author: LPER CURIAM.

text:
    In re Walter J. CRITTENDEN.
    No. 2001-B-1960.
    Supreme Court of Louisiana.
    Jan. 24, 2003.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

LPER CURIAM.

This attorney disciplinary proceeding arises from five counts of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Walter J. Crittenden, an attorney licensed to practice law in the State of Louisiana, but currently suspended from practice.

UNDERLYING FACTS

Count I — Bradford Matter

In February 1994, Elease M. Bradford paid respondent $350 to review documents and contact persons regarding an employment discrimination matter. After completing the work, respondent determined the case was not worth pursuing. However, respondent neglected to advise his client of his decision and failed to appear at an administrative hearing on his client’s behalf.

Subsequently, Ms. Bradford terminated the representation and requested the return of her file and fee. While respondent returned part of the fee, he failed to return his client’s file.

19Count II — Jones Matter

On February 3, 1997, while he was suspended from the practice of law, respondent accepted $500 from Cecile Jones to handle the criminal representation of her son, Tyrone Jones. On the same day, respondent met separately with the assistant district attorney as well as the trial judge presiding over the case. At the time, the assistant district attorney and the trial judge were aware respondent was barred from engaging in the practice of law by order of this court. However, respondent asserted that he was not appearing as Mr. Jones’ attorney, but was simply acting as a family friend. Respondent did not reveal that he had accepted a retainer fee from Mrs. Jones.

At some point, the trial judge became suspicious and conducted a hearing in his chambers. Mr. Jones’ counsel of record testified Mr. Jones advised him he no longer needed his services because respondent would be representing him at trial. Mrs. Jones testified that she had retained respondent, who promised to negotiate a plea and, if unsuccessful, represent her son at trial. As a result of this information, the trial judge filed a complaint with the ODC against respondent.

Count III — Bordenave Matter

On August 11,1997, respondent enrolled as counsel of record in Bordenave v. Bor-denave, pending in the Civil District Court for the Parish of Orleans. At the time, respondent was ineligible to practice law stemming from his failure to comply with the mandatory continuing legal education requirement.

\zCount IV— Turner Matter

In August 1997, Victoria Turner, a Michigan resident, retained respondent for $300 to handle an emergency child custody matter. Subsequently, respondent took little or no action on behalf of his client. He failed to communicate with his client, despite her repeated efforts. During this time, respondent was ineligible to practice law stemming from his failure to comply with the mandatory continuing legal education requirement.

Count V — Amos Matter

On March 25, 1998, Karen Petit Amos filed a complaint with the ODC against respondent alleging neglect of a legal matter and failure to refund an unearned fee. Respondent failed to respond to the ODC’s requests for information regarding the matter. Subsequently, he neglected to respond to a subpoena that was issued compelling his appearance and production of documents at a scheduled deposition.

DISCIPLINARY PROCEEDINGS

Formal Charges

After investigation, the ODC filed five counts of formal charges. The charges alleged respondent’s actions violated the following provisions of the Rules of Professional Conduct: Rules 1.1 (incompetence), 1.3 (neglect of a legal matter), 1.4 (failure to communicate with a client), 1.5 (failure to refund unearned fees), 1.15 (failure to safekeep client funds and property), 1.16(d) (improper termination of representation), 3.4(c) (knowing failure to comply with orders of a tribunal), 5.5 (engaging in the unauthorized practice of law), 8.1 (failure to respond to a lawful demand for information from a disciplinary agency and failure to cooperate with the ODC), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(b) (commission of |4a criminal act adversely reflecting on a lawyer’s honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving deceit, dishonesty, fraud, or misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (failure to cooperate with the ODC).

Respondent failed to file a timely answer to the allegations of misconduct. Accordingly, the matter was submitted to the hearing committee on written argument and documentary evidence.

Recommendation of the Hearing Committee

The hearing committee determined the ODC proved by clear and convincing evidence violations of the professional rules. It noted that respondent intentionally violated duties owed to his clients, resulting in financial harm and other damage. The hearing committee did not recognize any mitigating factors. After considering respondent’s extensive prior disciplinary record, the committee recommended that respondent be disbarred from the practice of law.

Neither respondent nor the ODC filed an objection to the recommendation of the hearing committee.

Recommendation of the Disciplinary Board

The disciplinary board adopted the findings of the hearing committee in all respects. It concluded respondent violated the professional rules charged, and that he |sacted intentionally, causing actual injury to his clients. Relying upon the ABA’s Standards for Imposing Lawyer Discipline, the board found the baseline sanction for respondent’s misconduct is disbarment.

The board found no mitigating factors were present. However, unlike the committee, it determined there were several aggravating factors present: prior discipline, selfish and dishonest motive, pattern of misconduct, multiple offenses, obstruction of the disciplinary process by failing to comply with rules of a disciplinary agency, lack of remorse, vulnerability of victims, substantial experience in the practice of law (admitted 1980), and indifference to making restitution.

Considering these facts, the board accepted the recommendation of the hearing committee. Accordingly, the board recommended respondent be disbarred from the practice of law. The board further recommended that respondent be ordered to make restitution to Mrs. Jones and Ms. Turner.

Although neither respondent nor the ODC objected to the disciplinary board’s recommendation, this court, on its own motion, ordered briefing pursuant to Supreme Court Rule XIX, § 11(G)(1)(a). The court’s September 18, 2002 order directed the parties “to address whether the sanction of permanent disbarment pursuant to Supreme Court Rule XIX, Sections 10(a) and 24, as amended August 1, 2001, is appropriate under the facts of this case.”

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1816 (La.11/30/94), 646 So.2d 343, 348; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444, 445 (La.1992).(j While we are not bound in any way by the findings and recommendations of the hearing committee and disciplinary board, we have held the manifest error standard is applicable to the committee’s factual findings. See In re: Caulfield, 96-1401 (La.11/25/96), 683 So.2d 714; In re: Pardue, 93-2865 (La.3/11/94), 633 So.2d 150.

Based on our review of the record, we find the charges against respondent have been proven by clear and convincing evidence. The record reveals respondent neglected his clients’ legal matters, faded to communicate with them and failed to return their fees, as well as failed to cooperate with the ODC in the disciplinary investigations. In addition, respondent knowingly practiced law while he was suspended by order of this court or otherwise ineligible to practice under the rules of this court.

Finding evidence of professional misconduct, the sole issue presented for our consideration is the appropriate sanction for respondent’s actions. In determining a sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in fight of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

As recognized by the board, the base-fine sanction for respondent’s misconduct is disbarment. Several aggravating factors exist, the most disturbing of which is respondent’s lengthy prior disciplinary record. It is readily apparent that respondent has not learned from his prior transgressions. Rather, respondent has flouted the authority of this court by practicing law in violation of this court’s orders. Under |7these circumstances, disbarment is the appropriate penalty. See In re: Jones, 99-1036 (La.10/19/99), 747 So.2d 1081 (attorney disbarred for engaging in the unauthorized practice of law on four occasions, after being suspended in the past for similar misconduct).

Accordingly, we will accept the disciplinary board’s recommendation and disbar respondent from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, it is ordered that the name of Walter J. Crittenden be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Respondent is ordered to make full restitution to his clients. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . We suspended respondent for one year, subject to a one-year period of supervised probation, for his neglect of legal matters and failure to cooperate with the ODC. In re: Crittenden, 95-2050 (La.1/16/96), 666 So.2d 649. Subsequently, respondent failed to comply with the terms of the probation. This court revoked respondent’s probation and suspended him from the practice of law for a period of one year and one day, with six months deferred, subject to an eighteen-month conditional probation. In re: Crittenden, 98-0970 (La.7/2/98), 717 So.2d 215. Respondent has not sought reinstatement with this court from that suspension.

      . See supra note 1.

      . Respondent was ineligible to practice law from May 30, 1995 to December 18, 1997 based on his failure to comply with the mandatory continuing legal education requirement.

      . In addition to the suspensions referred to earlier, In re: Crittenden, 98-0970 (La.7/2/98), 717 So.2d 215, and In re: Crittenden, 95-2050 (La. 1/16/96), 666 So.2d 649, respondent was suspended for thirty days by this court in In re: Crittenden, 604 So.2d 1297 (La.1992), for neglect of a legal matter and failure to cooperate in a disciplinary investigation. Respondent has also been admonished on three occasions for failing to cooperate in a disciplinary investigation. 90-ADB-561 (1991), 92-ADB-041 (1993), and 92-ADB-041 (1993). Finally, he has been declared ineligible to practice on several occasions for failing to pay bar dues or comply with the mandatory continuing legal education requirement.


source: Caselaw Access Project

author: 11 KNOLL, Justice. b JOHNSON, J.,

license: Public Domain

text:
    Lawrence MOORE, v. Terry WARE, Chairman of the West Monroe Fire and Police Civil Service Board.
    No. 2001-C-3341.
    Supreme Court of Louisiana.
    Feb. 25, 2003.

      Douglas C. Caldwell, West Monroe, Fredric C. Amman, Monroe, for Applicant.
    Carl D. Walker, Monroe, for Respondent.
   11 KNOLL, Justice.

This case involves the review of a municipal civil service board’s decision, affirming the denial of promotion for a municipal police officer. We are presented with questions of appellate review of facts, procedural due process, and equal protection. Finding that plaintiff faded to make a pri-ma facie showing of racial discrimination and that the civil service board’s decision was made in good faith and for legal cause, the record does not support that the appointing authority acted arbitrarily or capriciously, or as a result of prejudice. Accordingly, we reverse.

FACTS AND PROCEDURE

Prefatorily, we note that although this case involves numerous procedural matters which span a number of years, including hearings at the civil service board level, appeals and remands to the district court and the appellate court, and writ applications to this Court, all of which tend to be confusing, the facts are well developed in the record. When the facts are extracted from the proceedings, a good chronology of events emerges and the issues are easily placed into perspective.

On January 21, 1997, Lawrence Moore, a black police officer employed in the West Monroe Police Department (WMPD) since 1988, was notified he passed the written Sergeant’s test, a prerequisite for promotion to that position. Even though Inhere was no opening for a sergeant in the police department at that time, the WMPD advised Moore he was at the top of the promotion list for that position.

Not long thereafter, Moore was provisionally promoted to sergeant for a three or four month period beginning on March 5, 1997, when Major Bobby Avery, a superior officer, went on sick leave. At that time, other superior officers moved up to take over the Major’s position and the now vacated Captain’s position. Moore assumed the provisional post of Sergeant, the last vacant position. Moore was the only black officer involved in this reshuffling of personnel.

During the time Moore served as provisional Sergeant, particularly on July 11, 1997, Larry Laborde, the Chief of Police for the West Monroe Police Department, implemented a policy that any officer who had not successfully completed all aspects of the department’s physical fitness test would be ineligible for promotion and would be unavailable for extra duty details. Shortly thereafter, on July 22, 1997, Major Avery left the police department amid controversy over his use of sick leave. The Sergeant’s position, which Moore had provisionally filled, then became permanently vacant with Major Avery’s departure.

On August 14,1997, Moore, who was 35-years of age, 6-feet, 1-inch tall, and weighed 355 pounds, was examined by Dr. William D. Smith, Jr., a cardiologist, as part of a physical examination for the police department. Dr. Smith described Moore as morbidly obese. Medical examination revealed Moore suffered from hypertension, shortness of breathe with moderate exertion, and he endured knee pain and bilateral foot and heal pain with exercise that required analgesic medications. After administering a stress test, Dr. Smith allowed Moore to proceed with the police | ^department’s physical fitness test. On September 10, 1997, Captain Stan Hayden, a WMPD training officer, administered the department’s physical fitness test. Moore failed the test which consisted of push-ups, sit-ups, and completion of an obstacle course; each of these tests required completion within a fixed time.

Initially, Chief Laborde passed over Moore for promotion, the officer at the top of the promotion list, and offered the Sergeant’s position to another officer because he was under the impression Moore did not want the Sergeant’s slot and because Moore had recently failed the physical fitness test. Notwithstanding, when Chief Laborde presented the other officer’s name to the West Monroe Fire and Civil Service Board (Board) for approval of promotion on October 14, 1997, the Board determined that Moore had been improperly passed over for the position. At that time, the Board ordered Chief Laborde to make an offer of promotion to Moore, subject to the physical fitness standards, and to provide the Board with a letter concerning his disposition of the matter. Chief Laborde complied with the Board directive and provided such a letter on October 27, 1997, detailing that Moore was passed over for Sergeant because he failed the medical and physical fitness exams.

By letters dated October 28, 1997 and November 11, 1997, directed to the Board, Moore appealed the administrative decision to pass him over for promotion. Moore contended the administrative decision violated civil service law and was in contravention of the Board’s rules and regulations.

At the Board meeting of February 18, 1998, Moore, accompanied by legal counsel, explained he had not pressed for a more immediate hearing because there had been vacancies on the Board. He farther asserted that it was his contention that he |4could not be passed over for promotion because the physical fitness test was not part of the class plan. Moore’s appeal was scheduled for the next month’s meeting.

The Board met on March 4, 1998, to hear Moore’s appeal. After some discussion, mainly involving the nature of Moore’s appeal (it appears the Board had not received Moore’s more detailed second letter of appeal), the Board again directed Chief Laborde to offer Moore the position of Sergeant, if he was able to pass the medical and physical fitness examinations. Moore accepted the Board’s offer without conceding his contention that the class plan did not include the successful completion of a physical fitness test.

On April 3, 1998, Captain Hayden again administered the physical fitness test to Moore. At that time Moore was able to pass the push-up and sit-up portions of the test, but he was unable to successfully complete the obstacle course within the prescribed time limit. As noted by Captain Hayden, instead of completing the obstacle course in 2 minutes 30 seconds, it took Moore 3 minutes 12 seconds.

After his failure to meet the conditions of the offer of promotion made to him during the March 4, 1998, Board hearing, Moore appealed to the district court. The district court then remanded the matter to the Board, finding it needed a more complete hearing at the Board level to fully consider the contentions Moore raised in his earlier appeal to the Board. The Second Circuit Court of Appeal denied Moore’s attempt to appeal the district court decision, (La.App. 2 Cir. 2/25/99) (unpublished), and this Court denied Moore’s writ application on this issue. Moore v. West Monroe Fire and Civil Service Bd., 99-834 (La.5/7/99), 740 So.2d 1287.

|BOn October 27, 1999, the Board held a hearing as directed by the district court. At the outset of the meeting, counsel for Moore outlined three issues for consideration: (1) whether it is was proper for Moore to be passed over for promotion when he was the most senior officer on the list for promotions; (2) did the class plan for promotion to Sergeant include a requirement that the candidate pass a physical fitness test; and (3) whether the failure to promote Moore was racially discriminatory, an issue raised for the first time. We note that Moore has never objected to the appropriateness of the physical fitness standards or the way the tests are administered. After conducting an evidentiary hearing, the Board ruled in favor of the WMPD, the appointing authority.

Thereafter, on August 24, 2000, Moore appealed the Board’s ruling to the district court. On motion of the Board and the City, Moore’s appeal was consolidated with the one he earlier filed on March 4, 1998. As detailed in Moore’s petition for appeal to the district court, Moore questioned whether the decision of the Board was arbitrary and capricious or without lawful cause in finding that: (1) Moore was not denied promotion through the retroactive application of new physical fitness requirement; (2) Moore was not denied promotion through the use of criteria not part of the class plan; (3) Moore was not denied promotion through the arbitrary and capricious use of a physical fitness test; and (4) in refusing to give Moore a hearing within 30 days as provided in La.Rev.Stat. Ann. § 33:2501(A).

|fiWe note Moore’s petition for appeal to the district court did not allege racial discrimination. Although Moore also mentioned his hearing was not held within 30 days, this point was not developed at his hearing. There is likewise no mention that Moore or his counsel ever objected to the delay nor is it shown that this delay prejudiced him. On March 29, 2001, after consideration of the issues in light of the record developed before the Board, the district court sustained the decision of the Board.

The court of appeal reversed the district court, finding the Board’s decision was arbitrary and capricious. Moore v. Ware, 35,275 (La.App. 2 Cir. 10/31/01), 800 So.2d 99. In reaching that determination, the appellate court found a violation of procedural due process because Moore was required to meet a physical fitness requirement not part of the class plan. It further found that even if a physical fitness test was part of the class plan for promotion, its “random and discriminatory application ... to the first black officer to come up for promotion while withholding such a requirement from all the white officers who had previously come up for promotion, [constituted a] violation of Moore’s rights under the Equal Protection Clause of the Constitution, and a naked attempt to subvert the civil service system of promotion by seniority.” Moore, 800 So.2d at 105.

We granted the writ application of the Board and the WMPD to consider the propriety of the appellate court decision. Moore v. Ware, 01C3341 (La.10/14/02), 827 So.2d 408.

DISCUSSION

The WMPD and the Board contend the appellate court’s misconstruction of the facts, particularly the correct chronology of events, and its substitution of its appreciation of the Board’s findings of fact skewed the reviewing court’s analysis. |7They argue that from at least January 17, 1995, an officer’s successful demonstration of physical fitness sufficient to perform the essential duties of the position has been a requirement for admission to work in the promotional class of Police Sergeant. In addition, they contend Moore failed to carry his burden of persuasion in showing that the denial of his promotion was racially motivated.

Standards for Judicial Review

An employee under classified service may appeal from any decision of the civil service board that is prejudicial to him. La.Rev.Stat. Ann. § 33:2501(E)(1). Such an appeal shall be taken to the district court wherein the civil service board is domiciled. Id. This hearing “shall be confined to the determination of whether the decision made by the board was made in good faith for cause” and “[n]o appeal shall be taken except upon these grounds.” La. RevStat. Ann. § 33:2501(E)(3).

If made in good faith and statutory cause, a decision of the civil service board cannot be disturbed on judicial review. Smith v. Municipal Fire & Police Civil Service Bd., 94-625 (La.App. 3 Cir. 11/02/94), 649 So.2d 566; McDonald v. City of Shreveport, 655 So.2d 588 (La.App. 2 Cir.1995). Good faith does not occur if the appointing authority acted arbitrarily or capriciously, or as the result of prejudice or political expediency. Martin v. City of St. Martinville, 321 So.2d 532 (La. App. 3 Cir.1975), writ denied, 325 So.2d 273 (La.1976). Arbitrary or capricious means the lack of a rational basis for the action taken. Shields v. City of Shreveport, 579 So.2d 961, 964 (La.1991); Bicknell v. United States, 422 F.2d 1055 (5 Cir.1970). The district court should accord deference to a civil service board’s factual conclusions and must not overturn them unless they are manifestly erroneous. Shields v. City of Shreveport, 565 So.2d 473, 480 (La.App. 2 Cir.), aff'd, 579 So.2d 961 (La.1991). Likewise, the intermediate appellate court and our review of a civil service board’s findings of fact are limited. Shields, 579 So.2d at 964. Those findings are entitled |sto the same weight as findings of fact made by a trial court and are not to be overturned in the absence of manifest error. Id.; City of Kenner v. Wool, 433 So.2d 785, 788 (La.App. 5 Cir. 1983).

DUE PROCESS

The appellate court premised its due process analysis on a finding that the offer of promotion to Moore was invalid because it was based on the false premise that the successful completion of a physical fitness test was required for promotion. The Board and the WMPD counter by asserting that although no promotion was denied prior to July 11, 1997, because of the results of physical fitness testing, such a requirement for promotion existed since at least 1995. They further point out that the implementation of physical fitness testing as a prerequisite to promotion occurred prior to the vacancy in the Sergeant’s position and has been required for all WMPD promotions since July 11, 1997.

The threshold question: Physical Fitness Requirements

The appellate court determined the Board had not yet established a requirement that an officer must pass a fitness test before promotion at the time the Sergeant’s position became open. In support of this determination, the reviewing court found this requirement was still before the Board on September 2, 1997, and October 27, 1997, months after Moore was first eligible for permanent promotion to Sergeant.

It is undisputed the city of West Monroe created a municipal fire and police civil service board pursuant to the authority La.Rev.Stat. Ann. § 33:2471. It is likewise accepted among the parties to this litigation that the WMPD has three positions based upon seniority, Sergeant, Captain, and Major. Under such a system, the person with the longest term of service who attains a passing score on the appropriate written examination and who meets the minimum qualifications at the |9time the position becomes available is able to promote to that position. The requirements are delineated in the class plan for the position.

La.Rev.Stat. Ann. § 33:2493 provides, in pertinent part:

D. Special requirements or qualifications for admission to tests, or for eligibility for appointment, such as age, education, physical requirements, etc., may be established by the rules adopted by the board, after consultation with the appointing authority. Any applicant must be, at the time of his appointment to a position in the classified service, of good health, good moral character, and of temperate and industrious habits.
E. The board may reject the application of any person for admission to tests of fitness, or refuse any applicant to be tested, or may cancel the eligibility of any eligible on any employment list, who
(1) Is found to lack any of the qualifications prescribed, or which may be legally prescribed, as requirements for admission to the tests for the class for which he has applied;
(2) Is physically unfit to perform effectively the duties of a position of the class;

It is uncontested that since January 17, 1995, the promotional class for Police Sergeant for the WMPD, as adopted by the Board, has been as follows:

SPECIAL REQUIREMENTS FOR ADMISSION TO ELIGIBILITY TEST AND FOR BEGINNING WORK IN CLASS.
Must be a regular and permanent employee in good standing in the class of Police Officer.
After offer of promotion, but before beginning work in this class, must pass a medical examination prepared and administered by the Appointing Authority, designed to demonstrate good health and physical fitness sufficient to perform the essential duties of the position, with or without accommodation;
Must meet all other requirements specified in paragraph 23 of the Municipal Fire and Police Civil Service Law.

The record shows that on January 1, 1992, the WMPD adopted the fitness standards approved by the U.S. Department of Justice and fitness programs and methods based upon the research of the Cooper Institute, for aerobic |inresearch. Although the record bears out that the WMPD has used physical fitness tests for many years, it also shows that prior to July 11, 1997, these tests, though clearly provided in the class plan, were not enforced as a prerequisite to promotions. Notwithstanding, on July 11, 1997, Chief Laborde provided the members of the police department with a memorandum stating that “officers who do not meet fitness standards set in this [physical fitness] policy will not be eligible for promotion” and that “Medical exams and fitness tests will be given prior to promotion.” On July 15, 1997, Moore and each officer in the department signed a document indicating that he received a copy of the physical fitness policy which provided:

A. Promotions. No police officer shall be promoted in rank who has not passed the fitness requirements for promotion as follows:
After an offer of promotion has been given, but before beginning work in the new job, the officer must pass a medical examination prepared and administered by the Appointing Authority (Chief of Police), designed to demonstrate good health and must pass the fitness tests in accordance with this policy. Only then will the promotion offer become valid and the working test period will begin. If the officer fails to maintain a passing score on the fitness tests during the working period, the officer will be demoted and returned to the previous rank. Officers who are showing improvement in their fitness tests, but who have not passed their latest test will also not be eligible for promotion and must pass the fitness tests to become eligible.

The Sergeant’s position in the WMPD became available on July 22,1997.

At this point, we find it necessary to comment on the reviewing court’s appreciation of the record, particularly its understanding of the Board meetings of September 2, 1997 and October 14, 1997. In its assessment of the due process issue, the reviewing court concluded that its appreciation of the facts showed that after the InSergeant’s position became vacant the Board was still discussing whether the regulations required an officer to pass a fitness test before being promoted. Certainly, if this were the case, such a rule could not be applied retroactively to disqualify Moore from a promotion. However, the minutes of these meetings do not support this conclusion.

The minutes of the meetings of September 2 and October 14, 1997, show the question of physical fitness requirements was discussed. However, the only aspect of this issue before the Board was the question of whether a police officer would have to successfully complete the physical fitness test prior to being eligible to take the written promotional exam and whether the class plan would have to be amended to reflect this discrete requirement. As to Moore, this issue was moot because he had already successfully completed his written promotional test without first having to complete the physical fitness test.

The court of appeal also drew an incorrect factual finding that the Board discussed that Moore had been passed over for promotion at its September 2, 1997, meeting. It is important to note that the minutes of the Board’s September 2 meeting do not show the Board even discussed that Chief Laborde had passed over Moore for promotion. Although the October 14 meeting was basically a continuation of the September 2 meeting, the propriety of requiring the successful completion of a physical fitness test for promotion was not mentioned. However, it was at this latter meeting that the Board did learn that Moore had been passed up for promotion and took action to further investigate this issue. At this juncture Moore had not yet appealed.

Due process: disposition

The Due Process Clause provides that the right to life, liberty and property cannot be deprived except pursuant to constitutionally adequate procedures. U.S. hsCoNST. amend. XIV; La. Const. Ann. art. X, § 8(A). A due process claim in the context of civil service employment depends upon an employee having a property right in continued comparable employment. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Tenured or classified civil service status is a property right and cannot be taken away without due process. See La. Const. Ann. art. I, § 2; Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-413 (La.4/19/96), 671 So.2d 927; Bell v. Department of Health and Human Resources, 483 So.2d 945 (La.1986), cert. denied, 479 U.S. 827, 107 S.Ct. 105, 93 L.Ed.2d 55 (1986).

In the present case, it is undisputed that Moore had obtained permanent status in the classified civil service with the WMPD and he was the senior officer on the promotional list for the position of sergeant. Accordingly, it is clear he possessed a property right of which he cannot be deprived without cause and procedural due process. La. Const. Ann. art. X, § 8(A); Office of Youth Services v. Savoie, 569 So.2d 139, 141 (La.App. 1 Cir.1990).

Due process is a flexible standard and calls for such procedural protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). As the United States Supreme Court noted in Loudermill, “the right to due process is conferred not by legislative grace, but by constitutional guarantee.” Loudermill, 470 U.S. at 541, 105 S.Ct. 1487 (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974)). Although a state may establish certain statutory procedural safeguards to protect property rights, the safeguards may still be judged insufficient (depending on the facts and circumstances of a particular case) to guard the particular property interest at risk. Loudermill, 470 U.S. at 541, 105 S.Ct. 1487.

“[The] central meaning of procedural due process is well settled. Persons whose rights may be affected are entitled to be heard; and in order that they may JjgBpjoy that right, they must first be notified.” Wilson v. City of New Orleans, 479 So.2d 891, 894 (La.1985). Correlatively, this right to notice and opportunity to be heard must be extended at a meaningful time and in a meaningful manner. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1988, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965).

After thoroughly reviewing the facts presented to the Board, it is clear Moore was: (1) apprised of the appointing authority’s enforcement of a promotional requirement that had been in existence since 1995 but theretofore unenforced; (2) this apprisal came prior to the vacancy in the Sergeant’s position; and (3) he was allowed opportunities to advocate his contrary appreciation of this prerequisite to promotion. Additionally, Moore was provided three opportunities to pass the physical fitness test (August and October 1997 and April 1998) and was afforded a full hearing before the Board on October 27, 1999. Considering these factors in light of the applicable law, we find the appellate court erred in its appreciation of the facts and in its determination that Moore was denied due process.

EQUAL PROTECTION

The appellate court alternatively found that even if Moore was not denied due process, the WMPD’s arbitrary and capricious application of the physical fitness requirement to Moore constituted a violation of the rights provided him under the Equal Protection Clause, U.S. Const. amend. XIV.

Both the Fourteenth Amendment to the U.S. Constitution and La. Const, art. I, § 3 provide that all persons are entitled to equal protection of the law and they shall not be discriminated against because of race. These provisions mandate “that persons 114similarly situated receive like treatment.” Whitnell v. Silverman, 95-0112 (La.12/6/96), 686 So.2d 23, 29-30. But the equal protection provisions of the state and federal constitutions do not require absolute equality or precisely equal advantages. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Frederick v. Ieyoub, 99-0616 (La.App. 2 Cir. 5/12/2000), 762 So.2d 144, 148, writ denied, 2000-1811 (La.4/12/2001), 789 So.2d 581. To prove a violation of the equal protection clause, the proponent of such argument must show the appointing authority acted with discriminatory intent or purpose. See La. Const. Ann. art. X, § 8(B); Chism v. Northwestern State University, 469 So.2d 18 (La.App. 1 Cir.1985); Sanders v. Dept. of Health and Human Resources, 394 So.2d 629 (La.App. 1 Cir.), writ denied, 399 So.2d 602 (La.1981). More particularly as to plaintiffs claims before us, the plaintiff bears the burden of proving that the defendant intentionally discriminated against him or her on the basis of race. St Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). First, a plaintiff must establish a prima facie case of racial discrimination. Hargrove v. New Orleans Police Dept., 01-659 (La.App. 4 Cir. 5/22/02), 822 So.2d 629. Once a prima facie case is established, a presumption is created that the employer has unlawfully discriminated against the employee and the burden shifts to the employer to prove that the “adverse employment actions were taken for a legitimate, nondiscriminatory reason.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Intent in some cases may be inferred from a clear pattern unexplainable on grounds other than some inappropriate classification such as race. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

Although we recognize that it is difficult to show a party acted with discriminatory intent, the facts of the present case do not establish that Moore carried his burden of proving a prima facie case of racial discrimination. Contrary to the |1sappellate court’s conclusion, the record does not support that the physical fitness requirement was randomly applied to Moore.

Chief Laborde testified that he had no problem with Moore promoting to Sergeant and that he provided him, at the cost of $750 to the WMPD, with special services at the Glenwood Regional Medical Wellness Center to help him pass the physical fitness test. He explained the promotion of minority officers into supervisory positions not only benefitted the department, but also the community. Moreover, even if Moore’s obesity was obvious, the record shows that he passed the physical fitness tests on April 13, 1995, and again on April 11, 1996, two years immediately prior to this offer of promotion. Thus, it was not a foregone conclusion that he would not have passed the physical fitness test needed for his promotion to Sergeant.

The record further shows the WMPD studied physical fitness requirements at various times since 1992. To show its commitment to physical fitness, the WMPD had two of its officers schooled on numerous occasions on how to administer the test for physical fitness and to use those tests to improve physical fitness among the members of the WMPD. Moore’s physical fitness history shows that even on those times when he failed the test, he was often placed on a workout program to improve his physical condition and he was always given an opportunity to retest. Chief Laborde also testified that the promotional policy involving physical fitness requirements was put into final form two to three weeks before they were posted and distributed on July 11, 1979. Even assuming Chief Laborde learned of Major Avery’s misuse of sick leave a week or so before Avery announced his departure from the department, a rational basis existed for the Board to conclude that the development of the promotion policy tied to physical fitness testing began well in advance of that knowledge and was not rushed to implementation just to block Moore’s promotion.

|1fiIt is apparent the enforcement of the physical fitness testing did not only affect Moore’s promotion. It was uncontradicted that the two other officers who promoted to the Captain and Major positions after Major Avery’s resignation were subjected to this same policy and both passed the physical fitness tests administered to them. In addition, the minutes of the Board further show that the enforcement of this physical fitness policy adversely affected a number of police officers who were denied the opportunity to work extra-duty details because they failed the physical fitness test. At oral argument it was pointed out that it was primarily white police officers who complained about this aspect of the enforcement of the physical fitness requirement. Therefore, it cannot be said that Moore established that the enforcement of the policy was intended to only limit his opportunity for promotion.

Finally, the record establishes that on March 4, 1998, the Board directed Chief Laborde to “re-offer” the Sergeant’s position to Moore if he could pass the medical and physical requirements. Even though Moore accepted that offer, he subsequently failed the physical fitness test. We believe this offer and acceptance eliminated any taint of alleged racial bias, which allegation did not occur until October 27, 1999, more than a year after Moore failed the physical fitness test.

CONCLUSION

In summation, we find the Board acted in good faith and statutory cause in its assessment of Moore’s appeal of the WMPD’s denial of his promotion. Considering the facts developed in this record, Moore has failed to make a prima facie showing of racial discrimination. It has not been shown that the appointing authority acted arbitrarily or capriciously, or as the result of prejudice. To the contrary, this record establishes a rational basis for the action taken and we must reverse.

_JiiDECREE

For the foregoing reasons, the judgment of the Court of Appeal, Second Circuit, is reversed and set aside. The decisions of the West Monroe Fire and Police Civil Service Board and the district court are reinstated.

REVERSED.

JOHNSON, J., dissents and assigns reasons.

b JOHNSON, J.,

dissenting.

I would affirm the decision of the Court of Appeal.

Discrimination is the act, practice or an instance of according treatment categorically, rather than individually. Discrimination means to make a difference in treatment or favor on a categorical basis in disregard of individual merit.

Lawrence Moore was first employed by the West Monroe Police Department in 1988. He passed the written test for promotion to sergeant, and actually filled the position satisfactorily on a provisional basis while Major Bobby Avery was out on sick leave. It is clear from the record that the physical fitness standards which are at issue here had been adopted by the Police Department since January 1, 1992, but these standards had never been used as a prerequisite to promotion.

The record shows that several white officers had come up for promotion after January, 1992 and none had been required to pass the physical fitness examination prior to promotion. The majority makes much of the fact that Larry Laborde, the Chief of Police, implemented his new policy requiring successful completion of all aspects of the physical fitness test on July 11, 1997, and that the opportunity for Moore to fill the sergeant’s position permanently did not arise until July 22, 1997. Surely, the Chief of Police would know about the controversy surrounding Major Bobby Avery’s abuse of sick leave, and that a vacancy was imminent. Chief | ?Laborde’s intent was to pass over Moore for promotion.

It is clear in my mind that race, and not weight or physical fitness, was the issue since Moore’s weight had not been an impediment over several months when he filled the sergeant’s position provisionally. The record establishes that Moore competently fulfilled all of the essential duties of sergeant for six month prior to this fitness regulation being implemented.

      . In the context of medicine, “morbid'' is understood as diseased, pathologic or abnormal. Steadman’s Medical Dictionary 888 (5th ed.1982).

      . Dr. Smith’s notes indicate as follows:
      Stress test is technically negative at low level exercise. The patient does have a hypertensive blood pressure response at low level of performance due to physical deconditioning.

      . The words "class” and "classification plan” have the following meaning in the context of civil service. La.Rev.Stat. Ann. § 33:2473(5) provides: "Class” ... means a definitely recognized kind of employment in the classified service, designated to embrace positions that are so nearly alike in the essential character of their duties, responsibilities, and consequent qualification requirements, that they can fairly and equitably be treated alike under like conditions for all personnel purposes. LaRev.Stat. Ann. § 33:2473(6) provides: "Classification plan” means all the classes of positions established for the classified service. As applicable in the present case, the class plan at issue is that of Police Sergeant.

      . "Appointing authority” means any official, officer, board, commission, council, or person having the power to make appointments to positions in the municipal fire and police services. La.Rev.Stat. Ann. § 33:2473(2). It is undisputed in the present case that the city of West Monroe Police Department was Moore's appointing authority.

      . Moore's opposition to that consolidation was overruled in the district court and that decision was upheld by a writ denial in the Court of Appeal, Second Circuit. Moore v. Ware, 34,751, 34,752 (La.App. 2 Cir. 1/25/01) (unpublished).

      . La.Rev.Stat. Ann. § 33:2501(A) provides that ''[T]he board shall grant the employee a hearing and investigation within thirty days after receipt of the written request” for an appeal to the Board.

      . Even though Moore did not object to the validity of the physical fitness standards, we note that the Cooper Institute compiled data from thousands of people over two to three decades and used that data to construct physical fitness norms. It was these norms that form the basis for the WMPD physical fitness tests.

      . It further shows in Moore's physical fitness history that he’s participated in physical fitness evaluations and workout programs in 1990, 1991, 1992, 1993, 1995, 1996, and 1997. Moore passed the physical fitness tests on April 13, 1995 and April 11, 1996.

      . The right to promotion had always been contingent upon demonstrating good health and physical fitness sufficient to perform the essential duties of the position. Moore has not contended that the physical fitness test used by the WMPD is not a valid test.

      . As part of its commentary on due process, the appellate court also emphasized that it found the WMPD’s implementation of the physical fitness test as a prerequisite for promotion was arbitrarily enforced at the time of Moore's opportunity for promotion. We find this contention more appropriate to the equal protection argument and will discuss this issue at that juncture.

      . Prior to this time, another black officer, Fred Davis, worked for the WMPD until July 1995, a period of 28 and a half years. He became a major in 1994. Major Davis stated he took a medical exam but not a physical fitness test for promotion. The last time he went to take a physical fitness test, he was told it was waived because he was too old, 62 or 63 years of age. He said he took the physical fitness test anyway and passed it.


author: J^CLARENCE E. McMANUS, Judge.

text:
    George HALLARON v. JACOB’S ENGINEERING GROUP, INC.
    No. 02-CA-903.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 11, 2003.
    As Modified on Grant of Rehearing for Clarification March 17, 2003.
    Michael J. Bourquard, New Orleans, LA, for plaintiff-appellant.
    Kirk L. Landry, Keogh, Cox & Wilson, Baton Rouge, LA, for defendants-appel-lees.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

Plaintiff, George Hallaron (“Hallaron”), alleges that he was employed by Jacobs Engineering Group, Inc. (“Jacobs Engineering”) to perform industrial inspection work for a facility in St. Croix, a U.S. Virgin Island. Hallaron is a Louisiana resident, whose home is in Harahan. He allegedly suffered a back injury while in the course and scope of his employment on March 15, 2001. He alleged he could no longer perform his job. Hallaron then returned to Louisiana and subsequently filed a claim with the Louisiana Office of Workers’ Compensation seeking indemnity and medical benefits, his choice of a physician, penalties and attorney fees from his employer, Jacobs Engineering.

Jacobs Engineering answered the claim denying that it was Hallaron’s employer. Jacobs Engineering filed a motion for summary judgment, which was denied. Thereafter, Hallaron sought discovery from Jacobs Engineering. Jacobs Engineering then filed a motion for a protective order arguing that Jacobs Pan American Corporation (“Jacobs Pan American”) and Jacobs Industrial Maintenance Company (“Jacobs Industrial Maintenance”) were the proper defendants. Hallaron then amended his claim to add Jacobs Pan American and | ¡¡Jacobs Industrial Maintenance as defendants. Jacobs Pan American and Jacobs Industrial Maintenance then filed several exceptions, including an exception of lack of personal jurisdiction. The workers’ compensation judge granted the exception and rendered findings of fact. The workers’ compensation judge found that Jacobs Pan American and Jacobs Industrial Maintenance do not do business in Louisiana and they have no office in Louisiana. Further, Hallaron’s job was performed in the U.S. Virgin Islands and the injury occurred there. The judge further found that Hallaron was not working under a contract for hire made in Louisiana. Hallaron had initially contacted Jacobs Pan American and Jacobs Industrial Maintenance to obtain employment by calling their offices in the U.S. Virgin Islands and they in turn mailed correspondence to Hallaron from the U.S. Virgin Islands on December 19, 2001. That correspondence included the terms of Hallaron’s conditional employment.

The workers’ compensation judge then found that pursuant to LA R.S. 28:1035.1, the court has no jurisdiction over the claims made against the defendants, Jacobs Pan American and Jacobs Industrial Maintenance. Therefore, the court granted the exception of lack of personal jurisdiction. Based on the finding of no jurisdiction over these defendants, the judge did not address the other matters that had been filed by Jacobs Pan American and Jacobs Industrial Maintenance. Jacobs Engineering remains a defendant in this case and submitted itself to the jurisdiction of the workers’ compensation court by filing an answer and other matters with the court.

DISCUSSION

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Chaisson v. Cajun Bag & Supply Co., 97-1225 (La.3/4/98), 708 So.2d 375, 380, citing Seal v. Gaylord Container Corp., 97-0688, p. 4 (La.12/02/97), 704 So.2d 1161; Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Smith v. Louisiana Dept. of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfin-der’s conclusion was a reasonable one. Chaisson at 381.

Defendants Jacobs Pan American and Jacobs Industrial Maintenance are nonresident corporations principally located in the U.S. Virgin Islands. Therefore, to determine if the Louisiana Workers’ Compensation Court has personal jurisdiction over them, we must apply La. R.S. 13:3201, also known as the Louisiana Long Arm Statute, which provides, in pertinent part:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
(5) Having an interest in, using or possessing a real right on immovable property in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

In accordance with La. R.S. 13:3201(B), we must inquire into whether or not the exercise of jurisdiction complies with constitutional due process. Due | ^process requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice, de Reyes v. Marne Management and Consulting, Ltd., 90-2214 (La.1991), 586 So.2d 103, 105, citing International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95 (1945).

Under the two part test set forth in International Shoe, we find that the Louisiana Workers’ Compensation Court does not have personal jurisdiction over defendants Jacobs Pan American and Jacobs Industrial Maintenance. We find that neither of these defendants had the required minimum contacts with Louisiana. Neither company did business in this state, nor had offices in Louisiana. The work performed by the plaintiff was performed in the U.S. Virgin Islands and the injury occurred in the U.S. Virgin Islands. The only contacts these companies had with Louisiana were the mailings to the plaintiffs house in Harahan and the fact that the plaintiffs paychecks were distributed out of Baton Rouge. We find that the defendants did not have sufficient minimum contacts with Louisiana. Therefore, to subject them to the personal jurisdiction of a Louisiana court would offend the traditional notions of fair play and substantial justice.

Accordingly, we affirm the judgment of the workers’ compensation court, which granted Jacobs Pan American and Jacobs Industrial Maintenance Company exception of lack of personal jurisdiction.

AFFIRMED.


author: J^DREW, J.

text:
    Larry REED, Plaintiff-Appellant, v. PEOPLES STATE BANK OF MANY and Dale Hopper, Defendants-Appellees.
    No. 36,531-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Darien D. Lester, for Appellant.
    Larry Reed, In Proper Person.
    Rogers & Hearne, Counsel for Appel-lees, by Edward Keith Carter.
    Before CARAWAY, PEATROSS and DREW, JJ.
   J^DREW, J.

Financing for the construction of the home of Patricia Holmes led to this dispute. Holmes hired Larry Reed as building foreman. Reed sued Peoples State Bank of Many and Dale Hopper, a bank employee, for damages allegedly caused by the intentional acts of the bank and Hopper. The defendants filed a motion to dismiss Reed’s action as abandoned. From a February 15, 2002, judgment dismissing his action, Larry Reed, in proper person, appealed on April 15, 2002. For the following reasons, we amend the judgment and affirm.

PLEADINGS AND PROCEDURAL BACKGROUND

The chronology of the litigation follows:

04-24-1998 Represented by Darien Lester, Reed sued Peoples and Hopper for damages arising out of the defendants’ allegedly intentional acts to harm Reed in a dispute over the financing of Holmes’ construction project.
05-08-1998 Represented by John Co-nine, the bank and Hopper filed decli-natory and dilatory exceptions along with a supporting memo.
07-08-1998 Reed through his attorney filed a memo opposing the exceptions.
08-21-1998 The trial court issued a written ruling denying defendants’ exception of improper venue, but granting defendants’ exception of non-join-der; Reed was given 15 days to amend his petition to join Patricia Holmes, the homeowner, as a party or have his suit dismissed. (The trial court directed that the judgment be submitted for its signature; neither the judgment nor the amendment is in the record.)
11-19-1998 Defendants answered with reconventional and third party demands, alleging that the bank stopped advancing money when the project exceeded budget, the insurance on the collateral lapsed, liens were filed against the property and the homeowner and Reed could not provide to defendants figures on outstanding sums or the amount required to complete the construction.
| ^Defendants’ Reconventional Demand alleged:
• Reed received $33,100 of loan proceeds via checks from Holmes;
• Not all the proceeds were used on the project and should be reimbursed to the bank;
• The bank also pled the affirmative defense of offset or compensation.
Defendants’ Third Party Demand against Holmes alleged:
• Holmes and Reed were unable to complete the project;
• Any loss to Reed is attributable to Holmes who should pay any loss for which the bank may be liable.
01-05-1999 Darien Lester, Reed’s attorney, filed an answer denying the allegations of the reconventional and third party demands.
04-03-2000 Notice of Seizure under Writ of FiFa in Docket # 052063,11th JDC, (Peoples State Bank v. Holmes and Reed) filed into this record.
02-11-2002 Keith Carter moved for the removal of Conine as counsel for the bank and Hopper; Carter sought to enroll as lawyer for the defendants.
02-15-2002 Trial court signed the order enrolling Carter as defendants’ lawyer.
02-14-2002 The bank and Hopper filed a motion to dismiss the action as abandoned because more than three years had elapsed since Reed filed his answer and reconventional demand; Defendants attached a Caddo Clerk of Court certificate stating no action had been taken in the prosecution or defense of the case since January 5, 1999.
02-15-2002 Trial court signed order dismissing action with prejudice.
04-15-2002 Reed, through attorney Darien Lester, filed a motion for appeal; Reed, in proper person, filed a motion for appeal, which was signed by the trial court.

On lodging, this record did not contain an indication that Reed had been served with notice of the order dismissing his action. Subsequently, the record was supplemented with the February 22, 2002, service return | ¡¡showing that Reed was served by personal service on his attorney, Darien Lester. That service triggered the 30-day period in La. C.C.P. art. 561. On September 5, 2002, this court found that the appeal was taken from a final judgment.

DISCUSSION

La. C.C.P. art. 561 states:

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened.
(b) In which an administrator or executor has been appointed.
(c) In which a testament has been probated.
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The order shall be served on the plaintiff pursuant to Article 1313 or 1314, and the plaintiff shall have thirty days from date of service to move to set aside the dismissal. However, the trial court may direct that a contradictory hearing be held prior to dismissal.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court. Representing himself on appeal in this

matter, which bore Caddo Parish Trial Court Docket # 431,431, Reed contended that he or his attorney on his behalf mistakenly made filings styled “Reed v. Peoples State Bank of Many” under Caddo Parish Trial Court Docket # 430,866, which is another faction brought by Patricia Holmes against the same bank. Reed attached to his brief:

• An amended petition naming Patricia Holmes a defendant filed in # 430,866 incorrectly styled “Larry Reed v. Peoples State Bank of Many” along with Holmes’s waiver of service.
• Worker’s and materialman’s liens filed on the records of Caddo Parish on January 19, 1999, under Register # 1637627.
• A notice of lis pendens filed January 19, 1999, under suit # 430,866, incorrectly styled “Larry Reed v. Peoples Bank of Many.”
• The June 2, 1999, judgment in suit # 430,866 correctly styled “Patricia Holmes v. Peoples State Bank.”
• This court’s opinion on appeal rendered March 3, 2000, in # 32,749-CA, Patricia Holmes v. Peoples State Bank of Many (Caddo Parish Court Docket # 430,866).

To establish that he did not abandon his action against Peoples and Hopper in this action, suit #431,431, Reed relied in his appellate brief on the filings made in Cad-do suit # 430,866 and his assertion that he appeared in the trial court in # 430,866 to defend his lis pendens in June 2000. In addition, Reed contended that this matter was stayed due to Holmes’ bankruptcy filed in October 1998 and dismissed in the first part of 1999. Further, Reed pointed to another bankruptcy by Holmes allegedly filed in August or September of 2000 and still pending. Reed stated in his appellate brief that he made a filing and an appearance in the Holmes bankruptcy trial to defend against charges he misused loan proceeds.

At the outset, we note that it is well-settled that an appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, | ¿judgments and other rulings, unless otherwise designated. La. C.C.P. art. 2128. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Memoranda and exhibits which were not filed into evidence in the trial court are not part of the record on appeal. If a party’s brief asserts facts which are not in the record and refers to exhibits which have not been filed into evidence in the trial record, an appellate court may not consider those memoranda and exhibits, since they are outside the record. La. C.C.P. art. 2164. The briefs of the parties and the attachments thereto are not part of the record on appeal. Appellate briefs are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits, if those facts are not in the record on appeal. Tranum v. Hebert, 581 So.2d 1023 (La.App. 1st Cir., 1991), writ denied, 584 So.2d 1169 (La.1991).

Here, Reed’s appellate brief referred to facts which are not in the record. Moreover, none of the attachments to his appellate brief were introduced into evidence in the trial court. Those matters outside this appellate record were not considered by this court.

In Morgan v. Hopkins, 36,506 (La.App.2d Cir.10/23/02), 830 So.2d 459, writ denied, 2002-2866 (La.1/31/03), 836 So.2d 71, this court explained that an action is abandoned when the parties fail to take any steps in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding. La. C.C.P. art. 561. Effective on July 1, 1998, the article was amended to reduce the time limit from five to three years. This amendment was made applicable to all actions pending on 1 fiJuly 1, 1998. The present litigation was filed on April 24, 1998. Therefore, the amended provisions apply retroactively to this matter and the abandonment period is three years. Morgan v. Hopkins, supra.

A party takes a step in the prosecution or defense of a suit only when he takes formal action, before the court, on the record, intended to hasten the matter to judgment. A motion to withdraw, enroll or to substitute counsel is not considered a formal “step” in the prosecution of suit as contemplated by La. C.C.P. art. 561. A plaintiffs intention to take a step in the prosecution of a claim without a step actually being taken is insufficient to uphold the claim. Morgan v. Hopkins, supra.

After Reed filed suit on April 24, 1998, the exceptions were decided and the defendants filed their answer along with their reconventional and third party demands on November 19, 1998. The last formal action intended to hasten the matter to judgment was Reed’s answer to the reconventional and third party demands filed January 5, 1999. Until the defendants’ motion to dismiss, filed over three years later on February 14, 2002, the only filings were the recordation of a notice of seizure of Reed’s rights in this litigation and a motion for defense counsel to enroll. As reported in the certificate from the Caddo Parish Clerk of Court, no action in the prosecution or defense of the matter had taken place since January 5, 1999.

Reed’s contention that the alleged bankruptcy filings by Patricia Holmes, the homeowner, stayed this action is erroneous. While 11 U.S.C. § 362 provides an automatic stay to protect debtors filing bankruptcy, the ^automatic stay does not apply to non-bankrupt co-defendants. See, Martin v. David, 95-1411 (La.App. 3d Cir.12/7/95), 666 So.2d 1136, writ denied, 96-2184 (La.11/15/96), 682 So.2d 766. This record contained no documentation of the alleged bankruptcies by Patricia Holmes, which, in any event, did not benefit Reed. The trial court correctly dismissed this action as abandoned.

CONCLUSION

A trial court is without authority to dismiss an action with prejudice for failure to prosecute. See discussion in Morgan v. Hopkins, supra, and cases cited therein. The trial court erred by dismissing this action with prejudice. We therefore amend the February 15, 2002, judgment to delete the words “with prejudice” and to substitute the words “without prejudice” in the same place.

DECREE

The February 15, 2002, judgment is amended to delete the words “with prejudice” and to add the words “without prejudice” in the same place. In all other respects, the judgment is affirmed. Costs of this appeal are assessed to Reed.

JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.

      . See discussion in Yates v. Bailey, 34,274 (La.App.2d Cir. 12/6/00), 774 So.2d 1103, and Brown v. City of Shreveport Urban Development, 34,657 (La.App.2d Cir.5/9/01), 786 So.2d 253.


author: h STEWART, J.

text:
    Linda BOZEMAN, Individually and on Behalf of Tommy Bozeman, Plaintiffs-Appellees, v. STATE of Louisiana, and the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendants-Appellants.
    Nos. 36,665-CA, 36,803-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 5, 2003.

      Lavon D. Raymond, Baton Rouge, for Intervenor Appellant State of Louisiana, DOHH.
    Jack M. Bailey, Jr., Shreveport, for Plaintiffs-Appellees Linda Bozeman and Terry Bozeman.
    Casten & Pearce, by: Claude W. Book-ter, Jr., Shreveport, for Defendant-Appel-lee State of Louisiana, DOTD.
    Before STEWART, GASKINS and PEATROSS, JJ.
   h STEWART, J.

This matter involves two related appeals which have been consolidated. The first is an appeal by Linda Bozeman, the plaintiff, whose claim for medical expenses stemming from the death of her husband was remanded for retrial in Bozeman v. State-DOTD, 34,430 (La.App.2d Cir.4/4/01), 787 So.2d 357, writ denied, 2001-1341 (La.6/29/01), 794 So.2d 813. On remand, the trial court reduced the award of medical expenses by applying Terrell v. Nanda, 33,242 (La.App.2d Cir.5/10/00), 759 So.2d 1026, which holds that the amounts “written-off’ or “contractually adjusted” pursuant to the requirements of the Medicaid program are not recoverable as damages. On appeal, the plaintiff challenges the application of the Terrell holding and the amount of medical expenses awarded by the trial court.

The second appeal is by the Department of Health and Hospitals (“DHH”), which appeals the denial of its motion to withdraw funds from the registry of the court. DHH filed this motion to recover medical expenses paid by Medicaid on behalf of the plaintiffs late husband, Tommy Bozeman.

For the reasons to be explained, we amend the trial court’s judgment as to the award of medical expenses, and we affirm the judgment denying DHH’s motion.

FACTS

This matter arises from a single car automobile accident on May 12, 1993, which resulted in the injury and subsequent death of Tommy 1 ¡.Bozeman. Specific facts of the accident are set forth in Bozeman v. State-DOTD, supra. Tommy Bozeman’s medical care was largely paid for by Medicaid, a federal and state funded program which provides payment for medical care for eligible individuals qualifying for public assistance. 42 U.S.C. § 1396; La. R.S. 46:151 and La. R.S. 46:153. Linda Bozeman, individually and on behalf of Tommy, sued the State/DOTD (hereinafter “DOTD”). The trial court found DOTD liable for damages due to an unreasonably dangerous condition of the shoulder of the highway where the accident occurred and assessed seventy-five percent of the fault to DOTD. Tommy Bozeman was assessed with twenty-five percent of the fault for the accident. In Bozeman, supra, this court affirmed the trial court’s judgment except as to the award of medical expenses, which had been appealed by DOTD. The trial court had awarded Boze-man $613,626.64 in medical expenses.

DOTD argued on appeal that the trial court erred in failing to give a credit for medical expenses paid by Medicaid. In its answer to the plaintiffs petition, DOTD alluded to Medicaid payments by alleging that the State would “pay for the injuries sustained by the said Tommy Bozeman in one way or another for the rest of his natural life.” The award of medical expenses was based on a joint exhibit, J-l, introduced by the parties. J-l consisted of a 93-page Medicaid printout of 592 itemized claims from medical providers. The printout purported to show the claims approved, denied, and paid by Medicaid on behalf of Tommy Bozeman. Copies of invoices were also introduced by the plaintiffs, but some of these were | ^duplicates of claims included on J-l. At trial, the parties also referred to a settlement with Chrysler, a defendant in a companion suit stemming from the same accident. The separate suits had not been consolidated. There was also reference to a lien by DHH in the Chrysler suit for recovery of Medicaid expenses. However, the Chrysler suit had not been made part of the record in Bozeman’s suit against DOTD.

In reviewing the trial court’s award of special damages, this court could not reconstruct the individual expense charges listed in the trial court’s reasons for judgment from the evidence in the record. Moreover, the trial court’s denial of DOTD’s request for a credit for Medicaid payments occurred before the Terrell decision, which addressed the effect of Medicaid payments on awards for medical expenses. Although DOTD had failed to consider the implication of the Terrell decision on appeal from the award of medical expenses, this court concluded that DOTD’s assignment of error pertained to the effect of J-l on the award of medical expenses and that the introduction of J-l expanded the pleadings to include the issue of offset pertaining to Medicaid payments. The court then remanded the matter for retrial of the medical expenses issue to allow the trial court to “fix the amount of special damages for medical expenses in view of the Terrell opinion and to the extent that that ruling may be applicable.” Bozeman, 787 So.2d at 369. The plaintiff applied for a rehearing, but rehearing was denied. The plaintiff did not seek review of the ruling on special damages before the supreme court.

14Retrial of the special damages for medical expenses occurred on February 18, 2002. Plaintiff introduced a summary spreadsheet of medical expenses compiled from the original 1996 Medicaid printout (J — 1 at trial), an updated 2001 printout of Medicaid claims, and original invoices which were introduced into evidence at trial. DOTD introduced the 2001 printout. No testimony was entered by either party. The trial court rendered judgment on March 28, 2002, awarding medical expenses of $344,999.59. Written reasons for judgment were provided on May 14, 2002, in response to a motion by the plaintiff. The trial court explained its decision as follows:

The ruling of this court on March 28, 2002 involved a determination by this court as to what medical expenses should be awarded in favor of plaintiff. The Second Circuit Court of Appeal remanded this case for that purpose and directed a consideration of the Terrell criteria in making that calculation. Both parties submitted their calculations and as can readily be seen by the record, this court accepted the calculations and argument made by the defendant, which are adopted as though fully set forth herein.

Thereafter, the trial court denied the plaintiffs motion for a new trial, and this appeal followed.

BOZEMAN APPEAL

The plaintiff asserts five assignments of error on appeal. The first and second assignments of error, which will be addressed together, pertain to whether the trial court erred in applying the Terrell holding to the award of medical expenses and whether DOTD met its burden of proof. The third and fourth assignments of error, which will be addressed together, pertain to whether the trial court erred in allowing evidence to be presented by DOTD | .¡concerning a defense not asserted at trial and in failing to find that plaintiff was prejudiced by the change in legal theory by DOTD after oral argument and on remand. The fifth assignment of error is whether the trial court erred in fixing the amount of medical expenses at $344,999.59.

We will address the third and fourth assignments of error first as these deal with whether the trial court should have gotten to a consideration of Terrell, supra, in assessing special damages. Thereafter, we will address the first and second assignments of error, which pertain to the application of Terrell, supra, to this matter. Lastly, we will address the fifth assignment of error pertaining to the calculation of damages.

Third and Fourth Assignments of Error:

The plaintiffs third assignment of error pertains to this court’s ruling in Bozeman, supra, that the

“joint exhibit clearly expanded the pleadings, defeating any assertion that the dictates of La. C.C.P. art. 861 were not followed by plaintiff, or that the State failed to raise any affirmative defense, such as offset, pertaining to the effect of the Medicaid payout.”

Bozeman, 787 So.2d at 369. The plaintiff argues that this ruling should not be considered as res judicata. Instead, the plaintiff contends that the law of the case doctrine should apply and that due to palpable error in the ruling, the trial court should have made its own determination as to whether the pleadings had been expanded to encompass the application of Terrell, supra, to the award of medical expenses and concluded that they had not.

A judgment of the appellate court becomes final and definitive if neither an application for rehearing nor an application for writ of certiorari to the supreme court is timely filed. La. C.C.P. art. 2166; Buckbee v. AWECO, Inc., 87-1201 (La.App. 3d Cir.4/26/93), 626 So.2d 1190. If a timely application for rehearing is denied by the appellate court, a judgment becomes final unless application for writ of certiorari is timely filed in accordance with La. C.C.P. art. 2166. The plaintiff applied before this court for a rehearing on the issue of medical expenses following the decision in Bozeman, supra, but rehearing was denied. Thereafter, the plaintiff did not apply to the supreme court for a writ of review. DOTD did apply for a writ of certiorari as to other issues, but the writ was denied. The decision in Bozeman, supra, is a final and definitive judgment.

In addition, the “law of the case” doctrine recognizes the conclusive effects of appellate rulings at trial on remand and the rule that an appellate court will not reconsider its earlier ruling in the same case upon a second appeal absent palpable error or manifest injustice. Northeast Realty v. Jackson, 36,276 (La.App.2d Cir.8//14/02), 824 So.2d 1264. The doctrine applies to those parties who were involved in the litigation at the time of the prior decision and who have had their day in court. Coldwell Banker J. Wesley Dowling & Associates, Inc. v. City Bank and Trust of Shreveport, et al., 25,684 (La.App.2d Cir.3/30/94), 634 So.2d 959, Clomon v. Monroe City School Bd., 557 So.2d 1100 (La.App. 2d Cir.1990), affirmed, 572 So.2d 571 (La.1990). Policy considerations behind the “law of the case” doctrine include avoiding indefinite relitigation of the same issue, obtaining consistent results in the same case, fairness to the parties, and affording one opportunity for argument and decision on the same issue. Coldwell Banker, supra.

7 Our review of Bozeman, supra, reveals nothing directing the trial court to determine whether the pleadings had been expanded by the introduction of the joint exhibit to encompass the application of Terrell. This determination was made on the appellate level and partly formed the basis for the decision to remand for a retrial of special damages for medical expenses. The trial court was bound by the appellate ruling on this issue. Moreover, we find no basis for reconsideration of the same issue on appeal after the plaintiff presented the same arguments after the Bozeman decision in an application for rehearing, which was denied by this court, and was afforded the opportunity to seek review before the supreme court but did not do so. Accordingly, we find no merit in this assignment of error.

In the fourth assignment of error, the plaintiff argues that the trial court erred in failing to find she was prejudiced by DOTD’s change in legal theory after oral argument and on remand. The plaintiff argues that by relying on Terrell, supra, DOTD is seeking an additional form of relief and not merely changing the theory of its case. The plaintiff also argues that she was prejudiced because she stipulated to the introduction of J 1 without knowing that it would be used by DOTD to prove amounts written-off under the Medicaid program.

Plaintiff relies on T.L. James & Co. v. Kenner Landing, Inc., 562 So.2d 914 (La.1990), which limits relief which may be granted in accordance with La. C.C.P. art. 862, where a party fails to demand a particular form of relief in his pleadings and where his trial conduct is inconsistent with such relief throughout the proceedings so as to improperly 18and substantially prejudice the other parties in preparing and asserting potential defenses. We believe that plaintiffs reliance on this case is misplaced since she had the opportunity on retrial to prepare and assert any potential defenses to the application of Terrell in determining the award for medical expenses. Moreover, it was evident throughout the course of litigation in this matter that the effect of Medicaid payments on the medical expenses awarded would be an issue. DOTD had referred to payment by the State for the care of Tommy Bozeman in its petition, and DOTD had argued that the medical expenses should be offset by the Medicaid payments. We do not find that the plaintiff was prejudiced by stipulating to J-l since she also relied on J-l at trial and at retrial in building her claim for medical expenses. Finally, it was this court which determined that Terrell should be considered, and which remanded the matter for retrial of the medical expenses issue in light of the Terrell decision and because of inadequacies in the record which impeded review of the initial award. This was not an instance of DOTD simply changing its requested relief post trial. Accordingly, we find no error in the trial court’s failure to find that the plaintiff was prejudiced by any change in legal theory on the part of DOTD. No prejudice has been shown. We find no merit in this assignment of error.

First and Second Assignments of Error:

|aIn these two assignments of error, the plaintiff challenges the applicability of Terrell v. Nanda, supra, to the award of medical expenses and argues that DOTD did not meet the burden of proof required to apply the holding of Terrell. Our consideration of these assignments of error must begin with a review of the Terrell decision.

Terrell v. Nanda, supra, involved a medical malpractice action against LSUMC, the tortfeasor. The plaintiffs reached a partial settlement with LSUMC, but the settlement did not include the claim for medical expenses which had been written off under Medicaid by LifeCare Hospital, a long term rehabilitation treatment facility which had provided treatment for the injured party as a Medicaid patient until his death. At issue was whether that portion of medical expenses contractually written off pursuant to the mandates of the Medicaid program were recoverable as special damages. This court held that the portion of medical expenses “contractually adjusted” or “written-off’ pursuant to the requirements of the Medicaid program are not recoverable as damages, because such expenses are not incurred by the plaintiff and are not subject to recovery under the collateral source rule. The rationale behind this ruling was based on the federal and state requirements of the Medicaid program. First, the federal and state requirements of the Medicaid program impose no liability on the recipient, because the healthcare provider is required to accept Medicaid as payment in full for the medical services provided. See 42 U.S.C. § 1396a; 42 C.F.R. § 447.20; and La. R.S. 46:446.5. Second, because of the particular requirements of the Medicaid program, there was no natural obligation h (giving rise to a duty on the part of the Medicaid recipient to render performance by payment of the written-off expenses. Third, in the absence of any obligation or liability on the part of the recipient for payment of medical expenses that are written-off pursuant to Medicaid requirements, such expenses were not incurred by the recipient and were not recoverable as special damages under the collateral source rule.

The same conclusion as in Terrell was reached by the Fourth Circuit in Suhor v. Lagasse, 2000-1628 (La.App. 4th Cir.9/13/00), 770 So.2d 422, with regard to expenses written-off under the Medicare program, a federally established health insurance program for people 65 and older and for many with disabilities. The Fourth Circuit held that medical expenses written-off under the Medicare program by operation of federal law are not recoverable as damages under the collateral source rule. The court concluded that the policy and goals, such as tort deterrence, accident prevention, and making the victim whole, behind the collateral source rule are not served by allowing recovery of the written-off amounts. Such amounts are not paid by anyone, as the debt is extinguished by operation of law when the healthcare provider elects to accept payment by Medicare. Id. The same applies to Medicaid.

As indicated in Suhor, supra, the goal of tort recovery, which is to make the victim whole, would not be served by allowing recovery of the non-existent debt. In the instant case, the plaintiff is made whole by recovering the amounts actually paid by Medicaid, which are the only expenses incurred by the recipient under the program. The plaintiff also Inrecovers any medical expenses that are denied or not covered by Medicaid. No windfall accrues to either the plaintiff or tortfeasor.

Plaintiff argues that recovery of the written-off amounts should be allowed because it is the healthcare provider, and not the tortfeasor, who writes off the medical expenses under Medicaid. As such, the tortfeasor pays less damages when the victim’s medical care is paid for by Medicaid rather than by a source such as private insurance. We reject this argument. Damages owed by a tortfeasor must be based on the particular factual situation at issue and not in comparison to what may be owed by some other tortfeasor in some other situation. One requirement of the Medicaid program, as provided by 42 C.F.R. § 447.15, is that participation in the Medicaid program is limited to “providers who accept, as payment in fall, the amounts paid by the agency plus any deductible, coinsurance, or co-payment required by the plan....” (Emphasis added.) State law requires participating healthcare providers to “comply fully with all federal and state laws and rules pertaining to the medical assistance programs.... ” La. R.S. 46:437.11(B). Under state law, providers are specifically required to accept Medicaid payment as payment in full and are prohibited from the billing or collecting additional amounts from the recipient or the recipient’s responsible party. La. R.S. 46:437.12(A)(10)(a). These provisions are cited to show that the healthcare provider is paid in full under Medicaid in accordance with the requirements of federal and state law. Although we refer to amounts being “written-off’ or “contractually adjusted,” Medicaid provides for full payment to healthcare providers under terms accepted by l12them through their participation in the program. Accordingly, the plaintiff recovers as special damages those medical expenses paid by Medicaid. Nothing more is owed.

The plaintiff makes a number of arguments suggesting that Terrell will impede efforts by DHH to recover expenses paid on behalf of Tommy Bozeman or reduce amounts that may be recovered. DHH is the state agency charged with administering the Medicaid program. See 42 U.S.C. § 1396a; 42 C.F.R. § 431.10; La. R.S. 46:151, and La. R.S. 46:153. Federal law requires DHH to take reasonable measures to identify third parties who may be legally liable for payment of resources furnished by Medicaid and to pursue recovery from these parties. See 42 C.F.R. §§ 438.135, 433.136, 433.138. Moreover, federal and state law provide that by applying for and receiving Medicaid benefits, the recipient is deemed to have assigned to the Medicaid agency his rights to any payment of medical care or support due by a third party. See 42 C.F.R. §§ 433.145 and 433.146; La. R.S. 46:153(E).

In accordance the third party liability and assignment provisions, La. R.S. 42:446 provides DHH the mechanism for enforcing its recovery rights. DHH may seek recovery of expenses paid by either asserting its own cause of action or intervening in a suit on behalf of the Medicaid recipient against third persons or legal entities where there is some legal liability on their part for payment of damages or compensation. The statute also creates a privilege on behalf of DHH for medical expenses paid by Medicaid. La. R.S. 46:446(F). As will be discussed infra, DHH neither asserted its own cause of action nor filed an intervention in this suit. What DHH may | recover is not an issue to be determined at this time. Thus, those arguments pertaining to Terrell’s potential impact on DHH’s recovery are premature and not directly applicable to the issue to be determined in this matter. The only issue here is the applicability of the Terrell holding to determine what special damages for medical expenses are due to the plaintiff from the tortfeasor, DOTD.

As has been stated, Terrell holds that the expenses contractually adjusted or written-off pursuant to the requirements of the Medicaid program may not be recovered as special damages by the plaintiff. Here, the injured party’s medical expenses were paid by Medicaid. The trial court did not err in applying Terrell to determine the award of medical expenses.

Finally, we find no merit in the plaintiffs argument that DOTD failed to meet a burden of proof or satisfy a test for Terrell to apply. No such test is set forth in Terrell. Rather, the holding is based on the federal and state law requirements of the Medicaid program. Medicaid is a joint federal and state program which provides payment for medical care for qualifying individuals. 42 U.S.C. § 1396a; La. R.S. 46:151; La. R.S. 46:153. As has been discussed, participating healthcare providers are required to accept Medicaid payment as payment in full for services rendered and are prohibited from billing or collecting additional amounts from the recipient. That Tommy Bozeman was a recipient of Medicaid is not in dispute. Therefore, the federal and state laws applicable to Medicaid recipients apply here. The plaintiffs recovery, to the extent of those expenses paid by Medicaid, is subject to the holding of Terrell.

|uFor these reasons, we find no merit in these two assignments of error.

Fifth Assignment of Error:

The plaintiff argues that the trial court erred in fixing medical expenses at $344,999.59. The plaintiff argues that under Terrell, supra, she is entitled to the amounts paid by Medicaid as well as the amounts that were either denied or not considered by Medicaid. This is correct. Terrell excludes only those amounts written-off under the Medicaid program. The plaintiff argues that the trial court’s award did not include either the full amount of the claims denied by Medicaid or the full amount of claims actually paid by Medicaid.

In the written reasons for judgment, the trial court explained that the parties submitted their calculations and that the court accepted the calculations and arguments of the defendant. The defendant’s calculations are based on a 156 page printout of claims submitted to Medicaid on behalf of Tommy Bozeman. The plaintiff also used this printout in compiling her own spreadsheet of medical expenses. The printout is from the Louisiana Medicaid Management Information Systems and covers the period from 03/12/1993 through 08/17/2001. The printout shows that 1093 claims were submitted to Medicaid in the amount of $622,086.89. Of the total claims, 830 claims were approved by Medicaid, which paid providers $319,838.46. The printout also shows that 263 claims were denied in the amount of $35,368.51. Using these figures, the amount written off under Medicaid and the amount which is not recoverable as damages is $266,879.92.

J^The plaintiff argues that if the sums the 2001 printout shows paid are added, the total is greater than the total indicated on the printout. We disagree, as the total reached by our own calculations of the sums shown as paid on the printout approximated the total amount shown on the printout. Therefore, the amount of medical expenses paid by Medicaid and to be awarded to the plaintiff total $319,838.46.

Next, the plaintiff argues that the sum of those charges either not considered or denied by Medicaid total $60,238.74, rather than the sum of $35,368.51 shown on the printout as the total charges denied by Medicaid. The plaintiff argues that the defendant submitted the printout as evidence of the amounts due, but then attempted to impeach data in the printout by arguing that some charges were duplicates. The plaintiff contends that the printout speaks for itself and what appears in the printout is the best evidence of what was paid.

We agree that the printout speaks for itself and is the best indication of claims incurred, paid, and denied by Medicaid. The printout shows the total claims denied to be $35,368.51. Although various codes are assigned to each claim to designate the action taken on a particular claim, no evidence was introduced by either party to explain these codes. The best evidence of claims denied is the total provided on the Medicaid printout ($35,368.51).

|1fiIn the reasons for judgment, the trial court explained that it accepted the calculations of the defendant. DOTD suggested that the plaintiff was entitled to medical expenses in the amount of $344,999.59, this being the correct total of the amounts indicated as paid and denied on the 2001 Medicaid printout. Plaintiff argues that this figure is incorrect and that the correct total that should be awarded is $355,206.97. We conclude that the plaintiff is entitled to medical expenses in the amount of $355,206.97, this being the total of the claims paid by Medicaid ($319,-838.46) and the claims denied by Medicaid ($35,368.51), as shown on the 2001 printout.

APPEAL BY DEPARTMENT OF HEALTH AND HOSPITALS

On March 28, 2002, DOTD deposited funds totaling $1,978,602.21 into the registry of the court to satisfy its obligation for damages, excluding medical expenses, awarded plaintiffs pursuant to the partial final judgment that had been rendered in Bozeman, supra. In its motion to deposit the funds, DOTD specifically requested that it be authorized to deposit the funds “which are due plaintiff in this matter for satisfaction of the partial final judgment herein.” Thereafter, plaintiff filed an answer to the motion on April 9, 2002, and then filed a motion to withdraw the funds on April 11, 2002, which was granted that same day. On April 16, 2002, the plaintiff received a check from the registry of the First Judicial District Court in the amount of $1,978,938.30, this being the amount deposited by DOTD plus accrued interest.

On April 17, 2002, DHH filed a motion to withdraw funds totaling $319,838.46 from the money deposited by DOTD into the court’s registry. 117 DHH alleged that it had a privilege on the sums deposited by DOTD by virtue of Medicaid expenses paid on behalf of Tommy Bozeman. DHH regarded the deposit of funds by DOTD as the institution of a coneursus proceeding and sought to assert its claim to a share of the funds. In a judgment rendered May 14, 2002, the trial court denied DHH’s motion. The trial court determined that prior to the withdrawal of the funds by the plaintiffs, DHH had not intervened or made any appearance in the proceedings and that because the funds were no longer on deposit with the. court, the motion by DHH to withdraw such funds was moot. DHH appeals the denial of its motion.

La. R.S. 46:446(A) states as follows:

A. When an injury has been sustained or an illness or death incurred by any person under circumstances creating in some third person or legal entity a legal liability or obligation to pay damages or compensation to that person or to his spouse, representative, or dependent, the Department of Health and Hospitals shall have a cause of action against such third party and/or may intervene in a suit filed by or on behalf of the injured, ill, or deceased person or his spouse, representative, or dependent against such third party to recover the assistance payments and medical expenses the Department of Health and Hospitals has paid or is obligated to pay on behalf of the injured, ill, or deceased person in connection with said injury, illness, or death.

The statute further requires the plaintiff in a suit filed by or on behalf of a recipient of Medicaid against a third party to serve a copy of the petition on DHH. La. R.S. 46:446. An intervention by DHH is “not barred by prescription if it was not barred at the time the main demand was filed, provided such intervention is filed within ninety days of date of service of main demand upon the department.” La. R.S. 46:446(E). In addition, the |1sstatute grants DHH a privilege for the amount of medical assistance payments out of the total recovery collected in such suit on behalf of the recipient. La. R.S. 46:446(F).

Nothing in the record indicates that DHH was ever served with a copy of the plaintiffs petition. However, the record shows that DHH knew of the suit. In fact, DHH filed a motion to substitute counsel in 1998. DHH also answered discovery during the course of litigation relative to Medicaid payments made on behalf of Tommy Bozeman and corresponded with the plaintiff regarding this matter. Although DHH clearly had knowledge of this suit on behalf of Tommy Bozeman, DHH never asserted its rights under La. R.S. 46:446(A) by filing an intervention or asserting its own cause of action prior to payment of damages by DOTD into the registry of the court and prior to the withdrawal of these funds by the plaintiff.

In Cole v. State ex rel. Dept. of Transportation and Development, 99-912 (La.App. 3d Cir.12/22/99), 756 So.2d 315, writ denied, 2000-0199 (La.4/7/00), 759 So.2d 766, DOTD challenged the trial court’s award of medical expenses to the plaintiff without ordering payment of a certain sum in preference to satisfy a Medicaid lien by DHH in accordance with La. R.S. 46:446. The Third Circuit concluded that DHH had the opportunity to intervene but did not do so, and found that the trial court was not compelled to award damages to DHH when it chose not to be a litigant in the suit.

In the case sub judice, DHH was not a litigant. It did not intervene even though it had the opportunity to do so. The damages deposited by DOTD into the registry of the court were paid in satisfaction of a judgment [ 1Bin favor of the plaintiff. The deposit of funds by DOTD did not institute a eoncursus proceeding as its motion included no allegations of competing claims for the money. See La. C.C.P. art. 4654. The funds were paid to the plaintiff in satisfaction of the judgment. We find no error in the trial court’s denial of DHH’s motion.

CONCLUSION

For the reasons expressed, in No. 36,-803-CA, we amend the trial court’s award of special damages for medical expenses to reflect the correct amount of claims paid and denied by Medicaid, which totals $355,206.97. Costs are to be divided between the parties. In appeal No. 36,665-CA, we affirm the judgment denying DHH’s motion to withdraw funds deposited into the registry of the court. Costs are assessed to DHH.

AMENDED.

AFFIRMED.

      . Appeal No. 36,803-CA is by the plaintiff, Linda Bozeman. Appeal No. 36,665-CA is by the Department of Health and Hospitals.

      . The facts as they pertain to the appeal by DHH will be set forth in the section addressing the issue raised by DHH.

      . La. C.C.P. art. 862 provides:
      Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.

      . The amount of the claims written-off under Medicaid is calculated by subtracting the total paid by Medicaid ($319,838.43) from the total of the claims submitted ($622,086.89) to get $302,248.43, the total claims unpaid. From this figure, we subtract the claims denied by Medicaid ($35,368.51), to get the total amount written-off under the program ($266,-879.92).