author: | .¿PETTIGREW, J. h GUIDRY, J.,

text:
    John JAMES v. LSU HEALTH SCIENCES CENTER MEDICAL CENTER OF LOUISIANA AT NEW ORLEANS.
    No. 2001 CA 1853.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Dec. 19, 2002.

      Archie C. Tatford, Jr., New Orleans, for Plaintiff, Appellant John James.
    Philip H. Kennedy, New Orleans, for Defendant/Appellee LSU Health Sciences Center Medical Center of Louisiana at New Orleans.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .¿PETTIGREW, J.

John James appeals from a decision rendered by the Civil Service Commission (“Commission”), which denied his request for an appeal to that body as moot. Finding error in the Commission’s decision, we reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Appellant, John James, was employed by the Louisiana State University Health Sciences Center, Medical Center of Louisiana at New Orleans (“Medical Center”), as an operating engineer foreman and was serving with permanent status. On April 22, 1998, Mr. James was terminated from his position for disciplinary reasons. Thereafter, Mr. James filed an appeal, bearing Appeal No. S-13122, which was granted by a Civil Service Commission Referee by decision dated August 19, 1999, based upon a procedural issue. Subsequent to this decision, Mr. James presented himself for work and submitted an affidavit as to his wages and other compensation as required by Civil Service Rules. However, Mr. James was not reinstated at that time because the Medical Center elected to seek review of the Referee’s decision. In a decision rendered on December 10, 1999, the Commission denied the Medical Center’s application for review, whereby the Referee’s decision became final.

On December 14 and 15, 1999, Mr. James again presented himself for work with another affidavit as to his wages and compensation. However, at that time, Mr. James was neither reinstated to his prior position nor paid the wages due to him. Rather, Mr. James was re-terminated effective February 23, 2000. By letter dated January 14, 2000, Mr. James requested an appeal of the Medical Center’s noncompliance with the Referee’s decision in refusing to reinstate Mr. James and failing to pay him wages due.

On March 14, 2000, subsequent to the filing of his appeal, Mr. James was paid wages by the Medical Center for the period April 22, 1998 through February 23, 2000. A hearing on Mr. James’ appeal was held on February 12, 2001, and in a decision rendered on February 21, 2001, Civil Service Commission Referee Donald J. Cicet Isdenied Mr. James’ appeal as moot in accordance with Civil Service Rule 13.14(a). Thereafter, Mr. James sought review from the Commission, which denied his request on April 6, 2001. Mr. James now appeals from this decision and asserts as his sole assignment of error that the “Civil Service Referee and the Civil Service Commission erred in allowing the Appointing Authority to violate and ignore Civil Service Rule 13.38 by not returning [him] to his permanent classified Civil Service position on December 14, 1999, when [he] presented himself for work in full compliance with Civil Service Rule 13.38.”

STANDARD OF REVIEW

On appeal, factual determinations of the Commission or a referee should be given great weight and should not be reversed unless clearly wrong or manifestly erroneous. Marcantel v. Department of Transportation and Development, 590 So.2d 1253, 1255 (La.App. 1 Cir.1991) (citing Walters v. Department of Police of the City of New Orleans, 454 So.2d 106, 113 (La.1984)). Additionally, decisions or actions of the Commission or a referee should not be reversed unless they are arbitrary, capricious, or an abuse of discretion. Marcantel v. Department of Transportation and Development, 590 So.2d at 1255. However, with respect to the Commission’s decisions as to jurisdiction, procedure, and interpretation of laws and regulations, the judicial review function is not so limited. Marcantel v. Department of Transportation and Development, 590 So.2d at 1256. Rather, the court performs its traditional plenary functions and applies the “error of law” standard. See Marcantel v. Department of Transportation and Development, 590 So.2d at 1256; see also Walters v. Depart ment of Police of City of New Orleans, 454 So.2d at 113.

DISCUSSION

In his February 21, 2001 decision, Referee Cicet correctly notes that because the referee’s decision in Appeal No. S-13122 concerning Mr. Janies’ termination was based upon a procedural issue and not on the merits, the appointing authority was entitled to use the same alleged misconduct by Mr. James as the basis for further disciplinary measures. See Anderson v. Division of Employment Security of Department of Labor, 233 La. 694, 98 So.2d 155 (1957); Louviere v. Pontchartrain Levee District, 199 So.2d 392 (La.App. 1 Cir.1967); Allen v. DHHR, Ruston State School, 426 So.2d 234 (La.App. 1 Cir.1983); Butler v. Dept. of Health & Human Resources, Office of Family Security, 432 So.2d (La.App. 1 Cir.1983); Appeal of Kennedy, 442 So.2d 566 (La.App. 1 Cir.1983).

According to Louisiana jurisprudence, a moot case is one which, when rendered, can give no practical relief. Courts will not rule on questions of law that have become moot since their decree will serve no useful purpose and will afford no practical relief. Khosravanipour v. Department of Transportation and Development, 93-2041-2045, p. 7 (La.App. 1 Cir. 10/7/94), 644 So.2d 823, 826, writ denied, 94-2729 (La.1/6/95), 648 So.2d 930. So the issue in our case at hand is whether Mr. James’ claims are now moot in that no further relief can be granted.

In the instant case, Mr. James contends that the Medical Center’s payment of wages owed does not render his case moot. In support of his assertion, Mr. James relies on Civil Service Rule 13.38, which he states requires the Medical Center to not only pay him for wages due, but also to reinstate him to the position he held prior to termination. Civil Service Rule 13.38 requires that the employee “shall present himself ready for work at the time and place of his employment as it existed prior to the separation [and] shall be returned by the appointing authority to the regular payroll at that time.” (Emphasis added.) A plain reading of Civil Service Rule 13.38 required the appointing authority to return Mr. James to the regular payroll. This was never done by the appointing authority.

The Medical Center subsequently paid Mr. James for wages due from April 22, 1998 until the effective date of his re-termination on February 23, 2000. However, this payment did not occur until March 14, 2000, subsequent to the filing of Mr. James’ appeal of January 14, 2000, wherein he requested an appeal of the Medical Center’s non-compliance with Referee Cicet’s decision, which became the Commission’s final decision on December 10,1999. The voluntary payment of a sum due and owing | Rwithout any reservation of rights is an acknowledgment of the debt owed and an admission of liability. See Chinn v. Mitchell, 98-1060, p. 4 (La.App. 1 Cir. 5/14/99), 734 So.2d 1263, 1266, writ denied, 99-1772 (La.7/2/99), 747 So.2d 7. Moreover, Civil Service Rule 13.38 requires that “the appointing authority shall deliver to the office responsible for the actual disbursement of the funds representing the back pay due a request for such disbursement.” This was not done in the instant case. Upon presenting himself for employment on December 14 and 15, the appellant submitted an affidavit as to his wages and other compensation as required by Civil Service Rules. There was no evidence introduced that this affidavit was incorrect; yet the appellant was not paid any wages until after he was forced to take action through this appeal.

With regard to the issue of attorney fees, Civil Service Rule 13.35 provides, in pertinent part, as follows:

When the Commission ... renders a decision, including a decision on application for review, which reverses or modifies an action that has been appealed, the appellee may be ordered to pay attorney’s fees in an amount not to exceed $1500.

In his decision dated February 21, 2001, Referee Cicet concluded that attorney fees were not warranted because there was no order reversing or modifying any action of the agency. A review of the record in this case reveals that Mr. James challenged his original termination and was ordered reinstated to his position as a result of a decision issued in Appeal No. S-13122. The appointing authority failed to comply with the order and has failed to comply with its own rules. The subsequent voluntary payment of back pay due Mr. James by the Medical Center was an acknowledgment of the debt owed. Due to the Medical Center’s inaction and failure to comply with the Commission’s order that Mr. James be reinstated, Mr. James was compelled to file an appeal to protect his rights. Accordingly, Mr. James is entitled to reasonable attorney fees in an amount not to exceed $1,500.00.

We therefore find that Referee Cicet and the Commission erred, and were arbitrary and capricious, in dismissing Mr. James’ claim for attorney fees. Thus, we reverse that part of the decision and remand this matter for a contradictory hearing to determine the amount of attorney fees owed to Mr. James.

| .CONCLUSION

For the foregoing reasons, we reverse the decision of the Civil Service Commission in so far as attorney fees were not awarded. This case is remanded for a contradictory hearing to determine the amount of attorney fees due Mr. James. All costs associated with this appeal are to be borne by the defendani/appellee, LSU Health Sciences Center, Medical Center of Louisiana at New Orleans.

REVERSED IN PART AND REMANDED.

GUIDRY, J., concurs in part, dissents in part, and assigns reasons.

h GUIDRY, J.,

concurring in part and dissenting in part.

I concur in the majority opinion to the extent that it implicitly finds no error in the Commission’s determination that Mr. James’ claims for reinstatement and payment of wages due were rendered moot by the subsequent re-termination and payment of wages by the Medical Center.

I respectfully dissent from the portion of the majority opinion, which finds that Referee Cicet and the Commission erred and were arbitrary and capricious in dismissing Mr. James’ claim for attorney’s fees. According to Civil Service Rule 13.35(a), the appellee may be ordered to pay attorney’s fees, in an amount not to exceed $1,500, when the Commission renders a decision, including a decision on application for review, which reverses or modifies an action that has been appealed. The action of the Medical Center that was appealed concerned its failure to return Mr. James to his prior position and pay him wages due. However, the majority opinion does not purport to reverse or modify either of these actions of the Medical Center. Rather, the justification for such an award centers on the inaction of the Medical Center and its non-compliance with the Commission’s prior border. While these maybe compelling reasons to assess a penalty for contempt, they do not support an award of attorney’s fees based on the plain reading of Civil Service Rule 13.35(a). For this reason, I respectfully dissent from that portion of the majority opinion awarding attorney’s fees.

      . The record indicates from the time Mr. James presented himself for work on December 14 and 15, 1999, the Medical Center intended to and in fact sought to re-terminate Mr. James, as the prior attempt to terminate failed solely due to procedural errors. The delay in effectuating the re-termination resulted from difficulty in scheduling a pre-deprivation conference with Mr. James.

      . We note that although Mr. James was required to present himself ready for work in the position he held prior to his termination, Civil Service Rule 13.38 does not require that he be reinstated to that specific position.

      . At issue in the instant case is Civil Service Rule 13.38, which, in addition to the mandates discussed in the majority opinion, also provides that "the appointing authority shall otherwise comply with the orders contained in the decision [of the Commission].” Civil Service Rule 2.11(h) addresses the effect of non-compliance with an order by including within its definition of contempt the "[fjailure of any person to comply with any order or directive of the Commission unless stayed by a Court of proper jurisdiction.” After trial on a rule to show cause, which rule may be issued by the Commission, referee, or director on its own motion, a person adjudged guilty of contempt may be ordered to pay a fine of not more than $500.00 into the General Treasury of the State of Louisiana. See Civil Service Rule 2.12(b) and 2.13.


source: Caselaw Access Project

author: |,GUIDRY, J. | FITZSIMMONS, Judge,

license: Public Domain

text:
    SUCCESSION OF Martina Ellis BUCK
    No. 2002 CA 0401.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Dec. 19, 2002.

      Calvin Laiche, Charles B.W. Palmer, Amite, for Plaintiffs/Appellants Charles B.W. Palmer and Rina M. Palmer.
    Richard McShan, ' Amite, for Defendant/Appellee Lee Gray.
    Charles Genco, Amite, for Defendants/Appellees Eleanor Dameron, Martina Ellis, Robert Ellis, and Nancy Ellis.
    Robert E. Palmer, Ponchatoula, In Proper Person Defendant/Appellee.
    Michael A. Betts, Denham Springs, for Defendant/Appellee E. Digby Palmer.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   |,GUIDRY, J.

In this succession proceeding, appellants, Charles B.W. Palmer and Rina M. Palmer, appeal a portion of the trial court’s judgment, which orders proceeds from the sale of a 3.82 acre tract of land on Duncan Avenue, also known as “Catha Place,” to be paid to E. Digby Palmer. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Martina Ellis Biick (Martina Buck) died on February 10, 1996. In a will executed on September 10, 1991, Martina Buck left a 3.82 acre tract of land, located on Duncan Avenue in Amite, Louisiana, to her nephew, E. Digby Palmer. However, pri- or to Martina Buck’s death, the 3.82 acre tract of land was sold for cash by Martina Buck’s curator.

In 1995, interdiction proceedings were instituted whereby Rina Palmer became the curatrix of Martina Buck. In order to provide for the continued care of the interdict, Rina Palmer sought approval of the court to sell several pieces of property, including the 3.82 acre tract of land on Duncan Avenue. In a judgment dated March 29, 1995, the court authorized Rina Palmer, as curatrix of Martina Buck, interdict, to sell at private sale to Irwin and Margaret Cohen the 3.82 acre tract of land on Duncan Avenue for $22,000.00. The court subsequently ratified this sale in a judgment dated March 3, 1996.

Following Martina Buck’s death, a hearing was held on September 16, 1998, pursuant to a rule to'show cause filed by the administrator, Lee Gray. In a judgment signed on October 16, 1998, the trial court ordered that the probated will and codicil proceed accordingly, authorized the administrator to prepare an inventory and obtain appraisals, and ordered the administrator to send the litigants and heirs the proposed method of distribution by November I,1998.

Following a November 20, 1998 hearing on the proposed method of distribution, a subsequent hearing was held on January II, 2001. In a judgment | ^signed on January 25, 2001, the trial court ordered the proceeds from the sale of the property known as “Catha Place” to be paid to E. Digby Palmer in an amount corresponding to the actual sale price of the property in the interdiction of Martina Buck.

In response to the trial court’s January 25, 2001 judgment, Charles Palmer and Rina Palmer filed a motion for new trial on May 16, 2001, which was subsequently denied by the trial court in a judgment dated July 13, 2001. Thereafter, on August 23, 2001, Charles Palmer and Rina Palmer filed a timely motion for a limited devolutive appeal.

ASSIGNMENT OF ERROR

In this limited devolutive appeal, Charles Palmer and Rina Palmer assert that the trial court erred as a matter of fact and law in ordering the proceeds from the sale of the 3.82 acre tract of land on Duncan Avenue to be paid to E. Digby Palmer.

STANDARD OF REVIEW

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Succession of Mydland, 94-0501, p. 3 (La.App. 1st Cir.3/3/95), 653 So.2d 8, 10. Before an appellate court may reverse a fact-finder’s determinations, it must find from the record reviewed in its entirety that a reasonable factual basis does not exist for the finding and that the finding is clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993).

When a question of law is involved, however, appellate review consists of determining whether the trial court was legally correct or legally incorrect. Succession of Mydland, 94-0501 at 3, 653 So.2d at 11. As such, the appellate court gives no special weight to the findings of the trial court but rather, exercises its constitutional duty to review questions of law and render judgment on the record. A.K. Durnin Chrysler-Plymouth, Inc. v. Jones, 01-0810, p. 3 (La.App. 1st Cir.5/10/02), 818 So.2d 867, 869.

DISCUSSION

It is well settled that the law in effect at the time of the decedent’s death controls the substantive rights of inheritance in and to the succession property. See Succession of Landry, 460 So.2d 29, 30 (La.App. 1st Cir.1984), writ denied, 462 So.2d 1249 (La.1985). Martina Buck died in 1996 and at that time, the law controlling the validity of the bequest of property at issue in this case was found in Louisiana Civil Code articles 1690 through 1711, which deal with revocation of testaments and lapse of testamentary bequests.

According to these Civil Code articles, the caducity or inheritable quality of a donation mortis causa can be destroyed or rendered ineffective by revocation by the testator or lapse of the legacy. Spiller v. Herpel, 357 So.2d 572, 574 (La.App. 1st Cir.), writ denied, 358 So.2d 637 (La.1978). Revocation, by the act of the testator himself, can be express or tacit, general or particular and can be accomplished by another testament or by the alienation of the thing bequeathed by donation or sale. La. C.C. arts. 1691, 1692, and 1695 (1996). Lapse of a legacy or inheritance occurs if (1) the instituted heir or legatee does not survive the testator; (2) the thing bequeathed has totally perished during the lifetime of the testator; (3) the instituted heir or legatee rejects the disposition, or is incapable of receiving it; (4) there is a posterior birth of a child to the testator or a subsequent adoption of a child by the testator, unless the testator has declared in the testament that such an event shall not revoke the testament; or (5) the testamentary disposition is revoked |Bon the grounds established by law. See La. C.C. arts. 1697, 1700, 1703, 1705, and 1710 (1996).

In the present case, Charles Palmer and Rina Palmer assert that the prior sale of the 3.82 acre tract of land on Duncan Avenue, by Martina Buck’s curator, resulted in a revocation, or alternatively, created a lapsed legacy, and that the proceeds from said sale could not legally go to E. Digby Palmer. This court was previously faced with this same issue in Spiller v. Herpel, 357 So.2d at 578, where, in adopting the opinion of the trial court, we found that the particular legacy at issue had lapsed and that the proceeds from the sale could not go to the named legatee, but devolved to the universal legatee.

In Spiller, the testatrix executed a will containing a bequest giving her nephew all of her interest in the land and residence located at a particular address. The testatrix subsequently moved into a nursing home and was interdicted. Thereafter, the curator filed a petition seeking authorization from the court, which was ultimately granted, to sell the residence, as it was vacant and deteriorating. Following the sale of the property at issue, the proceeds were placed into the testatrix’s account and were later loaned to a family corporation, which loan was represented by a promissory note. Following the death of the testatrix and the admission of her will to probate, the legatee named in the will to receive the residence made demand on the executor for delivery of the legacy bequeathed to him and later filed suit, demanding delivery of the legacy or the value thereof.

The appellants contend in the present case that in accordance with Spiller, we should find that the bequest of the 3.82 acre tract of land was revoked or lapsed. We first note that in Spiller, as in the present case, there was no revocation because the Civil Code contemplates that revocation of a testamentary bequest can only be made by the act of the testator personally, and not by a third person or someone acting on the testator’s behalf. Spiller v. Herpel, 357 So.2d at 575. It is | undisputed in the instant case that the curatrix, Rina Palmer, sold the 3.82 acre tract of land at issue and that the sale was not approved or consented to by the interdicted owner, Martina Buck. Therefore, this sale of the property could not have constituted a revocation.

Additionally, in Spiller we examined the law regarding lapse of a legacy and in particular, La; C.C. art. 1700, which states that “[t]he legacy falls if the thing bequeathed has totally perished during the lifetime of the testator.” In adopting the opinion of the trial court as our own, we concluded, in accordance with La. C.C. art. 1700, that the alienation of the thing bequeathed by the curator of an interdict, observing all legal formalities and in due course of his administration, caused the legacy to lapse so that the legatee can claim neither the value thereof nor the price still due. Spiller v. Herpel, 357 So.2d at 575.

Further, because the proceeds from the sale in Spiller were still a part of the estate at the time of decedent’s death, we examined whether the named legatee was entitled to those proceeds. In further adopting the opinion of the trial court, we found that “[sjince it has been held that a particular legatee is not entitled to the proceeds of the sale of a revoked legacy, it would seem therefore that by analogy the same rule must also be applicable in the situation of a lapsed legacy.” Spiller v. Herpel, 357 So.2d at 577. In arriving at this conclusion, we looked to the jurisprudence interpreting revoked legacies, in particular Succession of Batchelor, 48 La.Ann. 278, 19 So. 283 (1896), which reasons that a thing is regarded as having perished, not only when it has been destroyed but also when it has been changed into another thing or substance, as the thing bequeathed has undergone an absolute change, insofar as it relates to title and character of the property owned. Spiller v. Herpel, 357 So.2d at 577.

| ./Turning now to the instant case, we find, based on the law of lapsed legacies as outlined above, that the trial court erred in ordering E. Digby Palmer to be paid the proceeds from the sale of the 3.82 acre tract of land, referred to as “Catha Place.” From the limited record before us, it appears that Rina Palmer, as cura-trix for Martina Buck, complied with all formalities of law in selling the 3.82 acre tract of land. Rina Palmer properly petitioned the court, with concurrence of the under-curator, for authorization to sell the 3.82 acre tract of land so that emergency funds could be obtained to provide for the continued care of Martina Buck. See La. C.C. art. 4271. Thereafter, the court issued a judgment, authorizing the sale of the 3.82 acre tract of land for $22,000.00 cash to Irwin and Margaret Cohen. The court later ratified this sale, whereupon all objections in opposition to the ratification were denied.

Additionally, while the record does evidence some allegations by the administrator and Robert Palmer as to the validity of the sale, it does not contain any allegations of fraud on the part of the curatrix, Rina Palmer, in the sale of the 3.82 acre tract of land. The only basis for the challenge, found in a rule to show cause filed by the administrator, is the belief of the administrator that based on the financial records of the decedent, the sale of the 3.82 acre tract of land was not necessary for the continued care of Martina Buck during her life. However, the law has long held that a curator may sell the property of an interdict for any purpose. See La. C.C.P. arts. 4301 and 4554 (1996) (emphasis added). Indeed, the record shows the purpose in. selling the 3.82 acre tract of land, in addition to selling other pieces of property, was to obtain funds to pay the sitters hired to care for Martina Buck, in keeping with Rina Palmer’s duty as curatrix to act in the best interest of the interdict. Therefore, based on the law and facts as outlined above, |swe find that the trial court erred in ordering the proceeds of the sale of “Catha Place” to be paid to E. Digby Palmer as the sale by the curatrix caused the legacy to E. Digby Palmer to lapse.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trail court. All costs of this appeal are to be borne equally by appellees, Lee Gray, Eleanor Dameron, Martina Ellis, Robert Ellis, Nancy Ellis, Robert Palmer, and E. Digby Palmer.

REVERSED.

FITZSIMMONS, J., concurs and assigns reasons.

| FITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur in the result reached by the majority. This court has understandably found itself under the penumbra of jurisprudential precedent established in Spiller v. Herpel, 357 So.2d 572 (La.App. 1st Cir.), writ denied, 358 So.2d 637 (La.1978). However, adherence to the corrosive application of “lapsed legacy,” in instances such as Spiller and the instant case, abrogates the intent and written directives of the testator. Indeed, the harsh result of bestowing on the curator the sole discretion to alter a special bequest of the testator, without having first exhausted other unspecified assets, might constitute a divestiture of a property right. At a minimum, it defies the written intent of the testator, which should be paramount. Such a subversive law should be reformed.

It is, moreover, respectfully argued that if any proceeds from the conversion of a special bequest remain at the time of testator’s death, the legatee who had been named by the testator should be entitled to said proceeds. To do otherwise unnecessarily defies the written directives of the testator, which he or she had committed to writing.

      . Notice of the January 25, 2001 judgment was not mailed until May 11, 2001.

      . We discern this assignment of error from appellants Motion and Order for Limited De-volutive Appeal and appellants’ assignment of error number four as contained in their brief. We do not address the remaining assignments of error contained in appellants' brief because they pertain to the alleged misconduct of the administrator, which is not properly before us at this time.

      .The Louisiana Law of Successions was revised in 1997 by 1997 La. Acts 1421, to be effective July 1, 1999.

      . In Succession of Batchelor, the testator bequeathed a promissory note, which was later collected and transferred into cash. The supreme court held that the legacy was the note and not a sum of money and therefore the legatee was not entitled to the money remaining in the estate from the note.

      . The interdiction and curatorship articles of the Louisiana Code of Civil Procedure and the Louisiana Civil Code were revised effective July 1, 2001, pursuant to 2000 La. Acts 1st Ex.Sess. 25. The portion of La. C.C.P. art. 4554, which provides for the application of La. C.C.P. art. 4301 to the curatorship of interdicts, was reproduced in La. C.C.P. art. 4566.


author: _[¿FOIL, J.

text:
    Dr. Frederick RISENER v. HOSPITAL SERVICE DISTRICT NO. ONE OF THE PARISH OF TERREBONNE
    No. 2001 CA 2755.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.
    Rehearing Denied Dec. 13, 2002.

      Joseph S. Soignet, Frank F. Rathle, Thi-bodaux, for Appellee Plaintiff Dr. Frederick Risener.
    Carl T. Conrad, Houma, for Appellant Defendant Hospital Service District No. 1 of the Parish of Terrebonne.
    Before: FOIL, FOGG and KLINE , JJ.

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

   _[¿FOIL, J.

This appeal challenges a trial court’s venue determination. We affirm.

BACKGROUND

On April 23, 2001, Dr. Frederick Risen-er filed a petition in a Lafourche Parish district court seeking a declaratory judgment, indemnification and damages for breach of contract against his former employer, Hospital Service District No. 1 of the Parish of Terrebonne, owner and operator of Terrebonne General Medical Center (hereinafter sometimes collectively referred to as TGMC). TGMC filed a declinatory exception raising the objection of improper venue, urging that the suit should have been brought in Terrebonne parish, where TGMC is domiciled.

On the venue issue, the record reflects the following: On January 1, 1996, TGMC and Hospital Service District No. 1 of the Parish of Lafourche, the owner and operator of Our Lady of the Sea General Hospital (hereinafter sometimes collectively referred to as LOS), entered into an agreement to jointly operate a primary care clinic at a facility located in the community of Galliano in Lafourche Parish. Later that year, TGMC and Dr. Risener entered into a Physician Employment Agreement. The agreement set forth that Dr. Risener was to conduct a full-time office practice and hospital practice as assigned by TGMC, at TGMC or LOS. The employment contract contains a provision obligating TGMC to obtain and maintain professional malpractice insurance on behalf of Dr. Risener.

In October of 1999, a malpractice complaint was filed against Dr. Risener. He notified TGMC of the lawsuit. TGMC informed Dr. Risener that he had no coverage under TGMC’s self-insured plan be-' cause he was working independently at LOS at the time of the alleged malpractice and thus, was not in the course and scope of his duties as a physician of TGMC.

At the hearing on the venue exception, TGMC offered the deposition testimony of Jean Shepard, its Risk Manager. Ms. Shepard attested that the decision to deny Dr. Risener a defense or indemnity on the malpractice claim [3was made at TGMC’s administrative offices in Terrebonne Parish. She acknowledged that the employment agreement between TGMC and Dr. Risener contemplated that Dr. Risener would work exclusively in the Galliano clinic, and stated that Dr. Risener had never worked at the TGMC facility.

The trial judge denied the venue exception, finding that Lafourche Parish is a proper venue. This appeal, taken by TGMC, followed.

DISCUSSION

Venue in an action against a hospital district is governed by La. R.S. 13:5104B. See La. R.S. 46:1064. La. R.S. 13:5104B provides for two possible venues: (1) the judicial district in which the political subdivision is located, and (2) the district court having jurisdiction in the parish in which the cause of action arises. A political subdivision can be sued only in one of the two specified parishes and no other exceptions are applicable. White v. Beauregard Memorial Hospital, 02-0902 (La.6/14/02), 821 So.2d 481.

TGMC argues that Terrebonne Parish is the only proper venue because it is the parish of its domicile and is the parish where the “cause of action arises.” In support of this argument, TGMC relies on the fact that the decision to deny Dr. Risener a defense or immunity on the malpractice suit was made at the TGMC administrative offices in Terrebonne Parish. Dr. Risener, on the other hand, urges that the cause of action arose in Lafourche Parish because the contract was intended to be performed exclusively in Lafourche Parish and was in fact performed exclusively in Lafourche Parish. He further points out that the alleged act of malpractice giving rise to his breach of contract claim occurred in Lafourche Parish.

In determining where a cause of action arises for the purpose of La. R.S. 13:5104B, several appellate courts have looked to the “place where the operative facts occurred” supporting the plaintiffs right of recovery. Ehlinger & Associates v. State ex rel. Div. Of Admin., Dept. of Facility Planning and Control, 01-52, p. 3 (La.App. 5 Cir. 5/30/01), 788 So.2d 644, 646; Avenal v. State, Department of Natural Resources, 95-0836, p. 3 (La.App. 4 Cir. 11/30/95), 668 So.2d 1150, 1151, writ denied, 96-0198 (La.1/26/96), 667 So.2d 524. Utilizing this test, we find venue is proper in Lafourche Parish, as the operative facts giving rise to Dr. Risener’s cause of action against TGMC occurred primarily in that parish. First, Dr. Risener’s claim is premised on an obligation to obtain insurance on his behalf contained in an employment contract that the parties contemplated would be performed in Lafourche Parish. Second, TGMC acknowledges that the employment contract was in fact performed exclusively in Lafourche Parish. Third, the alleged act of malpractice, that gave rise to Dr. Risener’s claim for breach of TGMC’s contractual obligation to obtain insurance on his behalf occurred in La-fourehe Parish. The mere fact that TGMC made an “after the fact” decision at its corporate offices in Terrebonne Parish to deny Dr. Risener a defense and indemnification on the malpractice claim does not render Lafourche Parish an improper venue. Accordingly, we conclude that the trial court correctly denied the venue exception.

CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal, in the amount of $673.10, are assessed against appellant.

AFFIRMED.

      . TGMC refers to additional evidence admittedly not in the record to support its venue exception. Because appellate courts do not consider evidence not contained in the record, such statements will not be given any consideration by this court in reviewing the propriety of the trial court's venue determination. Rogers v. Custom Built Garage, 01-0356 (La.App. 1 Cir. 3/28/02), 814 So.2d 693, 695.