, in the prayer of the amended petition both defendants are referred to by name and both are alleged to be jointly and severally liable for plaintiffs damages.

The defendants are represented by the same attorneys and filed a joint answer and other joint pleadings and joint filings, including this appeal. The defendants’ answer contained no specific references to the Sisters and certainly nothing that would distinguish in any manner the liability of the Sisters from that of Lafon. There was no allegation that the Sisters was not responsible for the acts of Lafon in this manner. The defendants offered nothing in their motion for summary judgment and supporting argument and evidence that would separate the responsibility or liability, if any, of the nursing home from that of the Congregation of the Sisters of the Holy Family, i.e., the defendants offered nothing below that would warrant this Court to enter a dismissal of the plaintiffs claims against the Congregation of the Sisters of the Holy Family separate from the claims against the | ¡ ¡¡nursing home. The defendants argue, in effect, that the plaintiff had the burden on the motion for summary judgment of proving the basis for her claim against the Sisters. This argument misperceives the plaintiffs burden in responding to the defendants’ motion for summary judgment. While it is true that the burden of proof at trial will be on the plaintiff, the burden of proof on this motion for summary judgment remains with the defendants as the movant. La. C.C.P. art. 966 B(2). In order to satisfy this burden, the Congregation of the Sisters of the Holy Family need not negate all essential elements of the plaintiffs claim — it need only show an absence of factual support for one or more elements essential to the plaintiffs claim. Id. As the defendants failed to offer anything in connection with their motion that would have enabled the trial court to distinguish between the two defendants, the burden was not on the plaintiff to establish a separate set of facts regarding the Congregation of the Sisters of the Holy Family in order to keep it in the case without considering the case against the nursing home.

Plaintiff has not raised any procedural errors or jurisdictional errors concerning the rendering of the revised judgment dismissing her claims against the Sisters. However, we note on our own motion that the “Revised Judgment” of February 14, 2002, adding the additional defendant, the Congregation of the Sisters of the Holy Family, as having been inadvertently omitted, constitutes a substantive change in the original judgment, Caracci v. Williams, 95-16 (La.App. 5 Cir. 5/10/95), 654 So.2d 889. As the Caracci court explained in language remarkably pertinent to the instant case:

Thus it appears that the trial court may have inadvertently omitted two of the defendants in the original judgment, and tried to correct the omission with the amended judgment. Such a substantive amendment to a final written judgment is beyond the trial court’s authority.
Id., p. 4, 654 So.2d at 891.

La. C.C.P. art.1951 is controlling:

A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party:
To alter the phraselogy [sic] of the judgment, but not the substance; or
To correct errors of calculation.

In Caracci the court noted procedural facts concerning the rendering of the amended judgment in that ease identical to those surrounding the rendering of the “Revised Judgment” in the instant case:

[T]here is no indication from the record that either party filed a motion for new trial on the June 20, 1994 judgment. There is no indication in the amended judgment that the court granted a new trial and no record that any hearing was held before the amended judgment was rendered.

Id., p. 3, 654 So.2d at 891.

As this Court stated in Webster v. Boh Bros. Const. Co., Inc., 603 So.2d 761, 763 (La.App. 4th Cir.1992):

[T]rial judges lack the authority to make substantive amendments. Bruscato v. Century Ready Mix Corp., 569 So.2d 633, 634 (La.App. 2d Cir.1990). They are prohibited from making substantive amendments to final judgments on their own motions or on motions of any party. Daughdrill v. Tenneco Oil, 529 So.2d 104, 105 (La.App. 4th Cir.1988). Only three avenues are available to a party seeking to alter the substance of a final judgment: (1) timely application for a new trial, (2) petition for nullity, and (3) timely appeal. Bonaventure v. Pourciau, 577 So.2d 742, 745 (La.App. 1st Cir.1991).

|17In Webster this Court went on to hold that where the trial court does not follow one of the three prescribed methods for making a substantive amendment to a judgment, the amended judgment is an absolute nullity. When this Court notices such an absolutely nullity, we must vacate it on our own motion.

When the parties fail to raise the issue of absolute nullity of a judgment either by a new trial or on appeal, it is proper for the appellate court to vacate the absolutely null judgment and reinstate the original judgment due to the appellate court’s power “to render any judgment which is just legal and proper upon the record on appeal.” LSA-C.C.P. Art. 2164; Davenport v. Amax Nickel, Inc., 569 So.2d 23 (La.App. 4th Cir.1990). See also Stevenson v. State Farm, 624 So.2d 28 (La.App. 2d Cir. 1993); Rodgers v. Rodgers, 26,093, p. 4 (La.App. 2 Cir. 9/21/94), 643 So.2d 764, 766; Caracci, supra, p. 4, 654 So.2d at 891.

Accordingly, we must vacate the “Revised Judgment” of February 14, 2002. Normally, this conclusion would cause this Court to reinstate the judgment of February 8, 2002. However, as we have decided to reverse the judgment of February 8, 2002 for reasons expressed earlier in this opinion, we will not reinstate it.

DECREE

|1RFor the foregoing reasons, the judgment of February 8, 2002 is reversed and remanded; the judgment of February 14, 2002 is vacated. The defendants are to bear the cost of this appeal.

JUDGMENT OF FEBRUARY 8, 2002 REVERSED AND REMANDED; JUDGMENT OF FEBRUARY 14, 2002 VACATED.

      . It appears that the Sisters of the Holy Family might be more properly referred to as the Congregation of the Sisters of the Holy Family. Regardless, in this opinion we may refer to that party simply as the “Sisters.”

      . Plaintiff does not challenge the initial decision to send Mr. Francis to University Hospital on January 29, 1993; nor does the plaintiff challenge the decision of that hospital to transfer Mr. Francis to its own skilled care facility on February. Plaintiff is complaining about Lafon’s decision to refuse to take Mr. Francis back.

      . We also note that the "Nursing Facility Agreement” executed between Lafon and Mr. Francis on November 27, 1989, states that it may be terminated on thirty days written notice.

      . This requirement for "aerosol” treatment is what Dr. Kumar is referring to when he refers to "nebulizer” treatments in his deposition testimony discussed just below in this opinion.

      . Emphasis added.

      . We distinguish the cases of Bourgeois v. Kost, 02-396 (La.App. 5 Cir. 10/16/02), 831 So.2d 337, and State v. Williams, 01-554 (La.5/14/02), 817 So.2d 40. In Bourgeois the judgment in question was not a final judgment (the appeal period had not expired at the time the error was noted) and was signed in error. Bourgeois relies on Williams. But in Williams the judgment, although signed in error, appears to have been a final judgment. In the instant case the judgment was not a final judgment and it was not signed in error. However, Bourgeois and Williams both represent the camel's nose under the tent in the direction of relaxing somewhat what has heretofore been a sweeping and inflexible rule regarding the procedures for altering judgments by the trial court. See Judge Cannella’s concurring opinion in Bourgeois.


source: Caselaw Access Project

author: aTHOMAS F. DALEY, Judge.

license: Public Domain

text:
    Robert BILLIOT, Michael P. Nance, Vern C. Streckfus, Clifford E. Clayton, Shaun D. Hauswald, Williams S. Lahners, and Dennis P. Durham v. NEW ORLEANS AND BATON ROUGE STEAMPSHIP PILOTS ASSOCIATION and William O. Watson, III.
    No. 02-CA-1180.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2003.
    Rehearing Denied April 16, 2003.

      William B. Hidalgo, Marie Rudd Posey, New Orleans, LA, and Thomas J. Capella, Capella Law Firm, Metairie, LA, for Plaintiffs/Appellants.
    Arthur J. Lentini, APLC, Metairie, LA, and E. John Litchfield, Berrigan, Litch-field, Schonekas, Mann, Train & Thompson, LLC, New Orleans, LA, for Defendants/Appellees, New Orleans and Baton Rouge Steamship Pilots Association.
    William P. Connick, Craig V. Sweeney, Connick and Connick, Metairie, LA, for Intervenor/Appellee, Board of Examiners for New Orleans and Baton Rouge Steamship Pilots.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY, and CLARENCE E. McMANUS.
   aTHOMAS F. DALEY, Judge.

The plaintiffs, Robert Billiot, Michael Nance, Vern Streckfus, Clifford Clayton, Shaun Hauswald, William Lahers, and Dennis Durham, are shareholders of the New Orleans and Baton Rouge Steamship Pilots Association (hereinafter referred to as the Pilot’s Association). The plaintiffs filed a Writ of Mandamus directed to the Pilot’s Association requesting examination of the corporate records specifically requesting to examine the documents in support of legal fees. The trial judge rendered judgment denying the mandamus. The devolutive appeal followed.

FACTS:

The Phot’s Association is a non-profit corporation whose shareholders are State-commissioned phots who guide foreign-flagged vessels on the Mississippi River. The plaintiffs are long standing members and shareholders of the association. Plaintiff, Clifford Clayton, is the former president of the Pilot’s Association and Michael Nance is the former secretary/treasurer of the Phot’s 14Association. On January 1, 2002, William Watson became president of the Phot’s Association. Clayton and Nance are currently being investigated by the Pilot’s Association.

In April 2002, plaintiffs sent a letter to the Phot’s Association demanding to examine corporate records including “documentation in support of the fees and expenses submitted by any and all attorneys and or law firms which have presented any invoice to the association since January 1, 2002.”

Records were presented to plaintiffs for examination. These records included books and account records, ledgers, cash receipts and disbursements, financial statements, checkbooks and stubs, can-celled checks and bank statements, IRS forms 1099, and expense reports. The records did not contain supporting documentation for legal fees.

On June 28, 2002, plaintiffs filed a Writ of Mandamus directed to the Phot’s Association requesting examination of the corporate records specifically requesting to examine the documents in support of legal fees. The Board of Examiners for the New Orleans and Baton Rouge Steamship Pilots (hereinafter referred to as Board of Examiners) intervened in this matter. The Board of Examiners, a statutorily created State agency charged with, among other matters, the duty of investigating allegations of pilot misconduct and violation of its rules, also opposed plaintiffs’ examination of these records. The Pilot’s Association pays the legal fees for the Board of Examiners.

The matter was submitted on affidavits, depositions, and memoranda. On August 23, 2002, the trial judge rendered judgment denying the mandamus. The trial court applied R.S. 12:223 relative to nonprofit corporations and found this statute required the corporation to make information “available to its shareholders so the shareholders can make a reasonable judgment regarding the financial condition of the corporation.” The court determined that the Pilot’s Association |smet its burden to produce all records needed to make a determination regarding the financial condition of the corporation and that the narrative details of attorney billing records requested by plaintiffs go beyond the scope of 12:223.

LAW AND DISCUSSION:

On appeal, plaintiffs allege that the trial court erred in finding the narrative details of attorney billing records were excluded from the scope of R.S. 12:223. R.S. 12:223, which related to non-profit corporations, provides:

223. Corporate records and reports
A. Every corporation shall keep at its registered office (1) records of the meetings of its members and directors, and of committees of the board, share and membership records giving the names and addresses of the members in alphabetical order by classes and series and the number of shares held by each, and records of its assets, liabilities, receipts, disbursements, gains, losses, capital and surplus; and (2) separate records of all trust funds held by it. Whenever membership is terminated, this fact shall be recorded in the share or membership record together with the date on which the membership ceased, and transfers of shares shall similarly be recorded.
C. Every shareholder and voting member may examine in person, or by agent or attorney, at any reasonable time, the records of the corporation listed in subsection A of this section.

The plaintiffs contend that an extraordinary amount has been paid in attorney’s fees since January 1, 2002. They contend that they are entitled to view the supporting documentation for these fees in order to be fully apprised of the financial status of the corporation, including information about any possible lawsuits.

The affidavit of the current president of the Pilot’s Association, W.O. Watson, attested that the narrative billing records sought by plaintiffs relate to private information pertaining to individual members and itemized statements setting forth work performed by the Pilot’s Association’s legal counsel. The [(¡affidavit states that these itemized statements contain “legal and governmental strategy and impressions of attorneys and political consultants employed by the Association.” The affidavit further states that certain legal bills reference private business of individual pilots such as garnishment petitions and subpoenas relating to domestic matters. The affidavit of Christopher Brown, the secretary/treasurer of the association, corroborates that of Mr. Watson.

The Pilot’s Association has provided plaintiffs with the following: 1) books and account records, 2) ledgers, 3) cash receipts, ^disbursements, 5) monthly financial statements, 6) checkbooks, 7) check stubs, 8) cancelled checks, 9) bank statements, 10) IRS Forms 1099, and 11) expense reports. The plaintiffs seek narrative billing records that include personal matters and information regarding the investigation into two of the plaintiffs. This information is not contemplated by and is beyond the scope of R.S. 12:223.

Plaintiffs next argue that the bylaws in effect at the time the request to examine the records was first made allowed examination of these records. At the time of plaintiffs’ request, the corporate by-laws stated:

(C) Pilots’ desiring to examine any part of the association business such as the books, files, or correspondence, must seek the assistance of the office manager. The office manager shall, upon request, make available the information to said member.

The shareholders voted to amend the corporate bylaws, effective May 1, 2002, to state the following:

(C) Upon at least five days written notice directed to the President, a shareholder who is not a business competitor, has the right to examine the records of the association with the following limitations:
(1) The examination must be scheduled for a reasonable time, place and for a reasonable period of time so as not to disrupt the conduct of business and use of records by the association.
(2) The shareholder must agree, in writing, to keep confidential information examined.
(3) The Board of Directors may refuse to permit examination of the following records:
|7Any invoice, bill, costs expense or other record that reveals legal or legislative strategy; disciplinary action against another pilot; personal financial information, including tax forms pertaining to another pilot, or other personal or confidential information pertaining to another pilot or shareholder.

We find the original by-law does not automatically make any and all records available for review. The information requested by plaintiffs contains attorney work product and personal matters regarding an internal investigation. The original by-law concerning records refers to books, files, or correspondences and does not directly address legal work product regarding an internal investigation. To allow the plaintiffs to inspect the records requested would compromise the investigation and we find is not required by the original by-law or by R.S. 12:223.

Accordingly, we find the trial court correctly denied the plaintiffs’ Writ of Mandamus. The judgment of the trial court is affirmed.

AFFIRMED.


author: I,MICHAEL E. KIRBY, Judge.

text:
    Tyson B. SHOFSTAHL and Ivar Koek v. The BOARD OF COMMISSIONERS OF THE ORLEANS LEVEE DISTRICT, The Board of Supervisors of the Louisiana State University Agricultural and Mechanical College, Acting for the University of New Orleans, and the University of New Orleans.
    No. 2002-CA-0018.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.
    Rehearing Denied April 15, 2003.
    Thomas G. O’Brien, Roland M. Vande-nweghe, Jr., Robert N. Markle, Adams & Reese LLP, New Orleans, LA, for Plaintiff/Appellant.
    Richard P. Ieyoub, Attorney General, Gustave A. Manthey, Jr., Assistant Attorney General, New Orleans, LA, for Defendant/Appellee (Louisiana State University, Acting for the University of New Orleans).
    Todd L. Lacoste, John J. Erny, III, Law Offices of John J. Erny, III, Metairie, LA, for Defendant/Appellee (The Board of Commissioners of the Orleans Levee District).
    Scott G. Jones, Hulse & Wanek, New Orleans, LA, for Third Party Appellee (Roger Perret And The Continental Insurance Company).
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR.).
   I,MICHAEL E. KIRBY, Judge.

Plaintiffs ran their boat into an unlit pier at night. The trial court granted summary judgment in favor of the defendants. The plaintiffs appeal this judgment. We find that the defendants by maintaining the pier in the condition they did were a cause in fact of the accident. Nevertheless, the plaintiffs were the sole proximate and superseding cause of their maritime accident. Therefore, summary judgment was properly granted by the trial court because proximate causation cuts off liability for a cause in fact under general maritime law.

STATEMENT OF THE FACTS

On the evening of May 29, 1994, the plaintiffs, Tyson Shofstahl and Ivar Koek, were looking forward to a night of socializing at Bart’s, a bar and restaurant in the New Basin Canal in New Orleans. Instead of waiting for a more plentiful crowd to arrive, they decided to while away the time by operating the pleasurecraft they were using on Lake Pontchartrain at night.

li>On this trip, they struck a stationary pier that protruded four hundred twenty (420) feet into Lake Pontchartrain. On the night of the allision the pier was not lit, even though there was wiring on the pier for spotlights. The boat had a flashlight aboard, and it was used to navigate out of the Bonnabel launch area, where plaintiffs launched their boat, but the flashlight was not being used at the time of the accident. Immediately prior to the allision, Mr. Koek, an inexperienced boat operator, had the boat at full throttle and was planing at about 25 miles per hour. They were heading due east in a dark area along the south shore of Lake Pontchartrain, around Pontchartrain Beach. The area was dark because, since the demise of Pontchartrain Beach, the shore along this part of Pontchartrain Beach had ceased to be lighted.

The Orleans Levee Board, the owner of the pier, had obtained a permit in 1956 from the U.S. Army Corps of Engineers. That permit stated that if the U.S. Coast Guard prescribed lighting, it would be required. At the time of the allision, the Board of Supervisors of Louisiana State University, via the University of New Orleans, was the lessee of the pier.

Nowhere in the record is there evidence that the U.S. Coast Guard prescribed a navigation light on the boat pier.

The location of the boat pier is depicted on the navigation chart published by the United States Department of Commerce, but the corporate representative of the Levee Board could not locate it easily. Nevertheless, the plaintiffs were not using this chart to navigate the lake.

| .¡Prior to the accident, Mr. Shofstahl admitted to seeing the shape and outline of something in the dark at a distance ahead. While he was analyzing what the form could be, he did not alert Mr. Koek, who was operating the boat. As Mr. Koek finally saw the pier directly ahead of his course, he steered hard to port without having time to reduce engine speed. The boat struck the pier, resulting in total hull loss. The plaintiffs went to the emergency room. They suffered lacerations of the skin, some that required numerous stitches, and bruises.

ACTION OF THE TRIAL COURT

Plaintiffs filed this suit on May 26, 1995, seeking damages for injuries sustained. Plaintiffs named as defendants in their Original Petition for Damages the Board of Commissioners of the Orleans Levee District, the owner of the wharf, and the Board of Supervisors of the Louisiana State University Agricultural and Mechanical College, acting for the University of New Orleans, the lessee of the wharf. Plaintiffs asserted in their Petition that the defendants were negligent and strictly liable to them, under state and federal law, for failing to maintain adequate lighting and for creating a hazard that presented an unreasonable risk of harm to vessel operators at night.

Plaintiffs’ depositions occurred in June 1999, following which the owner of the subject vessel and his liability insurer were brought into the litigation by third party demand.

|4In 2000, the vessel liability insurer’s attempt to obtain summary judgment was denied by the trial court, ostensibly on the strength and wording of La. R.S. 34:851.1s.

As the matter was being set for trial in 2001, the lessee and owner of the pier both moved for summary judgment. Plaintiffs conducted a 1442 deposition of the Orleans Levee Board and filed an opposition memorandum. Plaintiffs then submitted a supplemental memorandum with the Orleans Levee Board deposition attached. The Board filed a reply memorandum and plaintiffs filed a second supplemental memorandum in opposition.

A formal hearing was conducted on June 22, 2001. Plaintiffs submitted a post-hearing memorandum. On July 13, 2001, the trial court ruled and found “no legal authority obligating the defendants to light the pier in question.” On that basis, the trial court granted summary judgment in favor of the defendants.

Plaintiffs filed a writ application in August of 2001; we declined the application in 2001-C-1571. This appeal followed.

STATEMENT OF THE LAW

On appeal, the standard of review of a motion for summary judgment is de novo. Harris v. Sternberg, 2001-1827 (La.App. 4 Cir.2002), 819 So.2d 1134.

| KThis Court discussed the appellate standard of review of motions for summary judgment in Bailey v. Battiest Const. Co., 2000-1917 (La.App. 4 Cir. 2/6/02), 809 So.2d 1118, and in Spicer v. Louisiana Power & Light Co., 97-2406 (La.App. 4 Cir. 4/8/98), 712 So.2d 226 we stated as follows:

Summary judgments are now favored, and the rules regarding such judgments should be liberally applied. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. Appellate courts review the motion for summary judgment de novo. A motion for summary judgment which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La.Code Civ. Proc. art. 966 C(l). An issue is genuine if reasonable persons could disagree. Smith v. Our Lady of the Lake Hospital, 93-2512 (La.7/5/94), 639 So.2d 730, 751. If, on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Id.

Paragraph C(2) of Article 966, added by Acts 1997, No. 483, sets forth the burden of proof in a motion for summary judgment:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The plaintiffs first assignment of error is that genuine issues of material fact exist and that the defendants failed to carry their burden of proof.

IfiThe United States Supreme Court has defined material facts as those facts that will affect the outcome of the lawsuit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202.

Given that this boating accident occurred on navigable waters, the plaintiffs correctly first sought recovery under admiralty law. Thus, the governing law we use to determine whether summary judgment is appropriate will be that of general maritime law. Plaintiffs also correctly note that state law can be used to supplement the general maritime law, but this point will be discussed later.

The plaintiffs alleged negligence on the part of the defendants by the fact of the pier’s existence on navigable waters. The defendants countered and responded by producing the permit for the pier granted by the U.S. Army Corps of Engineers in 1956.

Under general maritime tort law, this action shifted the burden of proof to the plaintiffs to show a duty or legal requirement on the defendants to affix a navigation light on the boat pier. To attempt to satisfy this burden, the plaintiffs alluded to a statement in the permit from the Army Corps which stated that lighting would be required if the U.S. Coast Guard prescribed it. After seven years of litigation, plaintiffs produced no evidence that the U.S. Coast Guard ever required a light on this pier.

We agree with the trial court, that without an incumbent duty on the part of the defendants to have lit the pier, the general maritime tort law does not hold the owners of a pier hable.

|7In American Commercial Barge v. Alter Barge Line, Inc., 2002 WL 31246543 (E.D.La.10/4/2002), the court reflecting on maritime tort law stated:

When a moving vessel collides with a fixed object, there is a presumption that the moving vessel is at fault. The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1895).
The presumption may be overcome, however, if the moving vessel demonstrates that the collision, ... was caused by an act of God, the negligence of a third party, or the fault of the stationary object. See The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1895); Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 794-95 (5th Cir.1977).

Upon reviewing the record, we find that plaintiffs did not come forth with evidence to prove a duty existed on behalf of the defendants to light the pier. Moreover, because the defendants had a permit, for which the U.S. Coast Guard did not require a light, and because the pier was marked on the official marine navigation chart published by the federal government, we find the plaintiffs did not prove that the pier constituted an unreasonable risk — to use the language of Louisiana tort law — even though maritime law applies.

The plaintiffs alleged that the trial court erred by not referencing more legal standards in this case. The trial court was succinct in its reasons for judgment, stating that it found no duty incumbent upon the defendants to light the pier. Even though the plaintiffs are correct in that more standards could have been applied, they are not in the plaintiffs’ favor and would not change the outcome.

For example, the language of the federal navigational statute of 1980 (33 U.S.C. § 2006-2038) recognizes that mariners may encounter navigational hazards in conditions of poor visibility, and states:

Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid Iscollision and be stopped within a distance appropriate to the prevailing circumstances and conditions.
In determining a safe speed the following factors shall be among those taken into account:
(a) By all vessels:
(i) the state of visibility, ...
(v) the state of wind, sea, and current, and the proximity of navigational hazards; ...

See 33 U.S.C. § 2006.

Clearly a pier is an obstruction to navigation, but it is one that is routinely allowed, and this one was officially permitted by the federal government and noted on the appropriate navigational charts.

The legal duty under general maritime law to avoid an obstruction to navigation is on the operator and look-out (33 U.S.C. § 2005) of the vessel — the plaintiffs here. 33 U.S.C. § 2008.

Plaintiffs cite no statute or case law that the owner of a pier which is duly permitted by the federal government, and the precise location of which is depicted on the official marine navigation chart published by the federal government, has a. legal duty to display a navigation light on the pier in circumstances where neither the federal permitting authority nor the federal regulatory/enforcement authority requires the light.

Mr. Koek was driving the boat. The pier was present for 38 years. It was dark and Mr. Koek did not reduce his speed, even though visibility was reduced. Mr. Koek violated several Inland Navigational Rules (Public Law 96-591; 94 Stat. 3415; 33 U.S.C. § 2001-2038) and had constructive knowledge of the charted pier. Jacobs v. U.S., 1979 AMC 660 (E.D.Ky.1979); Davidson S.S. Co. v. United States, 205 U.S. 187, 27 S.Ct. 480, 51 L.Ed. 764(1907); Thornton v. United States, 1964 AMC 1517, 236 F.Supp. 651 (S.D.Miss.1964).

All of these facts lead us to the next point, which is ultimately what was the cause of this maritime accident. The United States Supreme Court has held the requirement of legal or “proximate” causation and the related “superseding cause” doctrine apply in admiralty notwithstanding the adoption of the comparative fault principle in state law tort litigation. In Exxon v. Sofec, 517 U.S. 830, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996), Justice Thomas wrote for the Court:

The legal question that we took this case to address is whether a plaintiff in admiralty that is the superseding and thus the sole proximate cause of its own injury can recover part of its damages from tortfeasors or contracting partners whose blameworthy actions or breaches were causes in fact of the plaintiffs injury. As we have held above, the answer is that it may not.

517 U.S. at 840, 116 S.Ct. 1813.

In the present case, plaintiffs’ actions are the superseding and the sole proximate cause of their injuries. While the defendants’ unlit pier may be a cause in fact of the plaintiffs’ injuries, cause in fact liability is not sufficient to justify a recovery using negligence principles of general maritime law. We recognize that this is different from most state tort law systems, where percentages of fault are allocated (whether they be proximate causes or causes in fact) and recovery is permitted according to the percentage of fault times the damages. Nevertheless, due to the situs and maritime nature of this accident, substantive general maritime law applies.

|inWe embraced the “intervening” concept in Sutton v. Duplessis, 584 So.2d 362 (La.App. 4 Cir.1991) where we held:

Negligence is actionable only where it is both a cause in fact and a legal cause of the injury. Legal cause requires a proximate relation between the actions of a defendant and the harm which occurs, and such relation must be substantial in character. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980) ...
A proximate cause is generally defined as any cause which, in natural and continuous sequence, unbroken by any efficient, intervening cause, produces the result complained of and without which the result would not have occurred. [Citations omitted.] When an accident results from two acts of negligence, one more remote and one an intervening cause, the presence of the intervening cause prevents a finding of liability on the one responsible for the more remote cause. [Citations omitted.]
In this case, we find that the negligence of the Orleans Parish School Board was an intervening cause which superseded any negligence on the part of Mrs. Sutton, and was the sole legal cause of Peter’s injury.

Sutton, 584 So.2d at 365 [Emphasis added.]

Here, the plaintiffs’ navigational negligence was the sole proximate cause of the allision and/or the superseding cause. A fixed object does not cause an accident simply by “being there.” See American River Trans Company v. Arosita Shipping Company, 148 F.3d 446, 1998 AMC 2794 (5th Cir.1998).

The plaintiffs’ third assignment of error is that the trial court did not apply a state legal standard of conduct by which to judge this alleged tort. The trial court was correct in applying substantive maritime tort law. This accident occurred over navigable waters in a boat. The act of boating is the most classical of all maritime activities. The fact that a boat strikes a boat pier does not involve state policy considerations so significant as to justify altering general maritime law. Adams v. Chevron, U.S.A., Inc., 589 So.2d 1219 (La.App. 4 Cir.1991). Moreover, federal In general maritime law preempts state law, and state law should supplement general maritime law only under special circumstances. This is not one of those circumstances.

Plaintiffs cite Green v. Industrial Helicopters, Inc., 593 So.2d 634 (La.1992) to argue that state tort law should govern this case. The United States Supreme Court has explained, “Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law.” Askew v. American Waterways Operators, Inc., 411 U.S. 325, 341, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973); see; Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). Thus, “the general rule on preemption in admiralty is that states may supplement federal admiralty law as applied to matters of local concern, so long as state law does not actually conflict with federal law or interfere with the uniform working of the maritime legal system.” Pacific Merchant Shipping Ass’n v. Aubry, 918 F.2d 1409, 1422 (9th Cir.1990).

We distinguish Green, because that accident involved a helicopter crash over navigable waters, something that was not classical maritime activity. Under the facts here, there is no need to supplement federal law, there is a clearly applicable rule in the general maritime law. Green, supra at 638. An application of state law to these facts would interfere with the uniform working of the maritime legal system. Moreover, to make a finding that lights should have been required on the pier, would usurp power granted by the federal government to the U.S. Coast Guard.

For the foregoing reasons, we affirm the granting of the defendants’ motion for summary judgment.

AFFIRMED.

      . La. R.S. 34:851.18
      A. The owner of a watercraft shall be liable for any injury or damage occasioned by the negligent operation of such watercraft whether such negligence consists of a violation of the provisions of the statutes of this state or in the failure to observe such ordinary care in such operation as the rules of the common law require.
      B. The owner shall not be liable, however, unless such watercraft is being used with his or her express or implied consent....

      . Within the context of some contractual obligations, an act labeled a cause in fact may be sufficient to justify a recovery, although the damages appear to stem only from the breach. See Compania Sud Americana De Vapores, S.A. v. I.T.O. Corp. of Baltimore, 940 F.Supp. 855, 1997 A.M.C. 362, 1997 A.M.C. 384 (D.Md.1996).


author: 1YELVERTON, J. h COOKS, J.

text:
    Ricky DAVIS v. HUEY P. LONG REGIONAL MEDICAL CENTER, et al.
    No. 02-806.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Ricky Davis, In Proper Person.
    Carey Rauhman Holliday, Assistant Attorney General, Baton Rouge, LA, for Defendants/Appellees, State of Louisiana, Huey P. Long Regional Medical Center.
    Court composed of NED E. DOUCET, Chief Judge, HENRY L. YELVERTON, SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD and MICHAEL G. SULLIVAN, Judges.
   1YELVERTON, J.

In this appeal Ricky Davis claims that the trial court erred in dismissing his suit against the Huey P. Long Regional Medical Center (HPLMC) for alleged medical malpractice. The reason for the dismissal was a finding that a previous judgment based on prescription was res judicata. This case presents some rather complex procedural questions. For the reasons hereafter assigned, we affirm.

From the pleadings it appears that on March 28, 1997, Mr. Davis, a boxer on the Avoyelles Correctional Center boxing team, was sparring when he experienced trauma to his left eye. He was referred to the HPLMC for treatment. The HPLMC is a state hospital located in Rapides Parish, Louisiana. Mr. Davis was found to be in need of surgery to remove a cataract from his eye. The surgery was performed on April 16, 1997, at the HPLMC Eye Clinic. After surgery, his eyesight worsened, leading to his treatment at Charity Hospital in New Orleans. Mr. Davis alleges that he learned about the malpractice on June 11,1997, when a doctor at Charity informed him that an incorrectly sized lense had been placed in his eye during the prior surgery at HPLMC. After eight more surgeries, Mr. Davis lost the sight in his left eye.

On June 15, 1998, one year and four days after the discovery of the alleged malpractice, Mr. Davis filed a petition in Rapides Parish alleging malpractice against HPLMC. No request for service accompanied this petition, and it was never served on HPLMC nor the State of Louisiana.

Mr. Davis then chose to file a complaint of medical malpractice with the Commissioner of Administration in East Baton Rouge Parish on December 11,1998, which was about six months after the Rapides Parish suit was filed. This complaint was served on the State. In response to the East Baton Rouge Parish filing, the State filed an exception of prescription. The East Baton Rouge District Court dismissed Mr. Davis’ claim on grounds of prescription. The judgment was signed February 29, |a2000. No appeal was ever lodged from the East Baton Rouge Parish judgment, and that ruling became final.

On August 30, 2001, one year and seven months after his suit in East Baton Rouge Parish was dismissed, Mr. Davis filed a “supplemental and amending petition” in the unserved suit in Rapides Parish. The supplemental and amending petition was served on the State. The State filed several responses to Mr. Davis’ amending petition. One of these was a motion to dismiss the unserved suit for lack of service under La.R.S. 13:5107(D). Another was an exception of res judicata.

Preferring to rest its ultimate defense on the principle of res judicata and not on prescription, the State did not file an exception of prescription to the August 2001 filing. We cannot raise prescription on our own motion. La.Code Civ.P. art. 927. Prescription, as such, is therefore not before us.

In March 2002, the trial court in Rap-ides Parish found that the judgment maintaining the plea of prescription rendered by the East Baton Rouge District Court had the effect of res judicata as to the filing of the supplemental and amending petition in Rapides Parish, and the trial court dismissed Mr. Davis’ Rapides Parish claim with prejudice. This is the judgment which Mr. Davis now appeals.

Mr. Davis was represented by counsel in the East Baton Rouge Parish proceeding. He has represented himself at all times in the Rapides Parish proceedings.

We will repeat the procedural events up to this point: the first suit, filed June 15, 1998, in Rapides Parish was never served on the State nor was any request for service ever made by Mr. Davis; the complaint of medical malpractice filed December 11, 1998, in East Baton Rouge Parish was served but was held prescribed; the amending petition in Rapides Parish was filed August 30, 2001, and it was served on the State within ninety days of its filing.

laWhen the State was served with the amending petition in Rapides Parish in late 2001, and thereby became aware of the suit that had been filed on June 15, 1998, in that parish, it filed pleadings calling attention to the non-service of the June 15, 1998 petition. It relied on La.R.S. 13:5107(D), which states:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

It is our opinion, on the facts of this case, applying this statute, particularly subsection (D)(3), that the June 15, 1998 filing did not interrupt or suspend the running of prescription as to the State. At this point we want to emphasize that we are not holding that the suit filed on June 15, 1998, was too late, although the date of discovery of the malpractice, by Mr. Davis’ own pleadings, was June 11, 1997, more than one year earlier. In cases involving pro se inmates seeking judicial review, Louisiana has adopted the “mailbox rule” established by Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), holding that a document is considered “filed” when it is delivered to prison officials. Tatum v. Lynn, 93-1559 (La.App. 1 Cir. 5/20/94), 637 So.2d 796; Shelton v. Louisiana Dep’t. of Corrections, 96-348 (La.App. 1 Cir. 42/14/97), 691 So.2d 159. However, it would serve no purpose to remand for determination of whether the “mailbox rule” might have saved the case from prescription, because there is another critical time period in the present case, and that is the requirement for request of service within ninety days of the commencement of the action. La.R.S. 13:5107(D)(1). Even if commencement of the action was when the petition was deposited in the inmate’s mailbox, his ninety days for service passed without action on his part. So, while the “mailbox rule” in other circumstances might have saved his petition from prescription even though the petition was actually filed with the district court four days after prescription technically ran, it cannot benefit him in the present circumstances. The “mailbox rule” does not extend prescription beyond the date of actual filing, and it does not extend the ninety days statutorily required for requested service of citation where the State is a party. Also, the “mailbox rule” does not exempt Mr. Davis from the statutory consequence that this absence of service of citation within ninety days causes no interruption or suspension of the running of prescription.

Although Mr. Davis has not made it an assignment of error, two members of the panel considering this appeal believe that the issuance (or, rather, the non-issuance) of an order by the trial court in connection with a “Motion and Affidavit to Proceed in Forma Pauperis” should be construed as a request for service of citation, which would avoid for Mr. Davis the consequences of La.R.S. 13:5107(D). The majority of the panel considering this appeal construe the pleadings otherwise, as we next explain.

Along with his June 15, 1998 petition, which did not request service and gave no instructions for service of citation, Mr. Davis filed separate documents under the statutes dealing with waiver of costs for an indigent party. The application and supporting affidavits were on forms supplied by the institution where he was incarcerated. His motion to be allowed to sue in forma pauperis was supported by his |Rown affidavit, the affidavit of a third person, and a certificate by an authorized officer of Avoyelles Correctional Center attesting that he had an inmate savings account of $12.96 and a drawing account of $18.05, for a total of $31.01 in funds to his credit. As part of the package of forms that Mr. Davis presented to the court with his application, there was attached a form “ORDER” with several paragraphs which might or might not be applicable depending on whether the trial judge decided to grant or not grant the application to proceed in forma pauperis. In this case it is clear that the trial judge exercised his discretion under La.Code Civ.P. art. 5181(C) and decided not to require Mr. Davis to pay any advance costs, not even the minimum three dollars under the schedule set out in La.Code Civ.P. art. 5181(B). In keeping with that decision he signed the ORDER after deleting all three paragraphs in the form that would have applied had he denied the order and required the payment of costs. The first of these three paragraphs requiring a deposit as advance costs was deleted. The second paragraph extending the time to deposit the required court costs was deleted. The third paragraph reading: “IT IS FURTHER ORDERED THAT after costs of court have been paid, the Clerk of Court shall process the suit and issue citation to the defendant(s) in accordance with the law” was struck out as inapplicable, for Mr. Davis was not being required to pay costs of court.

The dissenting members of the panel considering this appeal believe that because of the stricken language in the paragraph reading: “IT IS FURTHER ORDERED THAT after costs of court have been paid, the Clerk of. Court shall process the suit and issue citation to the defendants) in accordance with the law”, the trial judge was taking away from Mr. Davis an implied request for service of citation. That argument might have some persuasiveness had Mr. Davis ever requested service of citation by some means, in some pleading, but he never did so. Louisiana Revised Statute 13:5107(D) specifically requires that service of citation be requested within 90 Rdays of the filing of the pleading naming a governmental defendant. Moreover, the statute requires that the request be made by the party filing the action. It is not the responsibility of either the trial judge or the clerk of court to make the request on behalf of the party filing the action. Instead, there must be a valid and effective request by the party filing the action, delivered to the clerk of court as required by La.Code Civ.P. art. 253. Rollins v. City of Zachary, 00-0160 (La.App. 1 Cir. 2/16/01), 808 So.2d 439. That was never done in this case.

Mr. Davis never requested service of citation and recognized this problem in subsequent pleadings. As a matter of fact, he does not now argue on this appeal that the deleted paragraph in the court’s June 16, 1998 form ORDER should be construed as a request by him for service denied by the court. That proposition is one which has originated with this appellate court, in an effort to comply with its responsibility to render any judgment which is just, legal, and proper upon the record on appeal. While we sympathize with Mr. Davis, and recognize that his lack of education, his impecuniousness, and to some extent his incarceration, puts him at a disadvantage in court, there is a limit to the degree of indulgence we can give him. We cannot rewrite the law to give him a right he does not presently have. The trial judge, by deleting the paragraph having to do with costs and service, was doing for the petitioner exactly |7what the petitioner asked be done for him: he was giving him the privilege of suing in forma pauperis. By deleting the part about service, he was not denying a request for service of citation. No request for service of citation had ever been requested for the court to deny. Furthermore, the request for service of process was the petitioner’s responsibility. After the ORDER was signed the petitioner still had almost the full ninety days to make the request, and he never did.

As explained by the Supreme Court in Naquin v. Titan Indemnity Co., 00-1585, pp. 9-10, (La.2/21/01); 779 So.2d 704, 710:

While it is this court’s province to “consider the reason and spirit of a law,” we are “not free to rewrite the law to effect a purpose that is not otherwise expressed.” Backhus v. Transit Cas. Co., 549 So.2d 283, 291 (La.1989). ‘When a law is clear and unambiguous, and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 9. Had the legislature wished for § 5107(D) to require mere informal notice within ninety days rather than a request for service of citation, it could have so provided. Section 5107(D) specifically requires that service of citation be requested within ninety days of the filing of the pleading naming a governmental defendant.

Attached to his June 11, 1998 petition Mr. Davis executed a certifícate of service stating that a copy was mailed to the HPLMC. However, a courtesy service of the petition does not suffice, because “knowledge of the pending suit does not satisfy plaintiffs obligation to request service within ninety days of the filing of the suit against a governmental defendant.” Naquin, 779 So.2d at 710.

Therefore, the application of La.R.S. 13:5107(D) means that the June 15, 1998 filing did not interrupt or suspend the running of prescription as to the State. Accordingly, although the August filing in 2001 was denominated an “amending and supplemental petition,” it has to be regarded as “the filing of a supplemental or amended petition which initially names the State ... as a party.”

|sIn sum, there is a final judgment holding that Mr. Davis’ action filed against the State on December 11, 1998, is prescribed. A claim that has prescribed cannot be revived. Etienne v. Nat’l Auto. Ins. Co., 99-2610 (La.4/25/00), 759 So.2d 51. The East Baton Rouge Parish judgment has acquired the authority of res judicata. The exception was properly sustained as to the filing of the amending and supplemental petition in August 2001 in Rapides Parish.

The case of Johnson v. Sweat, 265 So.2d 801, 803 (La.App. 3 Cir.), writ denied, 263 La. 105, 267 So.2d 211 (La.1972), decided that a “judgment dismissing plaintiffs’ second suit on an exception of prescription of one year cannot sustain the plea of res judicata in the first suit, which was timely filed and in which no issue is presented as to prescription.” That case is readily distinguishable. In Johnson, the first suit interrupted prescription. In our present case, the first suit did not interrupt prescription. Therefore any action filed at a time after the claim that was held to have been prescribed, is itself prescribed by the effect of res judicata.

Finally, the State answers Mr. Davis’ appeal and seeks sanctions against him for filing a frivolous appeal. This has not been an easy case to decide. We members of the panel considering this case have struggled with it among ourselves. Mr. Davis’ appeal is not frivolous.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against Mr. Davis.

AFFIRMED.

COOKS, J., dissents with written reasons.

WOODARD, J., dissents for the reasons assigned by Judge COOKS.

h COOKS, J.

Dissenting.

For the reasons expressed in Ricky Davis v. Huey P. Long Regional Medical Center, et al, 02-656, (La.App., 2002-656 La.App. 3 Cir. 2/5/03) 841 So.2d 13, I dissent.

      . Mr. Davis, pro se, is apparently aware of that deficiency. In a Petition for Assistance From a Fellow Prisoner, filed August 30, 2001, Mr. Davis calls attention to his youth and limited (sixth grade) education, and his consequent use of assistance from various inmates "in preparing the original complaint.” He laments that he "was unaware of one such fellow inmate's error in filing the original complaint in this Honorable Court without citing a properly addressed service of process or citation, which without makes a petition null and void. Thereafter when no answer was received that inmate erroneously filed the same petition in the 19 th Judicial District Court, Parish of East Baton Rouge. Which said court dismiss the petition on exception of prescription, February 29, 2000, Suit No. 460,409.” In a June 4, 2002 pleading he admits: “In the instant case the 11th day of June, 1998, petitioner filed a complaint with the Ninth judicial district court without a service of process, seeking damages from Huey P. Long Hospital.”

      . According to the record, the supplemental and amending petition was put in the mailbox by Mr. Davis on August 29, 2001. It was filed in the Office of the Clerk of Court of Rapides Parish on August 30, 2001. The ''mailbox” rule has no significance regarding this filing either.


author: 1YELVERTON, J. 1COOKS, J.,

text:
    Ricky DAVIS v. HUEY P. LONG REGIONAL MEDICAL CENTER, et al.
    No. 02-656.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Ricky Davis, In Proper Person, Cotton-port, LA.
    Carey Rauhman Holliday, Assistant Attorney General, Baton Rouge, LA, for Defendants/Appellees, State of Louisiana and Huey P. Long Regional Medical Center.
    Court composed of NED E. DOUCET, Chief Judge, HENRY L. YELVERTON, SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
   1YELVERTON, J.

For the reasons given in the opinion this day handed down in Ricky Davis v. Huey P. Long Regional Medical Center, et al., 02-806 (La.App. 3 Cir. 2/5/03), 841 So.2d 7, the judgment is affirmed at appellant’s cost.

AFFIRMED.

COOKS, J., dissents with written reasons.

WOODARD, J., dissents for the reasons assigned by Judge Cooks.

1COOKS, J.,

Dissents.

While the Majority avoids finding Mr. Davis’ suit filed on June 15, 1998 came too late, they nevertheless dismissed it as prescribed, finding the suit was not served within ninety days as required by La.R.S. 13:5107(D)(1). The Majority correctly notes the “mailbox” rule might save the day in this case, particularly since the record indicates Mr. Davis handed his suit to a prison official for processing on or prior to the prescription date; but the documents did not arrive at the courthouse until after the date expired. The United States Supreme Court has held in such instances the documents are considered filed when delivered to the prison official. A petitioner who is a prisoner does not have the liberty to deliver the documents to the courthouse. Louisiana has acknowledged the application of this holding to suits filed by prisoners.

But the Majority dismisses the application of this rule to the prescription question raised in this case finding instead the suit was not served within 90 days and La.R.S. 13:5107(D)(3) provides it shall not interrupt or suspend the running of prescription as to the sate. The Majority apparently did not notice the record contains, in addition to a MOTION AND AFFIDAVIT TO PROCEED IN FORMA PAUPERIS, an ORDER. The ORDER, obviously prepared and submitted with Davis’ petition, is comprised of five paragraphs. One of the paragraphs recites: “IT IS FURTHER ORDERED THAT after costs of court have been paid, the Clerk of 1¡Uourt shall process the suit and issue citation to the defendant(s) in accordance with the law.” Although the ORDER was signed by the trial judge, the letter X appears across all the paragraphs except the first and last. None of the options are circled in paragraph one. The only paragraph completed by the trial judge was the last in which he inserted the dáte and signed his name. For all practical purposes, although clearly the prisoner filed documents seeking to proceed as a pauper and to effect service of his suit, nothing occurred because “somebody” placed an X across all the noted paragraphs in the ORDER. When closely reviewed the Order was rendered meaningless. To say now that the prisoner, who later addressed a letter to the Clerk’s office attempting to find out what happened to his suit, must shoulder blame for what appears to be shortcomings attributable to the actions of public officials over which he had no control and no liberty to object to at the time of filing again violates “the mailbox” rule the United States Supreme court mandates we follow.

Further, this case should be remanded because dismissal for failure to serve a suit within the 90 day period provided in La.R.S. 13:5107(D)(3) is not automatic. Section (D)(2) provides “if service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure article 1672(C) ...” La.Code Civ.P. art. 1672(C) provides: “A judgment dismissing an action without prejudice shall be rendered ... unless good cause is shown why service could not be requested ...” Here, the prisoner’s request for service is found in the ORDER submitted with the original petition filed on June 15, 1998 and “good cause” exists to explain why service was not perfected — THE JUDGE DID NOT CIRCLE the appropriate (shall) or (shall not) indicating whether the prisoner was allowed to proceed in forma pauper or not; “somebody” X out paragraphs 2-4; and despite the notation at the bottom of |sthe form requesting return of the document to the Inmate Banking Department nothing was done by the Clerk’s office or the Court.