author: | ¡¿KLINE, J., Judge Pro Tem.

text:
    THE TIMES PICAYUNE PUBLISHING CORPORATION and Susan Finch v. THE BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College, Dr. William L. Jenkins as President of the Louisiana State University System and Secretary of the Board of Supervisors, the State of Louisiana Through the Division of Administration and William J. Kling, Jr., Acting State Risk Director and Deputy Undersecretary of the Division of Administration.
    No. 2002 CA 2551.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      James R. Swanson, Loretta G. Mince, New Orleans, Counsel for Appellees The Times Picayune Publishing Corporation and Susan Finch.
    Bruce Cranner, New Orleans, Counsel for Appellants LSU Board of Supervisors.
    Before: FOIL, MCCLENDON, and KLINE
      , JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | ¡¿KLINE, J., Judge Pro Tem.

This is an appeal from a declaratory judgment and the issuance of a writ of mandamus holding that specific documents reflecting payment made by the State in settling a lawsuit were public records and ordering the State’s Office of Risk Management to allow public access to those documents. From this judgment, the State has appealed. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In 1992, Mary Elizabeth Leger and her husband filed suit against Professor John N. Kent, D.D.S., Louisiana State University School of Dentistry and Faculty Dentist Practice among others, alleging dental malpractice and products liability arising from Dr. Kent’s design of the Vitek implant and his surgical placement of the implant in Ms. Leger’s temporomandibular joint.

In 1998, Ms. Adleman-Chester, along with approximately 674 other individuals, filed suit against many of the same parties asserting various claims concerning the Vi-tek implant. The plaintiffs in the Adel-mavr-Chester case sought to have their case consolidated with the Leger case. Despite the State’s opposition, the Civil District Court for the Parish of Orleans did consolidate the cases, but limited that consolidation to discovery purposes only.

Eventually, the Office of Risk Management (ORM), the department charged with handling claims asserted against the State, began negotiations with the Legers relative to their claims. The ORM and the Legers reached a settlement on April 26, 2001 and subsequently signed an agreement to keep the terms of the settlement confidential. The parties also filed a joint motion to dismiss, with prejudice, the Leg-ers’ suit against all defendants. The motion to dismiss was granted on June 1, 2001.

On April 25, 2002, Susan Finch, a staff writer for The Times-Picayune, wrote a letter to Whitman J. Kling, Jr., then acting director of the Office of Risk Management, requesting copies of public records pursuant to the Louisiana Public Records Act. Specifically, Ms. Finch requested “copies of any check or checks, together with any related documents, that reflect payment by the State of | ¡¡Louisiana to settle... [the case] entitled Mary Elizabeth Leger et al versus John N. Kent, D.D.S. et al.”

Mr. Kling’s response of April 29, 2002 advised Ms. Finch that her public records request regarding the Leger case could not be fulfilled. Mr. Kling asserted that the Leger case was an “open claim file and under the provisions of LRS 44:4(15)[was] not subject to disclosure under” the Louisiana Public Records Act.

On May 16, 2002, James Swanson, counsel for The Times-Picayune, wrote to Mr. Kling regarding his refusal of Ms. Finch’s request, as follows:

“In your letter, you have refused to provide records relating to a settlement entered into in the Spring of 2001 with Mary Elizabeth Leger on the basis that there is still a pending claim file. I cannot understand why, except as a device to defeat a Public Records Law request, this would be since this claim has been settled for well over a year. Before I bring a suit under the Public Records Act.. .1 want to be sure I understand your position. I would, therefore, appreciate if you would outline in more detail the basis of the contention that the file is currently pending.”

The ORM again responded on May 20, 2002 in a letter authored by newly appointed ORM Director, Julian S. Thompson, Jr. The letter stated:

“Mary Elizabeth and Albert Leger v. John Kent, D.D.S.” remains an open file in the Office of Risk Management at this time. We decline to provide you with further information regarding the matter except to reiterate that the contents of open files are exempt under the Public Records Act.

Consequently, The Times-Picayune and its writer Susan Finch filed suit against the State pursuant to the Public Records Act. Specifically, they prayed that the court issue a declaratory judgment that the sought-after information was public record as defined by the Act and that a writ of mandamus be issued ordering the Office of Risk Management to produce the requested information.

The State filed its answer on July 22, 2002 wherein it averred that the records requested by the The Times-Picayune were exempt “from the provisions of the Louisiana Public Records Act, pursuant to R.S. 44:4(15) as the information requested [was] contained in a matter that is considered pendingbpen at the Office of Risk Management.”

|4Soon thereafter, in an affidavit dated August 13, 2002, Julian S. Thompson, Jr. stated:

(1) That he is a Director of Risk Management for the State of Louisiana;
(2) That he is familiar with the status of the file entitled: Leger v. Kent, ORM File # 93X/0824LEGER, which is in the custody and control of the Office of Risk Management for the State of Louisiana and under his jurisdiction as the Director of Risk Management for the State of Louisiana;
(3) That this file was opened in the Office of Risk Management as a litigation file on the 11th day of December, 1992 and remains a pending claim file in litigation ... .;
(4) That the file Leger v. Kent, ORM File # 93X/0824LEGER, will remain a pending claim file until the resolution of the jaw implant litigation involving LSU and Dr. Kent.

A hearing on the matter was set for September 6, 2002. Although the Legers’ claims had been settled and their suit dismissed by June of 2001, ORM Director Thompson maintained that the Leger file still retained pending status because other claims involving the Vitek implant were still pending. At the hearing, ORM Director Thompson was questioned as follows:

Q: Do you have any idea how it could be that once a case is dismissed it would still be consolidated and pending with another case? Can you explain that concept?
A: In this particular case all the discovery and litigation strategy was developed under this case, under the contracts that we had issued for this case, and so they are held in that file and that (sic) are related to all the other Vitek cases.
Q: Let me ask you this. There is — in the Office of Risk Management there is a file for the Leger case, is that correct?
A: Yes.
Q: And there is a file for the Adelman-Chester case?
A: Yes.
Q: And those are separate files?
A: Yes.
* * * * *
Q: You would also agree that the Leger case is a — in your words, distinctly different case than the Adelman-Chester case or any of the other cases?
A: Yes.
Q: And in fact, you are familiar with the fact that in the state’s pleading in the Adelman-Chester case the state stated with respect to the question of whether that case was related to the Leger case that each plaintiff in Adel-man-Chester has undergone a different procedure with different doctors at different times, received different | Rdevices and experienced different symptoms. Do you agree that that is in fact the case that the Adelman-Chester claims are very different in very many respects from the Leger claim?
A: Yes.
Q: And further that the Leger case was filed in 1992 whereas the Adelman-Chester case was filed in 1998?
A: Yes.

Nevertheless, Director Thompson testified that the ORM defined pending claim or pending claim file as a claim or claim file that is still open for various reasons including where a claim is related to other claims that are still open. Specifically, he stated that the Leger file was “open and pending because it directly affects the other Vitek cases that are still open.” In addition to the 675 plaintiffs in the Adel-man-Chester suit, a purported class action suit entitled James and Ett v. LSU had been filed in 2002 on behalf of an alleged class of potentially thousands. When he was questioned regarding the basis for ORM’s reasoning, he stated:

[W]e feel that the settlement in one case, if it becomes known, could adversely affect our ability to reach reasonable settlements in other cases based on possibly unrealistic expectation^] and would affect us from (sic) our mission of minimizing the costs of litigation to the state.

He also supported the ORM’s determination that the Leger file was still pending by asserting that much of the discovery on the Vitek cases was done under that file. Thus, pursuant to ORM’s policies, the Leger file was to retain pending status until all of the 675 plaintiffs’ claims in the Adel-man-Chester case, as well as the potentially thousands of claims in the James and' Ett class action suit, were settled, dismissed, or adjudicated by a final judgment.

At the conclusion of the hearing, the trial court, in its oral reasons for judgment, stated:

[I]t seems that the language of [La. R.S. 44:4(15) ] is clear when it talks about a pending claim file, and I think pending has a certain meaning. And we have talked about Black’s Law Dictionary and we have talked about — was it the Segura case and some definitions and things.... [W]hile I certainly understand why it would be beneficial to the state to keep that in a pending status, that’s not a pending claim. That is a final claim. It has been adjudicated.. It has been resolved. It’s not pending any longer.

| (¡Therefore, the trial court ruled that the documents requested by the plaintiffs were public records under the Louisiana Public Records Law and were not excluded under any legal exemption. Consequently, the court ordered the Office of Risk Management to produce copies of any check or checks together with any related documents that reflect payment made by the state to Ms. Leger. A judgment memorializing the ruling was filed on September 26, 2002.

From this judgment, plaintiffs have appealed asserting one assignment of error. Plaintiffs contend that the trial court committed reversible error by ignoring both the plain language of La. R.S. 44:4(15) and the public policy concerns evidenced by that language, and as a result, erred in requiring the ORM to divulge the pertinent documents. It is in this procedural posture that the case now comes to us for review.

STANDARD OF REVIEW

At the outset, we note that declaratory judgments may be reviewed as other orders, judgments, and decrees are. La. C.C.P. art. 1877. Hence, a court of appeal may not overturn a judgment of the trial court absent an error of law or a factual finding that is manifestly erroneous. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). In the present case, the judgment of the trial court was based on its interpretation of La. R.S. 44:4(15). It is axiomatic that the interpretation of a statute is a question of law. Clements v. Folse, 2001-1970, p. 5 (La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 2002-2328 (La.11/15/02), 829 So.2d 437. When addressing a question of law, a reviewing court gives no special weight to the findings of the trial court. Instead, we are compelled to conduct a de novo review and render a judgment on the record. Campbell v. Markel American Ins. Co., 2000-1448, p. 5 (La.App. 1 Cir. 9/21/01), 822 So.2d 617, 620, writ denied, 2001-2813 (La.1/4/02), 805 So.2d 204.

RELEVANT LAW

It is well-settled that the public’s right of access to public records is a fundamental right guaranteed by both the Louisiana Constitution and the Public Records Law set forth in La. R.S. 44:1 et seq.

| .¡Louisiana Constitution, Article 12, § 3 mandates that “no person shall be denied the right to ... examine public documents, except in cases established by law.”

With regard to this constitutional provision, the Louisiana Supreme Court, in Title Research Corp. v. Rausch, 450 So.2d 933, 936 (La.1984) held as follows:

The right of the public to have access to the public records is a fundamental right _[La. Const, art. 12, § 3] must be construed liberally in favor of free and unrestricted access to the records, and that access can be denied only when a law, specifically and unequivocally, provides otherwise. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see. To allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights.

Louisiana Revised Statute 44:31 provides:

A. Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.
B. (1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter any person of the age of majority may inspect, copy or reproduce, or obtain a reproduction of any public record.
(2) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian.

The Louisiana Supreme Court has held that in passing the Public Records Act the Legislature sought to guarantee, in the most expansive way possible, the right of the public to inspect and reproduce those records which the laws deem to be public. The court further found that there was no intent on the part of the legislature to qualify, in any way, the right of access. Title Research Corp. v. Rausch, 450 So.2d at 936-937. And as with the constitutional provision, the Public Records Act must be construed liberally in favor of access and any doubt must be resolved in favor of the right of access. Id. Therefore, it follows that any exemption to the Public Records Act is in derogation of the public’s right to be reasonably informed and must be narrowly interpreted. Laplante v. Stewart, 470 So.2d 1018, 1021 (La.App. 1 Cir.), writ denied, 476 So.2d 352 (La.1985). Thus, the right of access can only be denied when the law, specifically and unequivocally, denies access. Local 100, Service Employees’ Intern. Union v. Forrest, 95-1954, p. 4 (La.App. 1 Cir. 5/10/96), 675 So.2d 1153, 1156, writ denied, 96-1499 (La.9/20/96), 679 So.2d 441.

Furthermore, La. R.S. 44:31B(2) provides that the burden of proving that a public record is not subject to inspection, copying or reproduction shall rest with the custodian. The mere fact that the public record requested may contain nonpublic material is not a valid reason for restricting access to that record. Elliott v. District Attorney of Baton Rouge, 94-1804, p. 7 (La.App. 1 Cir. 9/14/95), 664 So.2d 122, 126, writ denied, 95-2509 (La.12/15/95), 664 So.2d 440. Rather, when a record contains material which is not a public record, the custodian may separate the nonpublic record and make only the public record available for examination. La. R.S. 44:32B.

DISCUSSION

Louisiana Revised Statute 44:1A(1), in its definition of “public records,” expressly includes those documents “concerning the receipt or payment of any money received or paid by or under the constitution or laws of this State.” Thus, it is undisputed that the records relating to the settlement between the state and the Legers are public records to which access can be denied only if the law specifically and unequivocally provides for denial of access.

The ORM contends that the public records in the present case are exempt from disclosure pursuant to La. R.S. 44:4 which provides that the Public Records Act shall not apply:

# ^5
(15) To any pending claims or pending claim files in the custody or control of the office of risk management, Division of Administration, or similar records in the custody of any municipality or parish... (Emphasis added.)

On appeal, the State’s ORM argues that the trial court erred in giving too narrow an interpretation to the word “pending” thus creating a redundancy in the terms “pending claim or pending claim files” and missing the “spirit” of the exception provided in La. R.S. 44:4(15). The State further argues that the consolidation of the Leger case with the Adelmarir-Chester case compels a finding that the Leger file be considered a “pending claim file.” Louisiana 19Revised Statute 44:4 does not define the terms “pending claims or pending claim files.” Hence, we are required to interpret the meaning of those terms.

1. Statutory Interpretation

Words and phrases are to be read with their context and construed according to the common and approved usage of the language. La. R.S. 1:3. Black’s Law Dictionary defines “claim” as follows: “To demand as one’s own or as one’s right; ... Cause of Action.... Demand for money or property.” Black’s Law Dictionary, 224 (5th ed.1979). After consulting Black’s Law Dictionary, the Louisiana Supreme Court, in Segura v. Frank, 93-1271, p. 19 (La.1/14/94), 630 So.2d 714, 727, cert. denied sub nom., Allstate Insurance Company v. Louisiana Insurance Guaranty Association, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994), concluded that a claim is “pending” only as long as it is subject to judicial scrutiny. Therefore, once there has been a final judgment dismissing it, a claim ceases to be pending. See Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 721 (La.1986).

The ORM argues that the term “pending” should be interpreted differently in this case because it appears in a different context than that presented in the Segura case. Although, substantively, that case dealt with the applicability of the Louisiana Workers’ Compensation Law, and the present case involves the Public Records Act, we likewise find that the term “pending claims,” as used in La. R.S. 44:4(15), are those claims that are subject to judicial scrutiny.

In interpreting a law, we must give it the meaning intended by the legislature. Intent expressed at the appropriate legislative committee meetings is an aid to the courts in determining the true legislative intent and purpose behind the law. Bridges v. Smith, 2001-2166, p. 5 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 311, writ denied, 2002-2951 (La.2/14/03), 836 So.2d 121. We have examined the audio-taped proceedings of the Committee on House and Governmental Affairs conducted on May 27, 1987. During those proceedings, Mr. Daryl Hunt, a representative of the Division of Administration, explained to the legislative committee members that two bills being introduced, including the one that would exempt “pending claims or pending claim files” at the ORM from Lopublic access, were designed to “provide the legal section at the Office of Risk Management the same rights that any lawyer building a case would have.” Further, specifically referring to the bill providing the “pending claims and pending claim files” exemption, Mr. Hunt expressly stated that it was intended to exempt the “case being built” by the ORM. Such a legislative intention falls squarely within the supreme court’s interpretation in Seg-ura of what constitutes a pending claim. To exempt a “case being built” obviously would not include those cases that have been settled and dismissed with prejudice or adjudicated by a final judgment. Therefore, we conclude that the term “pending claims” referenced in La. R.S. 44:4(15), includes only those claims that are still subject to judicial scrutiny.

When the Legers settled their claims with the ORM for a specified amount, the ORM paid that amount, and the Legers released the State from further liability in writing, a compromise of the claim occurred. A compromise, under which defendants pay a certain amount and are released from further liability in writing, has the authority of a judgment between the parties. Jarreau v. Hirschey, 93-1402, p. 7 (La.App. 1 Cir. 12/7/94), 650 So.2d 1189, 1193 writ denied, 95-0766 (La.5/12/95), 654 So.2d 348. It is well settled that compromise agreements have a force equal to the authority of the thing adjudged. Id. Additionally, all of the Legers’ claims against all the defendants were dismissed with prejudice, hence they are no longer subject to judicial scrutiny. Therefore, it is clear that the Legers’ claims were no longer “pending claims.”

However, the ORM maintains that the Leger file has been designated a “pending claim file” by the ORM because the ORM’s internal policy is to retain a case file, in this case the Leger file, under pending status as long as other related cases, here, the various Vitek cases, remain pending. On the basis of this policy, the ORM argues that the Leger file is exempt from the Public Records Act under the “pending claim files” language of La. R.S. 44:4(15).

| n Additionally, the State argues that the trial court’s interpretation of “pending claim or pending claim files” rendered the terms redundant. According to the State:

The court below apparently felt no ambiguity in the meaning of “pending” as it modified both “claim” and “claim files.” But, courts are directed to give full meaning to an act with the understanding that no word should be construed as unnecessary or as surplusage....
As required by the statute, exempting any records pertaining to “pending claims” would likewise exempt any documents in the file pertaining to that claim during the pendency of the litigation. If the purpose of the exemption from disclosure was so limited, there would be no need to further exempt “pending claim files.” Under this scenario, the phrase, “pending claim files,” would be redundant when used in the conjunctive with “pending claims.” (Emphasis added.)

We find appellant’s argument to be unpersuasive. The express language of the statute provides an exemption for “pending claims or pending claim files,” not “any records pertaining to pending claims or pending claim files.” While the term “claim” has been interpreted to mean a demand or cause of action, the term “file” is defined as “a record of the court... .The “file” in a cause includes the original complaint and all pleadings and papers belonging thereto.” Black’s Law Dictionary 566 (5th ed.1979). Accordingly, the term “pending claim files” is broader than the term “pending claims.” Consequently, by their very definitions, the terms are not redundant. Moreover, the statute does not join the terms conjunctively as the word “or” is utilized. See La. R.S. 1:9. The word “or” is a “disjunctive particle used to express an alternative or to give a choice of among two or more things.” Black’s Law Dictionary 987 (5th ed.1979). Here, there is an alternative of the narrower “pending claims” or the broader “pending claim files.”

Therefore, mindful that the relevant statutory provisions are to be interpreted liberally in favor of providing public access, while exceptions to that access are to be narrowly construed, we see no legal error in the trial court’s interpretation of La. R.S. 44:4(15). We find that the term “pending claim files” could, and should, reasonably be interpreted to include only those distinct files pertaining to a still pending claim. Therefore, the file entitled “Leger v. Kent, ORM File # 93X/0824LEGER” would not be considered a “pending claim file” because that claim had been settled and the suit dismissed with prejudice.

Apparently, the State does not dispute this interpretation because nowhere in its brief to this court does the State ever assert that the Leger file actually is a “pending claim file.” Rather, the State argues that the gravamen of this is appeal is the authority of the ORM “to designate a file within its office [as] a “pending claim file” ... and thereby protect the file from required disclosure under [the Public Records Act].” The State urges that we find in favor of the ORM’s right to protect public records from disclosure by “labeling” a matter a “pending claim file” because to do otherwise, the State claims, would prejudice the ORM in the further handling of related matters.

2. The Spirit of the Exception

Essentially, the State argues that we find that the “spirit” underpinning the “pending claims or pending claim files” exception compels us to interpret the term “pending claim files” more broadly to include those claim files “designated” or “labeled” pending by the ORM. However, allowing the ORM to escape disclosure by designating or labeling a claim file pending, even though the claim is no longer subject to judicial scrutiny, would defeat the very purpose of the Public Records Act.

The meaning and intent of a law is to be determined by a consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on any provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Ransome v. Ransome, 2001-2361, p. 6 (La.App. 1 Cir. 6/21/02), 822 So.2d 746, 752. Where it is possible to do so, it is the duty of the courts in the interpretation of laws to adopt a construction of the provision in question which harmonizes and reconciles it with other provisions. Id. As previously noted, the Louisiana Supreme Court has held that in passing the Public Records Act the legislature sought to guarantee, in the most expansive way possible, the right of the public to inspect those records which the laws deem to be public and that there was no intent on the part of the legislature to qualify, in any way, the | fright of access. Title Research Corp. v. Rausch, 450 So.2d at 936-937; Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979, p. 4 (La.7/1/97), 696 So.2d 562, 564.

Like the trial court in this case, we understand why it would be beneficial for the State to keep this information confidential. But while we recognize that the information in this ease may potentially hamper the ORM from reaching settlements in related cases, such a potentiality cannot negate the public’s fundamental right of access. In the case of the Public Records Act we are instructed to find in favor of disclosure whenever there is any doubt as to the interpretation of a statute. Indeed, in order for an exception to the Public Records Act to be invoked, a law must specifically and unequivocally provide for that exception. Should the legislature intend for the ORM to have greater discretion in “designating” or “labeling” a file as pending or in protecting documents in situations factually similar to the one at hand, then the legislature must specifically so provide.

3. Consolidation

Nevertheless, the State contends that the fact the Leger case was consolidated with the Adelman-Chester case supports a determination that the Leger file continues to be a pending claim file because the Adelman-Chester case is still pending. The State urges that being required to provide access to the Leger file would prejudice the State in the Adel-man-Chester case, as well as the potential class action suit, by revealing the State’s legal strategies and defenses. Based on the facts in this case, we must respectfully disagree.

Firstly, the Leger case was consolidated with the Adelman-Chester case for discovery purposes only. Nevertheless, they were separate cases filed at different times and involved different claims in many respects. The Legers settled their claims and released the State from future liability while the Adelman-Chester case continues. Moreover, both cases have been maintained at the ORM in separate files with different file numbers. Secondly, we note that The Times-Picayune only requested a “copy of the check or checks, or any related documents that reflect payment made” by the State to the Legers. Even Director | uThompson testified that he did not believe that a copy of the requested check would reveal the legal strategies or defenses to be asserted by the State in future litigation. Finally, the fact that public material requested may contain nonpublic records is not a valid reason for restricting access to that material. Elliott v. District Attorney of Baton Rouge, 94-1804 at p. 7, 664 So.2d at 126. According to La. R.S. 44:32, the public and the nonpublic material could be separated and access granted only to the public records. Therefore, should the non-pending Leger file contain any documents specifically regarding any of the separate but related, pending cases, then the ORM could separate and remove that material from the Leger file while still allowing access to the public records contained therein. Even so, we note that The Times-Picayune’s request does not encompass any nonpublic materials. The Times-Picayune has only requested a copy of the check or checks or any related documents that reflect the amount the State paid the Legers to settle their suit. The requested documents are public records that are not specifically and unequivocally exempt under any law, therefore disclosure is mandated.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court finding that the requested documents were public records and were not exempt under any law, and further ordering their disclosure by the Division of Administration, Office of Risk Management. Appellants, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, Dr. William L. Jenkins as President of the Louisiana State University System and Secretary of the Board of Supervisors, the State of Louisiana through the Division of Administration and William J. Kling, Jr., Acting State Risk Director and Deputy Undersecretary of the Division of Administration, are cast with the costs of this appeal in the amount of $554.88.

AFFIRMED.

      . The record indicates that Julian S. Thompson, Jr. was appointed Director of the Office of Risk Management on May 14, 2002.

      . The Times-Picayune alternatively prayed that a mandatory injunction be issued requiring the Office of Risk Management to produce the requested information.

      . At the time of trial, no class certification hearing had been held in the James and Ett case.

      . La. C.C. art. 3506(31) was repealed by Acts 1999, No. 503, § 1. It read as follows:
      31. Thing Adjudged. — Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.


source: Caselaw Access Project

author: JgPETTIGREW, J.

license: Public Domain

text:
    Aaron BELL, Sr. v. AOA SERVICES.
    No. 2002 CA 1637.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Marvin Gros, Donaldsonville, for Plaintiff-Appellant Aaron Bell, Sr.
    Debra Talbot Parker, Baton Rouge, for Defendant-Appellee, AOA Services, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   JgPETTIGREW, J.

This is an appeal from a judgment dismissing an employee’s claim for workers’ compensation benefits. For the reasons that follow, we hereby affirm.

FACTS

Claimant, Aaron Patrick Bell, Sr., had been an employee of AOA Services since April 14, 2001, when he claimed to have been injured on June 14, 2001. Mr. Bell alleged that after picking up a load of coke residue at the Shell Oil facility in Norco for his employer, he was returning to Grammercy on Airline Highway with the intention of traveling the remainder of the journey along the River Road. Mr. Bell claimed that as he approached River Road, he was traveling about 35 or 40 miles-per-hour. About two or three hundred feet before the stop sign at River Road, Mr. Bell stated that he first applied his brakes, but noticed that the brakes would not “hold” and were not properly slowing the truck. As his truck was fully loaded, Mr. Bell stated that he was forced to choose between either attempting a right turn without brakes, or driving straight into the levee.

Mr. Bell testified that “there was no traffic coming that way anyway, so I tried to make the turn without harming anything and that’s when the truck rolled over.” In response to direct questioning by his attorney, Mr. Bell admitted that both the truck and cab rolled over. In connection with this incident, Mr. Bell received a citation from the State Police for operation of an unsafe vehicle.

Following the accident, Mr. Bell helped Mr. Ricky Roussel, owner of AOA Services, shovel the coke material out of the truck so that the wrecker could thereafter turn the truck upright. Mr. Bell estimated that this work may have taken several hours. Mr. Bell testified that at the request of Mr. Roussel, he drove the truck back to the yard in Grammercy, a distance of approximately 40 miles.

The following day, which was Friday, Mr. Bell stated that he went “to talk” with Mr. Roussel who gave him his check and told him that he did not have anything else for him |3to do. Mr. Bell testified that he began to experience pain in his mid to lower back that day, and accompanied his wife to the emergency room at Prevost Memorial Hospital on the evening of Saturday, June 16, 2001. Emergency room records from Prevost Memorial reflect that Mr. Bell was diagnosed with “muscu-loskeletal pain” and given 50 mg. of Vioxx to be taken once daily for pain, and Cele-brex, a muscle relaxer. Mr. Bell was further advised to follow-up with his family physician, Dr. Jon A. Savoie, within seven days, and to refrain from work for two days. Mr. Bell conceded at trial that he never contacted Mr. Roussel prior to going to the hospital. Mr. Bell claimed that he called Mr. Roussel on Monday and tried to explain that he had gone to the doctor because his back was hurting; however, Mr. Roussel purportedly would not speak to him and “the phone hung up for some reason.” Mr. Bell testified that subsequent attempts to reach Mr. Roussel on his cellular phone proved unsuccessful.

Mr. Roussel testified that in the two months that Mr. Bell worked for him, this was the second time Mr. Bell turned his trailer over. Following this accident, Mr. Roussel agreed that Mr. Bell had helped him to shovel material out of the truck in order that the wrecker could turn the trailer back on its wheels. According to Mr. Roussel, Mr. Bell called him about a week after the accident, but he advised Mr. Bell that the truck was still not repaired. Mr. Roussel admitted that Mr. Bell contacted him several weeks later about wanting to see a doctor, and he purportedly told Mr. Bell “to let [him] know.” Mr. Roussel stated that he did not know Mr. Bell had medical bills or a doctor until he received a letter from Mr. Bell’s attorney. Mr. Bell filed a Disputed Claim For Compensation on July 2, 2001, and claimed that no wage benefits had been paid, and no medical treatment had been authorized.

Although Mr. Bell testified that he saw Dr. Savoie on Monday June 19, 2001, and a second time two weeks later, medical records obtained from Dr. Savoie, and introduced as Plaintiffs Exhibit 1, indicate that Mr. Bell did not see Dr. Savoie until August 24, 2001, |4and again on September 10, 2001. Dr. Savoie’s medical record from Mr. Bell’s August 24, 2001 visit indicates that Mr. Bell expressed complaints of “severe pain to his lower back & middle of back.” Dr. Savoie’s record of that visit reveals a diagnosis of a “back strain” and an x-ray examination was ordered.

An x-ray report from Prevost Memorial Hospital dated August 24, 2001, noted that exams of Mr. Bell’s thoracic and lumbar spine revealed that the vertebral bodies were “normal in height and alignment” and that the “disc spaces were preserved.” Medical records from Mr. Bell’s September 10, 2001 visit indicate that on that date Mr. Bell sought to “revaluate [sic] back had pain 2 weeks ago states feeling a little better.” Despite a further notation regarding the absence of muscle spasm, Dr. Savoie noted that Mr. Bell “needs to see orthopedic sp. for back is still sore.” On that date, Dr. Savoie referred Mr. Bell to Dr. W. Joseph Laughlin, Jr., a Baton Rouge orthopedist. At trial, Mr. Bell testified that Dr. Savoie directed Mr. Bell to refrain from work. Mr. Bell also testified that as he did not have the money to pay for his visits to Dr. Savoie, his treatments were paid through his wife’s insurer.

Following a referral by Dr. Savoie, Mr. Bell sought treatment from Dr. Laughlin on September 13, 2001. Mr. Bell stated that Dr. Laughlin prescribed additional pain medication and Celebrex and advised him to remain off of work. Mr. Bell stated that Dr. Laughlin also prescribed that he undergo physical therapy, but was unable to get approval for physical therapy from either workers’ compensation or his wife’s insurer. During this time Mr. Bell testified that he remained at home taking care of his son.

Medical records reveal that Mr. Bell returned to Dr. Laughlin on December 13, 2001, with complaints of mid to lower back pain and sleeplessness. Mr. Bell admitted that this visit was approved by workers’ compensation. A medical report from Dr. Laughlin on that date revealed that despite Mr. Bell’s inability to attend physical therapy, Mr. Bell reported “slight improvement” in his overall symptoms, Physical evaluation revealed no pain with direct palpation and no complaints of any particular spasm. Dr. Laughlin purportedly advised that Mr. Bell continue taking the prescribed medication, refrain from work, and attend physical therapy. Mr. Bell admitted that workers’ compensation ^thereafter approved nine visits to physical therapy. Treatment records from Ascension Physical Therapy revealed that on December 17, 2001, Mr. Bell initially rated his pain as a level “10”; however, following seven visits with moist heat applications and an exercise regimen, this pain was reduced by January 9, 2002, to a level “3”.

During the course of his physical therapy, Mr. Bell testified that he saw Dr. Laughlin two more times. Mr. Bell admitted that his medical records confirm that Dr. Laughlin subsequently released Mr. Bell to return to work without restrictions on January 20, 2002.

In his testimony at the trial on March 27, 2002, Mr. Bell stated that he had been employed as a truck driver for Magnolia Distribution of Port Allen, Louisiana, for the past two weeks. Mr. Bell further testified that he was not currently experiencing any complaints with his back, and added that if he continued to take his medication and continually and actively stretched his muscles, he “should be fine.”

ACTION OF THE TRIAL COURT

Mediation conferences were scheduled in this matter on September 6, 2001, and again on November 1, 2001. On both occasions, defendants failed to appear. Through a motion filed December 3, 2001, Mr. Bell sought sanctions, penalties and attorneys fees based upon defendants’ failure to appear. Following a hearing on December 21, 2001, the workers’ compensation court awarded $200.00 to Mr. Bell as attorneys fees as a result of defendants’ failure to appear.

This matter was set for trial on March 27, 2002, before Workers’ Compensation Judge Anthony Palermo in Baton Rouge, Louisiana. The workers’ compensation judge, after hearing testimony from the claimant, Mr. Bell, his employer, Mr. Roussel, and the claims representative from Workers’ Compensation Corporation, Ms. Deshazer, concluded that the testimony of Mr. Bell had been less than credible particularly with regard to the events surrounding the accident, his injuries, and the reporting of the accident.

The workers’ compensation judge found that Mr. Bell had proved by a preponderance of the evidence that an accident occurred in the course and scope of employment, however, the workers’ compensation judge further held that Mr. Bell failed |fito prove that an injury was sustained in said accident. Based upon this finding the workers’ compensation judge concluded that no medical or indemnity benefits were owed. With regard to Mr. Bell’s claim for penalties and attorneys fees, the judge found that “the record is rife with evidence casting doubt on Mr. Bell’s version of events and on whether he was even injured or not.” Accordingly, the workers’ compensation judge denied Mr. Bell’s claim based upon an arbitrary and capricious denial of benefits. A timely appeal was filed by Mr. Bell to this court.

ISSUES PRESENTED FOR REVIEW

In connection with his appeal in this matter, Mr. Bell has presented the following issues for disposition by this court:

1) Did the trial court err in finding that the plaintiff-appellant, Aaron Bell, failed to prove an injury was sustained in the accident?
2) Should the manifest error rule apply to Aaron Bell showing that the trial court was clearly wrong?

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the findings of the workers’ compensation judge unless we determine that there is no reasonable basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable | inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

DISCUSSION

A claimant in a workers’ compensation case has the burden of establishing the occurrence of an accident and the causal relationship between the accident and the resulting disability by a preponderance of the evidence. Augustus v. St. Mary Parish School Board, 95-2498, p. 3 (La.App. 1 Cir. 6/28/96), 676 So.2d 1144, 1149. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id.

In determining whether the claimant has discharged his burden of proof, the trier of fact should accept as true a witness’s uncontradicted testimony, even though the witness is a party, absent circumstances casting suspicion on the reliability of that testimony. Augustus, 95-2498 at 4, 676 So.2d at 1149. A workers’ compensation judge’s determinations as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations which will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Id.

In his oral reasons for judgment, the workers’ compensation judge stated:

The claimant alleged that he was injured in a one vehicle accident when the truck that he was driving overturned. The testimony of Aaron Bell, Sr. and Richard Roussel establishes by a preponderance of the evidence that an accident occurred in the course and scope of employment.
The major issue in this case is whether that accident resulted in an injury. Because of the severe credibility problems that Mr. Bell has and the testimony that was given by Mr. Roussel, I don’t think that an injury occurred in this case. The testimony was that the accident occurred, but Mr. Bell himself testified that after the accident he helped with removal of the load from the truck and then he drove the truck back to the employer’s place of business.
There was conflicting testimony regarding notification of the injury, there was conflicting testimony about when Mr. Bell first saw the doctor, whether he reported the injury, what he reported and what exactly that injury was. Quite frankly, I find Mr. Bell to be less than credible, especially regarding his testimony about the brakes going out and how the truck turned over, the position that it was found in and what his injuries were and what he did after the accident as far as reporting it, whether he was requesting his job back, all of these factors go into my decision, because of his lack of credibility and really the lack of objective evidence, medical | ^evidence, that an injury occurred, I find that no injury occurred and, therefore, no medical benefits or indemnity benefits are owed.

Based upon our review of the record and the implicit findings of the workers’ compensation judge regarding these issues, we find no error in the denial of temporary total benefits for the time period in dispute. Thus, the issues put forth by Mr. Bell are without merit.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed in all respects. All costs associated with this appeal are assessed against plaintiff-appellant, Aaron Bell, Sr.

AFFIRMED.

      . This fact was subsequently disputed by Mr. Roussel who testified that "the trailer of my number two truck was turned over and the truck itself was cocked to the left side just a little bit.”

      . Mr. Roussel testified that following Mr. Bell’s accident on June 14, 2001, he had the brakes checked on the truck Mr. Bell was driving, but could find nothing wrong with them.


author: 1 ¡.GUIDRY, J.

text:
    Delmas L. TAYLOR, Registrar of Voters for Livingston Parish v. Suzanne HAIK-TERRELL, in her Capacity as Commissioner of Elections for the State of Louisiana and the Department of Elections and Registration.
    No. 2002 CA 1612.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Sheri M. Morris, Baton Rouge, Counsel for Plaintiff-Appellant, Delmas L. Taylor, Registrar of Voters for Livingston Parish.
    Juliet E. Thompson, Baton Rouge, Counsel for Defendant-Appellee, Suzanne Haik-Terrell, in her capacity as Commissioner of Elections, et al.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   1 ¡.GUIDRY, J.

A local registrar of voters appeals the judgment of the trial court denying his petition for mandamus and declaratory relief to have leave time earned while a local government employee reinstated on his state payroll record. Having considered the law and the evidence in this matter, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 25, 1997, the appellant, Delmas L. Taylor, was appointed registrar of voters for Livingston Parish, an unclassified position in state government. Payment of Mr. Taylor’s salary as registrar of voters for Livingston Parish is apportioned between the Livingston Parish Council and the State of Louisiana, through the commissioner of elections, pursuant to La. R.S. 18:59. At the time of hearing on this matter, the State of Louisiana, through the commissioner of elections, paid 68.29 percent of Mr. Taylor’s salary and the Livingston Parish Council paid 31.71 percent.

Prior to assuming the office of registrar of voters, Mr. Taylor was employed with the Livingston Parish Council and had worked for the Livingston Parish Council for over twenty years. At the time Mr. Taylor assumed the position of registrar, he had earned 1,408.08 hours of annual leave and 1,748.70 hours of sick leave as an employee of the Livingston Parish Council. On taking office, Mr. Taylor requested that the leave hours earned and accumulated by him, while in the employment of the Livingston Parish Council, be transferred and credited to him under the state payroll system. This request was submitted to then commissioner of elections for Louisiana, Jerry Fowler. The request was granted and Commissioner Fowler directed the payroll section of the Department of Elections and Registration to add the parish leave hours to Mr. Taylor’s state payroll record.

Subsequently, in November 1999, Suzanne Haik-Terrell was elected commissioner of elections. On assuming office, the Legislative Auditor’s Office | ¡^reviewed the records of the Department of Elections and Registration and issued a report finding that the transfer of the leave hours earned by Mr. Taylor while employed by local government was inappropriate and possibly a violation of state law. Thereafter, Mr. Taylor was notified by letter that the parish hours credited to him under the state payroll system would be removed from his payroll record. This action then ensued.

A hearing on Mr. Taylor’s request for a writ of mandamus and declaratory relief was held on March 7, 2002, with the trial court taking the matter under advisement. By a judgment rendered April 12, 2002, the trial court dismissed Mr. Taylor’s petition with prejudice. This devolutive appeal of that judgment followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Taylor asserts the following as errors committed by the trial court in the judgment rendered:

1. The trial court erred in holding that Delmas L. Taylor never developed a legitimate entitlement to leave earned during his employment with the Livingston Parish Council and transferred to the Commissioner of Elections; therefore, he was not entitled to due process prior to removal of the leave.
2. The trial court erred in concluding that use of sick and annual leave earned as a parish employee by a registrar or voters would violate Article VII, § 14 of the Louisiana Constitution.
3. The trial court erred in holding that the Commissioner of [Elections] had the authority to remove hours from the Livingston Parish Registrar of Voters’ leave balances.

DISCUSSION

The main thrust of Mr. Taylor’s arguments on appeal is that the trial court erred in failing to find that he had a vested property interest in having the leave hours, earned while employed with the Livingston Parish Council, credited to his state payroll record. Such a finding would mean that the unilateral removal of those hours from his state payroll record, without prior notice and an opportunity to be heard, violated Mr. Taylor’s constitutional right to due process and was thus Limproper. Moore v. Ware, 01-3341, p. 11-13 (La.2/25/03), 839 So.2d 940, 948-949. Therefore, we will first address whether Mr. Taylor developed a vested property interest when the parish leave hours were credited to his state payroll record.

Vested Property Interest

Both the federal and state constitutions provide that no person shall be deprived of life, liberty or property without due process of the law. U.S. Const, amends. V, XIV; La. Const, art. I, § 2. To claim the protections of due process, a claimant must show the existence of some property or liberty interest that has been adversely affected by state action. Johnson v. Southern University, 00-2615, p. 6 (La.App. 1st Cir.12/28/01), 803 So.2d 1140, 1144-1145. In this case, the removal of the leave hours from Mr. Taylor’s state payroll record by the Department of Elections and Registration constitutes state action. Nevertheless, it must be determined whether such action affected a property or liberty interest held by Mr. Taylor.

Property interests are not created by the constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law, rules, or understandings that secure certain benefits and that support claims of entitlement to those benefits. American International Gaming Association, Inc. v. Louisiana Riverboat Gaming Commission, 00-2864, pp. 13-14 (La.App. 1st Cir.9/11/02), 838 So.2d 5, 16.

In Lafleur v. City of New Orleans, 01-3224 (La.12/4/02), 831 So.2d 941, the Louisiana Supreme Court addressed an assertion by a group of current and former New Orleans police officers that they held a vested property interest in receiving “one-to-one” compensation for unused sick leave at the time of their separation from city employment. The supreme court found

| ^Although the record clearly establishes the existence of a departmental practice that might have constituted a benefit that vested in the form of deferred compensation had the policy been authorized by law, the fact that the policy violated express provisions of city civil service rules prevents the establishment of a vested right in favor of the plaintiffs.

Lafleur, 01-3224 at 10, 831 So.2d at 947.

The record in Lafleur revealed that there were only three lawful means by which the police officers were authorized to utilize accumulated sick leave: (1) receive a lump sum cash payment for unused, accumulated sick leave at a five-to-one ratio (five days sick leave to one day’s pay) on separation from city employment; (2) conversion of unused, accumulated sick leave to retirement credit on separation from city employment; or (3) actual use of accumulated sick leave in accordance with general civil service rules for legitimate absence due to injury, illness, quarantine by health authorities, or death in the immediate family while still employed with the city. Lafleur, 01-3224 at 8-9, 831 So.2d at 946. However, a fourth practice of allowing police officers to “run out” accumulated sick leave was a widely-followed and well-known in the department, wherein “a police officer who was ready to retire took the balance of his sick leave without reporting to work and received his regular paycheck until his accumulated sick leave was exhausted.” Lafleur, 01-3224 at 1, 831 So.2d at 942. In 1982, that practice was expressly prohibited by a memorandum issued by the Chief Administrative Officer for the City of New Orleans. Lafleur, 01-3224 at 8, 831 So.2d at 945.

In rejecting the police officers proposition that they had acquired a vested property right to receive full, “one-to-one” compensation for unused, accumulated sick leave, the supreme court noted that an obligation cannot exist without a lawful cause and that an obligation is unlawful when enforcement of the obligation would produce a result prohibited by law or against public policy. La. C.C. arts.1966, 1968; Lafleur, 01-3224 at 9-10, 831 So.2d at 946-947.

|fiThe record before us reveals that former Commissioner Fowler issued a memorandum on November 17, 1997, expressly adopting Chapter 11 of the state Civil Service Rules to provide for the administration of leave time for unclassified employees in the department, such as registrars. Further, the record reveals that the director of the Department of Civil Service advised Commissioner Fowler that his interpretation of those rules was that crediting leave hours earned while employed in local government to state service was not authorized.

It is undisputed that the leave hours in question were not earned by Mr. Taylor while in state service, but were exclusively accumulated while he was employed with the Livingston Parish Council. Further, neither departmental or civil service rules provide for the transfer of such hours nor does state law. To the contrary, La. Const, art. VII, § 14(A) provides “the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private.” It has been held that La. Const, art. VII, § 14 is violated whenever the state or a political subdivision seeks to give up something of value when it is under no legal obligation to do so. City of Port Allen, Louisiana v. Louisiana Municipal Risk Management Agency, Inc., 439 So.2d 399, 401 (La.1983).

The action of former Commissioner Fowler in ordering that the parish leave hours be transferred to Mr. Taylor’s state payroll record was clearly an act of taking on a financial obligation that the department was not legally required to undertake and, therefore, was in violation of La. Const, art. VII, § 14(A). See Civil Service Rule 11.5; Louisiana Department of Elections and Registration Personnel Policy Statement No. 5; Town of Brusly v. West Baton Rouge Parish Police Jury, 283 So.2d 288 (La.App. 1st Cir.), writ denied, 284 So.2d 776 (La.1973).

Accordingly, to the extent that the transfer of the leave hours constitutes a violation of La. Const, art. VII, § 14(A), the transfer was not legally authorized Land thereby prevents the establishment of a vested property interest in favor of Mr. Taylor. See Lafleur, 01-3224 at 10, 831 So.2d at 947. Absent proof of a vested property interest, Mr. Taylor can claim no deprivation of his due process rights by the subsequent removal of the leave hours unlawfully credited to his state payroll record. See Johnson, 00-2615 at 14, 803 So.2d at 1144-1145. Thus, we find no error in the trial court’s dismissal of Mr. Taylor’s petition for a writ of mandamus and declaratory relief.

CONCLUSION

For the foregoing reasons, we find that Mr. Taylor faded to establish a legally cognizable vested property interest in having his parish leave hours credited under the state payroll system. In so finding, we hold that Mr. Taylor was not entitled to procedural due process protections regarding the removal of those hours from his state payroll record. We, therefore, affirm the judgment of the trial court. All costs of this appeal are assessed to the appellant, Delmas L. Taylor.

AFFIRMED.


author: | .GUIDRY, J. 1 ¶PETTIGREW, J.,

text:
    Donald REESE and Verna Nabonne on Behalf of Her Minor Child, James J. NABONNE v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Louisiana State Penitentiary.
    No. 2002 CA 1429.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Benjamin P. Mouton, Baton Rouge, Counsel for Plaintiff/Appellant Donald Reese.
    Robin L. Jones, Baton Rouge, Counsel for Defendant/Appellee State of Louisiana, et al.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

In this wrongful death and survival action, plaintiff, Donald Reese, appeals the trial court’s judgment granting defendant’s, State of Louisiana, Department of Public Safety and Corrections (State), peremptory exception raising the objection of no right of action. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 30, 2000, James Williams Jr. died while serving as an inmate at Louisiana State Penitentiary at Angola. Thereafter, on April 4, 2001, Donald Reese and Verna Nabonne, on behalf of her minor child, James Nabonne, filed a petition for damages, asserting claims for survival and wrongful death damages as the deceased’s surviving children. In response, the State filed a peremptory exception raising the objection of no right of action on February 27, 2002. The State claimed that the plaintiffs were without legal right of action to institute the suit because they were not the legitimate children of the deceased, and they failed either to show filiation in accordance with La. C.C. art. 203 or to timely file a filiation action in accordance with La. C.C. art. 209.

Thereafter, on March 25, 2002, Donald Reese and Verna Nabonne, on behalf of her minor child James Nabonne, filed a First Supplemental and Amending Petition alleging the formal acknowledgment, or alternatively, the informal acknowledgment by James Williams Jr. of Donald Reese and James Nabonne. Following an April 1, 2002 hearing, the trial court issued a judgment on May 3, 2002, granting the State’s exception as to Donald Reese. Donald Reese now appeals this judgment and claims that the trial court erred as a matter of law in granting the State’s exception.

J^DISCUSSION

Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. In the instant case, the right of action under La. C.C. arts. 2315.1 (survival action) and 2315.2 (wrongful death action) is afforded to several exclusive categories of survivors listed in those articles. The primary category under both articles includes “children” of the deceased tort victim. The term “children” includes “those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law....” La. C.C. art. 3506(8); Thomas v. Sister of Charity of the Incarnate Word Shreveport, 97-1443, p. 4 (La.7/8/98), 713 So.2d 466, 468.

Louisiana Civil Code article 209, entitled proof of filiation, provides, in pertinent part, as follows:

B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages. [Emphasis added.]

In the instant case, Donald Reese claimed in his original petition for damages to be a surviving child of the deceased, James Williams Jr. No other facts were alleged in the original petition to suggest that Donald Reese was attempting to bring a proceeding to establish his filiation to James Williams Jr. As such, we find that this factual allegation alone was not sufficient to plead filiation under La. C.C. art. 209 C. See In re Bester, 00-2208 (La.App. 4th Cir.9/18/02), 828 So.2d 644, writ denied, 02-2579 (La.12/13/02), 831 So.2d 988; compare Succession of Stevenson, 492 So.2d 100 (La.App. 1st Cir.), writ denied, 494 So.2d 1178 (La.1986).

However, in the amended petition filed in March of 2002, Donald Reese asserted that he was formally acknowledged by James Williams Jr. or alternatively, he was informally acknowledged during James Williams Jr.’s life. Based on this subsequent amendment, Donald Reese argues, alternatively, that he properly asserted an action for filiation and that such action was filed within the above mentioned time limitation because it relates back to the original timely filed petition for damages.

Louisiana Code of Civil Procedure article 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original pleading.

It is well established that Article 1153 permits amendment, despite technical prescriptive bars, where the original pleading gives fair notice of the general fact situation out of which the amended claim arises. Where there is some factual eon-nexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, amendment should be allowed. Gunter v. Plauche, 439 So.2d 437, 440 (La.1983).

In the instant case, we do not find that Donald Reese’s filiation action, as contained in his amended petition, meets the above requirements so as to enable it to relate back to the timely filing of the original petition. First, as noted above, we do not find the mere assertion by Donald Reese that he is the child of James Williams Jr. to be sufficient to constitute an attempt to set forth a cause of action for filiation. As such, the original petition does not give fair notice to the State of | r,the general fact situation out of which the filiation claim arises. Therefore, we find that the filiation action asserted in the amended petition does not arise out of the conduct or occurrence, being the negligence of the State, which was the only cause of action set forth in the original petition.

Donald Reese refers this court to the recent Louisiana Fourth Circuit Court decision in Lewis v. Transocean Terminal Operators, Inc., 02-0152, pp. 3-4 (La.App. 4th Cir.12/11/02), 834 So.2d 1180, 1183, writs denied, 03-0080 (La.3/28/03), 840 So.2d 572 and 03-0111 (La.3/28/03), 840 So.2d 572. In that case, seven illegitimate minor children filed a wrongful death and survival action. A few months later, the same seven children filed a petition to initiate the succession of their deceased father. In this succession petition, the children did not expressly state that they were the illegitimate children of the deceased, but they did assert that the deceased was not married and all of their names were listed with last names other than the deceased’s. Close to a year later, the seven children amended their petition in the succession proceeding to explicitly seek filiation to the deceased. Thereafter, in the wrongful death and survival action, the trial court granted Transocean’s exception raising the objection of no right of action, implicitly finding that the filiation action was not timely raised. However, the fourth circuit on appeal reversed the trial court’s judgment, finding that the amended petition explicitly seeking filiation related back to the timely filing of the original petition in the succession proceeding. In particular, the fourth circuit found that “[ajnyone who read the original petition and accompanying affidavits initiating the succession proceeding would have fair notice of the factual situation out of which the supplemental and amended petition, explicitly seeking filiation, arises.” Lewis, 02-0152, at 4, 834 So.2d at 1183.

In the instant case, only wrongful death and survival actions were filed. Donald Reese sought, through amendment to those actions, to assert filiation to | fiJames Williams Jr. and have that filiation action relate back under the principles articulated above. We need not decide whether we agree with the fourth circuit’s decision in Lewis because that case is distinguishable from the facts as presented in the case currently before us. Particularly, we note in Lewis the children at least alleged that their father was not married, thereby directly asserting a fact regarding the children’s legitimacy. However, in the instant case, no allegations as to Donald Reese’s legitimacy were made; it was simply alleged that Donald Reese was the surviving child of the deceased James Williams Jr.

As stated previously, we find that this mere assertion, even if combined with the fact that the last name of the plaintiff child differed from the last name of his deceased father, is insufficient to give the State fair notice of the general fact situation out of which a filiation action arises and therefore does not relate back to the timely filing of the original petition for damages. Additionally, because the amended petition does not relate back, and was otherwise filed well outside the prescriptive period set forth in La. C.C. art. 209 C, we agree with the trial court in concluding that Donald Reese is without a right of action to institute the wrongful death and survival actions.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are to be borne by the appellant, Donald Reese.

AFFIRMED.

PETTIGREW, J., dissents and assigns written reasons.

1 ¶PETTIGREW, J.,

dissenting.

I must respectfully dissent from the majority in affirming the trial court in this matter.

The plaintiffs in this case, Donald Reese and James J. Nabonne, filed a petition for wrongful death and survival action against the state, pursuant to La. Civ.Code arts. 2315.1 and 2315.2. These actions are afforded to several exclusive categories of survivors listed in those articles. Both articles include “children” of the deceased tort victim. The term “children” includes those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law. La. Civ.Code Art. 3506(8); Thomas v. Sisters of Charity of the Incarnate Word Shreveport, 97-1443, p. 4 (La.7/8/98), 713 So.2d 466, 468.

With regard to proof of filiation, La. Civ.Code art. 209 C provides, in part:

If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Art. 2315. A proceeding for that purpose may be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.

Therefore, the petition for damages and the petition for filiation may be filed in the same proceeding at the same time. See and compare Succession of Stevenson, 492 So.2d 100 (La.App. 1 Cir.), writ denied, 494 So.2d 1178 (La.1986), dealing with a succession proceeding.

LThe real question before us is: did the allegations of the plaintiffs’ petition sufficiently put the defendants on notice that filiation was an issue in this case? Contrary to the majority, I am of the humble opinion it did.

First of all, the plaintiffs’ petition identifies the decedent and tort victim, James Williams, Jr., who died on April 30, 2000. The petition further identified who the plaintiffs were: Donald Reese, a major resident and domiciliary of Orleans Parish; and a minor child by the name of James J. Nabonne, also a resident and domiciliary of Orleans Parish. Obviously, the plaintiffs have different last names from the decedent and tort victim.

In paragraph two of plaintiffs’ petition, it states “Petitioners, Donald Reese and James J. Nabonne, are the surviving children of James Williams, Jr. who died on April 30, 2000.” Paragraph thirteen of the plaintiffs’ petition provides, “Petitioners, as the sole surviving children of James Williams, Jr., specifically assert and plead the survival action provided for in La. C.C. Art. 2315.1.” Also, in paragraph fourteen, they allege the wrongful death of their father, James Williams, Jr.

The plaintiffs have identified James Williams, Jr. as their father. It is apparent from the pleadings they have different last names, and they have also identified that they are the sole surviving children of James Williams, Jr. I am of the humble opinion that these bare allegations were sufficient to put the defendants on notice that filiation was an issue in this case, even though it was not artfully done.

There is no surprise to the defendants; and the plaintiffs, by filing their first supplemental and amending petition for damages on March 25, 2002, clarified these factual issues. It is my opinion that this amending petition related back to the filing of the original petition. It added neither new parties nor causes of action. If the plaintiff, Donald Reese, was not named as a plaintiff in the original petition for damages, but then was included in the first supplemental and amending petition, I would agree with the majority that this would not relate | ¡¡back. However, Donald Reese has been named as a plaintiff in this case from the very beginning, and has alleged that he is the child of James Williams, Jr. I therefore feel the first supplemental and amending petition related back to the filing of the original petition.

Courts should construe pleadings in such a manner as to achieve substantial justice. La.Code Civ. P. art. 865; Katz v. Katz, 412 So.2d 1291, 1293 (La.1982). In order to arrive at the truth and avoid miscarriages of justice, harsh, technical rules of pleading are not favored in Louisiana. La.Code Civ. P. art. 854; Budget Plan of Baton Rouge, Inc. v. Talbert, 276 So.2d 297, 802 (La.1973). Courts must look beyond the style and caption of pleadings to determine their true nature. Cook v. Matherne, 432 So.2d 1039, 1041 (La.App. 1 Cir.1983).

Therefore, I must respectfully dissent from the majority. I would reverse the trial court’s judgment granting the exception raising the objection of a no right of action in favor of defendants. I would remand this matter to the trial court for further proceedings, including a hearing on filiation.

      . In the same judgment, the trial court dismissed the State’s exception as to Verna Na-bonne, on behalf of her minor child, James Nabonne.