author: | MOAN BERNARD ARMSTRONG, Judge.

text:
    In re The 601 CANAL STREET TRUST.
    No. 2003-C-0481.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.
    William F. Wessel, Wessel & Associates, New Orleans, LÁ, for Lenny K. Motwani, Aaron Motwani, Tina Motwani, Beneficiaries and Stanford Latter, Trustee.
    Stephen I. Dwyer, M. Claire Durio, Dwyer & Cambre, Metairie, LA, for Chandra Motwani, etc.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR. and Judge LEON A. CANNIZZARO JR.)
   | MOAN BERNARD ARMSTRONG, Judge.

STATEMENT OF THE CASE

Relators Lenny K. Motwani, Aaron Mot-wani, Tina Motwani, beneficiaries of the 601 Canal Street Trust, and Stanford Latter, trustee thereof, seek supervisory review of a trial court judgment denying their rule to set aside an earlier order appointing Chandra Motwani as a successor co-trustee. Chandra Motwani is the uncle of the Motwani relators herein, and the father of the only other trust beneficiaries, Vishal Bobby Motwani and Lea Maria Motwani.

The 601 Canal Street Trust was established in 1985. On October 11, 2002 (the date of the certification of service by mail), Chandra Motwani filed a petition for an order approving the appointment of himself as a successor co-trustee, alleging that then co-trustee Laxman S. Kewalramani, M.D. no longer desired to be co-trustee.

On October 14, 2002, the trial court issued an order acknowledging the resignation of Dr. Kewalramani as co-trustee, and approving and confirming the substitution of Chandra Motwani as co-trustee.

IsOn November 27, 2002, relators herein filed a rale to set aside the order appointing Chandra Motwani as co-trustee. The matter came for hearing on January 24, 2003. On February 24, 2003, a judgment was signed denying the rule. Relators timely filed their writ application in this court on March 10, 2003.

FACTS

The petition of Chandra Motwani for appointment as successor co-trustee had attached to it the October 11, 2002 affidavits of himself and Dr. Kewalramani. Dr. Kewalramani averred that he was then co-trustee, that he thereby resigned as co-trustee, with his resignation to take effect upon the acceptance of the trusteeship by Chandra Motwani. Chandra Motwani averred that he accepted the co-trusteeship, which would become effective upon the resignation of then co-trustee Dr. Kewalramani. Chandra Motwani averred in the petition that, pursuant to La. R.S. 9:1788, it was necessary that the beneficiaries of the trust be notified of the resignation of Dr. Kewalramani, and that attached to his petition was a copy of such notification sent to the natural beneficiaries by certified letter, return receipt requested. The petition contained a certificate of service attesting that counsel for Chandra Motwani had served a copy of the “pleading” by mail upon attorneys of record for all other parties.

Attached to relators’ supplemental memorandum on their rule to set aside the appointment of Chandra Motwani as co-trustee was the December 17, 2002 affidavit of Dr. Kewalramani. Dr. Kewalramani averred in this affidavit that he had resigned his co-trusteeship unconditionally on July 17, 2001. Dr. |3Kewalramani further averred that on October 11, 2002, Chandra Motwani requested that he execute a resignation as co-trastee to be effective upon acceptance of the co-trusteeship by Chandra Motwani. Dr. Kewalramani averred that he executed an affidavit to that effect under the impression that it was necessary to complete his resignation.

DISCUSSION

Relators’ argument is that the trial court erred in denying their motion to set aside the order appointing Chandra Motwani because the relators-beneficiaries did not receive notice of the resignation of Dr. Kew-alramani and did not receive service of process.

La. R.S. 9:1791 sets a 30-day delay for appealing an order appointing or removing a trustee. Relators implicitly concede that the delay for appealing the order appointing Chandra Motwani has expired, but contend they had no knowledge of it until after the 30-day period had expired.

Given that relators allege insufficient service of process, we note that they could have filed an action to annul asserting that ground pursuant to La. C.C.P. art.2002. However, relators did not have to file a separate action, as the order could be attacked collaterally and at any time. See Official Revision Comment (e) to La. C.C.P. art.2002. Accordingly, we shall consider relators’ “rule” to set aside the order appointing Chandra Motwani as a collateral attack based on the lack of service of process.

There is authority for the proposition that a trial court can appoint a successor co-trastee in a summary proceeding. See Succession of Batton v. Prince, 384 So.2d 506 (La.App. 2nd Cir. 1980) (appointment of successor trustee by use of summary proceeding fair and equitable because it provided proponents and opponents an 1 opportunity to assert their respective positions to the trial court). Cf. La. R.S. 9:1786 (authorizing appointment of provisional trustee by summary proceeding). Citation and service thereof are not necessary in a summary proceeding, but a copy of the pleading shall be served upon the “defendant.” La. C.C.P. art. 2594. “The rales governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law.” La. C.C.P. art. 2596.

In the instant case, the copy of Chandra Motwani’s “petition” for appointment as a successor co-trastee contains a certification of service attesting that service thereof by mail was made upon attorneys of record for all other parties in the action. Service by mail would have been proper if Chandra Motwani sought appointment by the filing of a “pleading” subsequent to an original petition. La. C.C.P. art. 1313(1). However, Chandra Motwani filed an original petition seeking his appointment as successor co-trastee. Therefore, service could not be made by mail.

Because the order appointing Chandra Motwani successor co-trustee affected the rights of the relators-beneficia-ries, and they were not properly served with process and did not make a general appearance, the order was an absolute nullity. See White v. White, 398 So.2d 1257, 1259 (La.App. 4 Cir.1981) (judgment rendered against defendant in a summary proceeding who has not been served with process and who has not entered general appearance is an absolute nullity).

| BFor the foregoing reasons, the writ application is hereby granted and the trial court’s order appointing Chandru Motwani successor co-trustee is annulled and set aside.

WRIT GRANTED; ANNULLED AND SET ASIDE.

      . Although the written judgment states that judgment was rendered in open court on January 24, 2003, the date of the hearing, because a written judgment was signed on February 24, it can be presumed that the court ordered one prepared. Therefore, the 30-day maximum return date period ran from February 24, the date the judgment was signed. Rule 4 — 3, Uniform Rules of Louisiana Courts of Appeal.

      . We note that the certification of mailing included in Chandra Motwani’s petition is dated October 11. The order appointing him co-trastee was rendered on October 14. This, combined with the relators’ representations that they did not learn of the order until after the 30-day delay for appealing had expired and the fact that the order does not reflect that the court considered anything but Chandra Motwani’s petition, strongly suggests that none of the relators made a general appearance in connection with the matter.


source: Caselaw Access Project

author: liMAX N. TOBIAS JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jonna L. HAYNES.
    No. 2002-KA-1648.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Anne M. Dickerson, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defen-dani/Appellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., Judge LEON A. CANNIZZARO JR.).
   liMAX N. TOBIAS JR., Judge.

On 6 July 2001, the defendant, Jonna L. Haynes (“Haynes”), was charged by a bill of information with armed robbery, a violation of La. R.S. 14:64. Haynes pled not guilty at arraignment on 12 July 2001. A hearing on defense motions was held on 24 August 2001, and the court denied the motion to suppress the identification and found probable cause. A jury found the defendant guilty as charged on 4 March 2002. The state filed a habitual offender bill of information pursuant to La. R.S. 15:529.1. On 24 May 2002, the trial court denied Haynes’s motion for new trial and motion for post-judgment verdict of acquittal. A hearing on the multiple bill was held the same day. After hearing the evidence, the trial court found Haynes to be a third felony offender and sentenced him to life imprisonment without the benefit of parole, probation, or suspension of sentence. Haynes’s motion to reconsider sentence was denied. The motion for appeal was granted.

STATEMENT OF FACTS

Shortly before noon, on 11 June 2001, Curtis Aubry went to an automobile body repair shop on Saint Roch Avenue to retrieve his vehicle. Mr. Aubry parked Ijiis rental car, a white Mitsubishi Montero, an SUV, on the median. He was standing at the rear of the vehicle with the tailgate of the SUV raised, straightening up his personal belongings before transferring them to his personal vehicle. He was nearly finished when someone walked up behind him and put his left arm around his neck. The perpetrator held a gun at Mr. Aubry’s side and said, “Give me all your money.” Mr. Aubry turned and looked at the perpetrator in the face, which was covered by a ladies stocking that the perpetrator had over his head. Mr. Aubry told his assailant essentially that everything he had was there in the back of the truck. Specifically, the victim’s jewelry, consisting of two rings, a watch, and a bracelet, as well as a bank envelope with five hundred dollars in it, were in a small plastic bucket in the back of the car. The perpetrator grabbed the bucket as well as the keys to the SUV and pushed Mr. Aubry back. The perpetrator walked to the front of the vehicle and told the victim to get back. As he did so, he raised the stocking halfway up in order to speak. With the rear tailgate still open the perpetrator drove off in the vehicle.

When the police arrived at the body shop, Mr. Aubry met with a detective and provided a description of the perpetrator as being brown to dark complexioned, in his mid to late twenties, approximately 210 pounds, and somewhat taller than he. Mr. Aubry stated that he was 5' 9" tall. Mr. Aubry stated that the perpetrator was wearing knee length jeans and a dark colored T-shirt.

Officer August Michael was on patrol when he received a radio dispatch describing the white Mitsubishi Montero. Shortly thereafter, Officer Michael and his partner observed the vehicle on North Miro Street crossing Congress Street. They turned onto North Miro, and the Montero started to speed off. Officer Michael initiated pursuit with his lights and siren on. The chase ensued for several | ¡¡blocks until the Montero failed to negotiate a right turn at a high rate of speed and crashed through a fence and into a support beam of a carport. Officer Michael and his partner were approaching as the subject fled from the vehicle and jumped over the fence and into a backyard. Officer Holmes stated that he observed Haynes strike his head on the support beam as he fled. Officer Michael observed the subject from the rear, and stated that he was wearing a white t-shirt and blue jean shorts. Officer Michael ran into the backyard, but he lost sight of the perpetrator.

Officer Michael radioed for a canine unit and, with the assistance of other units the officers, were able to set up a perimeter with a one-block radius. After the canine unit arrived, Officer Michael showed them where to begin the search. The dog led the officers into an adjoining yard and then into a “washateria” behind an apartment complex. A small door led to a crawl space behind the dryers where the officers observed Haynes’s shoe sticking out from behind a dryer. After breaking down a sheetrock wall, the officers took Haynes into custody.

The majority of the victim’s personal belongings were recovered inside the vehicle. Apparently, they were in some disarray. The victim’s jewelry and money, all of which had been contained in the small plastic bucket, were not recovered. A nine-millimeter semi-automatic pistol was recovered on the passenger side floorboard of the car. Additionally, a ladies stocking was recovered from the support beam hanging from a wood splinter. The victim was transported to the scene where he identified Haynes. The victim also identified the gun as the one used in the robbery.

\ ¿ERRORS PATENT

A review of the record for errors patent reveals none.

ASSIGNMENT OF ERROR

In his sole assignment of error, Haynes argues that the trial court erred by denying the motion to suppress the identification. A defendant who seeks to suppress an identification must prove both that the identification itself was suggestive and that a likelihood of misidentification existed as a result of the identification procedure. State v. Prudholm, 446 So.2d 729, 738 (La.1984) State v. Valentine, 570 So.2d 533 (La.App. 4 Cir.1990). One-on-one confrontations between the suspect and the victim, while not favored by law, are generally permissible when the accused is apprehended within a short time after the offense and is returned to the scene of the crime for an on-the-spot identification. State v. Robinson, 404 So.2d 907, 909-910 (La.1981). Such a process assures reliability and fosters prompt release of innocent suspects. Id.

Even if the identification could be considered suggestive, it is the likelihood of misidentification that violates due process, not merely the suggestive identification procedure. State v. Thibodeaux, 98-1673 (La.9/8/99), 750 So.2d 916, 932. Fairness is the standard of review for identification procedures, and reliability is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Even a suggestive, out-of-court identification will be admissible if it is found reliable under the totality of circumstances. State v. Guy, 95-0899 (La.App. 4 Cir. 1/31/96), 669 So.2d 517.

|fiThe U.S. Supreme Court has set forth a five-factor test to determine whether a suggestive identification is reliable: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, supra; Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In evaluating the defendant’s argument, the reviewing court may consider all pertinent evidence adduced at the trial, as well as at the hearing on the motion to suppress the identification. State v. Higgins, 01-368 (La.App. 5 Cir, 10/18/01), 800 So.2d 918; State v. Clennon, 98-1370 (La.App. 5 Cir. 6/30/99), 738 So.2d 161, 164. A trial court’s determination on the admissibility of identification evidence is entitled to great weight and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Bickham, 404 So.2d 929 (La.1981); State v. Offray, 2000-0959 (La.App. 4 Cir. 9/26/01), 797 So.2d 764.

Under the present circumstances, given the fact that Haynes was apprehended after a high-speed chase shortly after the crime was committed, it was reasonable, appropriate, and logical to attempt to secure an identification immediately. See State v. Carter, 99-2234 (La.App. 4 Cir. 1/24/01), 779 So.2d 125.

Haynes alleges that the identification was unreliable based in part on the fact that he was not wearing a dark colored t-shirt as described by the victim. Nevertheless, Haynes’s pants, jean shorts, did match the description provided by the victim, and the victim identified the pants as those worn by the perpetrator.

Haynes also suggests unreliability based on the fact that his physical characteristics do not match those of the perpetrator. Based on support from the | ^record, Haynes alleges that he is seventy pounds heavier than the person the victim described. The police report prepared by Officer Michael contains a physical description of Haynes as being 6' 2" and 270 pounds. Officer Michael testified that this was the information supplied by the police computer. No independent evidence was introduced at trial to establish Haynes’s actual weight or height. Based on the information that Officer Michael retrieved from the police computer, Haynes also states that he is much taller than the person described by the victim. Again, no independent evidence of Haynes’s actual height was established during trial. Mr. Aubry stated that he was 5' 9" and described his assailant as being taller than he but only slightly so.

Despite the apparent discrepancy, the circumstances of the identification reflect that the victim had an ample opportunity to assess the defendant’s height. After the victim initially identified Haynes while he was seated in the back of the police car, the officers removed Haynes from the car in an effort to ensure the reliability of the identification. Mr. Aubry testified concerning this second identification as follows:

A. * * * They took him out of the car and he stood up there. And I walked directly up to him and I said yes.
Q. How close did you walk up to him? And assume that—
A. I walked up to him as close as I am to this fellow here (indicating).
Q. Okay. And, Mr. Aubry, did you get a good look at him at that point?
A. I did.
Q. Okay and did you identify him?
A. I definitely did.

17Pespite the fact that Mr. Aubry testified that the perpetrator was only slightly taller than he, he was nevertheless definite that Haynes was the perpetrator after he observed him standing before him.

Haynes further alleges that the identification was unreliable as the ladies stocking on his head obscured the perpetrator’s face. Mr. Aubry made several statements during trial relative to his ability to observe the perpetrator’s facial features both through the stocking and after it was raised as follows.

A. * * * And when I seen the gun and I turned around and I looked at him in the face as I’m looking at the Judge like this, and then he said, “Give me your money.” * * *
Q. Okay. Prior to him entering into the vehicle, did he have something on his head?
A. Yes, he had—
Q. What did he have on his head?
A. He had a stocking over his head.
Q. Okay. Prior—
A. And just before entering the vehicle, he raised it up halfway about like this level (indicating) when he told me to get back.
Q. And when he raised the stocking cap, were you able to get a good look at his face?
A. A closer look at his face. [Mr. Au-bry was standing at the rear bumper of the car at this time.]
Q. Now let me ask you this: At the point where he had you from behind around the neck, did you have the occasion at that point to turn around and see his face?
A. When I glanced at his face, he still had the stocking on it.
IsQ. Okay how close were you?
A. And I was like this (indicating)
Q. So you were face-to-face?
A. Yes, I was definitely up on him.
Q. Okay.
A. He was definitely in my face, you see?
Q. Now when we [sic] had the stocking on and you were face-to-face with him like this, were you able to make out his face?
A. As much as I can make out yours.
Q. Okay. The person had a stocking mask on when he had the — when he was behind you?
A. Yes.
Q. So you did not get a good look at his face?
A. I did good enough.
Q. Through the stocking?
A. I was able to see his complexion. He had a full face. He didn’t have a like a skinny, narrow face, or nothing of that nature.
Q. Did you get a look at whether he had facial hair?
A. The stocking was covered. He either had close hair or a bald head.
Q. Did you get a look at any of his characteristics of his teeth?
A. No, he talked with a dim — his mouth was sort of closed.

Obviously, the victim’s ability to identify the perpetrator was impaired by the stocking over the perpetrator’s face; however, the victim’s testimony admits this fact. The identification was based on observing Haynes’s features through a 1¡¡stocking and then when it was partially raised. This fact was plain for the jury. We do not find that the trial court erred in denying the motion to suppress on that basis. The victim stood face-to-face with a man with a stocking over his head. Subsequently, the man raised the stocking up halfway. That was the basis of the identification. That was the question for the jury to consider. Certainly the perpetrator was more difficult to identify than had his face been uncovered, but this fact does not render the perpetrator unidentifiable.

Finally, Haynes suggests that because some of the victim’s property was not recovered, the evidence would tend to suggest that someone else committed the crime. While the hypothesis is plausible, the circumstance of unrecovered property is not dispositive. Other circumstantial evidence also militates in the opposite direction. Notably, Officer Michael testified that the Mitsubishi Montero began to speed away upon the first sight of the police car. The flight and reckless nature of the chase itself is also indicative of guilt. Another significant piece of evidence was the recovering of the ladies stocking on the carport support beam, hanging from a splinter as if plucked from the top of the perpetrator’s head. The recovery of the gun within the vehicle is also significant. Furthermore, that Haynes was in possession of the stolen vehicle within a short time after the robbery also suggests that he was the perpetrator.

Mr. Aubry’s opportunity to view the perpetrator began with a face-to-face confrontation, and ended when Haynes raised the stocking and spoke to him. Mr. Aubry displayed a high degree of attention during the robbery, his level of certainty was great and a brief period of time elapsed between the robbery and the apprehension. Although the victim’s description admittedly contained a discrepancy, viewing the totality of the circumstances surrounding Haynes’s 1 inapprehension, identification, and arrest, it appears that no substantial likelihood of misidentification occurred in this case.

CONCLUSION

Accordingly, Haynes’s conviction and sentence are affirmed.

AFFIRMED.

      . The record on appeal contains two arrest registers dating from 1998 and 1999 that re-fleet Mr. Haynes's weight as 215 pounds.


author: It Judge TERRI F. LOVE.

text:
    Lettie Marinovich, Wife of/and Milton MARINOVICH and Sadie Guey v. David ILLG.
    No. 2002-CA-1870.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.

      Robert C. Stern, Robert C. Stern, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Jeffrey W. Davidson, George Pivach, II, Pivach & Pivach, L.L.C., Belle Chasse, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   It Judge TERRI F. LOVE.

Sadie Guey appeals the trial court’s granting of summary judgment in favor of the defendant. The trial court found that Deputy David Illg’s dissemination of information, regarding an ongoing undercover narcotics investigation contained on an audiotape, did not violate the provisions of the Louisiana Electronic Surveillance Act, La. R.S. 15:1301 et seq. We affirm the trial court’s judgment for the following reasons:

FACTS AND PROCEDURAL HISTORY

The defendant, Deputy David Illg (“Deputy Illg”), was employed as a deputy sheriff by Sheriff I.F.“Jiff’ Hingle (“Sheriff Hingle”) in Plaquemines Parish in 1995 and 1996. Deputy Illg was working on an undercover narcotics investigation. The investigation centered on Duke Bergman (“Bergman”). It was alleged that Bergman was involved in dealing narcotics out of the Black Velvet Lounge, which was owned by Milton Marinovich (“Marino-vich”). Marinovich was a Plaquemines Parish Sheriffs Captain and good friend of Bergman. Deputy Illg received a package from an anonymous sender, which contained an audiotape. After throwing the packaging away, Deputy Illg listened to the contents of the audiotape. The audiotape contained a conversation between Sadie Guey (“Guey”), a private investigator for the Plaquemines Parish District Attorney’s Office, and Marinovich. During the conversation with Marinovich, Guey divulged sensitive information obtained from a confidential informant pertaining to the ongoing narcotics investigation of Bergman. Shortly thereafter, Deputy Illg approached | ¡.PEA Agent Jeff Justice (“Agent Justice”) with the tape. Agent Justice advised him to take the tape to Judge William A. Roe of the Twenty-Fifth Judicial District Court. Judge Roe instructed him to forward the tape to the Plaquemines Parish District Attorney’s Office.

In 1997, Sadie Guey filed a lawsuit against Deputy Illg and Sheriff Hingle alleging Deputy Illg: (1) violated La. R.S. 15:1301 et seq. of the Louisiana Electronic Surveillance Act (“Act”) when he improperly obtained an audiotape of a private conversation between Guey and Marino-vich without either’s consent; (2) violated La. R.S. 15:1301 when he disseminated the contents of the audiotape without the consent of either Guey or Marinovich; (3) committed an invasion of privacy; and (4) committed other acts of negligence. Deputy Illg subsequently filed a Motion for Summary Judgment. The trial court held the following:

THE COURTS [sic] FINDS that Deputy David Illg was within the course and scope of his duties as a commissioned Deputy Sheriff for the Plaquemines Sheriffs Office at the time of the actions as alleged by the plaintiffs, for all purposes in the above captioned matter;

The trial court granted the motion as to the claim of improper dissemination, and denied the motion as to the claim of invasion of privacy. A hearing on the interception claim was deferred until a later date in order to allow the plaintiffs an opportunity to supply “further evidence” to the court. The plaintiffs failed to provide evidence to support this claim. As a result, the trial court ruled at a subsequent hearing:

The Court, considering the motions, argument of counsel, stipulations of the parties, and for the reasons this day orally assigned, renders the following judgment:
IT IS ORDERED ADJUDGED AND DECREED that the Defendants’ Motion for Summary Judgment in regards to the claims of 1 ^interception and/or obtaining in violation of La. R.S. 15:1301, et. seq. is hereby granted;

A Motion for New Trial was filed by the plaintiffs and was denied by the trial court. Guey now appeals the trial court’s granting of the defendants’ Motion for Summary Judgment and the denial of her Motion for New Trial.

LAW AND DISCUSSION

Appellate courts review a 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, 99-2257, (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of 4 actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court, the movant’s burden does not require him to negate all essential elements of the adverse party’s claim. La. C.C.P. 966(C)(2). Rather, he need only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. 966(C)(2).

Pursuant to La.C.C.P. art. 966, the initial burden of proof remains on the mover to show that no genuine issue of material fact exists. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488. If the non-moving party fails to meet this burden, there is no genuine issue of |4material fact, and the mover is entitled to summary judgment. Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

INTERCEPTION OF ORAL COMMUNICATION

This Court notes the language in the Act is modeled after its federal counterpart. Federal law, although not controlling, provides instructive guidance in the interpretation of the provisions under the Act. Guey and Deputy Illg rely heavily on federal jurisprudence in support of their respective positions in this case. However, we will review this situation as a case of first impression as it relates to Louisiana law.

The Louisiana Electronic Surveillance Act, La. R.S. 15:1801 et seq., is divided into three sections. The first section, La. R.S. 15:1303 prescribes specific remedies, which consists of fines and imprisonment. The second section, La. R.S. 15:1307, does not permit the publication or use of the information contained in the communication. Lastly, La. R.S. 15:1312 provides a civil cause of action against the person who intercepts, discloses, or uses the information.

Specifically, Guey argues that the trial court erred in denying her claim of Deputy Illg’s interception of an oral communication in violation of La. R.S. 15:1303(A) of the Act. The statute provides, in pertinent part:

(1) Except as otherwise specifically provided in this Chapter, it shall be unlawful for any person to: Willfully intercept, endeavor to |,^intercept, or procure any other person to intercept or endeavor to intercept, any wire or oral communication;
(2)Willfully use, endeavor to use, or procure any other person use or endeavor to use, any electronic, mechanical, or other device to intercept any oral communication ...
(3) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this subsection; or
(4) Willfully use, or endeavor to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Subsection.

Guey directs this court’s attention to inconsistencies in the deposition transcript regarding how Deputy Illg came into possession of the tape. Guey testified that Deputy Illg told her that a ham operator from Port Sulphur sent the tape to him. Additionally, she stated Sheriff Hingle told her that a confidential informant gave the tape to Deputy Illg. To the contrary, Deputy Illg stated in his deposition that he did not know where the tape came from and he did not recall telling anyone differently. There is no evidence contained in the record that proves Deputy Illg was the interceptor of the communication between Guey and Marinovich.

Additionally, the appellant alleges a conspiracy pertaining to her knowledge of Deputy Illg’s prior alleged “improper actions, which he had taken as a PPSO deputy”. This allegation in conjunction with the mysterious circumstances under which Deputy Illg came into possession of the tape and his alleged personal | (¡relationships with DEA agents, the Plaquemines District Attorney Office, and the trial judge are part of the alleged conspiracy. However, the appellant did not present any evidence to substantiate these allegations.

In response to Guey’s contentions, Deputy Illg argues that Guey failed to prove that he intercepted the communication and the interception was willful in violation of the Act.

The facts in the instant case involve Deputy Illg’s lawful receipt of a communication intercepted by a third party and his subsequent limited disclosure of the information to other law enforcement officials. It is apparent from the record that the tape contained a wire or oral communication. However, no evidence was presented at trial to show that Deputy Illg, or a person whom he solicited, participated in the interception of the wire or oral communication or through the use of a device. In fact, Guey was granted an extension of time to provide the trial court with evidence, which would pinpoint exactly who and how the conversation was intercepted. Despite being given an extension of time to provide this information to the trial court, Guey failed to proride the evidence. This court also notes Guey did not contend that Deputy Illg intercepted the conversation between Guey and Marinorich. Additionally, Deputy Illg stated in his deposition that the tape was sent anonymously to his business address and he did not participate in the interception of the conversation. Consequently, the trial court dismissed the claim regarding interception.

Based on Guey’s failure to carry her evidentiary burden of proof, we do not find the trial court erred in finding no material issue of fact.

DISSEMINATION OF INFORMATION CONTAINED IN INTERCEPTED ORAL COMMUNICATION

17Guey contends Deputy Illg disseminated the information contained in the recorded conversation between Guey and Mari-norich in a manner inconsistent with the performance of his duties as a sheriffs deputy in violation of La. R.S. 15:1309(A), which creates a civil cause of action under La. R.S. 15:1312(A).

La. R.S. 15:1309 states:
A. Any investigative or law enforcement officer who, by any means authorized by this Chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure, and provided that such disclosure of the contents of any wire or oral communication, or evidence derived therefrom, relates directly to the offense for which the order was granted.
B. Any investigative or law enforcement officer who, by any means authorized by this Chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived there from may use such contents to the extent such use is appropriate to the proper performance of his official duties.

Guey argues that the contents of the tape involved an expression of opinions between co-employees and this is the type of speech the Act was intended to protect. Furthermore, Guey asserts the tape did not contain information regarding matters of public concern. Essentially, she contends that no legitimate public interest was served in the dissemination of the contents of the tape to the DEA, Plaque-mines Parish District Attorney’s Office, and other sheriffs deputies.

Conversely, the conversation between Guey and Marinorich pertained to a criminal matter, which was the subject of an ongoing investigation at the time of the recording. The record reflects that, upon receipt of the recording, Deputy Illg submitted the tape to a limited number of law enforcement personnel in the | ^performance of his duties as a law enforcement officer. He did not disclose the informátion to the public.

Furthermore, Guey asserts the La. R.S. 15:1301 et seq. language “by any means authorized by the chapter” restricts the dissemination and use of the contents of the tape to only information obtained through a judicially obtained wiretap.

La. R.S. 15:1302 defines a law enforcement officer as:

“Investigative or law enforcement officer” means any commissioned state police officer of the Department of Public Safety and Corrections who, in the normal course of his law enforcement duties, is investigating an offense enumerated in this Chapter, and the district attorney authorized by law to prosecute or participate in the prosecution of such offense.

We must decide whether Deputy Illg’s dissemination of information contained in a communication in furtherance of a police investigation, which is intercepted by a third party without a judicially authorized wiretap, violates the provisions of the Act.

In the instant case, Deputy Illg testified in his deposition that he received the tape anonymously via ordinary mail addressed to him in his official capacity as a sheriffs deputy at his business address. We find that Deputy Illg is a law enforcement officer within the meaning of La. R.S. 15:1302. Deputy Illg testified he did not know who sent the tape. Moreover, Deputy Illg stated he had no knowledge of whether each of the parties consented to being taped. Deputy Illg also stated that he was unaware of the provisions of the Act. Deputy Illg disclosed the information to other law enforcement agents in furtherance of his investigation into contents of the tape. Deputy Illg did not follow the chain of command by alerting his immediate superior of the existence of the tape. Even so, Deputy Illg |fldisseminated the information contained in the taped conversation between Guey and Marinovich to other law enforcement agents. To this end, the record supports Deputy Illg’s dissemination of the contents of the tape in furtherance of an internal investigation to aid in his performance as a law enforcement officer. There is no indication or evidence, which supports that he publicly disclosed the information or used the contents of the taped conversation for illegal purposes.

Furthermore, Guey argues that Deputy Illg’s dissemination of the information contained in the taped conversation subjects Deputy Illg to a civil cause of action in accordance with La. R.S. 15:1312(A). La. R.S. 15:1312(A) provides:

A. Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this Chapter shall have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and be entitled to recover from any such person:
(1) Actual damages, but not less than liquidated damages computed at the rate of one hundred dollars a day for each day of violation or one thousand dollars, whichever is greater.
(2) A reasonable attorney’s fee and other litigation costs reasonably incurred.
(3) Punitive damages
B. A good faith reliance on a court order shall constitute a complete defense to any civil or criminal action brought under this Chapter.

Both Deputy Illg and Guey cite Keller v. Aymond, 98-843 (La.App. 3 Cir. 12/23/98), 722 So.2d 1224, as guidance in the instant case. Since we are not concerned with the application of federal law to this particular case, we will only |inapply those sections of Keller, which are applicable to the resolution of issues arising under the Louisiana Act.

The court in Keller pointed out that the Act allows limited non-public disclosure to persons in the performance of their official duties. The court also made an important distinction between disclosure to a limited audience of ‘professionally interested strangers’ in the context of their official duties is not the equivalent to disclosure to the public ...” Id. at 1228. Therefore, this Court will focus on the manner in which Deputy Illg used the information.

We do not find that Deputy Illg acted without any regard for the lawfulness of his actions. Although Deputy Illg did not follow the department’s chain of command when disseminating the information contained in the tapes, his actions certainly cannot be deemed criminal and publicly broadcast in violation of the Act. Clearly, Deputy Illg, in his capacity as a law enforcement officer, fulfilled his legal duty to further investigate the contents of the taped conversation regarding criminal activity. As such, Deputy Illg should be afforded the protection provided under the Act to law enforcement officers. Therefore, we conclude that the trial court did not err in finding Deputy Illg not liable for civil damages under La. R.S. 15:1312.

Accordingly, the court’s judgment stated “... Deputy David Illg was within the course and scope of his duties as a commissioned Deputy Sheriff for the Plaque-mines Sheriffs Office at the time of the actions as alleged by the plaintiffs, for all purposes in the above captioned matter.” Therefore, we conclude the trial court correctly granted the defendants’ Motion for Summary Judgment on the issues of interception, dissemination and civil damages as to plaintiffs claims arising under La. R.S. 15:1301 et seq.

AFFIRMED.


author: I JOAN BERNARD ARMSTRONG, Judge.

text:
    Earline HUTCHISON v. KNIGHTS OF COLUMBUS, COUNCIL NO. 5747, Rebel Amusement Rides, Inc., and St. Paul Fire and Marine Insurance Company.
    No. 2002-CA-1817.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.

      Darleen M. Jacobs, Al A. Sarrat, Robert A. Preston, Jr., Jacobs & Sarrat, New Orleans, LA, for Plaintiff/Appellant, Earline Hutchison.
    Thomas R. Hightower, Jr., Wade Kee, Lafayette, LA, Frank D. Ippolito, Law Offices Of Frank D. Ippolito, Chalmette, LA, for Defendant/Appellee, Knights of Columbus, Council No. 5747.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS Sr. and Judge EDWIN A. LOMBARD).
   I JOAN BERNARD ARMSTRONG, Judge.

This is an appeal from a summary judgment for the defendants in a trip-and-fall case. Because we find that there are genuine issues of material fact, we will reverse and remand for further proceedings.

The plaintiff, Earline Hutchinson, accompanied by her husband, visited the Crawfish Festival in Chalmette, Louisiana. She entered between two amusement park type rides and left the same way. As she left the festival, she tripped and fell on a bundle of electric cables that were used to power the rides. She was allegedly injured by the fall. She filed suit against the Knights of Columbus Council No. 5747, Rebel Amusement Rides, Inc. and St. Paul Fire and Marine Insurance Company. She argues that there was negligence as to the placement of the cables and the lack of barricades and/or warnings of the electric cables.

The defendants moved for summary judgment. The defendants argued that they violated no duty that they owed to the plaintiff, i.e., that they were not negligent. The plaintiff and her husband each submitted affidavits in opposition to the motion for summary judgment.

li>,The plaintiffs husband’s affidavit states as follows:

I am of the full age of majority. I am married to Earline Hutchison. I was with my wife, Earline Hutchinson at the time of this accident, March 28, 1998. At approximately 6:30 p.m. we parked our car on Jean Lafitte Parkway on the neutral ground across the street from the Crawfish Festival. We looked for an entrance and not seeing one, we followed some other people into the Festival. We walked into the festival between two rides. At approximately 10:30 p.m. we were leaving the festival and we walked out in approximately the same location as we walked in, between two rides. My wife was walking ahead of me. I saw her fall. When I looked down I saw the black cables for the first time. Neither of us had anything alcoholic to drink before or during the time we were a the festival.
We did not have to cross any barricades to enter or exit the festival. The barricades I saw surrounded individual rides. There were no barricades across any of the pedestrian pathways. There was nothing to keep anyone from walking between any of the rides. We did not have to pay to get into the festival.
I went back to the scene of the accident the next day, again I did not. have to cross any barricades to get there. I took some pictures of the area where my wife fell. Ex.l is a copy of one of the photographs I took of the cables that my wife tripped on. At the time of the accident the cables were in the parking lot between the rides. The next night they had been moved against the curb as depicted in the picture, Ex. 1. ■
After my wife fell, Mr. I Charles Deu-bler Sr., came to the scene and said he was the safety coordinator. He asked what happened and I told him my wife tripped on these wires. He said I told these people about these wires. I am going to stand here until someone comes and covers up these wires so no one else will trip on them. Mr. Duebler gave us his card (Ex. 2) and the Louisiana Craw-fish Festival medical treatment form (Ex. 3).
The plaintiff’s affidavit states as follows:
I am of the full age of majority. On March 28, 1998 my husband and I went to the Crawfish Festival in Chalmette, Louisiana. At approximately 6:30 p.m. we hparked our car on Jean Lafitte Parkway on the neutral ground across the street from the Crawfish Festival. We looked for an entrance and not seeing any, we followed some other people into the Festival. We walked into the festival between two rides. At approximately 10:30 p.m. we were leaving the festival and we walked out in approximately the same location as we walked in, in between two rides. Neither of us had anything alcoholic to drink before or during the time we were at the festival.
We did not have to cross any barricades to enter or exit the festival. The barricades I saw surrounded individual rides. There were no barricades across any of the pedestrian pathways. There was nothing to keep anyone from walking in between any of the rides. We did not have to pay to get into the festival.
After I fell, Mr. I Charles Deubler Sr., came to the scene and said he was the safety coordinator. ■ I told him I think I need to go to the hospital. He said the cables should not have been where they were. The cables should have been covered and out of the pathway. Mr. Duebler gave us his card (Ex. 2) and the Louisiana Crawfish Festival medical treatment form (Ex. 3).

The plaintiff also submitted portions of her deposition testimony in opposition to the motion for summary judgment.

The defendants advance several arguments as to why the plaintiffs trip-and-fall, and consequent alleged .injury, were not the result of any negligence of the defendants. Specifically, they argue that there was a designated entrance to the festival but that the plaintiff chose to enter between two rides. They also point out that she had entered the festival at the same spot only hours before and so should have been familiar with the area. The defendants assert that the tripping hazard was “open and obvious.” They also point to the plaintiff’s deposition testimony that the cables were bundled neatly (as opposed to laid haphazardly) and that the 1 ¿plaintiff had turned her head towards her husband (presumably, she was no longer looking straight ahead) at the time of her trip-and-fail. The defendants argue that the plaintiff entered and exited the festival through an area “designated” by the defendants for the placement of electric cables (however, the defendants do not assert that there were any signs or other means used to warn visitors that the area was “designated” for cables). Lastly, the defendants assert that they were unaware of the danger because, to their knowledge, no other person had been injured at the same spot previously.

We believe that the defendants’ arguments can be fairly summarized as three general points. First, there was not an unreasonably dangerous condition. Second, if there was an unreasonably dangerous condition, the defendants were not aware of it. Third, that the plaintiff was at fault as to her trip and fall.

As to the first two points, this court has held:

The owner or person having custody of immovable property has a duty to keep such property in a reasonably safe condition. This person must discover any unreasonably dangerous conditions on the premises and correct the condition or warn potential victims of its existence. This duty is the same under both the strict liability theory of LSA-C.C. art. 2317 and the negligence theory of LSA-C.C. art.2315.

Ann T. Cooper Leaman v. Continental Casualty Co., 2000-0292 (La.App. 4 Cir. 09/26/2001), 798 So.2d 285, unit denied, 2001-3291 (La.03/08/02), 810 So.2d 1165.

Whether a condition is unreasonably dangerous requires consideration of: (1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, which includes the obviousness and apparentness of the condition; (3) the IfiCost of preventing the harm; and (4) the nature of the plaintiffs activities in terms of its social utility or whether it is dangerous by nature. E.g., Nelson v. Louisiana Stadium and Exposition District, 2001-1764 (La.App. 4 Cir. 11/13/02), 832 So.2d 1043.

The defendants contend that there was a designated entrance to the festival. However, the plaintiffs affidavits establish a genuine issue of fact that the plaintiff and her husband did not see an entrance, that they followed other people into the festival, between two rides, and that they left the same way.

The defendants argue that the cables were “bundled neatly”. Yet, particularly in light of the photograph of the bundles of cables presented by the plaintiff, it appears that bundling the cables created a single, larger, higher obstacle and thus, arguably, increased the tripping hazard.

The defendants argue that the area where the plaintiff tripped and fell had been “designated” by the defendants as an area for cables. However, the defendants do not contend that they posted any “keep out”, “danger” or any other warning signs in the area of the cables or that they placed any barriers, ropes or tapes to keep people out of the area of the cables. According to the plaintiffs affidavits, there was nothing to keep the plaintiff from entering the area “designated” for cables.

The defendants argue that they were not aware of the allegedly dangerous condition because there had been no prior accidents at the location where the plaintiff tripped and fell. However, awareness of potential danger does not come only from the occurrence of accidents. The defendants were certainly aware of the | (¡presence of the cables because the defendants placed the cables. Also, the defendants undoubtedly were aware that they placed no warnings or barriers to the area where the cables were located. Further, the possibility of tripping on the cables would be apparent at the time the cables were placed as well as afterward.

The defendants argue that the plaintiff caused her own accident because she previously had passed through the same area where she tripped, because she was looking at her husband (instead of where she was walking) at the time she tripped and because the danger was “open and obvious”. Assuming without deciding that the plaintiff was in some degree at fault, that does not necessarily mean that the defendants are entirely relieved of liability but may, instead, mean that some percentage of comparative fault should be assigned to the plaintiff. The assignment of comparative fault is done using a six-factor analysis. Watson v. State Farm Fire & Cas. Ins. Co., 469 S.2d 967 (La.1985). It may be that the trier of fact, even if it finds the defendants liable, will assign some comparative fault to the plaintiff. The fault of the plaintiff (if any) would have to be weighed against the fault (if any) of the defendants.

With particular reference to the defense argument that the danger was “open and obvious”, we note that this is one factor, to be considered along with other relevant facts, as to whether the cables presented an unreasonable danger. Joseph v. City of New Orleans, 2002-1996 (La App.4 Cir. 08/05/03), 842 So.2d 420.

In sum, there are genuine issues as to the material facts as to whether: (1) the cables and the overall situation presented an unreasonable danger; (2) whether the defendants knew or should have known of the danger; and (3) whether any comparative fault should be assigned to the plaintiff and, if so, how much. We do not decide these items, but, instead, decide only that they are not susceptible in this |7case to summary judgment because there are genuine issues of material fact, La. Code Civ. Proc. art. 966, see, e.g., Hardy v. Bowie, 744 So.2d 606 (La.1999), which must be decided by trial.

For the foregoing reasons, we reverse the judgment of the trial court and remand for further proceedings.

REVERSED AND REMANDED.

      . The defendants complain that the plaintiff's affidavit is inconsistent with her deposition testimony. Specifically, the defendants complain that, in her deposition, the plaintiff testified that she entered and left the festival "between two rides” and that, in her affidavit, the plaintiff states that she entered on a "pedestrian walkway”. Actually, the plaintiff’s affidavit specifically states that she and her husband "walked into the festival between two rides”. Thus, the affidavit and the deposition are not inconsistent.


author: hLEON A. CANNIZZARO, JR., Judge. _JiKIRBY, J.,

text:
    Mitchell JACKSON, et al. v. STATE of Louisiana, et al.
    No. 2002-CA-2210.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.

      Richard P. Ieyoub, Attorney General, Andree’ F. Pitard, Assistant Attorney General, Louisiana Department of Justice, New Orleans, LA, for David Dulitz, M.D.
    Perry W. Manning, New Orleans, LA, for Mitchell Jackson, on behalf of the Minor Child, Antonia Jackson.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge LEON A. CANNIZZARO, JR.).
   hLEON A. CANNIZZARO, JR., Judge.

On the application of the relator-defendant, David Dulitz, M.D., we grant this writ to review the correctness of a trial court judgment denying the exceptions of prematurity and lack of subject matter jurisdiction in this medical malpractice case.

FACTS

On or about June 11,1998, Alberta Jackson, went to the emergency room at the Medical Center of Louisiana at New Orleans (“MCLNO”), Charity Campus (“Charity Hospital”), with complaints of dizziness, abdominal pains, and a history of seizure disorder. After being admitted to Charity Hospital, Jackson was transferred to the MCLNO, University Campus, (“University Hospital”) on June 12, 1998. Following an evaluation, Jackson was discharged from the hospital with a diagnosis of urinary tract infection, non-insulin dependent diabetes mellitus, and a history of seizure disorder. Chris Cangelosi, M.D., signed the hospital discharge summary dated June 12, 1998. However, because of transportation issues, Jackson’s discharge was delayed until the morning of June 13, 1998. Later that evening, emergency medical services rushed Jackson back to the emergency room bat Charity Hospital, with complaints of severe pain and dizziness. Jackson was admitted to the hospital’s intensive care unit, where she died the following day. Cardiogenic shock, acute pancreatitis, and intractable ventricular arrhythmia were listed as the causes of her death.

STATEMENT OF THE CASE

The plaintiff, Mitchell Jackson, on behalf of the decedent’s minor child, Antonia Jackson, filed the instant malpractice suit on May 23, 2002, naming as defendants, the State of Louisiana, on behalf of LSU Healthcare Services Division and the MCLNO; Donna Walker, M.D.; Dave Du-litz, M.D.; Chris Cangelosi, M.D.; and Glen Steeb, M.D., all of whom were alleged to have provided medical care to the decedent at the MCLNO. However, prior to filing the medical malpractice action, the plaintiff filed a request with the Commissioner of Administration for review of his complaint by a medical review panel, naming only the LSU Medical Center-New Orleans a/k/a the MCLNO and Dr. Cange-losi as defendants.

Dr. Dulitz filed a dilatory exception of prematurity and a declinatory exception that the court lacked subject matter jurisdiction of the plaintiffs malpractice action. The trial court denied both exceptions.

APPLICABLE LAW

La. R.S. 40:1299.39.1(A)(1), of the Medical Liability for State Services Act (the “MLSSA”), states that “[a]ll malpractice claims against the state, its agencies, or other persons covered ... shall be reviewed by a state medical review panel ...” |aLa. R.S. 40:1299.39.1(B)(1) states that no malpractice action against the state, its agencies or other persons covered “may be commenced in any court before the claimant’s complaint has been presented to a state medical review panel ...,” unless the use of the medical review panel is waived by agreement of both parties. Unless compromised and settled, all medical malpractice claims shall be submitted to administrative review “before such right in individual claims can become sufficiently existent to be susceptible of judicial recognition or adjudication.” La. R.S. 40:1299.39(E)(1).

The exception of prematurity may be raised to a malpractice action where the claim was not presented to a medical review panel as required by the MLSSA. See Munden v. Charity Hosp. & Medical Center, 99-1918, p. 3 (La.App. 4 Cir. 12/15/99), 754 So.2d 281, 282. The limitations on the liability of a health care provider contained in the MLSSA are special legislation in derogation of the rights of tort victims; thus, any ambiguities in the act should be strictly construed against coverage. Ruiz v. Oniate, 97-2412, p. 4 (La.5/19/98), 713 So.2d 442, 444; Munden, supra, 99-1918 at p. 4, 754 So.2d at 282-283. Nonetheless, the Court in Ruiz noted that “legislation is a solemn expression of legislative will, and therefore, interpretation of a law involves primarily the search for the legislature’s intent.” Ruiz, supra, 97-2412 at p. 4, 713 So.2d at 444. (Citations omitted). 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. However, when the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, and the meaning of ambiguous words must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. arts. 10 and 12.

DISCUSSION

The dispositive issue in this case is whether a qualified health care provider must be a “named” defendant in the medical review proceeding as a condition I ¿precedent to an action against him, or whether it is sufficient for purposes of the MLSSA that the “claim” against him was fully reviewed in a medical review proceeding. Nowhere in the MLSSA does it specifically state that no malpractice “claim” shall be brought against a qualified health care provider unless that “claim” is presented to a medical review panel in a proceeding in which the said health care provider is a “named” defendant.

In its submission of evidence to the medical review panel in the instant case, the State presented the decedent’s medical records, records of additional lab work performed on the decedent, EMS records, “position papers” from Drs. Walker and Cangelosi, an autopsy protocol, and a report from the plaintiffs expert physician. The plaintiff submitted “partial medical records” from the MCLNO. The decedent’s June 12, 1998 hospital discharge summary lists the attending physician as Dr. Walker, the resident as Dr. Dulitz, and the intern as Dr. Cangelosi, but it discloses no treatment by any specific physician. It is signed by Dr. Cangelosi.

In their reasons for finding that “the evidence [did] not support the conclusion that the Medical Center of Louisiana at New Orleans-Charity Campus and Dr. Cangelosi failed to meet the applicable standard of care,” the medical review panel noted that on the first admit the decedent was properly admitted and treated with antibiotics appropriate for a urinary tract infection, pyelonephritis and pneumonia; that her condition had improved; and that it was not a deviation from the standard of care to discharge her with a fever. The panel further found that on the second admit, the decedent appropriately received aggressive and continuous intensive medical care and observation. They concluded that the possibility of heat illness at her home may have contributed to the decedent’s rapid deterioration and was a catalyst for her ultimate demise.

The plaintiffs petition against the MCLNO is couched in terms of respondeat superior — “through its employees and/or agents malpracticed [sic] or | .^otherwise conducted itself below the standard of care....” In a malpractice action against a hospital under the theory of respondeat superior, the applicable standard of care and burden of proof are the same as for the physician or qualified health care provider whose activities are questioned.

The trial court denied Dr. Dulitz’s exception of prematurity because the State, in defending the claim and submitting evidence to the medical review panel, specifically referred to Dr. Cangelosi and all physicians at the MCLNO who had treated the decedent. The State argued that it satisfied the applicable burden of proof as to Dr. Cangelosi “and/or the treating physician(s) at [MCLNO].” The State also referred to Dr. Dulitz in setting forth the sequence of treatment to the decedent. While Dr. Cangelosi was the only physician whose conduct was specifically defended by the State in its submission of evidence, the State argued that the decedent’s death “was not caused by any deviation on the part of Dr. Cangelosi or the medical staff at MCLNO-Charity campus and/or MCLNO-University campus.”

The primary objective of the MLSSA is to entice professionals to provide health care to patients on behalf of the State by affording or enhancing protection from malpractice judgments for such professionals. Ruiz, 97-2412, pp. 7-8, 713 So.2d at 446-447. The medical review panel in this case considered all acts, omissions and/or neglects by all physicians at the MCLNO, who were involved in the treatment of the decedent, in order to review the hospital’s liability for the acts of its agents. The legislative goal of protecting health care providers by requiring that a medical review panel review their actions has been satisfied in this case. Thus, the plaintiffs suit against Dr. Dulitz can proceed even though he was not a named defendant before the medical review panel. As previously mentioned, the MLSSA does not specifically require that the claim be reviewed in a medical review panel proceeding in which the health care provider is a named defendant. |fi As such, we find that the medical review panel, in reviewing the plaintiffs complaint in accordance with the MLSSA, also considered the actions and inactions of Dr. Dulitz, and thus the civil suit against him is not premature.

Finally, we note that Dr. Dulitz, a specialist in internal medicine, asserts in his writ application that the medical review panel that considered the plaintiffs complaint was composed of physicians whose specialty was emergency room medicine. Because the panel contained no specialist in internal medicine, Dr. Dulitz argues that he has been denied his statutory right as a qualified health care provider to have a claim against him heard before a medical review panel comprised of physicians from his same specialty, citing La. R.S. 40:1299.89.1 C(3)(f)(v).

La. R.S. 40:1299.39.1 C(3)(f)(v) states that where there are multiple defendants, “one or more of whom are health care providers other than a hospital,” the members of the medical review panel shall be selected from health care providers who are from the same class and specialty of practice of health care providers “as are any” of the non-hospital defendants, “except that when one of such defendants is a physician, the panelists shall have the minimum qualifications of also being physicians.” Thus, even if Dr. Dulitz had been named as a defendant in the medical review panel proceeding, since Dr. Cangelosi was also a named non-hospital defendant, the physician member of the panel selected by the defendants could have been from the same specialty as Dr. Cangelosi. Thus, in this particular case, Dr. Dulitz was not necessarily entitled to have his actions reviewed by a specialist in internal medicine.

^CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

WRIT GRANTED; JUDGMENT AFFIRMED.

KIRBY, J., DISSENTS WITH REASONS.

_JiKIRBY, J.,

DISSENTS WITH REASONS.

I respectfully dissent. The trial court’s judgment denied Dr. Dulitz his statutory right to have the claims against him considered by a review panel prior to suit. More importantly, though, in my view the court below deprived the doctor of the basic due process rights of notice and opportunity to be had.

The record establishes that the relator was not named in the statutory request for review by a medical review panel. The State Medical Malpractice Act mandates that all malpractice claims against qualified providers, and there is no contention that Dr. Dulitz is not such a provider, shall be reviewed by a state medical review panel and that no action may be commence in any Court before the claim has been presented to the panel. LSA R.S. 40:1299.39.1(A)(a); LSA R.S. 40:1299.39.1(B)(l)(a)(i). Clearly, relator was denied this statutory protection.

In addition to the denial of is statutory right to a review panel hearing, Dr. Dulitz has been denied the two most fundamental elements of procedural due process, guaranteed by both the Federal and Louisiana constitutions; notice and the opportunity to be heard prior to deprivation of life, liberty or property. Even assuming that plaintiff counsel’s memory is correct, and the counsel advised the review panel to consider the negligence of all Charity doctors, relator has suffered \9& serious deprivation of his own right as a qualified health care provider to have notice of the hearing and to present his case to the panel.

Had relator properly been named according to the provisions of the statute, he might have chosen to be represented by his own independent counsel before the medical review panel. Furthermore, he had no NOTICE as required by the 14th amendment to the Federal Constitution and the malpractice act and opportunity to be HEARD by the medical review panel.

      . The writ application refers to the relator as David Dulitz, M.D. However, the plaintiffs' petition for damages named the defendant as Dave Dulitz, M.D.

      . The documentary evidence in the record indicates that at the time of the alleged malpractice Dr. Dulitz was a resident physician at MCLNO. Nothing indicates that he was a specialist in internal medicine at that time.


author: hLEON A. CANNIZZARO, JR., Judge.

text:
    EDGAR BENJAMIN FONTAINE TESTAMENTARY TRUST and James Louis Reynolds, Jr., Trustee, v. JACKSON BREWERY MARKETPLACE, Limited and Jackson Brewery Marketplace, Inc.
    No. 2002-CA-2337.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 7, 2003.

      Louise M. Bienvenu, New Orleans, LA, for Plaintiffs/Appellants, Edgar Benjamin Fontaine Testamentary Trust and James Louis Reynolds, Jr., Trustee.
    Steven W. Usdin, Celeste R. Coco-Ewing, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendants/Appellees, Jackson Brewery Marketplace Limited and Jackson Brewery Marketplace, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   hLEON A. CANNIZZARO, JR., Judge.

The appellants filed a petition for declaratory judgment that was dismissed by the trial court on an exception of prematurity. The appellants are now appealing the trial court’s decision to dismiss their case.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Edgar Benjamin Fontaine Testamentary Trust (the “Trust”) owns and leases the square of ground in New Orleans, Louisiana bounded by North Peters, St. Louis, Clay and Conti Streets and all of the improvements on that ground, including the shopping center known as Jackson Brewery (the “Leased Premises”). The Trust leases the Leased Premises to Jackson Brewery Marketplace Limited (the “Lessee”) pursuant to a Lease of Property dated December 27,1949, having a ninety-nine year term (the “Lease”).

The Trust and James Louis Reynolds, Jr., the current trustee of the Trust (the “Trustee”), alleged that the Lessee and Jackson Brewery Marketplace, Inc., the corporate general partner of the Lessee (the “Corporation”), had violated Article 10 of the Lease, which reads in pertinent part as follows:

Is.At all times during the term of this lease ... Lessee will maintain, at its own cost and expense, but in the names of Lessor and Lessee, as their respective interests may appear, fire and extended coverage insurance on said building or buildings ... with loss-payable clause in favor of The Hibernia National Bank in New Orleans, as Trustee [the original lessor].... All sums arising by reason of loss under said insurance policies shall be payable to said Trustee [the original lessor], but shall be available to Lessee for the reconstruction or repair of any building or buildings injured or destroyed....

The Trust and the Trustee also alleged that the Lessee and the Corporation had violated Article 17 of the Lease, which provided in pertinent part as follows:

Lessee, during the term of this lease, may assign, sub-lease, convey, transfer, or mortgage, its leasehold estate or this lease, without the written consent of the Lessor; but no such assignment, sublease, conveyance, transfer or mortgage shall affect or lessen, in any way or to any degree, the liabilities, obligations or responsibilities, hereunder of the Lessee....

On January 16, 1987, the Lessee had executed a collateral mortgage (the “Collateral Mortgage”) on the Lessee’s leasehold interest under the Lease. Section 1.01 of Article 1 of the Collateral Mortgage provided that the mortgagor agreed to keep the Leased Premises insured against all risks of loss or damage under policies payable to the mortgagee. The Collateral Mortgage also provided that the mortgagee should receive the money payable under the policies for the loss of property. The mortgagee had the option under the Collateral Mortgage either to retain the insurance proceeds and apply them to the payment of the debts secured by the Collateral Mortgage or to pay the mortagor the proceeds for the purpose of repairing and restoring the mortgaged property.

On April 12, 2002, the Trust and the Trustee sent a letter by certified mail to the Lessee notifying it of an alleged default under the Lease. The Trust and the Trustee alleged that the Lessee and the Corporation were in default under Article 17 of the Lease on the grounds that the insurance provisions of the Collateral | .¡Mortgage violated the insurance provisions of the Lease. Consequently, the execution of the Collateral Mortgage affected the obligations of the Lessee and the Corporation under the Lease. The notice of default was provided to the Lessee and the Corporation in accordance with Article 11 of the Lease.

In addition to providing the method of giving notice of a default, Article 11 provided that if an event of default continued for fifteen days after written notice of a default had been given, the Trust and the Trustee could declare the unpaid installments of the Lease due and payable or cancel the Lease immediately, all without putting the lessee in default. Article 11 of the Lease further provided, however, in pertinent part:

In case of any event of default ... the Lessee shall have the right to suspend the effect of such event of default, including the right of the Lessor to declare all of the unpaid installment of rent at once due and exigible or to cancel this lease and immediately expel the Lessee ... by depositing ... to the credit of Lessor, its successors or assigns, within fifteen (15) days after written notice of such an event of default is delivered by the Lessor to the Lessee, the rental, which, under the terms of this lease, will be due for the next twenty-four (24) months-

Article 11 further provided that if the lessee deposited the rental as permitted by that article, the lessor could not accelerate the maturity of the rent, cancel or terminate the lease, or expel the lessee. The lessor could, however, exercise any other legal rights and remedies available to it.

On May 2, 2002, the Lessee responded to the April 12 letter, denying that there was a default under the Lease. As a precautionary measure, however, the Lessee enclosed with the May 2 letter a check for the next twenty-four months’ rent so that the default suspension provisions of Article 11 of the Lease would be triggered. The advance rental check enclosed with the May 2 letter was accepted by the Trust and the Trustee.

|4On May 8, 2002, the Trust and the Trustee filed suit against the Lessee and the Corporation requesting the trial court to make all unpaid installments on the Lease immediately due and payable or, alternatively, to cancel the Lease and expel the lessee under the Lease. Additionally, the Trust and the Trustee requested a declaratory judgment determining the obligations of the Lessee and the Corporation to the Trust and the Trustee under the Lease and to the mortgagee under the Collateral Mortgage.

The Trust and the Trustee have recognized that the default suspension provisions of Article 11 of the Lease have been triggered. Therefore, at this time the Trust and the Trustee only seek the declaratory judgment requested in their lawsuit against the Lessee and the Corporation.

On June 28, 2002, the Lessee and the Corporation filed a peremptory exception of no right of action and a dilatory exception of prematurity. A hearing on these two exceptions was heard on September 6, 2002. On September 17, 2002, the trial court rendered a judgment denying the exception of no right of action and granting the exception of prematurity. The Trust and the Trustee are now appealing the trial court decision granting the exception of prematurity.

STANDARD OF REVIEW

This Court has stated with respect to the standard of review of a declaratory judgment action that “[o]n appeal, the scope of appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or refusing to render a declaratory judgment.” In re Peter, 98-0701, p. 4-5 (La.App. 4 Cir. 12/23/98), 735 So.2d 665, 667. See also Miller v. Seven C’s Properties, L.L.C., 2001-543 (La.App. 3 Cir. 11/21/01), 800 So.2d 406, writ denied, 2001-33095 (La.3/8/02), 811 So.2d 878; Ricard v. State, 544 So.2d 1310 (La.App. 4th Cir.1989).

It should also be noted that the Louisiana Supreme Court has declared that “[tjrial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.” Louisiana Supreme Court Committee on Bar Admissions v. Roberts, 2000-2517, p. 3 (La.2/21/01), 779 So.2d 726, 728, citing Liberto v. Rapides Parish Police Jury, 95 456 (La.App. 3 Cir. 11/2/95), 667 So.2d 552.

APPLICABLE LAW

Louisiana Code of Civil Procedure article 1871 provides that “[c]ourts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Louisiana Code of Civil Procedure article 1876 provides that “[t]he court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.” Additionally, Louisiana Code of Civil Procedure article 1873 specifically addresses declaratory judgments construing contracts and provides that “[a] contract may be construed either before or after there has been a breach thereof.”

In American Waste & Pollution Control Co. v. St. Martin Parish Police Jury, 627 So.2d 158 (La.1993), the Louisiana Supreme Court discussed the use of declaratory judgment as follows:

Due to its nature, declaratory relief makes it possible to adjudicate a grievance at an earlier time than would otherwise be allowed. The purpose of the judgment is to settle and afford relief from uncertainty and insecurity ... before damages arise and the need for traditional remedies occurs.... Like actions for conventional judgments, basic to the exercise of procedures for declaratory relief, the action must present a justiciable controversy.

I ,Jd. at 161 (citations omitted).

In Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), the Louisiana Supreme Court defined justiciable controversy in the context of an action for declaratory relief as follows:

A ‘justiciable controversy’ connotes ... an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further ... the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

259 La. at 308, 249 So.2d at 918.

Additionally, in American Waste & Pollution Control, the Louisiana State Supreme Court, citing Tugwell v. Members of the Board of Highways, 228 La. 662, 83 So.2d 893 (1955), stated that “a declaratory action cannot generally be maintained unless it involves some specific adversary question or controversy ... based on existing state of facts.” The Supreme Court further stated that “[a] court must refuse to entertain an action for a declaration of rights if the issue presented is ... based on a contingency which may or may not arise.” Finally, the Supreme Court stated that “[cjases submitted for adjudication must be justiciable, ripe for decision, and not brought prematurely.” American Waste & Pollution Control, 627 So.2d at 162. See also Jordan v. Louisiana Gaming Control Board, 98-1122, 98-1133, 98-1134 (La.5/15/98), 712 So.2d 74; Perschall v. State, 96-0322 (La.7/1/97), 697 So.2d 240; Lifemark Hospitals v. St. Jude Hospital of Kenner, 98-476 (La.App. 5 Cir. 10/28/98), 720 So.2d 1244.

Just as the jurisprudence has restricted the application of the declaratory judgment articles in the Louisiana Code of Civil Procedure to present, justiciable ^controversies, Louisiana courts have also declined to render advisory opinions in connection with declaratory judgment lawsuits. See, e.g., Church Point Wholesale Beverage Co. v. Tarver, 614 So.2d 697, 701 (1993); State v. Board of Supervisors, 228 La. 961, 956, 84 So.2d 597, 599 (1955).

In American Waste & Pollution Control, the Louisiana Supreme Court stated that actions for declaratory judgment must not be brought prematurely. American Waste & Pollution Control, 627 So.2d at 162. Louisiana Code of Civil Procedure article 423 addresses premature actions as follows

An obligation implies a right to enforce it which may or may not accrue immediately upon the creation of the obligation. When the obligation allows a term for its performance, the right to enforce it does not accrue until the term has elapsed. If the obligation depends upon a suspensive condition, the right to enforce it does not accrue until the occurrence or performance of the condition.
■When an action is brought on an obligation before the right to enforce it has accrued, the action shall be dismissed as premature, but it may be brought again after this right has accrued.

DISCUSSION

In the instant case the Lessee and the Corporation assert that the declaratory action was brought prematurely by the Trust and the Trustee. The assertion is based on the fact that any default that might have occurred under the Lease has been effectively suspended under the provisions of its Article 11. Additionally, the action for a declaratory judgment was premature, because the alleged default under the Lease could possibly be cured during the suspension period by an amendment to the Collateral Mortgage . Therefore, the contingency that a cure might be |seffected by an amendment to the offending provisions of the Collateral Mortgage would preclude a declaratory judgment at this time. Under the existing state of facts, a contingency exists. The jurisprudence in Louisiana is clear that a declaratory judgment should not be rendered if a contingency could change the existing facts in a case.

The Trust and the Trustee cite three cases in their brief to support their position that the controversy in the instant case is ripe for summary judgment. They cite Chauvet v. City of Westwego, 599 So.2d 294 (La.1992), Miller v. Seven C’s Properties, L.L.C., 2001-543 (La.App. 3 Cir. 11/21/01), 800 So.2d 406, writ denied, 2001-3309 (La.3/8/02), 811 So.2d 878, and Bergen Brunswig Drug Company v. Poulin, 93-1945 (La.App. 1 Cir. 6/24/94), 639 So.2d 453.

The cases cited by the Trust and the Trustee are distinguishable from the instant case. In Chauvet police officers sought a determination that they had a right to continue receiving certain benefits despite the enactment of a statute purporting to terminate those benefits. The existing facts in that case were not subject to change, no contingency was involved, and the decision of the court would terminate the controversy. Therefore, declaratory judgment was proper in that case.

In Miller there was also a justiciable controversy. A dispute existed between the parties regarding whether repairs to property they co-owned were the type of repairs that were subject to Louisiana Civil Code article 806. The plaintiff in Miller sought a declaratory judgment that if he made certain repairs to the property he would be entitled under article 806 to reimbursement from the other co-owners for their share of the cost of the repairs. Unlike the one in the instant case, the controversy in Miller was ripe for adjudication.

Uln Bergen Brunswig Drug Company there was also a controversy that was jus-ticiable. In that case a lessee sought a declaratory judgment to determine its rights under its lease after a fire had damaged the leased premises. The Bergen Brunswig Drug Company case is distinguishable from the instant case, because there was a situation involving existing facts that were not subject to a contingency, and a declaratory judgment would terminate the dispute between the lessor and the lessee.

In the instant case, if a declaratory judgment determining the rights and obligations of the parties under the Lease had been rendered by the trial court based on the existing facts, that judgment would have become moot if the default were cured during the twenty-four month grace period permitted under Article 11 of the Lease. The declaratory judgment would have been an advisory opinion, because the controversy in the case was not yet justiciable. The exception of prematurity filed by the Lessee and the Corporation was properly granted, and there was no abuse of discretion by the trial court in refusing to render a declaratory judgment.

CONCLUSION

The request for a declaratory judgment made by the Trust and the Trastee was brought prematurely. Therefore, the judgment of the trial court dismissing the declaratory judgment without prejudice is affirmed.

AFFIRMED.

      . In their brief, the Lessee and the Corporation state that the Collateral Mortgage .has been cancelled and no longer affects the Leased Premises. The brief is not part of the record on appeal, so this Court is deciding this case on the facts before it, which do not evidence that the Collateral Mortgage has been cancelled. The brief further states that additional mortgages now affect the Leased Premises and that these mortgages have been amended to revise the language in them that was similar to the offending language in the Collateral Mortgage. If the Collateral Mortgage has, in fact, been cancelled and no longer affects the Leased Premises/then the instant case is moot.