author: | t STEWART, J. |, GASKINS, J.

text:
    Dianne TURNER, as Natural Tutrix of the Minor Child, Cietra Jenal Stroughter (Onterio McWright), Plaintiffs-Appellants, v. Thomas R. BUSBY and Zurich American Insurance Company, Defendants-Appellees.
    No. 37,272-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 9, 2003.
    Opinion on Rehearing Nov. 13, 2003.

      Samuel H. Thomas, Tallulah, Bobby R. Manning, for Appellant, Onterio McWright.
    James E. Paxton, Tallulah, for Appel-lees, Zurich American Ins. Co., Acme Trucking Co. and Thomas R. Busby.
    Before STEWART, GASKINS and DREW, JJ.
   | t STEWART, J.

In this wrongful death action, we review whether the trial court erred in granting the defendants request to have the plaintiff undergo DNA testing. We find that the trial court erred as a matter of law, and we reverse for the reasons that follow.

FACTS

This lawsuit arises from a traffic accident on Highway 65 in Tensas Parish, Louisiana in which Andrew Stroughter (“Stroughter”) was killed in a collision with tractor trailer driven by Thomas Busby (“Busby”). Following the accident, multiple parties filed suit against Busby and his insurance carrier, Zurich American Insurance Company (“Zurich”) for the wrongful death of Stroughter. Those parties were: Alversia Stroughter, his ex-wife; Onterio McWright (“McWright”), his acknowledged son; LeShun Singleton, daughter of Stroughter; and Dianne Turner, Stroughter’s girlfriend, as natural tutrix for their minor child, Cietra Jenal Stroughter. This appeal focuses specifically upon the claims of McWright.

McWright was born to Gladysteen Harris (“Harris”) on June 8, 1970. Harris and Stroughter were never married. However, in child support proceedings in Madison Parish on March 3, 1982, Stroughter signed a notarized stipulation under La. R.S. 14:75.2 that was made an order of the court wherein he admitted that McWright was his child and agreed to pay child support. Stroughter again stipulated that he was “the lawful parent” of McWright in an order and judgment fixing child support entered in the Superior Court of the State of Washington, King County on May 6, 1983, | ¿where he was cast in judgment for back child support. Finally, the March 1982 stipulation was amended on May 4, 1984, and Stroughter again signed another notarized stipulation and judgment admitting that he was the father of McWright and agreeing to pay child support.

When this wrongful death action ensued, the defendants filed an Exception of No Right of Action arguing that McWright was neither legitimate at birth, nor subsequently legitimized by Stroughter. Stroughter’s sisters were called in support of the defendants’ exception. Although they testified that their brother always contended that he was not McWright’s father, the record reveals that Stroughter never challenged his obligation to pay child support or the finding that he was the biological father of McWright. In fact, Stroughter paid the child support obligation until McWright turned eighteen.

In addition to requesting that the trial court grant their exception, the defendants submitted a motion to have a DNA test performed on McWright to determine if Stroughter was in fact his father. The trial court ordered the DNA testing. McWright sought a writ of review to this court which was denied on the showing made. McWright then submitted to the DNA testing which revealed that there was a 0% probability that McWright was the son of Stroughter. The defendants’ exception of No Right of Action was granted by the trial court, and McWright was dismissed from the lawsuit with prejudice. McWright then filed the instant appeal.

DISCUSSION

Although the appellant raises three assignments of error, the primary issue of dispute concerns whether or not the trial court erred as a matter of 13law by forcing McWright to submit to DNA testing. On appeal, McWright asserts that, as a matter of law, the issue of whether Stroughter was his father was settled in final judgments fixing child support in 1982, 1983, and 1984. Consequently, any attack on the validity of the assertions in those judgments should have been made within one year of the discovery of the alleged defect or nullity under Louisiana Code of Civil Procedure Article 2004. As a result, the defendants are pre-empted by operation of law from collaterally attacking those judgments in this wrongful death action.

Under La. C.C.P. art.2004, a final judgment obtained by fraud or ill practices may be annulled within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practice. The trial court erred as a matter of law when it failed to treat the child support judgments from Madison Parish, Louisiana and King County, Washington as final judgments. It appears that the trial court treated the judgments as mere acknowledgments. However, our examination of the record leads us to the conclusion that while the acknowledgments were first made in stipulations under La. R.S 14:75.2 to avoid prosecution for back child support, these acknowledgments were also made a part of the final judgment fixing the child support obligation. As such, the proper manner for attacking said judgments would have been to bring a direct action for nullity.

The one year limitation of La. C.C.P. art.2004 is considered a period of peremption rather than prescription. Burkett v. Property of Douglas, 575 So.2d 888, 892 (La.App.2d Cir.1991). Statutes of peremption do not merely bar the remedy; they destroy the cause of action itself. After the 14time limit expires, the cause of action is lost and no longer exists. Russland Enterprises v. City of Gretna, 98-676 (La.App. 5 Cir. 1/26/99), 727 So.2d 1228. Thus, the proper procedural device for raising an issue of peremption is an exception of no cause of action. Id. We note that the court of appeal may supply an exception of no cause of action on its own motion. La. C.C.P. art. 927.

The record shows that as early as 1971, Stroughter was aware that there was a possibility that McWright was not his son, yet he acquiesced to the payment of child support in 1982, and he continued to pay until McWright turned eighteen. Despite the fact that he had a reasonable belief that he was not McWright’s biological father, Stroughter never challenged paternity even though he could have demanded DNA testing when he was prosecuted for back child support. After 1985, Stroughter was perempted from attacking the judgment in a nullity action. This peremption has the same effect for the defendants in this matter. The trial court erroneously allowed the defendants to enjoy a right that was foreclosed to Stroughter himself with their collateral attack on Stroughter’s parentage of McWright in this wrongful death proceeding.

Consequently, the trial court should have never forced McWright to undergo DNA testing to prove he was the son of Stroughter, because he already had a valid final judgment stating such. It is immaterial what the results of that test were because the evidence should have never been admitted.

|fiThe facts of this case are analogous to those in Lastrapes v. Willis, 93-1417 (La.App. 3d Cir.4/6/94), 635 So.2d 1281. Jerome Lastrapes, Jr. was born on November 6, 1979, to Rose Willis. Jerome Lastrapes, Sr. voluntarily executed an acknowledgment of paternity on July 28, 1980. In December 1990, the Louisiana Department of Social Services brought an action on behalf of Ms. Willis against Lastrapes for the support of the minor child. On April 8, 1993, Lastrapes filed a petition to disavow paternity alleging that he was not the biological father of the minor child, and that he had discovered this fact in February 1993. Apparently another individual, Sam Joubert, had informed him that he and Ms. Willis had sexual relations in March 1979. An exception of No Right of Action was filed by the state and denied by the trial court which ordered Lastrapes, Willis, and the minor child to submit to blood testing. The state argued that the trial court erred in ordering the blood tests be performed to determine paternity in this disavowal action pursuant to La. R.S. 9:396 when there was a valid preexisting acknowledgment in authentic form. The Third Circuit dismissed Lastrapes’ suit with prejudice. The court recognized that there was no specific codal authority governing the time limit for a father who was not the husband of the mother of the child to bring a disavowal action, and that the code only specifically dealt with disavowal actions by the husband. See, e.g., La. C.C. arts. 187-190. However, La. R.S. 9:305 was enacted in August of 1993, well after Lastrapes filed his suit, and it set a time frame for a disavowal of paternity by a man who was not the husband of the mother as follows:

| ^Notwithstanding the provisions of Civil code Art. 189 and for the sole purpose of determining the proper payor in child support cases, if the husband, or legal father who is presumed to be the father of the child, erroneously believed, because of misrepresentation, fraud, or deception by the mother, that he was the father of the child, then the time for filing suit for disavowal of paternity shall be suspended during the period of such erroneous belief or for ten year's whichever ends first.

As a result, the court determined that Lastrapes did not have a cause of action when he filed his suit in April of 1993. The court determined that La. R.S. 9:305 only gives a cause of action for paternity testing when an action is ancillary to a child support proceeding. According to Black’s Law Dictionary, 5th edition (1983), an ancillary proceeding is:

One growing out of or auxiliary to another action or suit, or which is subordinate to or in aid of a primary action, either at law or in equity. In state courts, a procedural undertaking in aid of the principal action.

In this case, the defendants’ action is the principal action and it is not ancillary to a child support proceeding. To permit a collateral attack on a final judgment in this matter would be in contravention of the law.

The defendants rely heavily of Succession of Robinson, 94-2229 (La.5/22/95), 654 So.2d 682 to support their assertion that the trial court properly allowed DNA testing. We find that Robinson is distinguishable from the case at bar. In Robinson, Hardie Robinson executed a statutory will in 1971 in which he formally acknowledged three children that were born to his wife from her previous marriage. In 1988, Robinson changed the manner in which his assets were to be distributed by executing a new statutory will and revoking the 1971 will. The previously acknowledged women were not mentioned in the 1988 will. After Robinson died in 1992, |7the acknowledged women intervened in the succession seeking to be recognized by the court as Robinson’s acknowledged children and thus allowed to participate in the succession. The trial court found that the 1971 will executed by Robinson was an acknowledgment of the three women as his daughters and that they did not have to undergo DNA testing to prove they were Robinson’s biological children. The supreme court found that under La. R.S. 9:396, the court could force the women to submit to DNA testing. La. R.S. 9:396, a statute aimed at establishing paternity provides:

Notwithstanding any provision of the law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveau, the court, upon its own initiative or upon request made by or on behalf of any person whose blood is involved, may or, upon motion of any party to the action at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to the drawing of blood samples, including but not limited to blood and tissue type, to be determined by appropriate testing procedure. If any party refuses to submit to such tests, the court may resolve the issue of paternity against such party or enforce its order if the rights of others and the interests of justice so require.

Under La R.S. 9:396 the court only has authority to order blood tests where paternity is relevant. Had Stroughter challenged the final judgment wherein he acknowledged that he was McWright’s father within one year from the time he discovered that there was a reasonable probability that he was not his father, then La. R.S. 9:396 may be applicable. However, Stroughter’s failure to make a challenge has caused his cause of action to be per-empted and prevents the defendants or anyone else who would seek to stand in Stroughter’s shoes and invalidate his acknowledgment and the judgment casting him as the father of McWright.

|sWe also find that the instant case is distinguishable from Robinson in that the validity of a final judgment, rather than a mere acknowledgment, is at issue. The Robinson court did not face the issue of whether or not a judgment based on an acknowledgment could be annulled after the one year period following the discovery of its defect has elapsed. Further, in Robinson, the father took direct action to disavow his acknowledgment of the women by revoking the will in which he had previously made the acknowledgment. An acknowledgment in a will that was later revoked cannot be said to have the same force and effect of a final judgment that was never attacked for nullity. Stroughter made no efforts to dispute his acknowledgment of McWright or the judgment that gives rise to the presumption that he was McWright’s father.

The existence of a final judgment stating that Stroughter was the father of McWright creates a strong presumption in McWright’s favor. Rousseve v. Jones, 97-1149 (La.12/2/97), 704 So.2d 229. In support of their exception of No Right of Action, the defendants called Stroughter’s sisters to testify about their knowledge of his relationship with McWright. They asserted that Stroughter and McWright did not enjoy a father/son relationship. In fact, the testimony of Stroughter’s sisters suggested that he knew he was not McWright’s father as early as three months after McWright’s birth. However, that testimony alone is not sufficient to overcome the presumption of parentage. Their testimony only served to demonstrate that Stroughter was not duped into thinking he was McWright’s father by fraud or ill practice, but that he willfully assumed the [ ¡¡responsibility in spite of reasonable information that he may not have been McWright’s father.

We conclude that Stroughter was time barred from seeking to annul the judgment that east him as the father of McWright. As such, it was improper for the trial court to allow the defendants to collaterally attack that judgment when Stroughter would have been perempted from bringing a nullity action. This finding pretermits any discussion of the other issues raised on appeal.

CONCLUSION

Based on the foregoing, we find that the trial court erred as a matter of law in ordering McWright to undergo DNA testing. As such the results of said DNA are inadmissible. We hereby reverse the trial court’s dismissal of McWright from the instant suit, reinstate him as a plaintiff, and remand this matter to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ON REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

|, GASKINS, J.

Onterio McWright, along with other plaintiffs, filed suit for the wrongful death and a survival action arising from the death of Andrew Stroughter. The defendants contested McWright’s status as a proper plaintiff by filing an exception for no right of action, which the trial judge ultimately granted. At issue in this appeal is whether the court erred in ordering a DNA test to determine paternity, which was the basis of the granting of the exception.

FACTS

McWright’s mother, Gladystene Harris, filed several proceedings for child support. In these proceedings, Stroughter had stipulated that he was the father of McWright.

In Madison Parish, Louisiana, in 1982, and again in 1984, Stroughter signed a stipulation before two witnesses and a notary that contained this language:

I agree to pay to the Department of Health and Human Resources the amount of ... for the support of the child born to me and Gladystene Harris named herein as follows: Onterio J. McWright 6-8-70.

In King County, Washington, in 1983, Stroughter signed another stipulation before a court commissioner that contained the language:

Defendant is the lawful parent of Onter-io J. McWright, who was born on June 8,1970.

Although these stipulations were a part of, or attached to, orders or judgments imposing child support, none of the orders or judgments made a finding of parentage.

1 ¡.Stroughter never contested this obligation to pay and did, in fact, pay the support until McWright was a major. Now McWright has filed suit for the wrongful death and survival action of his putative father, Stroughter. The defendants contest his right to be a plaintiff in the suit.

In our original opinion, we concluded that Stroughter himself could not have attacked these judgments of support after one year from the time he discovered the fraud or ill practice. La. C.C.P. art.2004. Likewise, we found that the defendants were preempted from contesting the validity of the judgments. We went on to find that the trial judge erred when he ordered a DNA test to determine paternity, and, even though the test showed that Stroughter was not McWright’s father, we concluded that the DNA result should not be considered.

We agree with our original opinion that neither Stroughter, nor third parties, could have successfully attacked the judgment of support after the one year period set forth in La. C.C.P. art.2004. Certainly, it must be surmised that, if Stroughter believed he was not the father and did not contest the acknowledgment or judgment, he must have acquiesced in the judgment. The issue before us now is whether this exception is an attack on the acknowledgment forming the basis of the judgment or an attack on the support judgment itself.

LAW

The following statutes give us guidance.

La. C.C. art. 200:

A father or mother shall have the power to legitimate his or her illegitimate children by an act passed before a notary and two 13witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children.

La. C.C. art. 203:

A. The acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either of them, or it may be made in the registering of the birth or baptism of such child.
B. (1) An acknowledgment or declaration by notarial act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity.
(2) An acknowledgment by registry creates a presumption of paternity which may be rebutted if the alleged father proves by a preponderance of the evidence facts which reasonably indicate that he is not the father, provided such facts are susceptible of independent verification or of corroboration by physical data or evidence.

La. C.C. art. 206:

A. A person who executed a notarial act of acknowledgment or declaration may, without cause, rescind it before the earlier of:
(1) Sixty days of the signing of the notarial act of acknowledgment or declaration, in a judicial hearing for the limited purpose of rescinding the acknowledgment or declaration.
(2) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the notarial act of acknowledgment or declaration is a party to the proceeding.
B. At any time, a person who executed a notarial act of acknowledgment or declaration may petition the court to void such acknowledgment or declaration only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, or material mistake of fact, or that the person is not the biological parent of the child. Except for good cause shown, the court shall not suspend any legal responsibilities or obligations, including a support obligation, of the person during the pendency of this proceeding.

La. C.C. art. 207:

Every claim, set up by illegitimate children, niay be contested by those who have any interest therein.

| ¿La. R.S. 9:392, in pertinent part:

A. Prior to the execution of a declaration of acknowledgment pursuant to Civil Code Article 203, the notary shall provide in writing, and orally or by directing them to video or audio presentations, the party or parties making the declaration of the following:
(7) (a) A party who executed a notarial act of acknowledgment may rescind the act, without cause, before the earlier of the following:
(i) Sixty days after the signing of the act, in a judicial hearing for the limited purpose of rescinding the acknowledgment.
(ii) A judicial hearing relating to the child, including a child support proceeding, wherein the affiant to the notarial act of acknowledgment is a party to the proceeding.
(b) Thereafter, the acknowledgment of paternity may be voided only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, or material mistake of fact, or that the father is not the biological father.
(8) All parties to the action have any other rights and responsibilities which may be afforded by law now or in the future.

La. R.S. 9:396, in pertinent part:

A. (1) Notwithstanding any other provision of law to the contrary, in any civil action in which paternity is a relevant fact, or in an action en desaveu, the court may, on its own initiative, or shall, under either of the following circumstances, order the mother, child, and alleged father to submit to the collection of blood or tissue samples, or both, and direct that inherited characteristics in the samples, including but not limited to blood and tissue type, be determined by appropriate testing procedures:
(a) Upon request made by or on behalf of any person whose blood or tissue is involved, provided that such request is supported by a sworn affidavit alleging specific facts which either tend to prove or deny paternity.
(b) Upon motion of any party to the action made at the time so as not to delay the proceedings unduly.

1 .DISCUSSION

While the acknowledgments of paternity in our case were attached to the judgments of support, it is important to note that none of the judgments made any finding of paternity. In fact, the judgments of support did not have to make a finding of paternity since La. C.C. art. 203(B)(1) states that the acknowledgment is a legal finding of paternity and is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity. Even though an acknowledgment is deemed to be a legal finding of paternity, the law allows these acknowledgments to be easily contested.

The acknowledgment of paternity can be contested at any time by the person who executed the acknowledgment. La. C.C. art. 206(B). In Jones v. Rodrigue, 2000-0899 and 2000-0900 (La.App. 1st Cir.11/3/00), 771 So.2d 275, Hamilton sought to annul an acknowledgment he had signed at the hospital. The court noted that although one year had passed since Hamilton found out he was not the biological father, Hamilton was not contesting a judgment, but a notarial act of acknowledgment. The court relied on La. C.C. art. 206 to find that, at any time, a person who executed a notarial act of acknowledgment could petition to annul it. See also Roberts v. Franklin, 96-290 (La.App. 3d Cir.10/9/96), 688 So.2d 1181.

The acknowledger is not the only person who can contest the act. La. C.C. art. 207 provides that every claim, set up by illegitimate children, may be contested by those who have an interest therein. In Succession of Robinson, 94-2229 (La.5/22/95), 654 So.2d 682, discussed in depth in the original opinion, the Supreme Court found that Robinson, as administrator | r,of the succession and a forced heir, had an interest in defeating the intervenors’ claim to participate in the succession.

In addition, when executing the acknowledgment, the notary has the duty under La. R.S. 9:392(A)(7) to advise the acknowledger how the act can bé voided. Clearly, the law has a public policy in favor of allowing the putative father to contest the acknowledgment when the father is not the biological father.

Likewise, the judgment of support is not so sacrosanct that it only can be contested by appeal. As we detailed in our earlier opinion, Stroughter could have contested the judgment itself within one year of finding out that he was not the biological father. Husbands and legal fathers, which Stroughter was not, have up to 10 years to contest a support judgment under La. R.S. 9:305. In Rousseve v. Jones, 97-1149 (La.12/2/97), 704 So.2d 229, Rousseve, like Stroughter, had executed an acknowledgment in connection with a child support proceeding. The court found that while La. C.C. art. 203(B)(1) dispensed with the necessity of obtaining a judgment of paternity, it did create a presumption of paternity. The court concluded, however, that Rousseve could challenge the acknowledgment, holding that when the acknowledged act is ultimately untrue, the acknowledgment may be null, absent some overriding concern of public policy. Rousseve had contested the judgment timely and the case was remanded for further proceedings.

Our inquiry is whether those who have an interest can contest the acknowledgment of paternity in a support judgment once the time limitation has run within which the judgment of support could be contested. In a |7situation such as the instant case, our answer is in the affirmative. Once Stroughter died, new causes of action arose in favor of his children under La. C.C. arts. 2315.1 and 2315.2, the survival action and wrongful death articles. These claims by McWright, the illegitimate, can be contested by the defendants, who have an interest in them. Although McWright was acknowledged, this avowal is null absent a biological relationship. The Louisiana Supreme Court reiterated in Succession of Robinson, supra, the policy that if an acknowledgment is null, it produces no effect. That Succession of Robinson was based on an acknowledgment in a statutory will while Stroughter’s acknowledgment formed the basis of a support judgment is of no moment.- In Rousseve, supra, where the putative father was contesting the support judgment, the Supreme Court reasoned that an action to contest paternity, which is presumed because of an authentic act of acknowledgment, is not truly an action for disavowal, but is an action to annul the acknowledgment.

Using this reasoning of Rousseve, supra, the defendants are not contesting the support judgment but are attacking the validity of the acknowledgment. On first consideration, it would appear that a prior judgment of support, based on an acknowledgment of paternity, would be subject to res judicata or collateral estoppel exceptions. These exceptions would have no merit, however, in that the causes of action and the parties are different in the support proceeding and in the instant claim. See Vines v. Northeast Louisiana University, 36,747 (La.App.2d Cir.3/5/03), 839 So.2d 979, writ denied, 2003-1262 (La.9/19/03), 853 So.2d 638.

|sLa. C.C. art. 207 allows every claim set up by illegitimate children to be contested by those who have an interest therein. On its face, this article gives those who have an interest the right to contest any sort of claim made by illegitimate children with no specific time limitation on the right to assert their opposition. Consequently, the defendants have a right to contest this wrongful death/survival action brought by McWright.

La. R.S. 9:396 gives the court the right to order DNA blood testing in any civil action in which paternity is a relevant fact. Under this statute, the court is required to order testing when timely requested by any party. In the present wrongful death and survival action, a civil action, McWright’s paternity is a relevant fact, bearing on his right to recover. Therefore, the trial court appropriately ordered DNA testing in this matter.

It is well-settled that before DNA blood tests can be ordered, a prima facie case that Stroughter was not the biological father must be made. This was done by testimony adduced at the trial court. Thus, the DNA testing was appropriately ordered, and the results legally admitted. We reverse our original opinion and affirm the trial court’s ruling.

CONCLUSION

The trial court judgment granting the defendants’ exception of no right of action is affirmed. Costs in this court are assessed against McWright.

TRIAL COURT JUDGMENT AFFIRMED.

PEATROSS, J., concurs.

STEWART, J., dissents for the reasons articulated in the original opinion.

DREW, J., dissents for the reasons articulated in the original opinion.


source: Caselaw Access Project

author: | gPARRO, J;

license: Public Domain

text:
    John H. HOUGHTON v. OUR LADY OF THE LAKE HOSPITAL, INC. d/b/a Our Lady of the Lake Regional Medical Center.
    No. 2003 CA 0135.
    Court of Appeal of Louisiana, First Circuit.
    July 16, 2003.
    Sumpter B. Davis, III, Baton Rouge, for Plaintiff-Appellant John H. Houghton.
    Cullen J. Dupuy, Manville F. Borne, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, for Defendant-Appellee Our Lady of the Lake Hospital, Inc.
    Before: PARRO, McDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired from the Eighteenth Judicial District Court, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | gPARRO, J;

In this medical malpractice suit, John H. Houghton appeals a judgment dismissing without prejudice his claims against Our Lady of the Lake Hospital, Inc., d/b/a Our Lady of the Lake Regional Medical Center (OLOL) on the basis of an exception raising the objection of prematurity. We affirm.

BACKGROUND

Houghton was admitted to OLOL on July 7, 2000, for repair of a distal small bowel stricture; the surgery was performed July 12, 2000. He claims that during the course of his hospitalization, he was overmedicated with certain narcotic drugs and suffered permanent brain damage as a result. On July 3, 2001, Hough-ton commenced a medical malpractice claim against OLOL by filing a petition for review by a medical review panel with the Patient’s Compensation Fund Oversight Board. In due course, a medical review panel was constituted and conducted its review. The medical review panel concluded in an opinion on or about July 22, 2002, that OLOL had breached the standard of care in its treatment of Houghton.

After getting the medical review panel opinion, on August 16, 2002, Houghton filed this medical malpractice suit against OLOL (the malpractice suit); coincidentally, it was allotted to the same judge in the 19th JDC as the ancillary matter. After Houghton filed the malpractice suit, OLOL filed a motion in the ancillary matter to vacate the panel’s opinion and reconvene a new panel (the motion). The motion alleged that one of the panelists was a former OLOL employee, which relationship was not disclosed to the parties in writing prior to the panel’s review, as required by law, and therefore, the panel was not properly constituted and its opinion should be vacated. OLOL also filed an exception of prematurity in the malpractice suit (the exception), alleging that because the panel was improperly constituted, its opinion was null and Houghton’s suit |3was premature. The district court judge in whose division both matters were filed set the motion in the ancillary matter and the exception in the malpractice suit for hearing on November 4, 2002. Following the hearing, the district court judge granted the motion in the ancillary matter and then sustained the exception in the malpractice suit, dismissing it without prejudice. Both judgments were read and signed November 15, 2002.

Houghton applied to this court for a supervisory writ in the malpractice suit, seeking to overturn the judgment granting the motion. This court denied the application, stating, in pertinent part:

WRIT DENIED WITH ORDER. This court declines to exercise its supervisory jurisdiction. The trial court’s judgment of November 15, 2002, sustaining Defendant’s dilatory exception of prematurity and dismissing Plaintiffs suit without prejudice is a final, appeal-able judgment. Therefore, this court can consider the correctness of any interlocutory rulings, such as the grant of Defendant’s motion to vacate, as part of the appeal process. See People of the Living God v. Chantilly Corporation, 251 La. 943, 207 So.2d 752 (La.1968).
In the event no motion and order for appeal has been filed, it is ordered that this case be remanded to the trial court with instructions to treat Plaintiffs Notice of Intent, filed November 20, 2002, as a motion for appeal from the final judgment. See In Re Howard, 541 So.2d 195 (La.1989).

Houghton v. Our Lady of the Lake Regional Med. Ctr., 02-2493 (La.App. 1st Cir.12/30/02) (unpublished writ action). Pursuant to this court’s order, an order of appeal was entered in the malpractice suit by the district court on behalf of Hough-ton, granting him a devolutive appeal from the November 15, 2002 judgment of dismissal.

After the appeal had been docketed, OLOL filed a motion with this court to strike from the appellate record the transcript of certain testimony from the November 4, 2002 hearing, on the grounds that this testimony was adduced in support of the motion in the ancillary matter and was not properly part of the record in the malpractice suit |4that was appealed. It also moved to strike Houghton’s brief to this court, because it referred to matters concerning the motion and the ancillary matter, which were outside the record in the malpractice suit. This court granted OLOL’s motion to strike the partial transcript from the hearing and deferred to the merits the motion to strike Houghton’s brief. According to Houghton’s brief to this court in response to the OLOL motions to strike, it was only when those motions were filed that Houghton’s attorney realized the motion to vacate had been filed in the ancillary matter, not the malpractice suit.

Thereafter, Houghton moved to supplement the appellate record in the malpractice suit with the entire record from the ancillary matter, particularly the transcript of the hearing at which both the motion and the exception were argued, so this court would have before it the entirety of the factual evidence upon which the judgment of dismissal in the malpractice suit was based. At this point, the appellate record in the malpractice suit did not include any of the transcript from that hearing, including the district court’s oral reasons explaining its conclusions on both matters. Realizing then that both matters had been taken up by the district court in a single hearing, this court granted the motion, and a supplementary record was filed with this court.

APPLICABLE LAW

Under the Louisiana Medical Malpractice Act (the Act), all medical malpractice claims against qualified health care providers must be submitted to a medical review panel for consideration. See LSA-R.S. 40:1299.47(A)(1). No civil action against a qualified health care provider or its insurer may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to the Act. See- LSA-R.S. 40:1299.47(B)(l)(a)(i). A request for a medical review panel is a prerequisite to and not the equivalent of a suit for medical malpractice. Boone v. State, through the Dep’t of Health and Hosp., 97-321 (La.App. 3rd Cir.3/6/98), 709 So.2d 300, 300, writ denied, 98-0945 (La.5/15/98), 719 So.2d 468.

Louisiana Code of Civil Procedure article 926 provides for the dilatory exception of prematurity. Prematurity contemplates that the action taken by the petitioner occurs prior to some requisite procedure or assigned time. Jones v. Crow, 633 So.2d 247, 249 (La.App. 1st Cir.1993). A suit is premature if it is brought before the right to enforce the claim sued on has accrued. LSA-C.C.P. art. 423. Prematurity is determined by the facts existing at the time suit is filed. Hidalgo v. Wilson Certified Exp., Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116; Allied Signal, Inc. v. Jackson, 96-0138 (La.App. 1st Cir.2/14/97), 691 So.2d 150, 157 n. 9, writ denied, 97-0660 (La.4/25/97), 692 So.2d 1091. The dilatory exception of prematurity is the proper procedural mechanism for a qualified health care provider to in voke when a medical malpractice plaintiff has failed to submit the claim for an opinion by a medical review panel before filing suit against the provider. See Spradlin v. Acadia-St. Landry Med. Found., 98-1977 (La.2/29/00), 758 So.2d 116, 119; Saia v. Asher, 01-1038 (La.App. 1st Cir.7/10/02), 825 So.2d 1257, 1259 n. 3. If a lawsuit against a health care provider covered by the Act has been commenced in a court and the complaint has not been first presented to a medical review panel, the exception of prematurity must be sustained, and the claimant’s suit must be dismissed. Dunn v. Bryant, 96-1765 (La.App. 1st Cir.9/19/97), 701 So.2d 696, 699, writ denied, 97-3046 (La.2/13/98), 709 So.2d 752.

The duty of the medical review panel is to express its expert opinion as to whether the evidence supports a conclusion that the health care provider breached the appropriate standards of care. See LSA-R.S. 40:1299.47(G). The report of the medical review panel is admissible as evidence in court. However, the expert opinion is not conclusive, and either party has the right to call any member of the medical review panel as a witness. See LSA-R.S. 40:1299.47(H). As part of the panel selection and qualification process, a panelist or the attorney chairman must disclose in writing to the parties prior to the hearing any employment relationship or financial relationship with the claimant, the health care provider against whom a claim is asserted, or the [^attorneys representing the claimant or health care provider, or any other relationship that might give rise to a conflict of interest for the panelists. See LSA-R.S. 40:1299.47(0(7). Each panelist is required to take an oath swearing to perform his duties without partiality or favoritism and to acknowledge that he represents neither side. See LSA-R.S. 40:1299.47(0(5).

The panel does not serve as a judge or jury or in any quasi-judicial capacity, but merely as a body of experts whose opinion is not binding on the parties or the court. Derouen v. Kolb, 397 So.2d 791, 794-95 (La.1981). Therefore, the existence of an employment relationship, financial relationship, or other relationship that might give rise to a conflict of interest for the panelist does not require automatic disqualification from service on the panel. Rather, this determination is left to the discretion of the court. Whitt v. McBride, 94-896 (La.App. 3rd Cir.3/1/95), 651 So.2d 427, 429. The proper method to challenge a medical review panelist is by motion to the trial court. Ortego v. Jurgelsky, 98-1622 (La.App. 3rd Cir.3/31/99), 732 So.2d 683, 689. However, when a party raises a challenge to the composition of the medical review panel long after it has reached a conclusion and after a full trial on the merits, that challenge is untimely. Ortego, 732 So.2d at 689.

ANALYSIS

The panel member whose participation is at issue in this case is Denise Stracener Mika, R.N., who was chosen by the other panel members to complete the medical review panel. The record contains an affidavit from OLOL’s Vice President of Human Resources, Terry Bowman, stating that “Denise Stracener” was employed by OLOL from September 1988 through June 2001, when her position was discontinued. According to Mika’s testimony at the hearing on the motion and exception, she was an OLOL employee during Houghton’s treatment at the hospital, although her position at that time in the financial operations department did not involve patient care and she had no contact with him. Mika stated she did not know Houghton at all and had no bias or prejudice against OLOL. She also stated that she notified the panel’s attorney chairman of her employment history with OLOL, and he determined there was no conflict of |7interest and no need to notify the parties of that fact. Both parties to this appeal agree that the fact of Mika’s former employment with OLOL was not disclosed to them by her or the attorney chairman before the panel conducted its review. When the parties were notified of her inclusion on the panel, the notice used her married name, Denise Mika, but during her employment with OLOL, she had used her maiden name, Denise Stracener. OLOL alleged that it first discovered her status as a former employee when an invoice for the panel’s services, which arrived after the panel’s opinion had been reached, listed her as Denise Stracener Mika, R.N. OLOL filed its motion and exception after verifying that she was in its employ when Houghton was treated.

After hearing Mika’s testimony and considering the arguments of counsel, the district court stated the following in oral reasons for the decision to dismiss Houghton’s case:

This is suit number 494,116, John Houghton, Jr. versus Our Lady of the Lake Hospital, a motion to vacate the medical review panel opinion and reconvene a new panel; and also suit number 498,370, John Houghton versus Our Lady of the Lake on an exception of prematurity, which, of course, is dependent upon my ruling in the first numbered case.
It is clear from the evidence that has been presented that, had this come to me before the panel met to consider the evidence and reach its decision, that I would not have excluded Ms. Mika as a panelist because of her prior employment relationship.
Her letter to Mr. Simon, together with her testimony, disclosed that she was in the financial administrative work at the Lake and not involved in any clinical work there.
Her demeanor in testifying, the nature of her testimony indicates that she had no hard feelings against the Lake and would not have ruled adversely to the Lake merely because of some personal grudge against them or personal bias against them.
But, as they say, hindsight is always twenty-twenty. And the fact is that the Lake did not have the opportunity ahead of time to point this out, bring it out or make its case that Ms. Mika should not have been a panel participant.
* * *
I am somewhat inclined to deny this motion, but my fear is that, if I do, we’ll go all the way through trial, we’ll get a result, it’ll go up on appeal and the court of appeal will say I should have granted this motion and then we’d have to start all over again. And so rather than let it get that far, and because of the express wording of the malpractice statute, |sI’m going to reluctantly grant the motion to vacate the medical review panel and order that a new panel be reinstated.
* * *
By granting this motion, that, of course, makes the exception of prematurity on the second suit valid, so I’ll grant that exception.

The court signed two judgments on November 15, 2002, one granting the motion in the ancillary matter and the other sustaining the exception in the malpractice suit. The appeal is from the judgment of dismissal in the malpractice suit.

Procedural Issue

At the outset, therefore, this court is faced with a thorny procedural problem. The quandary is demonstrated by this court’s initial granting of the OLOL motion to strike from the appellate record in the malpractice suit certain portions of the transcript that were adduced in support of the motion in the ancillary matter, and the subsequent granting of Houghton’s motion to supplement the appellate record in the malpractice suit with the record from the ancillary matter. The two matters are separate and, although the request for a medical review panel in a medical malpractice case is a prerequisite to the filing of a lawsuit, the criteria for such a filing are not the same as those required to commence a civil action. Therefore, the jurisprudence has clarified that the request for a medical review panel is something different from a lawsuit. See LSA-C.C.P. arts. 421, 853, and 891; see also Hernandez v. Chalmette Med. Ctr., 01-0074 (La.App. 4th Cir.8/21/02), 826 So.2d 641, 643, writ denied, 02-2364 (La.11/22/02), 829 So.2d 1054; Jeter v. Shamblin, 34,225 (La.App. 2nd Cir.12/06/00), 774 So.2d 1071, 1072 n. 1 (distinguishing between the initial complaint filed to request review by a medical review panel and the later civil action filed to commence the lawsuit); Watson v. Lane Mem. Hosp., 99-0930 (La.5/28/99), 743 So.2d 676, 676 (clerk of the district court ordered to give the plaintiffs “petition for damages” a new docket number and to randomly re-allot it as a new suit, rather than allowing it to proceed under the same docket number and assignment as the previously-filed pleadings regarding the medical review panel); and Robertson v. Northshore Regional Med. Ctr., 93-1375 (La.App. 1st Cir.10/7/94), 645 So.2d 727, 729 (remanded for district court to order the clerk of court to assign a new docket number to the plaintiffs 13“amended complaint,” which had been filed erroneously in the proceedings regarding the medical review panel). Because of this distinction, we have referred to the district court filings concerning Houghton’s medical review panel as the “ancillary matter,” rather than referring to those filings as a “suit.”

OLOL contends that this is simply a situation involving two distinct matters with different docket numbers, and therefore, the record from the ancillary matter does not form a part of the record in the malpractice suit and should not be used by this court to evaluate the district court’s judgment on the exception of prematurity. At first glance, based on the logical simplicity of this argument, this court agreed and struck a portion of the hearing transcript consisting of Mika’s testimony on the motion. However, on reconsideration when Houghton’s motion to supplement the record was filed, we determined that the procedural circumstances of this appeal required this court to include the factual information from the ancillary matter in its deliberations; therefore, supplementation of the appellate record was ordered. For the following reasons, we conclude this was the correct resolution of the procedural dilemma.

When OLOL filed its exception in the malpractice suit, it based its entire argument on the motion filed in the ancillary matter, stating:

OLOL has filed a “Motion to Vacate Medical Review Panel Opinion and Reconvene Panel Due to Panel Member’s Conflict of Interest” in the proceeding established in this court during the medical review panel procedure, bearing Docket No. 494,116 Div. “I” which OLOL adopts and incorporates by reference herein. Exhibit C. Should this court find in favor of OLOL on that motion, this proceeding is premature, as plaintiffs claims have not been properly presented to a properly [empanelled] medical review panel.

The evidence presented in support of its exception in the malpractice suit included Bowman’s affidavit supplying factual information concerning Mika’s status as a former OLOL employee, as well as OLOL’s motion in the ancillary matter and memorandum in support of that motion. Therefore, this information is part and parcel of the record in the malpractice suit and the exception filed there, as well as being necessary to support the motion in the ancillary matter. The two matters are not distinct; given the grounds upon which the exception was based, there could be no decision on the exception in the malpractice suit without the factual information underlying the motion in the |inancillary matter. Additionally, the district court scheduled the motion and exception to be heard at the same time and based its decision in the malpractice suit on the evidence and arguments provided in that hearing, including the evidence and arguments concerning the motion. Consequently, the entire transcript of that hearing properly forms a part of the record in both the ancillary matter and the malpractice suit.

Substantive Issue

Having so concluded, we examine the substantive issue of whether the malpractice suit was premature, in spite of the fact that a medical review panel had rendered its opinion before the malpractice suit was filed, because the parties were not notified that one of the panel members had a former employment relationship with the health care provider. It appears this is a case of first impression.

We note initially that the exception of prematurity is to be determined by the facts existing at the time the lawsuit is filed. In this case, the necessary antecedent for the filing of Houghton’s malpractice suit was the submission of his claim for an opinion by a medical review panel. Strictly speaking, this had been accomplished. A medical review panel had met, considered the evidence, and rendered its opinion. Arguably, therefore, under the facts* existing at the time the malpractice suit was filed, it was not premature. However, the Act requires presentation of the claimant’s proposed complaint “to a medical review panel established pursuant to this Section” of the Act. (Emphasis added). See LSA-R.S. 40:1299.47(B)(l)(a)(i). The panel was not established pursuant to the provisions of the Act, which clearly requires advance written notice to the parties of any employment relationship, financial relationship, or other relationship with either party that might give rise to a conflict of interest for a panelist. The timely filing of the motion in the ancillary matter brought this omission of notice of a possible conflict of interest to the attention of the court, and the court, in its discretion, reluctantly granted the motion to vacate the opinion of the medical review panel and ordered the parties to reappoint a medical review panel. Therefore, based Inon the ruling of the court in the ancillary matter, the complaint had not been reviewed by a properly constituted panel and for that reason, the malpractice suit was premature.

CONCLUSION

For the foregoing reasons, we affirm the judgment dismissing Houghton’s malpractice suit against OLOL, without prejudice. Costs of this appeal are assessed against Houghton.

AFFIRMED; MOTION TO STRIKE BRIEF DENIED.

      . Although the petition seeking initial review by a medical review panel was filed by John H. Houghton, Jr., the petition in this suit was filed by John H. Houghton, so we have used this designation in this opinion.

      . During the pendency of that proceeding, a discovery motion was filed in the Nineteenth Judicial District Court (19th JDC) and assigned docket number 494,116 (the ancillary matter).

      . The docket number assigned to the malpractice suit was 498,370.

      . OLOL also excepted to Houghton's petition in the malpractice suit on the grounds of vagueness. The vagueness exception was denied as moot in the district court’s judgment.

      . Houghton’s attorney stated at oral argument that, because both matters were heard at the same time on the same day, he thought both the motion and the exception had been filed in the malpractice suit. This court's writ action indicates it also believed that all the matters had occurred in the malpractice suit.

      . Louisiana Revised Statutes 40:1299.41 through 1299.48.

      . She also testified that she took an oath to review the issues before the panel objectively and without bias. See LSA-R.S. 40:1299.47(0(5).

      . The judgment granting the motion is not before this court for review on appeal, because of technical reasons related to the two separate proceedings referred to in this opinion. As a consequence, we must recognize the legal effect of this judgment.


author:
UPARRO, J.
      hKUHN, J.,

text:
    PLAQUEMINE MARINE, INC., Kenneth Hebert and Helen Hebert v. MERCURY MARINE (a Division of Brunswick Corporation), Travis Boating Center Louisiana, Inc. and John Randolph
    No. 2003 CA 1036.
    Court of Appeal of Louisiana, First Circuit.
    July 25, 2003.

      Marjorie R. Esman, Kyle S. Sclafani, New Orleans, Christopher Moody, Hammond, for Plaquemine Marine, Inc., Kenneth Hebert, and Helen Hebert.
    C.G. Norwood, Jr., Anne D. LeJeune, Craig L. Caesar, McGlinchey Stafford, P.L.L.C., New Orleans, for Mercury Marine.
    Porteus R. Burke, New Iberia, for Travis Boating Center Louisiana, Inc.
    Before: PARRO, KUHN, and DOWNING, JJ.
   UPARRO, J.

Plaquemine Marine, Inc., Kenneth Hebert, and Helen Hebert (plaintiffs) sued Mercury Marine (defendant), alleging the following causes of action: breach of contract, detrimental reliance, intentional interference with contract, and violations of LSA-R.S. 51:122 (restraint of trade), LSA-R.S. 51:123 (monopoly), LSA-R.S. 51:331 (discriminatory pricing), LSA-R.S. 51:1401 et seq. (Louisiana Unfair Trade Practices and Consumer Protection Law), and LSA-R.S. 32:771 et seq. (Louisiana Used Motor Vehicle Dealers and Marine Product Dealers Act). Defendant filed an exception raising the objection of no cause of action as to plaintiffs’ causes of action under LSA-R.S. 51:122, 123, and 331, and LSA-R.S. 32:771. Defendant also filed an exception raising the objection of no right of action as to plaintiffs’ causes of action under LSA-R.S. 51:331 and 1401 and LSA-R.S. 32:771.

The trial court overruled defendant’s exception of no cause of action but sustained the exception of no right of action and dismissed plaintiffs’ claims arising under LSA-R.S. 51:122, 123, 331, and 1401 and LSA-R.S. 32:771. Plaintiffs now appeal the dismissal of those claims. Defendant also appeals, contending the trial court erred in overruling its exception of no cause of action.

1 «FACTUAL BACKGROUND

Defendant manufactures boat engines and related products. Kenneth and Helen Hebert are the sole shareholders of Plaquemine Marine, Inc., a marine dealership whose principal store, Plaquemine Marine, is located in Plaquemine, Louisiana. The Heberts opened a second store, Boats Unlimited, in Baton Rouge, Louisiana, in 1997. They allege they did so only after defendant’s representative promised them Plaquemine Marine would be the exclusive authorized Mercury dealer in Baton Rouge.

Travis Boating Center Louisiana Inc. is a marine-products dealership in Baton Rouge that opened in 1998. Plaintiffs allege defendant conspired with Travis “to systematically and intentionally eliminate other Mercury Marine boat dealerships in Louisiana.” This conspiracy was accomplished, according to plaintiffs, by defendant offering Travis “better prices, greater discounts, more incentives and better financing options for Mercury Marine products than were offered to either of the Plaquemine Marine dealerships for the identical products,” thereby allowing Travis to offer lower prices to consumers. This, they allege, placed them at an unfair competitive disadvantage that affected their ability to compete in the Louisiana market for Mercury Marine products.

APPELLANTS’ CONTENTIONS

Plaintiffs contend on appeal that they stated a right of action under LSA-R.S. 51:122, 123, 331, and 1401 and LSA-R.S. 32:771 and that the trial court erred in finding they did not. They ask this court to reverse the portion of the judgment that sustained defendant’s exception of no right of action.

Defendant notes in its appellate brief that its exception of no right of action did not include a request for dismissal of plaintiffs’ claims under LSA-R.S. 51:122 |4and 123 and LSA-R.S. 32:771. While acknowledging that the trial court could raise the exception of no right of action sua sponte under Louisiana Code of Civil Procedure article 927(B), defendant asserts that dismissal of those claims under the exception of no cause of action is a “better reasoned disposition” of those claims than dismissal under the exception of no right of action. It therefore asks this court to amend the trial court’s judgment to sustain the exception of no cause rather than the exception of no right as to plaintiffs’ claims under those three statutes.

EXCEPTION OF NO RIGHT VERSUS EXCEPTION OF NO CAUSE

Exception of no right of action

Generally, an action can be brought only by a person having a real and actual interest that he asserts. LSA-C.C.P. art. 681. The exception of no right of action assumes a viable cause of action and questions whether the plaintiffs have a legal interest in judicially enforcing that cause or remedy. Centofanti v. Diamond Offshore Drilling, 01-1691 (La.App. 1st Cir.5/22/02), 819 So.2d 1101, 1103. Evidence may be introduced to support or controvert the exception. LSA-C.C.P. art. 931.

Exception of no cause of action

In ruling on an exception of no cause of action, the court must determine whether the law affords any relief to the claimant if he proves the factual allegations in the petition and annexed documents at trial. Cardinale v. Stanga, 01-1443 (La.App. 1st Cir.9/27/02), 835 So.2d 576, 578. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. If two or more causes of action are based on separate and distinct operative facts, partial grants of the exception of no cause of action may be rendered, while preserving other causes of action. Stroscher v. Stroscher, 01-2769 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 523; Hand v. Hand, 99-2420 (La.App. 1st Cir.12/20/02), 834 So.2d 619, 622, writ denied, 03-0612 (La.5/2/03), 842 So.2d 1103.

In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court conducts a de novo review, because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. B & C Elec., Inc. v. East Baton Rouge Parish School Board, 02-1578 (La.App. 1st Cir.5/9/03), 849 So.2d 616.

LSA-R.S. 51:331 (DISCRIMINATORY PRICING)

In the trial court, defendant contended plaintiffs have neither a right of action nor a cause of action under LSA-R.S. 51:331, which prohibits discriminatory pricing. On appeal, defendant does not assign as error the trial court’s refusal to sustain its exception of no cause. Plaintiffs, however, appeal the portion of the judgment sustaining the exception of no right.

The trial court, in its written reasons, relies on the plain language of LSA-R.S. 51:331. The statute, which is entitled “Sales at different prices in different localities to injure competitor unlawful,” provides in pertinent part:

No person, doing business in Louisiana, and engaged in the production, manufacture, or distribution of any commodity in general use, who shall, intentionally, for the purpose of injuring or destroying the business of a competitor in any locality, discriminate between different sections, communities, cities, or localities in the state by selling such commodity at a lower rate in one section, community, city, or locality, than is charged for the commodity by such person in another section, community, city, or locality ....

(Emphasis added). The statute applies to a competitor’s actions against plaintiffs. The relationship between plaintiffs and defendant is that of distributor and manufacturer. The trial court reasoned that since defendant does not compete with | (¡plaintiffs, plaintiffs do not fall within the class of persons granted a remedy under LSA-R.S. 51:331. We agree. Unlike Jefferson v. Chevron U.S.A. Inc., 97-2436, 98-0254 (La.App. 4th Cir.5/20/98), 713 So.2d 785, writ denied, 98-1681 (La.10/16/98), 727 So.2d 441, in which the defendant both supplied a product to plaintiffs and directly competed with them through company-operated stores, in this case plaintiffs sell products directly to consumers, while defendant does not. The trial court did not err in sustaining defendant’s exception of no right of action as to plaintiffs’ claim for discriminatory pricing.

LSA-R.S. 51:1401 ET SEQ. (LOUISIANA UNFAIR TRADE PRACTICES ACT)

Plaintiffs contend the trial court erred in sustaining defendant’s exception of no right of action as to its claim under LSA-R.S. 51:1401 et seq., the Louisiana Unfair Trade Practices Act (LUTPA). The trial court relied on National Gypsum Co. v. Ace Wholesale, Inc., 98-1196 (La.App. 5th Cir.6/1/99), 738 So.2d 128, 130, which held that the private right of action conferred by LUTPA applies only to consumers and business competitors.

While the federal courts agree with the Louisiana Fifth Circuit, this court has interpreted LUTPA more broadly. See, e.g., Capitol House Preservation Co. v. Perryman Consultants, 98-1514 (La.App. 1st Cir.12/10/98), 725 So.2d 523, 530; and Jarrell v. Carter, 577 So.2d 120, 124 (La.App. 1st Cir.), writ denied, 582 So.2d 1311 (La.1991). The Louisiana Supreme Court has not decided the issue, but we are constrained to follow this court’s jurisprudence, which relies on the pertinent language of LSA-R.S. 51:1409(A):

|7Any person who suffers any ascertainable loss of money or movable property, corporeal or incorporeal, as a result of the use or employment by another person of an unfair or deceptive method, act or practice declared unlawful by R.S. 51:1405 may bring an action individually but not in a representative capacity to recover actual damages.

Plaintiffs have alleged in their petition that defendant committed acts constituting unfair trade practices, which resulted in both economic and non-economic losses to plaintiffs. These allegations are sufficient to classify plaintiffs as members of the group provided a remedy in LSA-R.S. 51:1409(A). Thus, the trial court committed legal error in sustaining defendant’s exception of no right of action as to plaintiffs’ claims under LUTPA.

LSA-R.S. 51:122 & 123 (ANTITRUST AND MONOPOLY)

Louisiana’s antitrust statute, LSA-R.S. 51:122, provides, in pertinent part: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.” The anti-monopoly statute, LSA-R.S. 51:123, states, in pertinent part: “No person shall monopolize, or attempt to monopolize, or combine, or conspire with any other person to monopolize any part of the trade or commerce within this state.” These statutes are virtually identical to Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. § 1 et seq., and federal analysis of the Sherman Antitrust Act is persuasive, though not controlling. Louisiana Power & Light Co. v. United Gas Pipe Line Co., 493 So.2d 1149, 1154, 1158 (La.1986).

| sException of No Right of Action

The trial court sua sponte sustained an exception of no right of action as to plaintiffs’ claims under LSA-R.S. 51:122 and 123. The court’s written reasons for dismissing these two causes of action state that plaintiffs do not fall within the class of persons to which the law grants a remedy for the alleged harm, because defendant is not a business competitor of plaintiffs.

The trial court’s reasons are at odds with established law on antitrust and monopoly. The antitrust laws were enacted for “protection of competition not competitors.” Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S.Ct. 690, 697, 50 L.Ed.2d 701 (1977), citing Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510 (1962). Our courts have recognized that restraints against trade may be either horizontal or vertical. Horizontal combinations are those between competitors that restrain enterprises at the same level of distribution. Vertical combinations, on the other hand, are imposed by persons at different levels of distribution, usually by one higher up the distribution chain than the party restrained. Business Electronics Corp. v. Sharp Electronics Corp., 485 U.S. 717, 730, 108 S.Ct. 1515, 1522-23, 99 L.Ed.2d 808 (1988); Muenster Butane, Inc. v. Stewart Co., 651 F.2d 292, 295 (5th Cir.1981).

Plaintiffs have alleged a vertical conspiracy in this case. The fact that plaintiffs and defendant are at different levels in the distribution chain does not affect plaintiffs’ right of action. While vertical restraint of trade is not a per se violation of antitrust laws, it is illegal if the questioned practice imposes an unreasonable restraint on trade. See State Oil Co. v. Khan, 522 U.S. 3, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). Thus, the trial court erred in sustaining the ^exception of no right of action as to plaintiffs’ claim under LSA-R.S. 51:122 and 123.

Exception of No Cause of Action

Defendant contends in its assignment of error that the trial court committed legal error in overruling the exception of no cause as to the antitrust and anti-monopoly claims. To state a claim under LSA-R.S. 51:122, the plaintiffs must allege that defendant is a party to a contract that results in an unreasonable restraint of trade. Jefferson, 713 So.2d 785; Reppond v. City of Denham Springs, 572 So.2d 224, 230 (La.App. 1st Cir.1990). A proper claim under LSA-R.S. 51:123 requires allegations that defendant either attempted to monopolize or conspired with any other person to monopolize any part of the trade or commerce within the state. Reppond, 572 So.2d at 230; State ex rel. Ieyoub v. Racetrac Petroleum, 01-0458 (La.App. 3rd Cir.6/20/01), 790 So.2d 673, 678.

Louisiana is a fact pleading state. LSA-C.C.P. art. 862; Ieyoub, 790 So.2d at 678. The petition must set forth material facts upon which the cause of action is based. Conclusions of law are not sufficient. Reppond, 572 So.2d at 230.

(A) Antitrust claim under LSA-R.S. 51:122

The federal and state antitrust laws were intended to be sweeping in breadth, encompassing every conspiracy, contract or combination that restrains trade. Louisiana Power & Light Co., 493 So.2d at 1154. Not every business arrangement that restrains trade in some manner is illegal, however. When a vertical conspiracy is alleged, plaintiffs must show that the restraint of trade violates the “rule of reason.” Under this rule, the fact-finder weighs all of the circumstances of a case in deciding whether a restrictive practice should be prohibited as imposing an unreasonable restraint on competition. Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 49, 97 S.Ct. 2549, 2557, 53 L.Ed.2d 568 (1977).

As stated above, antitrust laws are for the protection of competition. The antitrust-injury requirement cannot be met by broad allegations of harm to the “market” as an abstract entity. Atlantic Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 339, n.8,110 S.Ct. 1884, 1892 n. 8, 109 L.Ed.2d 333 (1990). A claim under LSA-R.S. 51:122 must include an allegation of damage to competition. A plaintiff who alleges a predatory pricing scheme must show that a business rival has priced its products in an unfair manner with an object to eliminate or retard competition and thereby gain and exercise control over prices in the relevant market. Brooke Group Ltd. v. Brown & Williamson Tobacco Group, 509 U.S. 209, 221, 113 S.Ct. 2578, 2587, 125 L.Ed.2d 168 (1993). Mere allegations of lower prices is insufficient. The United States Supreme Court has rejected the notion that low pricing is an antitrust violation if the prices are above the manufacturer’s cost. “Low prices benefit consumers regardless of how those prices are set, and so long as they are above predatory levels, they do not threaten competition. Hence, they cannot give rise to an antitrust injury.” Atlantic Richfield, 495 U.S. at 340, 110 S.Ct. at 1892.

Plaintiffs allege that Travis and defendant conspired “to systematically and intentionally eliminate other Mercury Marine boat dealerships in Louisiana ... for the specific purpose of eliminating competition and making Travis the premier Mercury Marine dealer in Louisiana.” Plaintiffs contend defendant “offered Travis better prices, greater discounts, more incentives and better financing options for Mercury Marine products” than defendant offered to plaintiffs, thereby permitting InTravis to offer Mercury products to consumers at prices lower than other marine dealerships.

In Tooke & Reynolds v. Bastrop Ice & Storage Co., 172 La. 781, 789, 135 So. 239, 241 (1931), the supreme court overruled the defendant’s exception of no cause because the “petition clearly [set] out the purpose of the defendant and its officers, its method of procedure, and precisely what it and they did in order to accomplish its ultimate end.” Unfortunately, plaintiffs herein have not done the same.

Even an act of pure malice by one business competitor against another does not, without more, state an antitrust claim; the antitrust laws do not create a federal law of unfair competition or “purport to afford remedies for all torts committed by or against persons engaged in interstate commerce.” Brooke Group, 509 U.S. at 225, 113 S.Ct. at 2589, quoting Hunt v. Crumboch, 325 U.S. 821, 826, 65 S.Ct. 1545, 1548, 89 L.Ed. 1954 (1945). Plaintiffs herein offer conclusory allegations that Travis and defendant conspired to eliminate other Mercury dealerships in Louisiana and thereby unreasonably restrained trade. They do not allege that defendant is attempting to gain control over marine products in the Baton Rouge market by offering lower prices to Travis. They complain only that they cannot compete -with Travis because they no longer sell enough Mercury motors for Plaque-mine Motors and Boats Unlimited to be considered “Top Dealers.” Plaintiffs have not alleged that the prices offered to Travis were below Mercury’s cost, nor have they alleged facts to indicate that anyone other than themselves was injured by the benefits defendant offered Travis. We find these allegations insufficient to support a claim under LSA-R.S. 51:122.

|1{>(B) Monopoly claim under LSA-R.S. 51:123

The plaintiff charging attempted monopolization must prove a dangerous probability of actual monopolization of a particular market and specific intent to monopolize. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459, 113 S.Ct. 884, 892, 122 L.Ed.2d 247 (1993). To establish a cause of action for monopoly, the pleadings must state facts sufficient to show that defendant (1) possessed monopoly power in a clearly defined economic and geographic market (the relevant market) and (2) that defendant had the specific purpose or intent to exercise or maintain that power, as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. United States v. Grinnell Corp., 384 U.S. 563, 570-571, 86 S.Ct. 1698, 1703-1704, 16 L.Ed.2d 778 (1966); Ieyoub, 790 So.2d at 678-679. Monopoly power is the ability to control prices or to exclude competition from the market. United States v. E.I. duPont deNemours & Co., 351 U.S. 377, 391-92, 76 S.Ct. 994, 1005-06, 100 L.Ed. 1264 (1956).

The relevant market is the area of effective competition within which the defendant operates. It includes a geographic market, which is the section of the country in which sellers of a particular product operate, as well as the product market, which encompasses the differences among various commodities and the willingness of buyers to substitute one product for another. Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 481-482, 112 S.Ct. 2072, 2090, 119 L.Ed.2d 265 (1992); Louisiana Power & Light Co., 493 So.2d at 1162. Failure to define the market in which the monopoly is allegedly exercised is fatal to a monopolization claim. Ieyoub, 790 So.2d at 679.

| iaMarket power, or the power to restrict competition in a particular market, may occur because of the seller’s high market share in a particular area, see Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 611-613, 73 S.Ct. 872, 881-82, 97 L.Ed. 1277 (1953), or when the seller offers a unique product that competitors are not able to offer, see Fortner Enterprises v. United States Steel Corp. 394 U.S. 495, 504-506 and n. 2, 89 S.Ct. 1252, 1259-60 and n. 2, 22 L.Ed.2d 495 (1969). As an economic matter, market power exists whenever prices can be raised above the levels that would be charged in a competitive market. Jefferson Parish Hospital Dist. No. 2 v. Hyde, 466 U.S. 2, 27 n. 46, 104 S.Ct. 1551, 1566 n. 46, 80 L.Ed.2d 2 (1984).

Plaintiffs have made no factual allegations that suggest defendant possessed the market power or ability to control prices or exclude competition from the market as required to plead a cause of action under LSA-R.S. 51:123. They do not allege that defendant has schemed to raise prices above a competitive level, nor do they allege a specific intent to monopolize and a dangerous probability of success.

Furthermore, plaintiffs have failed to properly allege the relevant market. The petition’s only reference to a geographic market is that Travis operates in “the Baton Rouge, Louisiana market,” although the petition later states defendant’s actions affected plaintiffs’ ability to compete in “the Louisiana market.” Plaintiffs make no reference to the economic market, i.e., the scope of other products against which it must compete. They have neither alleged damage to interbrand competition, nor have they alleged that defendant sells a unique product for which there is no competition from other brands of marine products.

| uPlaintiffs’ complete lack of facts to support a claim under LSA-R.S. 51:123 leads us to conclude that the trial court committed legal error in denying defendant’s exception of no cause of action.

LSA-R.S. 32:771 ET SEQ. (LOUISIANA USED MOTOR VEHICLE DEALERS AND MARINE PRODUCT DEALERS ACT)

Chapter 4-B of Title 32, the Used Motor Vehicle Dealers and Marine Product Dealers Act (the Act), establishes the Louisiana Used Motor Vehicle and Parts Commission (Commission). The Commission regulates the sale of used motor vehicles, parts and accessories, and, inter alia, new motorcycles, recreational vehicles, all-terrain vehicles, motor homes, travel trailers, semitrailers, and marine products. LSA-R.S. 32:772. It oversees the licensing of dealers and may conduct hearings regarding suspension and revocation of licenses, as well as hearings regarding imposition of civil penalties for violations of the provisions of Chapters 4-A and 4-B. LSA-R.S. 32:773, 774, 775, and 776. Chapter 4-B provides for both civil and criminal penalties for violations of the statutes, and also requires violators to attend educational seminars. LSA-R.S. 32:776, 779, and 780.

Defendant contends plaintiffs have neither a right nor a cause of action under the Act. The trial court sustained the exception of no right of action but denied the no cause of action as to LSA-R.S. 32:771 et seq. In its written reasons, the trial court did not explain its rationale in deciding this portion of the case.

Plaintiffs’ petition alleges:

Mercury Marine’s and Randolph’s agreement with Travis to supply it with Mercury Marine products in the Baton Rouge market during Mercury Marine’s existing dealership agreement with Petitioner’s Baton Rouge store, Boats Unlimited, was a direct and intentional violation of the Louisiana Marine Dealers Act, Louisiana Revised Statute 37:771(sie), et seq., that caused injury to Petitioners.

11RPlaintiffs do not name the specific provisions of the Act defendant allegedly violated. In brief and at oral argument, plaintiffs’ counsel referred to language in LSA-R.S. 32:775(F)(1), which provides that a manufacturer who does “any other act unfair to said dealer” is subject to the fine or penalty provided in LSA-R.S. 32:780. Plaintiffs argue that the facts alleged in their petition show that defendant acted unfairly toward plaintiffs.

In our opinion, plaintiffs neither have a right of action, nor do they state a cause of action. The Act specifically provides a private right of action to a purchaser in LSA-R.S. 32:774.2(B) if a dealer fails to notify the purchaser that a used motor vehicle previously suffered water damage. Every other provision of the Act refers only to action by the Commission when a violation occurs. We thus conclude that the legislature did not intend to create a private cause of action for violations of the Act except as provided in LSA-R.S. 32:774.2(B). Only the Commission has a right to enforce the violations of the Act alleged by plaintiffs, and the law affords no relief to them under the facts alleged in their petition.

CONCLUSION

For the foregoing reasons, the portion of the judgment of the trial court sustaining defendant’s exception of no right of action as to plaintiffs’ claims under LSA-R.S. 51:331 and LSA-R.S. 32:771 et seq. is affirmed; the portion of the judgment sustaining defendant’s exception of no right of action as to plaintiffs’ claim under LSA-R.S. 51:1401 et seq. is reversed; the portion of the judgment in which the trial court sua sponte sustained exceptions of no right of action to plaintiffs’ claims under LSA-R.S. 51:122 and 123 is reversed; the portion of the judgment overruling defendant’s exception of no cause of action as to plaintiffs’ claims under LSA-R.S. 51:122 and 123 is reversed, and judgment is hereby |1firendered sustaining the exception of no cause of action as to LSA-R.S. 51:122 and 123. The portion of the judgment overruling the exception of no cause of action as to plaintiffs’ claims under LSA-R.S. 32:771 et seq. is reversed, and judgment is hereby rendered sustaining the exception of no cause of action.

Pursuant to LSA-C.C.P. art. 932, we hereby order the trial court to permit plaintiffs to amend their petition, if they can, to remove the grounds for defendant’s objections within 15 days after the date this judgment becomes final under LSA-C.C.P. art. 2166.

Costs of this appeal are assessed equally between plaintiffs and defendant.

AFFIRMED IN PART, REVERSED IN PART, RENDERED IN PART, REMANDED WITH INSTRUCTIONS.

hKUHN, J.,

concurs.

I agree with the majority that, because of the way the pleadings were drafted in this case, exceptions of no right of action could be granted on some allegations and no cause on some others. I concur to call attention to the specific allegations of the original petition and confusion prompted by citation of statutes in pleadings.

The plaintiffs suggest various theories of recovery in this case, including breach of contract, detrimental reliance, unintentional interference with contract and various “statutory” theories of relief. Since, as the majority points out, Louisiana has fact pleading as a procedural rule, one may ask why the plaintiffs felt it necessary to state their theories of recovery. Might it have been better for the plaintiffs had they adhered to fact pleading and allowed the normal course of trial preparation and trial to determine the theory of recovery? Would this appeal have existed then?

The effect of stating these theories is piecemeal litigation and protracted piecemeal appeals. Archaic statutes, LSA-R.S. 51:134 and 135, that have not been changed since they were enacted 88 years ago, require appeals of interlocutory judgments in monopoly and antitrust cases within five days, lest they become final and res judicata. Amendments to Louisiana Code of Civil Procedure articles 966 and 1915 provide for approaches to litigation where each issue is separately considered and appealed. Would it [ 2now be appropriate for a trial court to consider each theory of recovery pled and sign a different judgment for each, leading to separate appeals?

“Dragging out” a case has now become an advocacy technique. How should a trial court approach this now complicated case? Will we have more piecemeal judgments and appeals, particularly since the Code of Civil Procedure requires us to give plaintiffs the opportunity to amend the petition?

How about fact pleading and search for truth as trial tactics?

      . Plaintiffs also sued John Randolph and Travis Boating Center Louisiana, Inc. The trial court sustained Randolph's exception of no right of action and dismissed plaintiffs' claims against him. Plaintiffs have not appealed that portion of the judgment. Travis did not file any exceptions in this case, nor has it appealed.

      . Plaintiffs cited LSA-R.S. 51:135 in their motion for appeal. That statute provides that appeals of interlocutory judgments in cases affected by Chapter 1, Part IV of Title 51 become final and non-appealable if not appealed within five days. However, it appears that LSA-R.S. 51:134, rather than 135, is the applicable statute. That statute provides that the trial court's ruling on an exception shall have the effect of res judicata unless the party cast appeals within five days. The trial court also certified the judgment as final pursuant to LSA-C.C.P. art. 1915(B).

      .While an interlocutory judgment overruling an exception of no cause of action normally is not appealable, these appeals are governed by the provisions of LSA-R.S. 51:134 and 135.

      . We note the federal district court reached the same result in Watercraft Management, L.L.C. v. Mercury Marine, 191 F.Supp.2d 709, 715 (M.D.La.2001), in a suit involving some of the same parties.

      . See Gardes Directional Drilling v. United States Turnkey Exploration Co., 98 F.3d 860, 868 (5th Cir.1996); Delta Truck & Tractor v. J.I. Case Co., 975 F.2d 1192, 1205 (5th Cir.1992).