author: FOIL, J. KLINE, J. Pro Tern.,

text:
    Jeffrey W. MIRE, Shane M. O’Quin, and Barbara T. Estes, and a Class of Similarly Situated Individuals v. EATELCORP, INC., Primco Personal Communications, L.P. d/b/a Verizon Wireless and Spring PCS, Inc.
    No. 2002 CA 1705, 2002 CW 0737.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Leonard Cardenas, III, Randall L. Estes, Baton Rouge, for Appellees Plaintiffs Jeffrey W. Mire, et al.
    Gordon D. Polozola, G. William Jarman, Glenn N. Farnet, Jeffrey N. Boudreaux, Baton Rouge, for Appellant Defendant Ea-telCorp., Inc.
    Thomas A. Roberts, New Orleans, for Appellee Defendant Verizon Wireless.
    Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.
   FOIL, J.

This is an appeal by defendant, Eatel-Corp., Inc., challenging the decision of the trial court to certify a class action. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Jeffery W. Mire, Barbara T. Estes and a class of similarly situated individuals, filed this class action against defendant, EatelCorp., Inc., on behalf of all consumers who purchased a PCS telephone from Eatel. They alleged that Ea-tel did not adequately inform customers that their Eatel PCS phones could only be used on an Eatel PCS network, and if they canceled their Eatel PCS service, their phones could not be reprogrammed to work on another provider’s network unless they paid a fee for a reprogramming code, or subsidy lock. Plaintiffs asserted several theories of liability, including fraud, breach of contract, and negligent misrepresentation, but abandoned those theories and argued their ease under the theory of redhibition. Eatel opposed plaintiffs’ motion to certify a class, contending that this fraud/misrepresentation case will require plaintiff-by-plaintiff adjudication of liability and defense issues. Following a certification hearing, the trial court granted plaintiffs’ motion and certified a class.

Eatel filed a motion for suspensive appeal regarding the class certification and also, out of an abundance of caution, a notice of intent to apply for supervisory writs. The trial court assigned a date for Eatel to seek writs and denied the suspen-sive appeal.

Eatel then filed two writ applications with this court: 2002 CW 0719, which challenges the trial court’s denial of its motion for suspensive appeal and 2002 CW 0787, which challenges the trial court’s certification of the class action. This court granted the writ in 2002 CW 0719, vacating the trial court’s order denying Eatel’s motion for suspensive appeal and remanding for entry of an order of appeal. Plaintiffs’ application for writs from the |3supreme court was denied. Accordingly, Eatel’s appeal was then lodged with this court. Writ number 2002 CW 0737 was referred to this panel to be handled in conjunction with this appeal.

STANDARD OF REVIEW

The trial court’s decision to certify a class action is a two-step process. Therefore, appellate review of such decisions must also follow a two-step analysis. The trial court must first determine whether a factual basis exists for certifying the matter as a class action. These factual findings are subject to review by the appellate court pursuant to the manifest error standard. Singleton v. Northfield Insurance Company, 01-0447 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 60-61, unit denied, 02-1660 (La.9/30/02), 825 So.2d 1200.

If the trial court finds that a factual basis exists for certifying the action as a class action, it then exercises its discretion in deciding whether to certify the class. This aspect of the judgment is subject to review pursuant to the abuse of discretion standard. Id. at 61. In reviewing such decisions, wide latitude must be given to the trial court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class action. Unless the trial court committed manifest error in its factual findings or abused its discretion in deciding that class certification is appropriate, we must affirm the trial court’s determination. Id.

DISCUSSION

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. Ford v. Murphy Oil U.S.A, Inc., 96-2913, 2917, 2929, p. 4 (La.9/9/97), 703 So.2d 542, 544.

14Article 591 of the Louisiana Code of Civil Procedure sets forth the prerequisites for maintaining a class action and establishes that the use of the class action device is appropriate when:

1) The class is so numerous that joinder of all members is impracticable.
2) There are questions of law or fact common to the class.
3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
4) The representative parties will fairly and adequately protect the interests of the class.
5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

All of the above elements must be present for an action to be properly certified as a class action. La.Code Civ. P. art. 591 B. The initial burden to establish these elements is on the party seeking to maintain the class action. Conclusory allegations of the pleadings alone are insufficient to establish the existence of a class. Singleton v. Northfield Insurance Company, 826 So.2d at 62. In determining whether these elements have been established, the court may consider the pleadings, affidavits, depositions, briefs, exhibits, and testimony presented at a certification hearing. Id.

If these prerequisites are met, the trial court must make an additional inquiry before the action may be properly certified as a class action. Paragraph B of article 591 authorizes four possible types of class actions, each with its own separate requirements. The plaintiffs in this matter sought certification pursuant to paragraph B(3). Under this option, the class action may be maintained only if the trial court additionally finds that the questions of law or fact common to all members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Id.

IsClass certification is purely procedural. Therefore, the issue at a class certification hearing is whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful in urging the merits of their claims. The court is not authorized by statute or by history of the class action procedure to assess the likelihood of success on the merits before approving a class action. The determination of whether there is a proper class does not depend upon the existence of a cause of action. Id.

PREDOMINANCE OF COMMON ISSUES

Eatel urges three assignments of error for our review. First, Eatel argues that the trial court erred in certifying a class action because the “predominance” requirement of La.Code Civ. P. art. 591(B)(8) cannot be satisfied where issues of individual knowledge, reliance, and the applicability of individual defenses, such as prescription and comparative fault, predominate over whatever common issues may exist. Eatel urges that a redhibition claim involves subjective issues of individual knowledge and reliance.

Article 591 A(2) requires that there be questions of law or fact common to the class. Paragraph B(3) of that article requires that these common questions predominate over any questions affecting only individual members. This requirement restricts class actions to those cases in which it would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results. Id. at 67-68.

Here, the plaintiffs argue that the predominant common factual and legal issue is Eatel’s failure to adequately disclose to its customers that the telephones they purchased contain a subsidy lock that renders them useless and inoperable with any other service provider upon termination of their services with Eatel. According to plaintiffs, the inquiry under a redhibition claim does not involve the buyer’s subjective knowledge or reliance, but | ¿rather is an objective inquiry into the deficiency and whether it diminishes the product’s value or renders it so inconvenient that the reasonable buyer would not have purchased it had he known of the deficiency. We agree. Whether Eatel is liable in redhibition is the central issue and this issue is obviously common to all claimants. Under the facts of this case, we find no error in the trial court’s finding that questions of law or fact common to the members of the entire class predominate over those affecting only individual members.

SUPERIORITY

In its second assigned error, Eatel contends that the trial court erred in certifying a class action because the “superiority” requirement of La.Code Civ. P. art. 591(B)(3) cannot be satisfied where a class action is clearly inferior to the traditional remedies crafted specifically for consumers, such as unfair trade practice claims, ordinary actions in courts of limited jurisdiction, and/or consumer complaints to the Louisiana Public Service Commission. Eatel maintains that the plaintiffs’ case, if they have one at all, is an unfair trade practices case.

When a common character of rights exists, a class action is superior to other available adjudicatory methods for the purpose of promoting the basic aims and goals of a procedural device: (1) implementing the substantive law at issue in the case; (2) providing judicial efficiency in carrying out the substantive law; and (3) insuring individual fairness to all parties involved. If the superiority of a class action is disputed, the trial court must inquire into the aspects of the case and decide whether some other procedural device would better serve these intertwined goals. Id. at 68.

In order to more effectively evaluate the superiority of the class action in light of the above goals, courts should consider the following non-exclusive factors:

(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
|7(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
(e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation[.]

La.Code Civ. P. art. 591 B(3).

The plaintiffs argue that a class action is the far superior form of litigation to resolve the issue of Eatel’s liability to its numerous customers. Here, a class action will provide a meaningful opportunity for persons with low value claims to pursue a remedy, as they are able to seek and recover attorney’s fees. Each member of the class seeks the same legal remedy— the value of each telephone purchased. The plaintiffs argue that individual claims of such nominal value are cost-prohibitive, inefficient and unlikely. Further, they assert, a class action is the superior method for achieving the goals of fairness and judicial efficiency. The trial court would be greatly burdened by separate suits or by the joinder or intervention of interested parties in separately brought actions. Finally, by certifying the class, the trial court may employ the provisions of La. Code Civ. P. arts. 592 and 594, which are procedural devices that help with the manageability of the lawsuit.

We agree with the plaintiffs assertions on this issue and conclude the trial court did not err in finding a class action is the superior method for adjudicating these claims.

REQUIREMENTS OF LA C.C.P. ART. 591(A)

In its final assignment of error, Eatel contends that the trial court erred in tacitly finding that the La. C.C.P. art. 591(A) requirements of Inadequate class definition, numerosity, typicality, and adequacy of representation have been met. We find no merit to this contention.

In this case, the class has been adequately defined as “all customers of the defendant who purchased telephone handsets from the defendant.” This definition is neither vague nor indeterminate. Rather, the definition is “precise enough to establish which claims and which claimants will be subject to the final judgment of the court for the application of res judicata.” Singleton v. Northfield Insurance Company, 826 So.2d at 66.

Further, we find no error in the trial court’s conclusion that numerosity is satisfied. The class action was devised to solve problems associated with adjudicating lawsuits in cases involving an unwieldy number of parties who should be joined. Id. at 63. Generally, a class action is appropriate whenever the interested parties appear to be so numerous that separate suits would unduly burden the courts, and a class action would “clearly be more useful and judicially expedient than the other available procedures.” Id. This is clearly the case here. The record indicates that there are roughly 18,000 known claimants. Joinder of that many plaintiffs would be impractical and the courts would be unduly burdened by separate suits or by their joinder. We agree with the trial court that the element of numerosity has been adequately established.

We likewise find that the typicality requirement has also been met. In order for a class action to be maintained, the claims of the class representatives must be typical of the claims of the absent class members. La.Code Civ. P. art. 591 A(3). Simply stated, this element requires that the claims of the class representatives must be a cross-section of, or typical of, the claims of all class members. Singleton v. Northfield Insurance Company, 826 So.2d at 63. Typicality is satisfied if the claims of the class representatives arise out of the same event, practice, or course of conduct that gives rise to the claims of the other class members and those claims are based on the same legal theory. Id. Here, the claim of every class member | alies in redhibition; the legal theory is the same and each claim arises out of the same course of conduct — Eatel’s sales of its telephones with inadequate disclosure of the subsidy locks. We find no error in the trial court’s finding that the element of typicality has been established.

Finally, the parties seeking to maintain a class action must also demonstrate that the representative parties will fairly and adequately protect the interests of the class. La.Code Civ. P. art. 591 A(4). The test for determining adequate representation consists of three elements: (1) the chosen class representatives cannot have antagonistic or conflicting claims with other members of the class; (2) the named representatives must have a sufficient interest in the outcome to ensure vigorous advocacy; and (3) counsel for the named plaintiffs must be competent, experienced, qualified, and generally able to conduct the proposed litigation vigorously. Singleton v. Northfield Insurance Company, 826 So.2d at 64. The record shows that Mr. Mire and Mrs. Estes have a sufficient interest in the outcome of the litigation and the ability to pursue the interests of all putative members. Moreover, the trial court specifically found that counsel for the named plaintiffs is capable of handling the matter. We see no error in the apparent finding of the trial court that the adequacy of representation requirement has also been met.

CONCLUSION

In this case, the parties had the opportunity to present evidence at a class certification hearing. The trial court heard the testimony presented and was consequently in the best position to evaluate the factual circumstances of this case in light of the three fundamental goals of a class action procedure. The court found that a class action is the superior method by which to proceed in this matter. We find no manifest error in these findings, nor do we find the decision to certify the class to be an abuse of discretion.

| TftAccordingly, for these reasons, we affirm the trial court judgment that grants the plaintiffs’ motion for class certification. Writ number 2002 CW 0737 is hereby denied. All costs of this appeal are assessed to the defendant-appellant, Eatel-Corp., Inc.

AFFIRMED; WRIT DENIED.

KLINE, J., concurs with reasons.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

KLINE, J. Pro Tern.,

Concurs.

I will respectfully concur and note concern that the trial court did not articulate a definition of the class.


source: Caselaw Access Project

author: WHIPPLE, J.

license: Public Domain

text:
    B & C ELECTRIC, INC. v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2002 CA 1578.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      E. Wade Shows, Carlos A. Romanach, Baton Rouge, for Plaintiff/Appellant, B & C Electric, Inc.
    Tina Dennis Darensbourg, Kenneth F. Sills, Baton Rouge, for Defendant/Appel-lee, East Baton Rouge Parish School Board.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   WHIPPLE, J.

This is an appeal by plaintiff, B & C Electric, Inc. (“B & C”), from a judgment of the trial court maintaining peremptory exceptions raising the objection of no cause of action filed by defendant, the East Baton Rouge Parish School Board (“the School Board”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 31, 2001, B & C filed a petition requesting that preliminary and permanent injunctions issue, and that a declaratory judgment be rendered in its favor and against the School Board. Specifically, B & C requested that the court nullify the School Board’s award of Bid # 49-01 to Charlie’s Generator and Starter Repair Service (“Charlie’s”) and instead order the School Board to award the bid to B & C.

According to B & C’s petition, on March 12, 2001, the School Board solicited quotes for alternator and starter repairs to be performed from March of 2001 through June 30, 2001. On March 15, 2001, A. Michael Babin, owner of B & C, allegedly notified D. Anthony Rubin, supervisor of purchasing for the School Board, that the specifications were unclear. Rubin allegedly then advised Babin to return the bid and he would send out revised specifications. That same day, Babin returned the bid.

B & C further alleged that on March 16, 2001, Babin was contacted by an employee of the School Board requesting assistance from him in revising the bid specifications and informing Babin that the School Board would send him a new request for bid. The School Board did not revise the previously issued March 12, 2001 request for bids, and on April 17, 2001 Babin received a letter from Rubin notifying Babin that Alternator and Starter Proposal #9872 had been awarded to Charlie’s.

|3The petition further alleged that on June 12,14, and 19, 2001, the School Board issued another request for proposals for alternator and starter repairs to be performed from July 1, 2001 through June 30, 2002 with an option to renew the contract for one additional year, identified as Bid # 49-01. The bid proposal form prepared in connection with this bid required the bidder to indicate whether it was a corporation, partnership, or individual and also contained a preferential clause for Louisiana-bidders provision, pursuant to LSA-R.S. 38:2251(A) and (H). B & C was one of three alleged bidders and specifically claimed a Louisiana preference pursuant to LSA-R.S. 38:2251. B & C alleged in its petition that the bid submitted by Charlie’s was not in compliance with Section 1.6 of the Request for Proposals because: (1) Charlie’s bid failed to fill out the Bidder Qualification portion of the bid proposal form; (2) Charlie’s bid was scratched through with one unit price altered by a hand-written notation to lower the price accompanied by the initials, “DAR,” without which, B & C would have been the lowest bidder; and (3) Charlie’s bid did not claim a Louisiana preference.

According to the petition, in June of 2001, Babin and Rubin again exchanged correspondence, allegedly confirming that the bid would be awarded to one supplier based on the lowest total bid for alternators and starters combined. On July 3, 2001, B & C received notice that the proposal ultimately had been awarded to Charlie’s. According to B & C, the award of bid to Charlie’s violated the provisions of LSA-R.S. 38:2251, the Louisiana preference statute, which required the School Board to award Bid #49-01 to B & C.

On September 28, 2001, the School Board filed an exception of no cause of action. By judgment dated December 14, 2001 the trial court granted the exception, but gave B & C thirty days to amend its petition. B & C amended its original and supplemental petition by filing a “Second Supplemental and Amending Petition” on January 11, 2002, alleging its entitlement to recovery under 14the theory of detrimental reliance. The School Board then filed a second exception of no cause of action. The trial court maintained the second exception of no cause of action by judgment dated May 14, 2002, stating in its written reasons that the petition failed to state a cause of action under the Louisiana public bid laws because an invitation for bids for repair services is not governed by the public bid law. The court reasoned that the petition further failed to state a cause of action based on the theory of detrimental reliance, as B & C made no claim in its petition that the School Board made a promise that B & C would receive the service contract.

B & C appeals, contending the trial court erred in maintaining the School Board’s peremptory exceptions pleading the objection of no cause of action.

DISCUSSION

The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the operative facts alleged in the pleading. Jackson v. State of Louisiana, Through the Department of Corrections, 2000-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C. art. 931. Therefore, the court reviews the petition and accepts well-pleaded allegations of fact as true, and the issue at trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Jackson, 2000-2882 at pp. 3-4, 785 So.2d at 806. Furthermore, the facts shown in any annexed documents must also be accepted as true. Cardinale v. Stanga, 2001-1443, p. 3 (La.App. 1st Cir.9/27/02), 835 So.2d 576, 578.

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 |Kthe petition. City of New Orleans v. Board of Commissioners of the Orleans Levee District, 93-0690, p. 29 (La.7/5/94), 640 So.2d 237, 253. The burden of demonstrating that no cause of action has been stated is upon the exceptor. Cardinale v. Stanga, 2001-1443 at pp. 3-4, 835 So.2d at 578. Any doubts are resolved in favor of the legal sufficiency of the petition. Lambert v. Riverboat Gaming Enforcement Division, 96-1856, p. 4 (La.App. 1st Cir.12/29/97), 706 So.2d 172, 175, writ denied, 98-0297 (La.3/20/98), 715 So.2d 1221.

ASSIGNMENT OF ERROR NO. 1

In its first assignment, B & C contends that the trial court erred in finding that its original petition and supplemental and amending petition failed to state a cause of action and erred in maintaining the School Board’s peremptory exception pleading the objection. B & C argues that its petitions properly alleged that the School Board violated certain provisions of Louisiana’s public bid law, LSA-R.S. 38:2211, et seq., by awarding the bid proposal to a competing bidder, Charlie’s; and, further, that unlike B & C’s bid, Charlie’s bid did not claim a “Louisiana Preference” pursuant to LSA-R.S. 38:2251. Thus, B & C argues, it was thereby entitled to the preferences set forth under the statute.

The record contains no annexed documents to the original petition and supplemental amending petition. Thus, our review is confined to the well-pleaded allegations of fact in the petition before us, which we must accept as true for purposes of review. Paragraph 2 of the original petition filed by B & C classified the bid as one for “alternator and starter repairs to be performed from March of 2001 through June 30, 2001.” In paragraph No. 7 of the petition, B & C again states that the School Board issued a request for proposals “for alternators and starter repairs to Rbe performed from July 1, 2001, through June 30, 2002.” Although B & C’s original petition references two attachments, labeled “D” and “H,” that are alleged to be incorporated in the petition, we note that no attachments accompany the original or first supplemental and amending petition in the record before us. Thus, our review is confined to the allegations of the petitions in determining whether B & C’s allegations set forth a cause of action under applicable Louisiana bid laws.

In Wallace Stevens, Inc. v. Lafourche Parish Hospital District No. 3, 323 So.2d 794 (La.1975), a case that arose from a parish contract for telecommunications services, the Supreme Court held that the public bid law was intended to apply to “public works” and not to public service contracts. (For discussion see Wallace, 323 So.2d at 795-797). A “public work” is defined in LSA-R.S. 38:2211(A)(11) as the “erection, construction, alteration, improvement, or repair of any public facility or immovable property owned, used, or leased by a public entity.”

Thereafter, numerous courts have followed the principles set forth by the Supreme Court in Wallace in concluding that particular service contracts were not considered to be “public works” and were not subject to the public bid laws. See Browning-Ferris, Inc. v. City of Monroe, 465 So.2d 882 (La.App. 2nd Cir.), writ denied, 467 So.2d 538 (La.1985), where a city contracted for waste disposal services; see Tiger Air & Heat, L.L.C. v. Jefferson Parish School Board, 2002-610, p. 6 (La.App. 5th Cir.10/16/02), 832 So.2d 324, writ denied, 2002-2762 (La.3/14/03), 839 So.2d 35, where a’parish school board contracted for maintenance, service and repair of the heating, ventilation, and air conditioning systems of schools; see Lafourche Parish Water District No. 1 v. Carl Heck Engineers, Inc., 346 So.2d 769 (La.App. 1st Cir.), writ refused, 349 So.2d 873 (La.1977), where parish contracted for engineering services; and see also, American Waste and Pollution Control Company v. Madison Parish Police Jury, 488 So.2d 940, 941 (La.1986), where the parish contracted for a “sole and exclusive franchise, license and privilege to provide solid waste collection, removal and disposal services.”

Nonetheless, B & C’s petition asserts it is entitled to recovery under the Louisiana preference statute and the public bid laws of Louisiana for alleged errors in the award of bids for “repair services of alternators and starters.” As the trial court correctly concluded, a contract for repair services does not fall within the purview of the Louisiana public bid laws; thus we agree that the petitions fail to state a cause of action for recovery on this basis. Accordingly, the trial court correctly maintained the school board’s first peremptory exception pleading the objection of no cause of action.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

B & C next contends that the trial court erred in maintaining the School Board’s peremptory exception pleading the objection of no cause of action filed in response to B & C’s second supplemental and amending petition. In doing so, the trial court found that the petition failed to state a cause of action under the Louisiana public bid laws because an invitation for bids for repair services is not governed by the public bid law. The court further held that the petition fails to state a cause of action based on any theory of detrimental reliance, as B & C made no claim in its petition that the School Board promised that B & C would receive the service contract.

B & C’s second supplemental and amending petition states “that B & C relied, to its detriment, upon the School Board to extend to B & C the preference pursuant to La. R.S. 38:2252, which the School Board had extended to it in the Ispast.” According to the petition, the School Board refused to extend the preference; thus, B & C alleged it has suffered damages. In support, B & C attached as exhibits the School Board’s “Tabulation of Bids” for Bid Nos. 20-99, 19-00, and 19-01, which were bids previously awarded to B & C; the “Bid Proposal Form” and “Specifications and Bid Form” completed by B & C, for Bid No. 49-01; the “Invitation for Bid” issued by the School Board for Bid No. 49-01, and the “Bid Proposal Form” and “Specifications and Bid Form” completed by Charlie’s.

Notably, both the “Invitation for Bid” for Bid No. 49-01 and “Specifications and Bid Form” for Bid No. 49-01 attached as exhibits to B & C’s second supplemental and amending petition are entitled “Alternator and Starter Repairs.” Additionally, the “Specifications and Bid Form” provides that all alternators and starters “will be picked up for repairs, and delivered back to the mechanic shop within 8 hours to minimize vehicle down time.” The bid specifications further require the units to be disassembled and cleaned, with all parts to be inspected and replaced as needed.

In its brief, B & C argues that the rebuilt alternators and starters subject to the requests for proposals herein are products “assembled” in Louisiana, thereby entitling B & C to a preference pursuant to LSA-R.S. 38:2251. Section A(l) of the statute defines “assembled” as “the process of putting together all component parts of an item of equipment by the manufacturer when the assembly plant is located within the territorial borders of the state of Louisiana.” Notably absent, however, | ais any allegation by B & C that it is the “manufacturer” of the parts to be utilized herein.

Thus, accepting B & C’s allegations as pled in the petition as true, B & C’s second supplemental and amending petition fails to allege any facts which, if taken as true, show the invitation for bids herein was for any contract other than a contract for services or repairs, as would entitle B & G to recovery under the provisions of the public bid laws. Instead, in its second supplemental and amending petition filed, after the trial court maintained the School Board’s initial exception, B & C merely asserts additional details upon which the bids were handled and alleges that it detrimentally relied on “the preference under La. R.S. 38:2252 which the School Board has extended to it in the past.”

Based upon our review of the original petition and the second supplemental and amending petition and its attachments, we find no error in the trial court’s conclusion that B & C’s filings fail to state a cause of action for which recovery may be had under the Louisiana public bid laws. As the trial court correctly observed:

The contract at issue is one for the services of repairing motor vehicles parts owned by the School Board, thus there is no public works contract at issue.
Further, the ... petition fails to state a cause of action based on Louisiana Preference, as provided by Louisiana Revised Statute 38:2251, because B & C has not alleged in [its] pleadings that it was the manufacturer of the parts to be used in servicing the School Board’s starters and alternators. In the case of automotive parts, if a Louisiana company or corporation manufactures its parts, clearly the company would qualify for Louisiana Preference. Thus, because B & C was not a manufacturer of the parts B & C was not eligible for Louisiana Preference.
Lastly, the court agrees and finds that the petition fails to state a cause of action based on the theory of detrimental reliance as B & C made no claim in its petition that the School Board made a promise that B & C would receive the service contract. Thus, there existed no promise on which to induce B & C to rely to its detriment. At no time did the School Board promise B & C the benefit of the Louisiana Preference, even if B & C claimed the preference on the bid form_ |10[Because] the items for which preference is claimed does not qualify as a product manufactured, processed, produced or assembled in Louisiana, the bidder does not receive the benefit of the Louisiana Preference.

Thus, we pretermit discussion of B & C’s claim that the School Board improperly issued or awarded the bid to another bidder.

We find no merit to this assignment.

CONCLUSION

For the above and foregoing reasons, we affirm the rulings of the trial court, maintaining the School Board’s peremptory exceptions pleading the objection of no cause of action and dismissing the case, with prejudice. Costs of this appeal are assessed against the plaintiff, B & C Electric, Inc.

AFFIRMED.

      . Louisiana Revised Statutes 38:2251 provides a preference for Louisiana products over out-of-state products when there is a difference in the bid amount of less than seven percent. Ferrara Fire Apparatus, Inc. v. City of Morgan City, 600 So.2d 1387, 1388 (La.App. 1st Cir.), writ denied, 605 So.2d 1116 (La.1992).

      . Louisiana Revised Statute 38:2252 provides:
      All requests for bids and proposals for any purchase shall contain the words: "Preference is hereby given to materials, supplies and provisions, produced, manufactured or grown in Louisiana, quality being equal to articles offered by competitors outside of the state.”


author: MCDONALD, J.

text:
    James W. BOWMAN, Sr., and Dorothy Bowman, Individually and on Behalf of Their Deceased Son, Shane Lee Bowman v. The CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE, the Department of Emergency Medical Services of the City of Baton Rouge/Parish of East Baton Rouge and “ABC” Insurance Company.
    No. 2002 CA 1376.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Frederick A. Stolzle, Jr., Baton Rouge, Counsel for Plaintiffs/Appellants James W. Bowman, Sr., et al.
    Henry D.H. Olinde, Jr., and James E. Moore, Jr., Baton Rouge, Counsel for Defendant/Appellee City of Baton Rouge/Parish of East Baton Rouge, Through the Department of Emergency Medical Services.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

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

   MCDONALD, J.

This is an appeal by plaintiffs from a summary judgment rendered in favor of the City of Baton Rouge/Parish of East Baton Rouge, through the Department of Emergency Medical Services (hereinafter EMS). For the following reasons, we affirm the summary judgment.

FACTS AND PROCEDURAL HISTORY

On May 80, 2001, at 12:21 a.m., Debbie Matheme, an EMS Communications Officer/Dispatcher, received a 911 call from an adult male. A transcribed audiotape of the call shows that the caller indicated:

Caller: Uh, I have a friend of mine that’s sick and he’s telling me to help him and he, he says he can’t hear and he just told me heart attack.

Ms. Matherne immediately obtained the relevant address and determined that the caller’s friend, Shane Lee Bowman, was twenty-seven years old. When she attempted to get more specific directions to the caller’s location, he interrupted and the following exchange took place:

Caller: Yeah, well, uh, hold on just a second ma'am, I don’t even think this going to be an emergency. He’s passed out now. He’s ...
911: Is he drunk, or?
Caller: No. Not that I know of.
911: Okay. He’s passed out now?
Caller: Well, I just walked in the door and I heard something. I came into his room and he looked at me and he’s just started moaning and then he said “help me” and I was like ‘What do you want,” he was like “I can’t hear you.”
911: Okay. Is he able to respond to you right now?
Caller: He’s asleep now.
911: Can you try to wake him. See if he’s okay.
Caller: Hold on. Shane? Okay, never mind. He said don’t worry about it. I’m sorry.
911: Okay. That’s alright sir, thank you.
Caller: Thank you.
I «911: Bye bye.

Ms. Matherne had readied a unit to respond when the call was initiated. However, based on the assurance that there was no emergency, she cancelled the unit.

Later that same day, at 12:35 p.m., Darren Hymel called 911 from the same location. He reported that he believed his roommate, Shane Lee Bowman, was dead. He also reported having heard him moving around at about 1:00 a.m. that morning, return to bed, and snore. Bowman had, in fact, passed away. The coroner’s death certificate placed the time of death at approximately 3:00 a.m. on May 30, 2001, and listed the cause as pulmonary and cerebral edema.

The parents of Shane Lee Bowman filed suit against EMS and their unidentified insurer, seeking wrongful death and survival damages for the death of their son. They alleged that Shane Lee Bowman’s death was caused by the negligent failure of EMS to provide timely emergency services in response to a call for assistance.

EMS filed a motion for summary judgment, averring that, based on the information communicated to the EMS dispatcher, no duty arose to send an emergency vehicle to the decedent’s address. The trial judge granted the motion and dismissed plaintiffs’ claims with prejudice. In his oral reasons for judgment, the trial judge observed:

I did let you play the tape in court this morning to see if there was something on the tape that might convince me to change my mind, and I haven’t heard anything.
I believe the dispatcher was talking to and [sic] adult when she received the call. It would have been something different if she was talking to a child and maybe she could have said, well, this child might not be able to know what the condition of the person is, but she was talking to an adult. I gather that she was talking to the man’s roommate. She heard the man talk and the last thing she heard was, he’s okay, never mind. So what you are suggesting is that when the dispatcher hears that, the dispatcher is still supposed to |4send an ambulance or the police or something else when they have been assured that the reason for the call has been alleviated. The information that this lady received was, “He’s all right; that’s okay.”
I’m going to grant the motion for summary judgment. Under the circumstances that’s the way I see it.

A written judgment dismissing plaintiffs’ claims against EMS with prejudice and at plaintiffs’ cost was rendered. The plaintiffs appeal the adverse decision of the trial judge, assigning two errors for our review, which we paraphrase as follows:

1. The trial court improperly granted summary judgment because the issue of fault on the part of the EMS dispatcher was a question of negligence not appropriate for resolution by summary judgment.
2. The trial court erred in rendering judgment on the motion for summary judgment when plaintiff had an outstanding motion to compel with respect to an unanswered discovery request.

STANDARD OF REVIEW

In determining whether summary judgment is appropriate, appellate courts conduct a de novo review of the evidence, employing the same criteria that govern the district court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

A motion for summary judgment is a procedural device used to avoid a full-scale trial where there is no genuine factual dispute. Zeringue v. Karl Ott Poles & Pilings, 00-0522 (La.App. 1st Cir.5/11/01), 808 So.2d 628, 630. Summary judgments are favored. La. C.C.P. art. 966 A(2). The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing 15out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the nonmoving party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Clark v. Favalora, 98-1802 (La.App. 1st Cir.9/24/99), 745 So.2d 666, 673; Dreisel v. Metropolitan Property and Cas. Ins. Co., 01-2705 (La.App. 1st Cir.12/20/02), 836 So.2d 347, 349, writ denied, 03-0199 (La.3/28/03), 840 So.2d 575.

EMS would not bear the burden of proof at trial; therefore, its burden on the motion for summary judgment did not require that it negate all essential elements of plaintiffs’ claim. Rather, its burden on the motion for summary judgment is to point out to the court that there is an absence of support for one or more elements essential to plaintiffs’ claims. La. C.C.P. art. 966 C(2); Babin v. Winn-Dixie Louisiana, Inc., 00-0078 (La.6/30/00), 764 So.2d 37, 39.

APPLICABLE LAW

Plaintiffs’ claims in this case are based upon the alleged negligence of the EMS dispatcher, Ms. Matherne. Negligence claims under La. C.C. art. 2315 are examined using a duty/risk analysis. The duty/risk analysis is a set of five separate elements that takes into account the conduct of each party and the peculiar circumstances of each case. The plaintiffs bear the burden of proving each of the following elements: (1) the defendant’s conduct was a cause-in-fact of the plaintiffs’ injuries, (2) the defendants had a duty to conform their conduct to a specific standard, (3) the defendants breached that duty to conform their conduct to a specific standard, (4) the defendant’s conduct was the legal cause of the plaintiffs’ injuries, and (5) actual damages. A negative answer to any of the elements of the duty/risk analysis prompts a no-liability determination. Joseph v. Dickerson, 99-1046, 99-1188 (La.1/19/00), 754 So.2d 912, 916.

Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person lfiin like circumstances. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties. Joseph, 754 So.2d at 916. Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support his claim. Paul v. Louisiana State Employees’ Group Benefit Program, 99-0897 (La.App. 1st Cir.5/12/00), 762 So.2d 136, 143.

The determination of legal cause involves a purely legal question. The legal cause or scope-of-duty inquiry ultimately turns on a question of policy as to whether the particular risk falls within the scope of the duty. See Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991); Paul, 762 So.2d at 143. A risk of a particular injury may be found not within the scope of a duty where the circumstances of that injury to that plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between the risk of that injury and the legal duty. Paul, 762 So.2d at 143. Although the determination of whether to assign a legal duty is fact specific, the issue of whether there is a duty is ultimately a question of law. Myers v. Dronet, 01-5 (La.App. 3rd Cir.6/22/01), 801 So.2d 1097, 1109.

ASSIGNMENT OF ERROR NO. 1

Plaintiffs contend the trial judge erred in granting summary judgment because the issue before the court was one of negligence that was not appropriate for resolution by summary judgment. We disagree and note that the cases cited by the plaintiff in support of that contention were decided prior to the 1996 amendment to La. C.C.P. art. 966.

EMS filed a motion for summary judgment calling into question whether, under the undisputed facts and circumstances of this case, any duty was owed to send an emergency vehicle to attend to Shane Lee Bowman in response to the call made by his roommate at 12:21 a.m. on May 30, 2001. As previously noted, the existence of a legal duty is a legal question. Bradford v. Raster, 98-0758, 98 — 1051 (La.App. 1st Cir.5/14/99), 732 So.2d 827, 830, writ denied, 99-1612 (La.9/17/99), 747 So.2d 567. Summary judgment is appropriate where no legal duty exists. Bradford, 732 So.2d at 830. Summary judgment is appropriate when all relevant facts are brought before the court, the relevant facts are undisputed, and the sole issue remaining is the conclusion to be drawn from the relevant facts. Terrebonne v. Floyd, 99-1036 (La.App. 1st Cir.5/23/00), 767 So.2d 754, 757.

Although plaintiffs make an effort in their appellate brief to suggest that outstanding disputed issues of fact preclude summary judgment, there is no dispute as to the content of the 911 call to Ms. Math-erne. Both parties have submitted the same transcript of the call for consideration, and there is no disagreement as to the accuracy of the transcript. The only basis for the alleged liability of EMS is the allegation that it breached a duty owed to Shane Lee Bowman by virtue of Ms. Matherne’s conduct in connection with that call. That being the case, it is appropriate to determine, in the context of a motion for summary judgment, the threshold question of whether any duty was owed by EMS based on the 911 call at issue and, if so, the scope of that duty.

In support of its motion for summary judgment, EMS submitted the affidavit of Ms. Matherne attesting that she received the call in question. Ms. Matherne indicated that before she could collect much information, the caller advised that there was no emergency after all. She instructed the caller to awaken his friend to see if he was all right. She heard him do so, and the caller related that his friend indicated that he was okay. EMS also submitted the affidavit of Ralph Ladnier, Communications District Manager for the EMS-EBR Communications District. Ladnier attested that a true and correct copy of the 911 call in question was kept in the ordinary course of business and that the “actions of the dispatcher were in accordance with proper dispatch policy and procedure.” A transcript of the 911 call made to Ms. Matherne was submitted in support of the motion.

In opposition to the motion for summary judgment, counsel for plaintiffs filed the same transcript of the 911 call submitted by EMS. In addition, he filed |sthe affidavit of Fred Hurtado, purported to be an expert in the field of emergency medical services and emergency medical dispatch systems. Hurtado opined that given the information conveyed, Ms. Matherne had a duty to ascertain the chief complaint and to verify the status of consciousness and breathing of Shane Lee Bowman. Hurta-do made the conclusory allegation that Ms. Matherne breached a national standard of care but did not mention a violation of a local standard of care. He referred to the EMS Communications Division Standard Operating Procedure Manual, which had been produced by EMS in response to discovery, but he did not opine that Ms. Matherne violated any of the guidelines outlined therein.

The plaintiffs argued in their opposition to the EMS motion that Ms. Matherne violated Sections 608.4 and 616.02 of the EMS Standard Operating Procedures by not doing a complete interrogation of the 911 caller to determine the breathing and consciousness status of Shane Lee Bowman. However, it is clear from an examination of the relevant excerpts that the procedures cited contemplate a situation where an emergency vehicle is being dispatched and the dispatcher is trying to obtain specific information to give to the emergency medical technicians being dispatched. The procedures cited do not suggest that a dispatcher must continue to gather this information in a situation where the 911 caller interrupts the process and advises that the call was a mistake and there is no emergency after all.

Plaintiffs additionally filed the affidavit of Dr. Jeff J. Clawson, who also purported to be an expert in Medical Dispatch Systems. He likewise opined that the dispatcher failed to follow the proper protocols and ask the appropriate questions. He did not address the standard of care owed by a dispatcher in this area. Finally, plaintiffs submitted an excerpt from the deposition of Connie Cashio, described by counsel as a supervisor of the Emergency Medical Services | ^Communications Center in Baton Rouge. In the excerpt submitted, Ms. Cashio indicated that if at any point in question a caller indicated that he did not need assistance after all, she would ask a follow-up question inquiring whether the caller was sure that an ambulance was not needed.

First, we note that we are not bound by the conclusory opinions of experts on the legal question of whether a duty existed under the facts and circumstances of this case. The plaintiffs do not direct our attention to any statutory law regulating the conduct of EMS dispatchers. Nor are we directed to any jurisprudence establishing the precise. duty owed by dispatchers. The standard operating procedures produced by EMS during discovery set forth a list- of things for a dispatcher to establish when dealing with a 911 call. The list includes determining the location and age of the person needing help and ascertaining the breathing and consciousness level of that person so that information can be communicated to technicians sent to the emergency location. Ms. Matherne commenced to obtain all of this information. However, the 911 caller interrupted the process by advising that no assistance was needed. It is true that Ms. Matherne did not ask specific questions concerning Bowman’s level of consciousness and breathing. However, since the caller reported that he spoke to Bowman and that Bowman told him he was all right, it was certainly clear that Shane Lee Bowman was conscious and breathing at that time.

The situation faced by the dispatcher in this case varied from the norm. The precise issue before us is whether, after beginning to gather information, Ms. Math-erne owed any further duty to establish Shane Lee Bowman’s breathing and consciousness level after the caller indicated that everything was all right and after Shane Lee Bowman himself indicated that he was okay and there was no emergency. In our view, when an adult caller who initially reports an emergency advises a dispatcher that everything is all right, when the person purportedly in |inneed of assistance personally indicates that he is okay, and when there is no reason to doubt that information, the dispatcher has no duty to continue to interrogate the caller or to send ah emergency vehicle to the location. Under the particular facts and circumstances of this case, we believe that EMS fulfilled its initial duty and that it had no further duty toward Shane Lee Bowman after he and the caller indicated that there was no emergency. The dispatcher acted reasonably under the circumstances presented.

There was nothing additional to be gained by a trial on the merits. All of the evidence necessary to a resolution of the question of duty was before the court. Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 2

The plaintiffs also contend that the granting of summary judgment in this case was inappropriate because there was outstanding discovery and an outstanding motion to compel further discovery. The plaintiffs filed a motion to continue the hearing date on the grounds that discovery was still ongoing, arguing that defendant’s motion was premature. EMS opposed the motion, pointing out that all the evidence relevant to its motion for summary judgment was before the court in the form of the transcript of the 911 call, the accuracy of which was not disputed. The motion for a continuance was denied on March 13, 2002. Plaintiffs did not apply to this court for supervisory relief.

Thereafter, on March 19, 2002, plaintiffs filed a motion to compel further discovery. The only item specifically identified as not having been produced was a certified copy of the policy insuring EMS. Plaintiffs did not detail in what way In the further discovery sought could impact a determination of whether EMS owed a duty to Shane Lee Bowman to provide emergency services under the particular facts and circumstances of this case.

We agree that a motion for summary judgment should be granted only after adequate discovery. See La. C.C.P. art. 966 C(l). However, the mere contention by an opponent to a motion for summary judgment that he does not have the information necessary to defend against the motion because of the movant’s failure to comply with discovery is insufficient to defeat the motion. Crocker v. Levy, 615 So.2d 918, 920 (La.App. 1st Cir.1998). If the EMS motion for summary judgment had not been based on a question of law, discovery might have been relevant to establish a material disputed fact. However, since the motion questioned whether any duty could be found in this case based on the information conveyed in the 911 call, we do not believe that any further discovery would have been of assistance in deciding the issue presented. The additional discovery sought by the plaintiffs would not have impacted our determination that no duty existed under the particular facts and circumstances of this case. This assignment of error has no merit.

CONCLUSION

For the reasons set forth above, we affirm the judgment of the trial court granting summary judgment in favor of EMS. Costs of this appeal are assessed against plaintiffs.

AFFIRMED.

      . Both parties filed the same transcript for the trial court’s consideration. In addition, the trial judge indicated in his oral reasons for judgment that he listened to the audiotape. No argument concerning the accuracy of the transcription is made.

      . An answer was filed by the City/Parish representing that the Department of Emergency Medical Services is not a separate juridical entity and, therefore, not a proper party defendant. An amended and supplemental answer was subsequently filed pleading immunity pursuant to La. R.S. 40:1233 and 37:1732.

      . The affidavit was attached to plaintiffs' supplemental memorandum in opposition to the EMS motion. We note that little information was submitted to establish the expertise of either of the plaintiffs' expert affiants. However, EMS neither moved to strike nor otherwise contested the credentials of the affiants.

      . The plaintiffs cite Ambrose v. New Orleans Police Department Ambulance Service, 627 So.2d 233 (La.App. 4th Cir. 1993), reversed, 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. However, that case does not address the standard of care or duties owed by a 911 dispatcher.

      . Plaintiffs' petition was filed in August 2001. Interrogatories and a request for production of documents were filed at the same time. The defendant's responses were forwarded to plaintiffs in November 2001. The EMS motion for summary judgment was filed January 28, 2002, and was set for hearing on March 25, 2002. On March 1, plaintiffs propounded additional interrogatories and discovery requests, which requests exceeded the number allowed by the local rules. On March 7, 2002, plaintiffs noticed the depositions of various records custodians for March 20, 2002. Also on March 7, 2002, plaintiffs moved for a continuance of the hearing on the motion for summary judgment. Attached to the motion for continuance were additional notices for the March 20, 2002 depositions of Ralph Lad-nier and Connie Cashio, the May 21, 2002 depositions of Darren Hymel and Grant Kay, and the May 22, 2002 depositions of Debra Matherne and others. The defendants took the position that the flurry of discovery activity in March 2002 was a transparent attempt to disguise the fact that there were no relevant issues of disputed fact concerning the issue raised by EMS.


author: McCLENDON, J.

text:
    Silverene PARKER v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY and The Baton Rouge Water Company.
    No. 2002 CA 1382.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      C. Michele McDaniel, Baton Rouge, Counsel for Plaintiff/Appellee Silverene Parker.
    Brent E. Kinchen, Kevin 0. Ainsworth, Baton Rouge, Counsel for DefendanVAp-pellant St. Paul Fire and Marine Ins. Co. Baton Rouge Water Company.
    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.

   McCLENDON, J.

On appeal in this slip and fall case involving a water meter, the defendants contest the trial court’s judgment, raising issues of liability and quantum. For the following reasons, we reverse.

Silverene Parker filed suit against the Baton Rouge Water Company and its insurer, St. Paul Fire and Marine Insurance Company, seeking to recover damages for personal injuries she allegedly sustained when she stepped on a water meter and fell. After a bench trial, the trial court rendered judgment in favor of the plaintiff for the sum of $22,000 in general damages and the sum of $2,429 in special damages. The court further found the plaintiff to be 20% at fault in causing her injuries. The defendants appeal.

In her petition, the plaintiff asserts solely that the defendants are liable in negligence. To prevail under a theory of negligence, the plaintiff must show that the Baton Rouge Water Company had actual or constructive notice of the dangerous condition. LSA-C.C. art. 2315.

Four witnesses testified at trial: the plaintiff; Barbara Jefferson, the plaintiffs sister; Sherry Nicholas, a meter reader employed by the Baton Rouge Water Company; and Ralph Herig, the vice president of Human Resources and Risk Management for the Baton Rouge Water Company. The trial court, in its reasons for judgment, made that factual determination that the testimony of both Ms. Parker and Ms. Nicholas accurately described the events surrounding this accident. Ms. Parker testified that, on July 5, 1997, as she walked through tall grass in her front yard, she stepped on the cover of a meter box, which was ajar, and fell injuring her knee and back. Ms. Nicholas testified that she read that meter thirteen days before the incident and, although she did not recall that particular meter, her practice is |3to read the meter, replace the lid, and then stand on the meter box to assure that the lid is properly seated. She testified that she found no problem or defect with this meter and that she properly seated the lid after she read the meter. Ms. Nicholas also read the meter on July 22, 1997, approximately two weeks after the plaintiffs accident. Again, she found no defect in the meter.

Mr. Herig testified that the meters are read monthly. He testified that this meter was turned on and the meter box was reset on January 15, 1997. The water company received no complaints about the meter until he was contacted by the plaintiffs attorney in October of 1997.

In the present case, there are no facts from which to infer that the Baton Rouge Water Company had actual or constructive knowledge of the dangerous condition of the meter. There is no evidence that the cover of the meter was ajar for an extended period of time, that it was frequently in a dangerous state, or that any employee of the Baton Rouge Water Company had knowledge of its dangerous condition prior to Ms. Parker’s fall. Further, as discussed previously, the meter was read approximately every thirty days. Considering the evidence in the record, we find manifest error in the trial court’s conclusion that the Baton Rouge Water Company had actual or constructive notice of the condition that caused the damage.

For the foregoing reasons, we reverse the judgment of the trial court. Judgment is rendered in favor of the defendants, dismissing the plaintiffs suit. Costs are assessed against Silverene Parker.

REVERSED AND RENDERED.


text:
    Blake BOURGEOIS, et al. v. Jeffrey F. WILEY, Sheriff of Ascension Parish.
    No. 2002 CA 1420.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      J. Courtney Wilson, New Orleans, for Plaintiffs/Appellants, Blake Bourgeois, et al.

      Fred Schroeder, New Orleans, for De-fendanVAppellee, Sheriff Jeffrey Wiley.
    Before: CARTER, C.J., WHIPPLE and CIACCIO, JJ.

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

   WHIPPLE, J.

Plaintiffs, who were inmates in the Ascension Parish Jail, appeal the judgment of the trial court, granting the motion for summary judgment in favor of defendant, Sheriff Jeffrey Wiley, and dismissing their claims for damages with prejudice. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

In 1997, plaintiffs, who were incarcerated at the Ascension Parish Jail in Donald-sonville, Louisiana, filed suit in federal court asserting a claim for- damages pursuant to 42 U.S.C. § 1988, the Fourteenth and Eighth Amendments to the U.S. Constitution and Louisiana state law. Named as defendants were the present and former sheriffs of Ascension Parish, the warden of Ascension Parish Jail and various correctional officers employed by the Ascension Parish Jail.

In their petition, plaintiffs averred that, at various times from June 1996 through March 1997, they had been confined to disciplinary cells at the Ascension Parish Jail and that, during those confinements, they were subjected to conditions so unsanitary at to constitute a violation of their constitutional rights. Specifically, they averred that these disciplinary cells had no running water or toilets. They further averred that in the middle of each cell was a hole in the floor covered with metal bars that was connected to the sewer system and that they were required to relieve themselves in this hole. According to the petition, the hole could not be flushed by the inmates of the cell, but, rather, had to be flushed by a correctional officer from outside of the cell. Plaintiffs further alleged that the hole overflowed on a ^regular basis when flushed, causing feces, urine and other waste to flood the floor of the cell.

In the petition, plaintiffs also averred that water was irregularly provided to them in a one-gallon plastic jug to be shared by the two inhabitants of the cell for drinking and washing their hands. However, according to plaintiffs, because the metal bars over the hole restricted the passage of feces, they were required to use their water to attempt to wash the feces through the metal grating. Additionally, plaintiffs complained that there were no windows in the cells, food was distributed through a slot in the cell doors and the lights often remained on through the day and night. Plaintiffs sought damages for physical pain and suffering, mental anguish and distress, and any necessary medical expenses.

On motion for summary judgment filed by defendants in the federal action, the federal court ruled that plaintiffs’ federal claims were barred by 42 U.S.C. § 1997e(e) of the federal Prison Litigation Reform Act (the federal PLRA), effective April 26, 1996, which provided that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” (Emphasis added). The federal court concluded that the physical injuries of which plaintiffs complained were de minimis physical injuries. Additionally, the federal court found that there was no evidence the plaintiffs had been “deprived of a single identifiable human need.” Accordingly, the federal court dismissed plaintiffs’ suit “without prejudice to any state law claim.”

Thereafter, plaintiffs instituted the present action in state court against Sheriff Jeffery Wiley only, asserting the same allegations as to the conditions while they were confined to the disciplinary cells, and seeking Rdamages pursuant to LSA-C.C. art. 2315 and the Louisiana State Constitution for physical pain and suffering, mental anguish and distress, and any necessary medical expenses.

Defendant responded by filing a motion for summary judgment, contending that plaintiffs failed to state a claim under state law, because LSA-R.S. 15:1184(E) of Louisiana’s Prison Litigation Reform Act (“the Louisiana PLRA”) also prohibits a prisoner from seeking damages for mental injury suffered while in custody without a prior showing of physical injury. Defendant argued that because plaintiffs had failed to allege any physical injuries, he was entitled to judgment as a matter of law, dismissing plaintiffs’ claims against him.

Plaintiffs opposed the motion, noting that the Louisiana PLRA, including the LSA-R.S. 15:1184(E) physical injury requirement, became effective July 9, 1997, after the alleged events giving rise to plaintiffs’ causes of action. Thus, plaintiffs argued that because their rights were vested before enactment of the Louisiana PLRA, LSA-R.S. 15:1184(E) could not be applied retroactively to divest them of a vested right. Defendant, on the other hand, argued that LSA-R.S. 15:1184(E) is procedural in nature and, accordingly, should be applied retroactively to the present case.

Following a hearing on the motion, the trial court, without giving reasons, granted defendant’s motion and dismissed plaintiffs’ claims with prejudice. From the judgment dismissing their claims, plaintiffs appeal, averring that the trial court erred in applying the physical injury requirement of LSA-R.S. 15:1184(E) retroactively to dismiss their claims.

I,¿DISCUSSION

A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B).

Pursuant to LSA-C.C.P. art. 966(C)(2), if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment -will be granted. LSA-C.C.P. arts. 966 & 967; Keller v. Case, 99-0424, p. 3 (La.App. 1st Cir.3/31/00), 757 So.2d 920, 922, writ denied, 2000-1874 (La.9/29/00), 770 So.2d 354.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Keller, 99-0424 at p. 4, 757 So.2d at 922.

In the instant case, the relevant facts are not in dispute. The Louisiana PLRA was enacted by Acts 1997, No. 731 § 1, and became effective July 9, 1997. As part of the Louisiana PLRA, LSA-R.S. 15:1184(E) was enacted to provide: “No civil action may be brought by a prisoner confined in any prison for mental or emotional injury suffered while in custody without a prior showing of physical injury.” This section was subsequently amended by Acts 1998.1st Ex.Sess., No. 110, § 1, effective May 5, 1998, to provide: |fi “No prisoner suit may assert a claim under state law for mental or emotional injury suffered while in custody without a prior showing of physical injury.”

Plaintiffs filed their petition for damages on November 12, 1999, after the effective date of the Louisiana PLRA and the amendment to LSA-R.S. 15:1184(E). However, the alleged actions giving rise to their claims occurred between June 1996 and March 1997, before the effective date of the Louisiana PLRA. Thus, the issue presented is whether the Louisiana PLRA applies where plaintiffs’ claims arose prior to its adoption, but the petition for damages for those claims was not filed until after the effective date.

When determining whether a statute should be applied retroactively, a court must defer to the legislature’s intent. LSA-C.C. art. 6; LSA-R.S. 1:2. In the absence of contrary legislative expression, substantive laws apply prospectively only, whereas procedural and interpretative laws apply both prospectively and retroactively. LSA-C.C. art. 6; LSA-R.S. 1:2; Bourgeois v. A.P. Green Industries, Inc., 2000-1528, p. 6 (La.4/3/01), 783 So.2d 1251, 1257.

A determination of retroactivity requires a two-fold inquiry: First, we must ascertain whether in the enactment, the legislature expressed its intent regarding retroactive or prospective application. If such intent is expressed, the inquiry ends unless the enactment impairs contractual obligations or vested rights. If no such intent is expressed, the enactment must be classified as substantive, procedural or interpretive. Sawicki v. K/S Stavanger Prince, 2001-0528, p. 8 (La.12/7/01), 802 So.2d 598, 603; Keith v. United States Fidelity & Guaranty Company, 96-2075, p. 6 (La.5/9/97), 694 So.2d 180, 183.

The first step, i.e., determining whether the legislature expressly provided for retroactive application, is resolved by examining the specific language contained in the Act. Bourgeois, 2000-1528 at p. 7, 783 So.2d at 1258. In reviewing Acts 1997, No. 731, § 1, and Acts 1998, 1st Ex.Sess., No. 110, § 1, the acts which enacted and subsequently amended LSA-R.S. 15:1184(E), we find no legislative expression regarding prospective or retroactive application of this particular statute. Contrary to defendant’s argument, there is no clear and unmistakable expression of legislative intent in the wording of the legislation regarding retrospective application. Compage Keith, 96-2075 at p. 6, 694 So.2d at 183. Therefore, we must determine whether the legislation is substantive (applying prospectively only) or whether it is procedural or interpretive (applying prospectively and retroactively). Sawicki, 2001-0528 at p. 8, 802 So.2d at 603.

After carefully reviewing the legislation at issue, we find that LSA-R.S. 15:1184(E) is substantive legislation. Substantive laws are laws that impose new duties, obligations or responsibilities upon parties, or laws that establish new rules, rights and duties or change existing ones. Sawicki, 2001-0528 at p. 8, 802 So.2d at 603. Louisiana law has long recognized a cause of action for mental anguish tort damages. LSA-C.C. art. 2315; Lejeune v. Rayne Branch Hospital, 556 So.2d 559, 563 (La.1990). Additionally, individuals have been allowed to recover mental anguish damages for violation of constitutional rights. See Belgarde v. City of Natchitoches, 156 So.2d 132, 134 (La.App. 3rd Cir.1963). Moreover, prior to the enactment of LSA-R.S. 15:1184(E), a prisoner was able to assert a claim for mental or emotional injury, even in the absence of physical injury. See Cotton v. City of Shreveport, 30,734 (La.App. 2nd Cir.6/24/98), 715 So.2d 651. The enactment of LSA-R.S. 15:1184(E), however, changed the existing right of an inmate to assert a cause of action for mental or emotional injury by extinguishing a prisoner’s cause of action for mental anguish in the absence of accompanying physical injury. Thus, this legislation clearly changed the existing rights of prisoners to assert a claim for mental or emotional injury, and it is, accordingly, substantive in nature. Because it is a substantive enactment, LSA-R.S. 15:1184(E) should be applied prospectively only to causes of action arising after its effective date. The trial court erred in applying it retroactively.

Additionally, we note that even if it were determined that this legislation contained a clear legislative intent that LSA-R.S. 15:1184(E) should be applied retroactively, the legislature’s power to enact retroactive laws is limited by the Due Process and Contract Clauses of the United States and Louisiana Constitutions. U.S. Const. amend. XIV, § 1; U.S. Const. art. I, § 10; La. Const. art. 1, § 2; La. Const. art. 1, § 28; Bourgeois, 2000-1528 at p. 9, 788 So.2d at 1258-1259. Plaintiffs contend that retroactive application of LSA-R.S. 15:1184(E) to their claims would contravene due process guarantees by divesting them of their vested rights in their causes of action which accrued prior to the effective date of LSA-R.S. 15:1184(E). We agree.

When a party acquires a right to assert a cause of action prior to a change in the law, that right is a vested property right which is protected by the guarantee of due process. Thus, a cause of action, once accrued, cannot be divested by subsequent legislation. Bourgeois, 2000-1528 at p. 9, 783 So.2d at 1259. Under Louisiana law, a cause of action accrues when a party has the right to sue. Falgout v. Dealers Truck Equipment Co., 98-3150, p. 12 (La.10/19/99), 748 So.2d 399, 407. We must therefore determine whether plaintiffs had an accrued cause of action, i.e., the right to sue, prior to the effective date of LSA-R.S. 15:1184(E).

As stated above, prior to the effective date of LSA-R.S. 15:1184(E), prisoners, like all other persons, could assert a cause of action for mental or emotional injury pursuant to LSA-C.C. art. 2315, regardless of whether there was an accompanying physical injury. Because a cause of action for mental or emotional injury alone existed prior to the effective date of LSA-R.S. 15:1184(E), plaintiffs have a vested right to assert their causes of action for damages if those rights accrued prior to July 7, 1997. As set forth in plaintiffs’ petition, the “facts” giving rise to the alleged mental and emotional injuries occurred between June 1996 and March 1997, prior to the effective date of LSA-R.S. 15:1184(E). Thus, we must conclude plaintiffs have a vested property right in their accrued causes of action which cannot | ^constitutionally be divested by LSA-R.S. 15:1184(E). Bourgeois, 2000-1528 at pp. 11-12, 783 So.2d at 1260-1261.

Accordingly, we find that the trial court committed legal error in applying LSA-R.S. 15:1184(E) retroactively to plaintiffs’ causes of action, which had accrued prior to the effective date of this legislation.

CONCLUSION

For the above and foregoing reasons, the September 18, 2001 judgment of the trial court, granting defendant’s motion for summary judgment and dismissing plaintiffs’ suit with prejudice, is reversed. This matter is remanded to the trial court for further proceedings consistent with the views expressed herein. We pretermit assessment of costs of this appeal, pending the outcome of further proceedings, including any decision on the merits.

REVERSED AND REMANDED.

      . The named plaintiffs in both the federal court action and the present action are Blake Bourgeois, Samuel Carcisse, Dathrone Chapman, Darrell Dunn, Herbert Francois, Lawrence Gaines, Cardell Haynes, Keith Hicks, Gerald Hilton, Reggie Holland, Robert Muse, Jr., Andrew North, Johnel Peters, Kevin Peterson, Joe Spriggs, Oscar Vicknair, Jr., Darryl West, Jr. and Mark Wheat.

      . Although defendant contended that plaintiffs had not alleged that they suffered any physical injury, plaintiffs did aver in their petition that they had suffered some physical injuries. However, plaintiffs have not asserted that the injuries alleged, which included such things as back aches, vomiting and nausea, constituted more than de minimis physical injuries.

      . While LSA-R.S. 1:2 does not distinguish between substantive, procedural and interpretative laws in its directive that "[n]o section of the Revised Statutes is retroactive unless it is expressly so stated,” this statute has been limited to apply only to substantive legislation. Bourgeois v. A.P. Green Industries, Inc., 2000-1528, p. 6 n. 6 (La.4/3/01), 783 So.2d 1251, 1257 n. 6.

      . With regard to legislative intent of retroactive application, defendant argues that the 1998 amendment to LSA-R.S. 15:1184(E), which changed the phrase "no civil action may be brought” to "no prisoner suit may assert a claim,” expresses an intention to apply its effect to the broadest possible range of claims, including pending suits and suits filed after the statute's effective date.
      In Martin v. Hadix, 527 U.S. 343, 119 S.Ct. 1998, 144 L.Ed.2d 347 [(1999)], the United States Supreme Court considered the retroac-tivity of the attorney's fee provision of the federal PLRA. The section at issue, 42 U.S.C. § 1997e(d), provided that "[i]n any action brought by a prisoner who is confined [to a correctional facility] ... attorney's fees ... shall not be awarded, except” as authorized by the statute. In arguing for retroactive application, the petitioners therein contended that the language "in any action brought by a prisoner who is confined” expressed a clear congressional intent to apply to pending cases. Martin, 527 U.S. at 353, 119 S.Ct. at 2003-2004. (Emphasis in original).
      In rejecting that argument, the Supreme Court stated:
      The fundamental problem with all of petitioners’ statutory arguments is that they stretch the language of [42 U.S.C. § 1997e(d)] to find congressional intent on the temporal scope of that section when we believe that [it] is better read as setting substantive limits on the award of attorney's fees.... In other words, these sections define the substantive availability of attorney's fees; they do not purport to define the temporal reach of these substantive limitations.

        Martin, 527 U.S. at 353-354, 119 S.Ct. at 2004.
      Similarly, we find that defendant’s interpretation of LSA-R.S. 15:1184(E) stretches the language therein in an attempt to find legislative intent regarding retroactivity.

      . By our ruling herein, we offer no opinion as to whether plaintiffs will be able to offer sufficient proof to support a cause of action for mental or emotional damages. This issue is wholly separate from the issue of whether LSA-R.S. 15:1184(E) can be applied retroactively to divest plaintiffs of their right to assert their causes of action. See Bourgeois, 2000-1528 at p. 12 n. 10, 783 So.2d at 1261 n. 10.


author: ¡.CARTER, C.J.

text:
    Louann A. MUNDEN, Individually and as Executrix of the Succession of Donn Wiederhold, and as Natural Tutrix of the Estate of the Minor Child, Mason Andrew Munden v. The STATE of Louisiana, DIVISION OF ADMINISTRATION, Medical Review Panel, Mark C. Drennan, Commissioner of Administration, State of Louisiana and The State of Louisiana, Through the Board of Supervisors of Louisiana State University on Behalf of the Medical Center of Louisiana at New Orleans—University Campus.
    No. 2001 CA 2326.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.

      Ford J. Dieth, Metairie, for Plaintiff/Ap-pellee, Louann A. Munden, et al.
    J. Elliott Baker, New Orleans, for Defendant/Appellant, State of Louisiana, Division of Administration, Medical Review Panel, et al.
    Before: CARTER, C.J., WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   ¡.CARTER, C.J.

This appeal challenges the district court’s issuance of a writ of mandamus directing the State of Louisiana, Division of Administration, Medical Review Panel (the Division), to re-institute and reopen the proceedings entitled “Louann A. Mun-den, et al v. Charity Hospital, et al.,” and assigned medical review panel number 97MR360.

FACTS AND PROCEDURAL HISTORY

Louann A. Munden instituted suit in the 19th Judicial District Court (19th JDC) seeking the issuance of a writ of mandamus or, alternatively, declaratory judgment. Made defendants were the Division, Mark C. Drennan, Commissioner of Administration, State of Louisiana and the State of Louisiana, through the Board of Supervisors of Louisiana State University on behalf of the Medical Center of Louisiana at New Orleans — University Campus. Munden alleged that the Division dismissed her medical malpractice complaint without complying with the statutory notice provisions of LSA-R.S. 40:1299.39.1 A(2)(c).

Prior to instituting suit in the 19th JDC, Munden filed a suit in the Civil District Court (CDC) for the Parish of Orleans seeking damages after Donn Wiederhold was shot and killed while a patient at Charity Hospital in New Orleans. Mun-den v. Charity Hospital and Medical Center of Louisiana at New Orleans, 99-1918, p. 1 (La.App. 4th Cir.12/15/99), 754 So.2d 281, 282. On the same date that suit was filed in CDC, Munden notified the Division of the incident at Charity Hospital and suit filed in CDC, but advised that a medical review panel was not necessary as plaintiffs suit raised allegations of general negligence. The Division responded, acknowledging that it had received the request for a medical review panel and instructing the parties to select an attorney chairman. Munden’s counsel then sent correspondence to the Division | ¡¡again contending that no medical review panel was necessary and requesting that someone from the Division contact him to discuss the matter.

The CDC sustained a dilatory exception raising the objection of prematurity and dismissed Munden’s suit without prejudice because Munden’s claims had not been presented to a medical review panel. Munden, 754 So.2d at 282. The Fourth Circuit Court of Appeal upheld the CDC’s judgment. Munden, 754 So.2d at 286.

In her petition for mandamus, Munden alleged to the 19th JDC that after the Fourth Circuit ruled, she attempted to amend the petition she had filed in CDC, but later advised counsel for the State of Louisiana that she had no opposition to dismissing her suit and proceeding before a medical review panel. Thereafter, Mun-den learned that the Division had attempted to advise her that her complaint would be dismissed for failure to take action to secure an attorney chairman. The Division sent the correspondence containing that advisement via certified mail to Mun-den’s counsel’s former address. However, the post office returned the correspondence to the Division with a notation that the addressee’s forwarding order had expired. Munden later learned that the Division dismissed her complaint effective September 8, 2000.

After a hearing, the 19th JDC issued a writ of mandamus ordering that Munden’s claim be reopened. Defendants now appeal.

DISCUSSION

This case turns on the interpretation to be given LSA-R.S. 40:1299:39.1 A(2)(c), which provides:

The commissioner shall dismiss a claim ninety days after giving notice by certified mail to the claimant or the claimant’s attorney if no action has been taken by the claimant or the claimant’s attorney to secure the appointment of an attorney chairman for the state medical review panel within two years from the date the request for review of the claim was filed. (Emphasis added.)

The issue to be resolved is whether the Division complies with the statutory notice requirement simply by sending the notice via certified mail, or whether the Division must take additional measures to achieve notice when the notice is 14returned to the Division as undeliverable, thereby making the Division aware that notice was not effected. In this case, the Division mailed the notice, via certified mail, to plaintiffs counsel at his address of record. However, plaintiffs counsel had relocated his office some twenty months prior to that time. The post office returned the notice to the Division with a notation indicating that plaintiffs counsel had moved and the postal forwarding order had expired.

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of government. Rougeau v. Hyundai Motor America, 2001-1182, p. 5 (La.1/15/02), 805 So.2d 147, 151. The starting point in the interpretation of any statute is the language of the statute itself. A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 2001-0810, p. 4 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 870. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and its letter shall not be disregarded in search of the intent of the legislature or under the pretext of pursuing its spirit. A statute shall be construed to give meaning to the plain language of the statute, and courts may not extend statutes to situations that the legislature never intended to be covered. Id.

This court outlined the jurisprudence regarding statutory interpretation in Barril- leaux v. NPC, Inc., 98-0728, p. 4 (La.App. 1st Cir.4/1/99), 730 So.2d 1062, 1064-1065, writ denied, 99-1002 (La.5/28/99), 743 So.2d 672, as follows:

When interpreting a law, the court should give it the meaning the lawmaker intended. It will not be presumed that the legislature intended for any part or provision of the law to be meaningless or useless. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were used. The meaning of a statute is to be interpreted by looking to all the sections taken together so that no section, clause, sentence or word becomes superfluous or meaningless.
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. The legislature is presumed to have enacted each such statute with deliberation and with full knowledge of all existing laws on the same subject. The meaning and intent of the statutory provision is to be determined by a consideration of the statute in its entirety and all 15other laws on the same subject matter and a construction should be placed on the provision in question which is consistent with the express terms of the statute and with the obvious intent of the legislature in enacting it. It is reasonable to conclude that the legislature, in passing a statute, did not intend to abrogate any prior law relating to the same subject matter. (Citations omitted.)

Additionally, we are mindful that LSA-R.S. 40:1299.39.1 A(2)(c) is an abandonment statute. In re Medical Review Panel of Ruth Jones, 2000-1290, p. 4 (La.App. 1st Cir.6/22/01), 801 So.2d 471, 474, units denied, 2001-2120 (La.11/2/01), 800 So.2d 877 and 2001-2145 (La.11/2/01), 800 So.2d 879. The law favors, and justice requires, that an action be maintained whenever possible so that the aggrieved party has the day in court to which he is entitled. Thus, abandonment provisions are to be interpreted liberally. Sibley v. Sibley, 97-1912, pp. 3-4 (La.App. 1st Cir.12/28/98), 724 So.2d 275, 277, writ denied, 99-0291 (La.3/26/99), 739 So.2d 792. With this and the established principles of statutory interpretation in mind, we now analyze the language of the statute with regard to the notice requirement.

The plain language of the statute requires the Commissioner of the Division to give notice to the claimant or the claimant’s attorney by certified mail. The purpose of the requirement that notice be given by certified mail is to ensure receipt and facilitate proof thereof. Cf. Gilchrist Construction Co., Inc. v. Terral Riverservice, Inc., 2001-1617, p. 6 (La.App. 3rd Cir.5/1/02), 819 So.2d 362, 366, writ denied, 2002-2121 (La.11/8/02), 828 So.2d 1119; City of New Orleans v. Cheramie, 509 So.2d 58, 61 (La.App. 1st Cir.), writ denied, 512 So.2d 463 (La.1987).

Ordinarily, the Division will satisfy the requirements of the statute by sending the notice via certified mail. However, when the notice is returned to the Division with notations indicating that the addressee has moved, the statute inherently requires that the Division take reasonable additional steps to give the claimant or the claimant’s attorney the required notice. In the case sub judice, no additional steps were taken. Consequently, the requirements of the statute were not met.

| fiThe 19th JDC issued a writ of mandamus ordering that Munden’s claim be reopened. Mandamus is an extraordinary remedy that should be applied only where ordinary means fail to afford adequate relief. Board of Trustees of Sheriffs Pension and Relief Fund v. City of New Orleans, 2002-0640, p. 2 (La.5/24/02), 819 So.2d 290, 292. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. LSA-C.C.P. art. 3863. The writ should be issued only in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. LSA-C.C.P. art. 3862; Board of Trustees of Sheriff’s Pension and Relief Fund, 819 So.2d at 292. In this case, the Division failed to perform its obligation under LSA-R.S. 40:1299.39.1 A(2)(c), in that it did not take the necessary steps to provide Munden or her attorney with the statutorily-required notice. Accordingly, we find the writ of mandamus was properly issued.

CONCLUSION

For the reasons set forth herein, we find the writ of mandamus directing the State of Louisiana, Division of Administration, Medical Review Panel, to re-institute and reopen the proceedings entitled Louann A. Munden, et al. v. Charity Hospital, et al., and assigned medical review panel number 97MR360, was properly issued. The judgment appealed from is affirmed. Costs of this appeal in the amount of $1,113.44, are assessed to the State of Louisiana, Division of Administration, Medical Review Panel; Mark C. Drennan, Commissioner of Administration, State of Louisiana; and the State of Louisiana through the Board of Supervisors of Louisiana State University on behalf of the Medical Center of Louisiana at New Orleans — University Campus.

AFFIRMED.

      . Munden instituted suit in her individual capacity and as executrix of the succession of Donn Wiederhold, and as natural tutrix of the estate of the minor child, Mason Andrew Munden.