text:
    Mary L. QUINN v. RISO INVESTMENTS, INC.; United Fire & Casualty Company; Lafayette Insurance Company; Sol Mayer; and United Services Automobile Association.
    No. 2003-CA-0903.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.
    Rehearing Denied March 24, 2004.

      Leonard L. Levenson, Kristine K. Sims, New Orleans, LA, for PlaintiffAppellant.
    James F. Ryan, Donavan & Lawler, Me-tairie, LA, for Defendant/Appellee, Riso Investments, Inc.
    T. Gregory Schafer, Valerie M. Briggs, Schafer & Schafer, New Orleans, LA, for Defendants/Appellees, Sol And Peggy Mayer.

      (Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS Jr.)
   TERRI F. LOVE, Judge.

Plaintiff Mary Quinn filed suit asserting that she was injured while traversing the sidewalk adjacent to the defendants’, RISO Investments, Inc.’s and Sol Mayer’s, property. Both the plaintiff and the defendants filed motions for summary judgment. The trial court granted both defendants’ motion for summary judgment, dismissing the plaintiffs action. Subsequently, this appeal was lodged. For the following reasons we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Mary Quinn, was walking along the sidewalk in the 900 block of Chartres Street in the French Quarter on September 24, 1999. Ms. Quinn claims while walking adjacent to 922 Chartres Street, she tripped on a damaged portion of the sidewalk. Mr. Sol Mayer and Ms. Peggy Mayer own the property located at 922 Chartres Street. As she attempted to regain her balance, she again tripped on another damaged portion of the sidewalk adjacent to 926 Chartres Street, which is owned by RISO Investments, Inc. (“RISO”).

|2Ms. Mayer appeared after Ms. Quinn fell and observed her lying on the sidewalk. Subsequently, Ms. Mayer claims that she called City Hall and was informed by an unidentified city employee that the property owner was responsible for repairing the sidewalk outside of their residence.

Ms. Mayer immediately contacted a repairman to fix the damaged portion of the sidewalk adjacent to her property. On the day of the repairs, she informed her neighbor, Mr. Riso, that her sidewalk was being repaired and offered to repair his also because she believed they were responsible. Mr. Riso owns RISO Investments, Inc. Mr. Riso disagreed, but replied that if the repairman had any cement remaining, he could repair his sidewalk also. The repairman fixed both properties. Ms. Mayer paid for the services, and Mr. Riso reimbursed her for his portion of the repairs. Ms. Mayer claims she had no idea that a lawsuit may possibly be lodged.

Before repair work began, Carol Senft, a friend of Ms. Quinn took pictures of the condition of the sidewalk. While taking the pictures, Ms. Senft claims Ms. Mayer questioned her. Ms. Senft felt intimidated by the interrogation and left. Upon returning two days later, the entire area was covered by visqueen and bounded by caution tape.

Eleven months after the accident, Ms. Quinn filed suit against the named defendants. After discovery, separate motions for summary judgment were filed by all parties. Following a hearing on January 10, 2003, the trial court denied the motion for summary judgment of Ms. Quinn and granted the motions for summary | ¿judgment of RISO, United Fire and Casualty Company, Lafayette Insurance Company, Sol Mayer, Peggy Mayer and United Services Automobile Association. Ms. Quinn subsequently lodged this appeal.

Standard of Review

The Louisiana Supreme Court discussed the standard of review of a summary judgment in Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181 and 99-2257 (La.2/29/00), 755 So.2d 226. They found in pertinent part:

Our review of a grant or denial of a motion for summary judgment is de novo. Schroeder v. Board of Sup’rs of Louisiana State University, 591 So.2d 342 (La.1991). A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the article was further amended to specifically alter the burden of proof in summary judgment proceedings as follows: The burden of proof remains with the mov-ant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Id. at p. 7, 755 So.2d at 230-31.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion and all doubts must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 1 (La.12/08/00), 775 So.2d 1049, 1050. This court reasoned in Coto v. J. Ray McDermott, S.A., 99-1866, p. 4 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, 830 that determining whether an issue is genuine, courts Lcannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.

Based on the foregoing, in the instant case, this Court must conduct a de nov o review to determine whether the trial court committed error in denying plaintiffs motion for summary judgment and granting summary judgment in favor of the defendants, RISO, Sol Mayer, and Peggy Mayer.

FIRST ASSIGNMENT OF ERROR

Ms. Quinn asserts the trial court erred by denying plaintiffs motion for summary judgment on the issue of liability for spoliation of evidence.

Plaintiff claims the defendants spoiled the evidence relative to this case by repairing the sidewalk after a city employee informed them they were responsible for maintaining the sidewalk. Plaintiff also alleges Ms. Mayer repaired the sidewalk in violation of the Vieux Carre Commission’s rules requiring a permit. Ms. Mayer informed Mr. Riso of her responsibility in maintaining the sidewalk the day of the repairs, but he disagreed. Although Mr. Riso did not initiate inquiry, he reimbursed Ms. Mayer and did not refrain from repairing his portion of the sidewalk on that day.

Ms. Mayer admits to repairing the sidewalk after the municipal employee told her she was responsible for maintaining the sidewalk. She contends that after being misinformed, she did not want anyone else to be injured and therefore she had the sidewalk repaired. Ms. Mayer also denies she knew litigation was likely when she had the repairs done, emphasizing suit was not filed until eleven months after the accident. Ms. Mayer claims her repairs of the sidewalk should not refrain Ms. Quinn from proving her case because photographs were taken prior to the repairs being completed. As to the permit, Ms. Mayer repeatedly claims she did |snot know a permit was necessary. Mr. Riso also denies any allegation that he spoiled evidence or created a defect.

We find the Vieux Carre Commission’s permit is not relevant to the issue of spoliation.

Spoliation of Evidence

The theory of “spoliation of evidence” refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Pham v. Contico Intern. Inc., 99-945, p. 4 (La.App. 5 Cir. 3/22/00), 759 So.2d 880, 882. A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Id. at 884. Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply. Smith v. Jitney Jungle of Am., 35,100, p. 11 (La.App. 2 Cir. 12/5/01), 802 So.2d 988, 995, writ denied, 02-0039 (La.3/15/02), 811 So.2d 913.

Recognizing a claim in tort for spoliation of evidence presents a relatively new concept in Louisiana jurisprudence and has been the subject of recent consideration in our courts. Guillory v. Dillard’s Dept. Store, Inc., 2000-190, p. 3 (La.App. 3 Cir. 10/11/00), 777 So.2d 1, 3. The tort of spoliation of evidence has its roots in the eviden-tiary doctrine of “adverse presumption”, which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Pham, 99-945, p. 4, 759 So.2d at 882.

In order to satisfy the test for spoliation, Ms. Quinn must establish Ms. Mayer and RISO destroyed evidence to intentionally deprive the plaintiff of its use Cat trial. Both parties agree Ms. Mayer repaired the sidewalk. In the case at bar, there are factual disputes as to whether Ms. Mayer and RISO knew a lawsuit would be filed when the repairs were made and whether the defendants’ repaired the sidewalk to prevent Ms. Quinn from proving her case at trial.

The plaintiffs offer testimony that Ms. Mayer saw Ms. Quinn on the ground the day of the accident. They also urge Ms. Mayer saw Ms. Senft take pictures after the accident of the area and questioned her intentions. Afterwards, Ms. Mayer called City Hall to determine who was responsible. After the city told her who was responsible, she repaired the sidewalk. Mr. Riso disagreed with Ms. Mayer regarding her responsibility to repair the sidewalk, but allowed the repairman to fix the portion of the sidewalk adjacent to his property. Mr. Riso authorized the repairs after talking to Ms. Mayer and reimbursed her.

Ms. Mayer declares in her deposition that she did not know or anticipate a lawsuit would be filed when she repaired the sidewalk. She only repaired the sidewalk because the city told her she was responsible for it and she did not want anyone else to be injured. Mr. Riso also denies knowing a lawsuit would be filed.

Summary judgment is rarely appropriate for a determination based on subjective facts such as intent, motive, malice, knowledge or good faith. Johnson v. Hitchens, 518 So.2d 1154, 1156 (La.App. 4th Cir.1987). A genuine issue of material fact exists as to their motive in fixing the sidewalk and to their knowledge of a possible lawsuit. We affirm the trial court’s decision in denying plaintiffs motion for summary judgment.

SECOND ASSIGNMENT OF ERROR

Plaintiff asserts that the trial court erred in granting defendants’ motions for summary judgment. Ms. Quinn argues ultimately it was the defendants who knew |7or should have known of the risk posed by the sidewalk and they failed to take any steps to prevent the damage caused by it. Ms. Quinn alleges the defendants are liable under two theories of recovery: strict liability under La. Civil Code art. 2317 and negligence via La. Civil Code art. 2315.

There is a difference in proof between these two theories of liability, however, in that under La. Civil Code art. 2315, the plaintiff must show that the owner or custodian either knew or should have known of the risk, whereas under La. Civil Code art. 2317, the plaintiff is relieved of proving scienter on the part of the defendant. Anderson v. Tenneco Oil Co., 2001-0295, p. 10 (La.App. 4 Cir. 5/22/02) 826 So.2d 1143, 1152, writ denied, 02-2035 (La.11/1/02), 828 So.2d 585.

Under either theory of liability, the plaintiff has the burden of proving that: (1) the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and (3) the defect in the property was a cause-in-fact of the resulting injury. Id. at 1153.

Strict Liability

It is well settled law in Louisiana that strict liability under La. C.C. art. 2317 is based upon the relationship between the person with custody and the thing posing an unreasonable risk of harm to others. Thumfart v. Lombard, 613 So.2d 286, 290. The Louisiana Supreme Court has used a two-part test in determining whether the defendant has custody. First, the defendant should have a right of direction and control over the thing. Second, a court should examine what, if any, kind of benefit the defendant derives from the thing. Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991); King v. Louviere, 543 So.2d 1327, 1329 (La.1989).

| a We have only extended liability to adjoining landowners when they exercise control over the area, usually via a servitude or lease. Landowner liability is not extended if the adjoining landowner does not exhibit custody or overt control over the sidewalk. In Houssiere, we failed to extend liability to an adjoining landowner who allowed the bushes and shrubbery to grow over a crack and obscure it. Houssiere v. Lafayette Insurance Co., 559 So.2d 903 (La.App. 4th Cir.1990). In Thumfart v. Lombard, 613 So.2d 286 (La.App. 4th Cir.1993), we extended liability to the landowner who paved over the sidewalk creating a driveway for his commercial establishment. We maintain that where an abutting landowner develops adjacent property and adopts it as his own private, and not public, use, he may be held strictly liable for defects posing an unreasonable risk of danger located on such property. Id. at 292. See, Rubino v. Louisiana Stadium and Exposition Dist., 619 So.2d 738 (La.App. 4th Cir.1993) (Liability extended to adjoining landowner who had a servitude over the property). See also, Ehrman v. Holiday Inns, Inc., 94-0312 (La.App. 4 Cir. 3/29/95), 653 So.2d 732, writ denied, 95-1051 (La.6/16/95), 655 So.2d 343. (Liability extended to adjoining landowner who leased property and maintained by cleaning daily per terms of the lease.)

Ms. Quinn urges the Mayers and RISO had control over the sidewalk because after the accident, they initiated contact with the city and repaired the sidewalk. Relying on Dupree v. City of New Orleans, 99-3657 (La.8/31/00), 765 So.2d 1002, Ms. Quinn concludes this action proves Ms. Mayer knew the sidewalk was dangerous prior to the accident and should have erected a barrier before the accident. Ms. Quinn’s reliance on Dupree is misguided. In Dupree, the Louisiana Supreme Court held the Sewerage and Water Board (“SWB”), not the city, had custody over the street where a cave-in caused serious injury to Mr. Dupree. SWB |9had monitored the area and cave-in six weeks prior to the accident erecting barricades before and after the accident, completing inspections and work orders. Ultimately, SWB concluded they were not responsible for the cave-in and contacted the city, but the Court held their actions before and after the accident constituted garde.

In the case at bar, the adjoining landowners, the Mayers and RISO, actions do not rise to custody. First, the defendant should have a right of direction and control over the thing. Ms. Quinn urges RISO had custody by sweeping the sidewalk and authorizing the repairs. None of the cases decided in this circuit extend landowner liability to an individual who sweeps the sidewalk. Ms. Quinn urges Ms. Mayer had control over the sidewalk by authorizing the repairs. Mr. Riso and Ms. Mayer did not exercise control by authorizing the repairs on the sidewalk. The repairs were only made based on erroneous information from the city.

Second, the defendants must derive a benefit from the thing. Ms. Quinn argues the defendants’ benefit was the sidewalk was used as a means of ingress and egress. The public sidewalk is available for public use. Many people use the sidewalks in the French Quarter on a daily basis. This case is distinguishable from Thumfart because the sidewalk was not changed in any way to accommodate the defendants’ businesses. Neither RISO nor Ms. Mayer derive a special benefit from the thing which did not benefit the public in general. Finding neither defendant exercised control, nor derived a benefit from the sidewalk, we conclude the defendants did not have custody over the sidewalk. Therefore, we affirm the trial court’s decision to grant defendants’ motion for summary judgment on the issue of strict liability.

| Negligence

In applying the law of negligence, the abutting property owners are under no duty to repair or maintain a public sidewalk. Monteleon v. City of New Orleans, 617 So.2d 49 (La.App. 4th Cir. 1993). The burden for tort liability arising from a defect in a public sidewalk is generally with the municipality, not the adjoining landowner. Houssiere v. Lafayette Insurance Co., 559 So.2d 903, 904 (La.App. 4th Cir.1990). An abutting property owner is not generally responsible for the repair or maintenance of a public sidewalk except where the defect in the sidewalk was caused by that landowner. This exception is based on negligence under La. C.C. art. 2315. Schully v. Hughes, 2000-2605, p. 3 (La.App. 4 Cir. 6/5/02), 820 So.2d 1219, 1221.

Ms. Quinn argues Mr. Riso’s action in assuming responsibility for the repairs raises a suspicion and/or creates a presumption for the possibility that perhaps he did so because he, in fact, caused the defective condition. Ms. Quinn argues the Mayers are liable under negligence theory because Ms. Mayer not only knew of the dangerous condition of the sidewalk, but she also contributed to or caused the condition by planting a tree in the area where Ms. Quinn fell.

Generally, the adjoining landowners, RISO and the Mayers, would not be responsible for maintaining the sidewalk, unless they caused the defect. Under the negligence theory, the defendants can only be held liable if they caused the defect that was the cause-in-fact of the injury. A genuine issue of material fact exists as to whether RISO and Ms. Mayer caused the defect. Quinn alleges Ms. Mayer caused the defect because she planted a tree in the planter. Ms. Mayer does not deny planting the tree, but avers she did not cause the defect in the sidewalk. Mr. Riso denies causing a defect in the sidewalk claiming many utilities are responsible [1Tfor the sidewalk’s condition. A genuine issue of material fact exists as to whether the adjoining landowners caused the defect in the sidewalk under the negligence theory. Therefore, we reverse the trial court’s decision to grant defendant’s motion for summary judgment on the issue of negligence.

CONCLUSION

Finding a genuine issue of material fact exists as to spoliation, we pretermit discussion of the third assignment of error asserting summary judgment is inappropriate in favor of defendants if this court finds spoliation of evidence.

For the foregoing reasons, we affirm the trial court’s decision denying plaintiffs motion for summary judgment on spoliation and granting defendant’s motion for summary judgment on strict liability. We reverse the trial court’s decision to grant defendant’s motion for summary judgment on the issue of negligence. We remand the matter for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


source: Caselaw Access Project

author: Judge EDWIN A. LOMBARD.

license: Public Domain

text:
    Charles V. VODANOVICH v. A.P. GREEN INDUSTRIES, INC., et al.
    No. 2003-CA-1079.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2004.

      Steven M. Jupiter, Leblanc & Waddell, LLC, New Orleans, LA, for Plaintiff/Appellant.
    R. Dean Church, Jr., Daniel W. Dilzell, Peter S. Koeppel, Best Koeppel, New Orleans, LA, for Appellee, Dixie Machine Welding and Metal Works, Inc.
    H. Philip Radecker, Jr., Lawrence G. Pugh, III, Frank P, Accardo, Scott R. Hymel, Tonya M. Short, Alison S. Borison, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Ap-pellee, Sank, Inc., Formerly known as Buck Kreihs Company, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   Judge EDWIN A. LOMBARD.

This is a wrongful death suit in which the plaintiff appeals the trial court’s finding that there were no genuine issues of material fact with regards to plaintiff being exposed to asbestos as a result of the defendants’ work activities. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Vodanovich (“Plaintiff’) worked as a longshoreman from 1948 to 1986. As a longshoreman the plaintiff was required to load and unload asbestos cargo at several wharves along the Mississippi River. It is alleged that various maintenance repair companies such as Buck Kreihs and Dixie machine performed maintenance work aboard the same ships that the plaintiff was loading and unloading. On November of 2001, the plaintiff was diagnosed with malignant mesothelioma. Subsequently, the plaintiff died on May 20, 2002. Prior to his death the plaintiff filed suit on February 16, 2002, naming as defendants, among others, Sank, Inc., f/k/a Buck Kreihs Company, Inc. and Dixie Machine Welding and Metal Works, Inc. (collectively “Defendants”).

The defendants filed motions for summary judgment on January 9, and February 5, 2003 respectively. The defendants contend that there was no |2connexity between their actions and the plaintiffs contraction of mesothelioma. Specifically, the defendants argue that the plaintiff could not prove exposure. The trial court granted defendants’ motion for summary judgment and dismissed plaintiffs case. This subsequent appeal followed.

The sole issue on appeal is whether the trial court erred in granting the defendants’ motion for summary judgment by failing to construe factual inferences drawn from the evidence in favor of the plaintiff, and finding that the defendants met their burden of proof.

LAW AND ANALYSIS

In Pierre-Ancar v. Browne-McHardy Clinic, 2000-2410 (La.App. 4 Cir. 1/16/02), 807 So.2d 344, cert. denied, 2002-0509 (La.4/26/02), 814 So.2d 558, this Court discussed the criteria to be used by an appellate court in reviewing a summary judgment, as follows:

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The initial burden of proof remains on the movant to show that no genuine issue of material fact exists. However, if the movant will not bear the burden of proof at trial, his burden on the motion requires him not to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2); Fairbanks v. Tulane University, 98-1228 (La. App. 4 Cir. 3/31/99), 731 So.2d 983, 985.

IsAfter the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the non-moving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir 9/10/97), 699 So.2d 895, 897. When a motion for summary judgment is properly supported, the non-moving party may not rest on the mere allegations of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La. C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326. Id. at pp. 4-5 and 702 So.2d at 347-48.

To prevail, a plaintiff in an asbestos case must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant’s products, and that he received an injury that was substantially caused by that exposure. When multiple causes of injury are present, a defendant’s conduct is a cause in fact if it is a substantial factor generating plaintiffs harm. Quick v. Murphy Oil Co., 93-2267 (La.App. 4th Cir.9/20/94), 643 So.2d 1291.

There can be more than one cause in fact of an accident as long as each cause bears a proximate relation to the harm that occurs and it is substantial in nature. A plaintiff seeking to recover under either negligence or strict liability theories must prove that the negligent act or defect complained of was a cause-in-fact of the injury. Davis v. State Farm Ins. Co., 558 So.2d 636 (La.App. 1st Cir.1990).

In Quick v. Murphy Oil Co., supra, the court found that:

LWhen evaluating liability in an asbestos claim, we apply traditional theories of tort liability (for example, negligence and products liability) which require proof of causation. See Cole v. Celotex Corp., 599 So.2d 1058 (La.1992); Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986); Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. den. 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984). Asbestos cases typically involve multiple defendants and courts have analyzed the cases under concurrent causation, a doctrine which “proceeds from the assumption that more than one defendant substantially contributed to the plaintiffs injury.” 210 E. 86th Street Corp. v. Combustion Engineering, Inc., 821 F.Supp. 125,150 (S.D.N.Y.1993).

93-2267 (La.App. 4th Cir.9/20/94), 643 So.2d 1291.

In Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), the Supreme Court stated that “conduct is a cause-in-fact of harm to another if it was a substantial factor in bringing about that harm.” Id. The court stated that negligent conduct is a substantial factor if the harm would not have occurred without the conduct, i.e., but for defendant’s conduct, plaintiff would not have sustained injury. The court thereby equated the two concepts of substantial factor and necessary antecedent. Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 373 (1970).

Quick makes clear that a plaintiffs burden of proof against multiple defendants in a long-latency case is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each defendant’s product to the plaintiffs injury. Thus, in an asbestos case, “the claimant must show that he had significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” Asbestos v. Bordelon, Inc., 96-0525 (La.App. 4th Cir.10/21/98), 726 So.2d 926 at 948.

In the present case, the record indicates that the plaintiff was a longshoreman who loaded and unloaded ships at various wharves in the New Orleans area, and Lthat the defendants were vessel repair companies who performed work on vessels at various wharves in the New Orleans area. Both the plaintiff and Earl Lindsay provided testimony regarding the plaintiffs work activities and asbestos exposure.

The plaintiff testified that he worked the asbestos line seven years prior to December, 1963, for T. Smith & Sons, unloading sacks of raw asbestos from south Africa onto barges for additional travel. The plaintiff further stated that he could have been exposed to asbestos during the maintenance and repair of the ships. However, he could not identify the contractors performing this work nor could he provide specific details of the defendants’ activities in relation to the work performed and asbestos exposure.

Mr. Lindsay, a co-worker, testified that he worked with the plaintiff on the waterfront, even working in the same gang with him for periods of time, but indicated that the plaintiff would be the best person to testify to exposure to asbestos. Interestingly, Mr. Lindsay could provide no evidence of specific instances where the defendants’ activities caused the plaintiff to be exposed to any asbestos fibers.

Under Louisiana law, the plaintiff bears the burden of proving that the defendants’ conduct caused asbestos exposure, and that the conduct was a substantial contributing factor of the plaintiffs injury. In the present case, the plaintiff has failed to establish any direct or circumstantial evidence of exposure to asbestos fibers released by the defendants’ activities. The plaintiff testified that he was never engaged in any of the defendants’ work. He also could not recall the names of any of the companies performing insulation work on any of the vessels he worked in and around nor could he could he recall what materials they were using or what things they were insulating. The record lacks any evidence that | fiplaintiff was exposed to any asbestos fibers as a result of any repair work by defendants, sufficient to warrant the inference that plaintiff was exposed to asbestos fibers released by the defendants’ activities.

It is well established that the movant in a motion for summary judgment need only show that “there is an absence of factual support for one or more elements essential to the adverse part’s claim, action or defense.” Thereafter, if the adverse party fails to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. Art. 966. Because plaintiff has provided no identification of actual work being performed in proximity, there can be no inference that the defendants’ activities were a substantial factor in causing plaintiffs injuries. A plaintiff must establish his claim to a reasonable certainty, mere possibility, and even unsupported probability, are not sufficient to support a judgment in plaintiffs favor. Accordingly, summary judgment was appropriate and the trial court’s judgment should be affirmed.

CONCLUSION

Based on the forgoing, the judgment of the trial court sustaining the defendants’ motion for summary judgment is affirmed.

AFFIRMED.


author: MICHAEL E. KIRBY, Judge.

text:
    EXPOSITION PARTNER, L.L.P. and ICMC Investors, L.L.C. v. KING, LEBLANC & BLAND, L.L.P.
    No. 2003-CA-0580.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2004.
    Rehearing Applications Denied April 27, 2004.

      Gladstone N. Jones, III, Peter N. Frei-berg, Jones, Verras & Freiberg, L.L.C., and James M. Garner, Peter L. Hilbert, Jr., Timothy B. Francis, Martha Y. Curtis, Sher Garner Cahill Richter Klein McAlis-ter & Hilbert, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Phillip A. Wittmann, Paul J. Masinter, Samantha Griffin, Stone Pigman Walther Wittmann L.L.C., New Orleans, LA, for Defendants/Appellees (Gardere Wynne & Sewell And Frank Putman).
    John E. Galloway, J. Michael Daly, Jr., Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee (King LeBlanc & Bland, L.L.P.).
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge LEON A. CANNIZZARO JR.).
   MICHAEL E. KIRBY, Judge.

This appeal arises out of the dismissal on an Exception of No Right of Action of a large number of claims by Exposition Partners, L.L.P. (“Exposition”) against the law firm of King, LeBlanc & Bland, L.L.P.(“KLB”), and dismissal of defendants, Gardere Wynne & Sewell, L.L.P. (“GWS”), and Frank Putman, Esq., on an exception of lack of in personam jurisdiction. KLB, GWS and Mr. Putman acted as transactional attorneys in several business dealings and litigation. Exposition filed suit alleging that defendants committed malpractice; breached contractual and fiduciary duties; operated under a conflict of interest; committed fraud; breached the Code of Professional Conduct; and committed acts or omissions on which Exposition detrimentally relied.

This dispute arose from a nationwide class action settlement in White v. General Motors Corporation, 97-1028 (La.App. 1 Cir. 6/29/98), 718 So.2d 480. In the settlement agreement, General Motors (G.M.) agreed to issue to all class members certificates worth $1000.00 that could be used toward the purchase of new GM vehicles.

IgA Louisiana resident, William F. Ryan and his corporation, are the partners of Exposition Partners, L.L.P. (“Exposition”), which is a member of ICMC Investors, L.L.C. (“ICMC”). ICMC’s original members were Mr. Ryan and Boyd L. McPhail, another Louisiana resident. Mr. Ryan and Mr. McPhail are/were co-managers of ICMC.

In order to create a secondary market for the $1000.00 GM certificates, ICMC decided to form a company with the help of businessmen, James Dawley and Donald McGill. Mr. Ryan wanted to purchase these certificates at discounted rates and then re-sell them to third parties. Mr. Ryan’s idea made these settlements more beneficial to the GM customers because the rebate certificates became economically fungible.

On January 30, 1997, the company DMMR, L.L.C. (presumably to represent Dawley, McGill, McPhail and Ryan) (hereinafter “DMMR”) was formed as a Louisiana limited liability company with its registered office in Metairie, Louisiana. The membership of DMMR, L.L.C. consisted of the following: ICMC, represented by Mr. Ryan; Dawley Seven, Ltd., represented by its general partner, Dawley Certificate Corp., through its President James Dawley; and Don McGill Four, Ltd., represented by its general partner RMA, Inc., through its President Don McGill.

The Operating Agreement of DMMR was notarized by a Texas Notary and contained the signature of Mr. Putman in several places. Mr. Putman, is an ^attorney licensed in Texas and a partner of GWS, a law firm with offices in Houston. Acknowledgments included with the operating agreement, which are in the record, took place in Houston.

Mr. Putman had served as Mr. Dawley’s legal counsel prior to serving as DMMR’s transactional attorney.

In the record is an engagement letter dated November 19, 1997 from the law firm of GWS to Certificate Redemption Group, L.L.C. (“CRG”). Mr. Putman signed the letter and addressed it to Mr. Dawley at his Houston address. It engages GWS as counsel for the general matters of CRG. As will be discussed later, this letter is noteworthy because according to the record, CRG did not yet exist. It was not until March 16, 1998, that an Amendment occurred changing the name of the company DMMR to CRG. Other changes also occurred and are discussed infra.

Multiple lawsuits arose as Messrs. Ryan, Dawley, McGill and McPhail all sought tactical advantages to enhance their positions within the company. It is alleged that Mr. Ryan and Mr. McGill brought suit against Mr. Dawley in another matter. Exposition alleges the final result of the litigation left Mr. Ryan without an ally on the management committee, and Mr. Dawley in control of the company. The original operating agreement provided that three of the four members were required to make an amendment and the other three members did amend several critical aspects of the original operating agreement.

In January 1998, GWS invoiced CRG for an eighteen minute telephone call to Keith McIntosh, a CRG employee, concerning a meeting and a “memo to |4Louisiana law firm; amendments to the LLC.” Mr. Put-man in his deposition identified KLB as the Louisiana law firm. A review of the billing statements leads a reasonable person to conclude that GWS and KLB worked together on the amendments to the operating agreement. GWS did not do it alone because there were Louisiana legal issues involved. Mr. Putman testified that there was a “joint project” between GWS and KLB representing CRG.

On February 17, 1998, Mr. Ryan sued other members of the CRG Management Committee, Messrs. McGill, Dawley, and McPhail, in Louisiana for injunctive relief over amendments to the CRG operating agreement. CRG, acting through Messrs. Dawley, McGill and McPhail, retained KLB to represent them. Also in February of 1998, Mr. McPhail filed a Petition for Dissolution of ICMC in the 24th Judicial District Court.

Subsequent to the Petition for Dissolution in February 1998, Messrs. McPhail and Ryan agreed to dissolve ICMC so that ICMC’s interest in CRG could be transferred to Exposition and the McPhail Company. Then Exposition and McPhail Company could complete the stage to become members of CRG.

On March 16, 1998, the First Amendment occurred which changed the name from DMMR to CRG. Although the registered office remained in Metairie, a clause was added to the agreement which could later facilitate the move of the company’s office to Houston. Also Section 5.3 of the operating agreement, a Nonjcompetition6 by Members clause, was deleted in its entirety. An Addendum to Section 14.8 granted preemptive rights to additional entities which would be created and altered the percentages of interest among the members. Thus, on May 25, 2000, Mr. Dawley formed Certificate Redemption Group I located in Houston, similar to CRG but with terms more favorable to Mr. Dawley. The Amendment of CRG also completely revamped the management, vesting management authority with Mr. Dawley. The CRG Management Committee consisted of ICMC represented by Mr. Ryan and Mr. McPhail, as well as Mr. McGill, and Mr. Dawley. The Amendment of the operating agreement once again contained Mr. Putman’s name in several places. Mr. Ryan’s signature is on this First Amendment.

On April 3, 1998, pursuant to a Consent Judgment rendered in the 24th Judicial District Court in Jefferson Parish, it was ordered that:

in the event of the dissolution of ICMC Investors, L.L.C., the two members of ICMC Investors, L.L.C. ...shall become members of Certificate Redemption Group, L.L.C. in the same status as ICMC Investors, L.L.C.

Thus upon ICMC’s dissolution, Exposition was to become a member of CRG and assume its position thereby making it the largest recipient of the cash flow generated by CRG from the GM certificates.

On June 30, 1998, Grant Coleman of KLB, allegedly as counsel for Mr. McPhail and McPhail Company only, sent drafts of dissolution documents for Mr. Gary Elkins to review along with a letter setting forth the dissolution procedure | fiand asking for Mr. Elkins’ comments. KLB claims they did so at the request of Mr. Elkins, as counsel for Mr. Ryan, Exposition and ICMC.

On July 1, 1998, Mr. Dawley paid Mr. McPhail three hundred thousand dollars ($300,000.00) for two (2%) percent of his interest in CRG. Also in July 1998, Mr. McPhail informed KLB that he did not want to go forward with the ICMC dissolution allegedly because of a claim that had arisen against ICMC by Certifícate Clearing Corporation. At its client’s request, KLB had no further involvement in the dissolution of ICMC after July 1998. Mr. Elkins evidently took no further action as attorney for Mr. Ryan, Exposition and ICMC to dissolve ICMC or to make Exposition a member of CRG.

On July 23, 1998, Mr. Putman traveled to New Orleans to represent CRG’s interest in the class action at the Louisiana Automobile Dealers Association Conference. Throughout CRG’s existence, GWS had reviewed and drafted court documents in the Louisiana class action lawsuit.

In June 2001, Exposition offered to purchase the interests of the other three members of CRG or be bought out and the defendants allegedly advised the other members of CRG that they could reject Exposition’s offer to purchase or sell their interests in the company without obligation by claiming that Exposition was not a member.

On July 19, 2001, Exposition and ICMC filed this action. ICMC’s action was transferred to Jefferson Parish.

|7Exposition, through its general partner, W.F. Ryan Enterprises, Inc., through its president William F. Ryan, alleges in its Petition that Exposition is a member of CRG because it has been treated as a member in documents and in fact and that, as a member, it has an attorney-client relationship with GWS, Mr. Putman and KLB. Mr. McPhail’s deposition confirms that even in August of 1998, Mr. McPhail believed that Exposition and his McPhail Company were members of CRG and were treated as such.

Exposition alleges in Paragraph 44 of its Third Amending And Supplemental Petition for Damages that:

From September of 2000, defendants, King, LeBlanc & Bland, L.L.P., Gardere Wynne & Sewell, L.L.P., and Frank Putman, intentionally concealed the fact that ICMC Investors, L.L.C. had not been dissolved and that Exposition Partners, L.P. [sic] was not formally admitted as a member of Certifícaté Redemption Group, L.L.C.

The following paragraph, Paragraph 45, states:

By intentionally concealing the foregoing, defendants committed a fraud by misrepresentation, suppression of the truth, silence and/or inaction with the intention to obtain an unjust advantage in the favor of the other members of Certificate Redemption Group, L.L.C. and against Exposition Partners, L.P. [sic]

The Third Petition states that defendants have acted in a manner detrimental to CRG by serving both as attorneys for CRG and as attorneys for Messrs. Daw-ley and McPhail in their individual capacity, which created conflicts of interest.

Exposition contends that as a result of the failure to properly effectuate the dissolution of ICMC, it has been damaged in its ability to purchase the ownership interest of the members of CRG or be bought out, by means of the operating | Sagreement’s Section 5.8 “bouray buyout” clause. This clause gives a member rights to purchase or sell at a set price. This is the basis for the last allegation of damages of the Third Petition, Paragraph 77, which states:

Defendants are therefore liable, jointly, severally and in solido, for the damages caused to plaintiff in the amount that the other members of Certificate Redemption Group, L.L.C. failed to pay plaintiff as the purchase price due under the terms of its offer pursuant to Section 5.8 of the Certificate Redemption Group, L.L.C. Operating Agreement, or, alternatively, an amount equal to the reasonably demonstrable future income of Certificate Redemption Group, L.L.C. less the purchase price in plaintiffs offer pursuant to Section 5.8 of the Certificate Redemption Group, L.L.C. Operating Agreement, plus all costs, expenses, legal fees, and foreseeable and unforeseeable damages incurred by Exposition Partners, L.P. [sic]

In summary, plaintiffs petitions and its three amendments alleged claims arising from fraud, legal malpractice, breach of contract, fiduciary duty, detrimental reliance, damages from conflicts of interest and violations of rules of professional conduct.

ACTION OF THE TRIAL COURT

The trial court first dismissed without prejudice the derivative claims of ICMC brought by Mr. Ryan against KLB and GWS. This allowed Mr. Ryan to | flbring his derivative action to enforce the rights of ICMC, especially those of legal malpractice, in Jefferson Parish against the other defendants in this case. There is documentary proof that ICMC was a member of CRG at one time and thereby has rights. Thus, the suit in Jefferson Parish will determine the rights and obligations of ICMC, and indirectly Mr. Ryan as a member of ICMC, in regards to CRG and the defendants who have been employed as CRG’s legal counsel.

Subsequently, Exposition, and indirectly Mr. Ryan as its member, was the only plaintiff left in the Orleans Parish suit. The trial court dismissed Exposition’s suit for damages by granting defendants’ Exception of No Right of Action because the plaintiff Exposition, has no documentary proof of being a member of CRG, or having an attorney-client relationship with the legal counsel employed by CRG, even though Exposition alleges it was fraudulently led to believe itself a member.

STATEMENT OF THE LAW

Standard of Review

When the trial court’s ruling on a peremptory exception is based on factual conclusions made after receiving evidence, the appellate court standard of review is that of manifest error. Abbott v. Louisiana State University Medical Center-ShrevepoH, 35,693, p. 5 (La.App. 2 Cir. 2/27/02), 811 So.2d 1107, 1110. In this matter the trial court received documentary evidence prior to ruling. For that reason our standard of review of its findings is that of manifest error.

Evidentiary Rule

At a contradictory hearing, on the exceptions of no right of action and lack of personal jurisdiction, evidence is admissible to resolve the exceptions. La.Code [inof Civ. Proc. arts. 930-931. If evidence is admitted at such a hearing, the exceptions must be resolved on the evidence presented, rather than on the allegations in the petition. Phillip v. Home Ins. Co., 95-406, p. 6 (La.App. 5 Cir. 2/27/96), 671 So.2d 943, 947 (“when evidence is presented [at a hearing on an exception], then the issue must be decided on the evidence submitted”).

In de Reyes v. Marine Management & Consulting, Ltd., 586 So.2d 103, 109 (La.1991), an evidentiary rule was established that shifted the burden of proof: at a contradictory hearing on an exception of lack of personal jurisdiction, the plaintiff must “prove facts in support of her showing that jurisdiction was proper by a preponderance of the evidence.” See also Hunt v. Schult Homes Corp., 94-1592, p. 5 (La.App. 3 Cir. 5/3/95), 657 So.2d 124, 127.

In the proceedings, GWS and Mr. Put-man asserted the exception of lack of personal jurisdiction and GWS and KLB asserted the exception of no right of action. The trial court conducted contradictory hearings on the exceptions on three separate days. At the hearings, the trial court permitted the parties to introduce documentary evidence — the defendants in support of the exceptions and the plaintiff in opposition. Defendants’ documentary evidence was submitted without objection and plaintiffs documentary evidence was submitted without objection except as to one document. In addition, before and after the hearings, the parties submitted legal memoranda, proposed findings of fact, and proposed conclusions of law. However, the plaintiff was not allowed' to put on live testimony.

Exception of No Right of Action

An exception of no right of action challenges whether the plaintiff has a real and actual interest in the case and should be maintained when the plaintiff does not lnhave an interest in the subject matter of the suit or legal capacity to proceed with suit in a particular case. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Comm’n, 94-2015, p. 4 (La.11/30/94), 646 So.2d 885, 888, (citing La.Code Civ. Proc. art. 681). Because the vast majority of the claims in this case involved ICMC’s real and actual interest in CRG as a documented member/partner, upon the trial court’s transfer of ICMC’s claims to another venue, these claims could not be asserted by Exposition as they were derivative claims. More specifically we refer to the claims regarding alleged acts of malpractice within the context of an attorney-client relationship.

We find, as the trial court did, that ICMC is the proper party plaintiff for the great majority of the actions brought in this case, because only ICMC, as a member, can assert the rights of CRG against its attorneys. We also concur with the trial court on its finding that no legal representation was proven at the hearing on the exception of no right of action. To elaborate we adopt part of the Reasons for Judgment of the learned Judge below:

Nor could Exposition demonstrate the existence of any tacit agreement of legal representation by the defendants to perform any legal services, including the dissolution of ICMC. Mr. Ryan contended he had a reasonable expectation of legal representation by the defendants. However, a person’s subjective belief that an attorney represented him must also be reasonable under the circumstances. (FN. Louisiana State Bar Ass’n v. Williams, 549 So.2d 275 (La.1989).) This court finds not only do the facts and circumstances surrounding this case demonstrate the lack of an attorney-client relationship between Exposition and the defendant law firms, but also crystallize the imprudence of plaintiffs expectations and subjective beliefs to the contrary. Indeed, since early 1998, Exposition and Mr. Ryan have been involved in several lawsuits against GWS and Mr. | ^Putman’s clients — CRG, Mr. Dawley and Dawley Seven. (Emphasis in original).

Fraud Claims

Nonetheless, we find Exposition’s pleading of fraud, intentional concealment and detrimental reliance are not subject to the exception of no right of action because they do not depend upon the existence of an attorney-client relationship. The issue here is whether the attorneys aided and abetted fraud or whether by their acts caused damage to another.

Whenever a juridical person is created, internal conflicts can arise because it can only act through a member or its members. Here, the self interests of Mr. Ryan and Mr. Dawley were contrary to each other, as well as at odds with the theoretical best interest of CRG, to which they belonged via other entities. It is conceivable that a conflict of interest, or fraud, could arise between a transactional attorney who represents a limited liability company and an individual member of the limited liability company, or a subset thereof.

Because the law classifies CRG as a distinct business entity, GWS, Mr. Putman and KLB allege that at no time were they retained to represent Mr. Ryan, Exposition or ICMC. Nevertheless, CRG can only act via Messrs. Dawley, McPhail, Ryan, etc. The premise for defendants’ argument is that representing CRG posed no conflict of interest vis-a-vis the distinct members of CRG.

The Louisiana State Bar Association’s Rules of Professional Conduct Provide in Rule 4.1

In the course of representing a client a lawyer shall not knowingly:
(a) Make a false statement of material fact or law to a third person; or
113(b) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 1.7(b) that deals with conflict of interest and states:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Finally, Rule 1.13, dealing with an organization that is a client, states:

(d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when it is apparent that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.
(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.

LSBA, Articles of Incorporation, Art. 16, Ch. 4 App. following La. R.S. 37:222

In the case of GWS, we also find enlightening Comment 3 to Texas Rule 1.12, which recognizes that there are times when the organization’s interest may be or become adverse to those of one or more of its constituents. In such a case the attorney has a duty to warn.

On February 26, 2001, Mr. Putman addressed a letter on behalf of GWS to all members of CRG, including Exposition and McPhail Company and excluding ICMC. The letter begins:

Exposition Partners, L.P. [sic] and Bill Ryan have recently raised questions about the continuing representation of Certificate Redemption Group, L.L.C. (“CRG”) by this firm while at the same time representing Dawley Seven, Ltd. (“Dawley Seven”) and James R. Dawley, individually (“Dawley”).

Given Mr. Ryan’s sophistication we do not read this letter to create an attorney-client relationship. Nevertheless, the absence of the real documentary member, ICMC, from this and other official CRG correspondence gives Exposition, which is an entity distinct from Mr. Ryan, the right to plead it was fraudulently misled.

We find the November 19, 1997, engagement letter signed by Mr. Putman and addressed solely to CRG via Mr. Dawley produces a possibility of fraud. The reason is that CRG was not the official name of DMMR until the First Amendment of the operating agreement was signed in March 16,1998. Moreover, at this point in time, the registered office was in Metairie, Louisiana, not Houston, Texas. Furthermore, at that time there were two managers for DMMR, i.e. Mr. Dawley and ICMC, represented by Messrs. Ryan and McPhail. We found no similar engagement letter in the voluminous record sent to ICMC’s representatives.

After 1997, Mr. Putman, using the GWS letterhead, addressed several letters to all of the partners, including Exposition but not ICMC. As late as June 20, 2001, Mr. Dawley sent correspondence to Mr. Putman, Exposition and the McPhail Company, while not including ICMC. The minutes of CRG’s meetings also include Exposition listed along with other members. Without proving fraud, the fact that ICMC was excluded and Exposition was included in CRG’s official ^correspondence gives it a right to allege fraud or that it was being misled, even if in fact this amounted to nothing more than documentary confusion.

Exposition’s intentional tort claim involves primarily the allegations that the defendants knew of the obviously material fact that ICMC had not been dissolved and yet intentionally concealed this fact, and in doing so aided and abetted in committing a fraud by misrepresentation and suppression of the truth. During discovery the defendants properly took advantage of their attorney-client privilege.

These allegations of negligent misrepresentations and fraud provide Exposition a right of action, even though no attorney-client relationship exists. Such allegations do not constitute proof, but they do create a right of action. For as La. Civil Code Article 2315 states: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” The motive for fraud is present as an attorney’s economic interest are most certainly at stake as well as the desire to maintain a client’s business.

In summary, the exception of no right of action is overruled as to Exposition’s fraud claim against KLB, GWS and Mr. Putman.

Exception of Lack of Personal Jurisdiction

The Louisiana Long Arm Statute, La. R.S. 13:3201(B), grants the exercise of personal jurisdiction over a nonresident on any basis consistent with the Constitution of the United States, namely the Due Process Clause. Under the Due Process Clause of the Fourteenth Amendment, jurisdiction is proper if a nonresident defendant established minimum contacts with the state and | ^maintenance of the suit does not offend traditional notions of fair play and substantial justice. U.S.C.A. ConstAmends. V, XIV.

The purpose of the due process minimum-contacts analysis is to protect the defendant from being hauled into court when its relationship with Louisiana is too attenuated to support jurisdiction, and accordingly, the court focuses upon the defendant’s activities and expectations in deciding whether it is proper to call him before a Louisiana court.

Specific jurisdiction is personal jurisdiction based on contacts with the forum state that are related to the particular controversy. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). A court has specific jurisdiction over an out-of-state defendant “if the defendant has ‘purposefully directed’ his activities at residents of the forum, and the litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King, Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S.Ct. 2174, 2182, 85 L.Ed.2d 528 (1985). Although not an independent component of the minimum contacts analysis, “foreseeability” is a significant consideration in determining whether there is a substantial connection between a nonresident defendant and the forum state for due process purposes. U.S.C.A. Const. Amend. XIV.

Mr. Putman, acting on behalf of GWS, formed CRG using Louisiana law. Fifty percent of the ownership of CRG was based in Louisiana. CRG’s registered office was in Louisiana. In all, Mr. Putman made no less than three visits to Louisiana in representation of CRG. A more detailed review reveals: (1) GWS and Mr. Putman made 35 contacts by telephone, in person meetings, letter and facsimile transmittals with Mr. Ryan (a Louisiana resident and principal of Exposition) between December 1996 and March 2001; (2) GWS and Mr. Putman |17had a minimum of 26 contacts with KLB (a Louisiana law firm) by memorandum, letter, in-person meeting in New Orleans, facsimile transmittals and telephone between January 1998 and June 2001; (3) GWS and Mr. Putman had a minimum of 22 contacts with Jack Stolier, a New Orleans attorney representing the objectors to the General Motors settlement, by in-person meeting, telephone, facsimile transmittal and review of legal briefs between August 1998 and January 2001; (4) GWS and Mr. Putman made no less than 43 contacts with Mike Crow, a New Orleans attorney representing class counsel in the General Motors litigation, by in-person meetings, letter, telephone conference, preparation of contracts, and review of legal court documents, between March 1998 and the trial; (5) GWS and Mr. Putman made 69 contacts with McPhail (a Louisiana resident), an executive vice-president of CRG and a principal of a member of CRG and a member of ICMC, by telephone, letter, and in-person meetings, between October 1997 and the present; (6) GWS and Mr. Putman made 10 contacts with Bruce Kingsdorf and Henry Kinney, both New Orleans attorneys, by telephone and letter between November 1997 and February 1998 on CRG matters; and (7) GWS and Mr. Putman made 6 contacts with Donald W. Doyle, Jr. and John C. Reynolds, Mr. Ryan’s brother-in-law, by telephone and letter in January 1998. These contacts were made by Mr. Putman in an attempt to negotiate the sale or purchase of Mr. Ryan’s interest in CRG. These are just some factors related to Exposition’s claim of jurisdiction.

Moreover, the raison d’etre of CRG as stated in its operating agreement, that GWS and Mr. Putman wrote, was to create a secondary market for certificates to be issued from a class action lawsuit in a Louisiana court. Many of these class action plaintiffs were Louisiana residents. Thus, the business opportunity that CRG sought to take advantage of was in Louisiana.

We distinguish We’re Talkin’ Mardi Gras LLC v. Davis, 192 F.Supp.2d 635 (E.D.La.2/25/02), for in this case it was not “mere fortuity” that one of CRG’s members was a resident of Louisiana: but for the Louisiana class action lawsuit, CRG would not exist. For similar reasons First Trust Nat’l Ass’n v. Jones, Walker, Waechter, Poitevent, Carrere & Denegre, 996 F.Supp. 585 (S.D.Miss.1998) is distinguishable: first because of the differences between Mississippi’s Long Arm Statute and that of Louisiana, and more importantly because here we are dealing with alleged intentional acts and fraudulent business activity, which did not exist in the First Trust Nat’l Ass’n, supra.

More significantly we cite Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984) for the proposition that when intentional acts occur and the effects are foreseeable in forum “x”, then forum “x” is a proper forum. Waffenschmidt v. MacKay, 763 F.2d 711 (5th Cir.1985). Here, defendants are charged not with mere untargeted negligence, but rather with intentional and fraudulent actions aimed at a Louisiana resident, the effects of which allegedly caused economic loss to Exposition in Louisiana.

In this case, taking the allegations in the plaintiffs petition as true and the documented facts, it follows that Louisiana is a foreseeable forum. GWS and Mr. Putman, whose offices are in Houston, Texas, have sufficient minimum contacts with Louisiana, related to this particular controversy so as to make them amenable to suit here. The totality of the circumstances make its reasonable for us to conclude that GWS and Mr. Putman could foresee their actions leading them into litigation in New Orleans. For that matter, it already had led them to file various |iasuits in Louisiana. As stated earlier, because of the business of CRG, defendants were already involved, albeit indirectly, in litigation in Louisiana. For these reasons we reverse the granting of the exception of lack of personal jurisdiction and find specific jurisdiction exists.

In summary, we affirm the granting of the exception of no right of action as concerns all other derivative claims, except the claims for fraud and negligent misrepresentation against KLB, GWS and Mr. Putman, which may be based upon their alleged actions that harmed Exposition. The claim of fraud by Exposition is not amenable .to dismissal on an exception of no right of action.

Therefore, we reverse and remand on Exposition’s sole claim of fraud against KLB, GWS and Mr. Putman.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART

      . Nevertheless, a recent ruling by the First Circuit restricted the transferability of the certificates until after issuance to a class member, thereby having a potentially adverse effect on the business of Certificate Redemption Group, L.L.C. White v. General Motors Corp., 2002-0771 (La.App. 1 Cir. 12/20/02), 835 So.2d 892.

      . In discovery Mr. Putman did not divulge the content of this matter citing the attorney-client privilege.

      . A business entity created to shield Mr. McPhail from liability.

      .This allowed Mr. Dawley to form another company which would perform the same function as per Mr. Ryan's original idea and thus dilute his share of the profits or use of same as leverage.

      . This is another company with whom ICMC did business, and allegedly owed money.

      . However, the defendants maintain that Exposition was never admitted as a member of CRG by unanimous vote (as required by Article 5.6 of the operating agreement, as amended), and that Mr. Ryan (as representative of ICMC) declined to vote in favor of Exposition's admission.

      . Both the original Section 5.8 of the Operating Agreement of CRG and Section 5.8, as amended pursuant to the First Amendment dated March 16, 1998, provide for a so-called "bouray” buyout arrangement between the members. This proposed buyout provision, in its most elemental form, allowed one member or group of members of CRG to offer to buy the interests of the other member or group of members at a specified price. The member who received such an offer to purchase would then have to agree to sell his membership to the offeror, or purchase the interests of the offeror at the offeror’s price.
      Plaintiff, Exposition, maintains that in June 2001, it offered to purchase the interests of the other three members of CRG. However, the defendants maintain that Exposition was never admitted as a member of CRG by unanimous vote (as required by Article 5.6 of the operating agreement, as amended), and that Mr. Ryan (as representative of ICMC) declined to vote in favor of Exposition’s admission.

      . In a derivative suit or claim in this context, a shareholder [or limited partner] sues on behalf of the corporation [or partnership] for harm done to the corporation [or partnership]. Lenz v. Associated Inns and Restaurants Co. of America, 833 F.Supp. 362, (S.D.N.Y.1993), as opposed to an action for personal injury to oneself.

      . As a member of CRG, ICMC can assert claims and rights that pertain to CRG.

      . Rule 1.6 treats the topic of information that is confidential to the client.

      . See Ronald J. Gilson, The Devolution of the Legal Profession: A Demand Side Perspective, 49 Md. L.Rev. 869.

      . Calder is noted as creating the “effects” test.


author: THIBODEAUX, Chief Judge.

text:
    Katherine C. Mannina and John M. MANNINA v. Dr. Thomas A. BORLAND, et al.
    No. 03-1165.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.

      John Wheadon deGravelles, Scott H. Frugé, deGraveles, Palmintier, Holthaus & Frugé, Baton Rouge, LA, for Plaintiff/Ap-pellee — Katherine C. Mannina and John M. Mannina.
    Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendants/Appellants— Thomas A. Borland, M.D. and/or The Surgery Clinic and Louisiana Medical Mutual Insurance Co.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and ARTHUR J. PLANCHARD , Judges.

       Honorable Arthur J. Planchará, retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   THIBODEAUX, Chief Judge.

In this medical malpractice/informed consent case, the defendants, Dr. Thomas A. Borland (Dr. Borland) and his insurer, Louisiana Medical Mutual Insurance Company (Louisiana Medical), appeal the judgment of the trial court in favor of the plaintiffs, Katherine and John Mannina, which found that Dr. Borland failed to obtain Mrs. Mannina’s informed consent prior to performing varicose vein surgery. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

The first issue on appeal in this case is whether Mrs. Mannina was properly informed by Dr. Borland of the risks and complications associated with undergoing sclerotherapy procedure to rid her legs of varicose veins. The second issue on appeal in this case is whether Dr. Borland was required to obtain written consent from Mrs. Mannina prior to performing the varicose vein removal procedure.

II.

STANDARD OF REVIEW

The trial court’s determination that Mrs. Mannina did not give her informed consent to this particular sclerotherapy procedure is factual in nature. As such, that conclusion is afforded great deference on appeal and will not be disturbed absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

JsJII.

FACTS

After becoming pregnant with her second child, Mrs. Mannina developed varicose veins on her legs. She mentioned her varicose vein problem to her neighbor, Laura Gaspard, who at the time worked for Dr. Borland as his office manager. Ms. Gaspard told Mrs. Mannina that Dr. Borland could treat her varicose veins. On October 5, 1992, Mrs. Mannina saw Dr. Borland. The doctor informed Mrs. Man-nina that he could not do anything for her varicose veins until after her child’s birth.

In April 1993, one month after she had her baby, Mrs. Mannina saw Dr. Borland again. A Doppler exam performed on that day revealed that she had good blood flow through her femoral vein and no blockages. Thus, Mrs. Mannina was a good candidate for the sclerotherapy procedure. Mrs. Mannina testified that she and Dr. Borland then talked about the sclerothera-py procedure. She told Dr. Borland that she was concerned about the disfigurement the varicose veins caused. After her visit with Dr. Borland, Mrs. Mannina saw Dr. Ingram at the Vein Disorder Clinic in Lafayette, Louisiana for a second opinion. She then made the decision to have Dr. Borland perform the procedure. Mrs. Mannina testified that she chose Dr. Bor-land because he told her he could treat her varicose veins by injecting the veins of her foot, a procedure Dr. Ingram did not recommend that anyone undergo.

Mrs. Mannina did not know how many times Dr. Borland had performed the procedure. Dr. Borland testified that he had performed five sclerotherapy procedures prior to conducting the procedure on Mrs. Mannina. Mrs. Mannina further testified that had she known that the doctor had done so few sclerotherapy procedures pri- or to hers, she would not have allowed Dr. Borland to perform the | ssclerotherapy. Dr. Borland testified that his training in the procedure consisted of observing one doctor do one sclerotherapy procedure on one day. This fact was also unknown by Mrs. Mannina. Both Dr. Borland and Mrs. Mannina testified that he gave her a pamphlet explaining the procedure. It is undisputed that he did not have Mrs. Man-nina sign a written consent form prior to performing the procedure.

Dr. Borland described varicose and spider veins as follows:

[It is] a vein usually in lower extremities. It doesn’t have to be in lower extremities, but they’re usually are a normal vein that develops incompetent valves and then dilates, and that’s due to pressure in the venous system that develops in those veins and usually associated with pregnancy. After pregnancy, a lot of females will develop varicose veins.
The spider veins are just smaller. They have incompetent perforators. Those are veins that go from the deep venous system to the superficial venous system and they’ll start spreading. You’ll see them dilate. They initially start out as small red, or they become more cyanide, and then they’ll turn blue as they get larger, and then almost a blue-green appearance as they get really big.

Essentially, Dr. Borland testified that the veins in the legs sometimes experience a breakdown of the valves. The calf muscles contract to pump blood out of the foot. The valves stop the blood from “regurgitating” back to the leg and foot when the calf muscle relaxes which prevents pressure in the leg. A faulty valve increases the blood volume down the leg and to the foot which causes varicose veins. Eventually, a patient with varicose veins will develop swelling and itching.

With respect to the sclerotherapy, Dr. Borland testified that it is not a cutting type of medical procedure. During the procedure a chemical agent is placed into the vein using needles and then compression is applied to the area which results in permanently sealing the vein. Mrs. Man-nina’s description of the procedure closely matches that of Dr. Borland. Mrs. Manni-na was placed in an upright position in order |4to dilate the veins so that they could be located. After the location of the veins were marked, Mrs. Mannina was allowed to lie down with her legs placed at a forty-five degree angle. Needles were then placed in the veins where marked and fluid was injected. Mrs. Mannina then had to wear specialized compression stockings to achieve uniformity of compression in her legs.

Mrs. Mannina testified that during the procedure she felt a little stinging from the injected medication. Following the procedure, Mrs. Mannina walked as instructed by Dr. Borland. Mrs. Mannina testified that Dr. Borland told her that the more walking she does after the procedure, the better the outcome. Subsequently, Mrs. Mannina began experiencing severe pain in her legs. Her neighbor and Dr. Bor-land’s then office manager, Ms. Gaspard, contacted Dr. Borland for Mrs. Mannina. According to Mrs. Mannina, Dr. Borland never called her but Ms. Gaspard told her that the doctor said that the pain she felt was normal and to continue walking.

Seven days after the sclerotherapy, Mrs. Mannina saw Dr. Borland for a follow-up visit. The bandages, foam and tape were removed from her legs. It was at this time that she saw “gruesome ulcerations all over [her] leg and deep wounds where [she] could see flesh underneath the wound.” Mrs. Mannina said the wounds were from anywhere between 1/8 and 1/4 inch deep. She said that when the bandages were removed, there was not a sound in the room. She further testified that she was very disappointed in the results. Dr. Borland prescribed an antibiotic cream that she was to rub on her legs everyday. Mrs. Mannina testified that he reassured her that the wounds would heal.

Mrs. Mannina testified that she was not told of the possibility of developing deep wounds as a result of the sclerotherapy procedure. Dr. Borland testified that he did not remember whether he specifically told Mrs. Mannina about [ sthe risk of ulcerations but that it was his usual practice to do so. According to Ms. Gaspard, she was in the room with Dr. Borland when he first examined Mrs. Mannina. She recalls that Dr. Borland informed Mrs. Mannina of the possibility of developing ulcerations.

Ultimately, the Manninas filed a lawsuit alleging that Dr. Borland’s treatment of Mrs. Mannina deviated from the accepted standard of care required when performing a sclerotherapy procedure and that Dr. Borland failed to obtain the informed consent of Mrs. Mannina. At the conclusion of the trial, the trial court found that Dr. Borland did not deviate from the accepted standard of care when he performed the sclerotherapy procedure. However, the trial court did find that Dr. Borland failed to obtain Mrs. Mannina’s informed consent. The trial court also found that Dr. Borland should have obtained written consent from Mrs. Mannina to perform the sclerotherapy procedure. Dr. Borland appeals the trial court’s finding that he did not obtain Mrs. Mannina’s informed consent and that her consent needed to be in writing.

IV.

LAW AND DISCUSSION

Informed Consent

The parties disagree regarding whether Mrs. Mannina was told about the possibility of developing sores on her legs as a result of undergoing the sclerotherapy procedure. Dr. Borland contends that the type of procedure he performed on Mrs. Mannina did not require written consent. The trial court noted, in its reasons for judgment, the lack of written consent. A patient in an informed consent case bears the burden of proof and must show: (1) the existence of a material risk which the physician must disclose; (2) the failure of the physician to inform the patient of a 1 (¡material risk; (3) the realization of the material risk; and, (4) a causal connection between the failure to inform the patient of the risk and realization of the risk. Hondroulis v. Schuhmacher, 553 So.2d 398 (La.1988).

The Louisiana statutory directives regarding informed consent are found in the Uniform Consent Law at La.R.S. 40:1299.40, which reads, in part:

A. (1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
C. Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.

Mrs. Mannina has suffered deep wounds and disfiguring scars on her legs. As noted above, our first inquiry is whether a material risk existed in this case. UThe doctor’s duty is to disclose all material risks and the test for materiality is two-pronged. The Hondroulis court explained:

The factors contributing significance to a medical risk are the incidence of injury and the degree of the harm threatened. If the harm threatened is great, the risk may be significant even though the statistical possibility of its taking effect is very small. But if the chance of harm is slight enough, and the potential benefits of the therapy or the detriments of the existing malady great enough, the risk involved may not be significant even though the harm threatened is very great.
The determination of materiality is a two-step process. The first step is to define the existence and nature of the risk and the likelihood of its occurrence. “Some” expert testimony is necessary to establish this aspect of materiality because only a physician or other qualified expert is capable of judging what risk exists and the likelihood of occurrence. The second prong of the materiality test is for the trier of fact to decide whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment. The focus is on whether a reasonable person in the patient’s position probably would attach significance to the specific risk. This determination of materiality does not require expert testimony.

Hondroulis, 553 So.2d at 412. (Emphasis ours) (Citations omitted.)

There is ample evidence in the record to satisfy the first prong of the Hon-droulis materiality test. Dr. Borland admitted that the sclerotherapy procedure involves the risk of ulcerations resulting in scarring of the patient’s legs. According to Dr. Richard Dean Dillman, a vascular surgeon, ulceration leading to scarring is a “common” risk associated with sclerothera-py. Dr. Darrell L. Henderson, a plastic surgeon, saw Mrs. Mannina after her treatment by Dr. Borland and examined the scarring on her legs. Mrs. Mannina gave him a history of having her bandages removed on April 8, 1993, and seeing open wounds on both legs at injection sites and places where the bandages were placed. It took several months for the wounds to heal and they left scarring. Dr. Jon V. Schellack, another vascular surgeon and the |ssurgeon with whom Dr. Borland did his sclerotherapy training, testified that an ulcer can occur during the treatment when the injected agent, used to treat the vein, escapes from the vein and goes into the tissue around the vein causing damage to the skin. According to Dr. Schellack, the skin dies, develops a scab, turns into an ulcer and ultimately, a scar. This process can happen when the needle is removed or if the wall of the vein breaks allowing leakage of fluid. Dr. Schellack testified that a patient should only experience minimal pain during the injection procedure and if the patient experiences severe pain then that is a sign that some of the fluid is going outside of the vein. Dr. Schellack opined that a patient should be informed of the risk of ulceration and scarring because it is likely that some fluid may escape a vein, leading ultimately to scarring. The trial court found that the likelihood of ulceration leading to scarring was enough to satisfy the first prong of the Hondroulis Test. We find no error in the trial court’s decision with respect to that fact.

Mrs. Mannina was a young woman in her early thirties, with two young children and was a kindergarten teacher, when Dr. Borland performed the sclerotherapy procedure. Prior to her first pregnancy she had some varicose veins. During her second pregnancy she developed more varicose veins. She wanted to get rid of the veins so upon the recommendation of her neighbor, Ms. Gaspard, Dr. Borland’s office manager, she sought treatment to rid her legs of the varicose veins. Her reason for seeking removal of the veins was because they were unsightly and she felt self-conscious about the appearance of her legs. After seeing - Dr. Borland, she sought a second opinion from Dr. Ingram, however, she subsequently decided to allow Dr. Borland to perform the procedure. Dr. Borland told her that after the procedure the area where her veins were would darken but eventually fade. We find, as did the trial court, that the risk of ulcerations leading to scarring of the legs is a risk |9a patient in the position of Mrs. Mannina would consider when making a decision to have the sclerotherapy procedure. A patient concerned about the appearance of her legs would certainly want to know the probability that her legs would look worse after the procedure due to potential ulceration and scarring that could take years to heal.

In the present case, the dispute lies in whether Dr. Borland informed Mrs. Mannina, of the material risk of ulceration and scarring prior to the sclerotherapy procedure. The trial court concluded that he did not. We agree.

Dr. Borland testified that he always tells his patients about the risk of ulceration. However, he could not remember whether he specifically told Mrs. Man-nina. Ms. Gaspard testified that she was in the room when Dr. Borland told Mrs. Mannina about the risk of ulceration. However, she did not state that Mrs. Man-nina was told about long-term scarring. Further, there is no evidence that Dr. Borland explained what it meant to have an ulceration. Dr. Borland attempted to support his position by stating that he gave Mrs. Mannina a pamphlet on the procedure as well as a videotape depicting the procedure which informed her of the risks. Our review of the pamphlet reveals no such warning. With respect to the videotape, the trial court found that the tape did not reveal the risk of ulceration and long-term scarring. The videotape is divided into two sections. In the first section there is a doctor performing the sclerotherapy procedure. However, it is not geared toward informing the patient and appears it was produced to teach a physician how to perform the procedure. The second part of the videotape describes the history of the treatment of varicose veins through various methods including, but not limited to, sclerotherapy. Near the end of the tape, a doctor mentions the risk of ulceration after a sclerotherapy procedure and a photo of a leg with an ulceration is shown. However, we find that Imeven this part of the tape was not sufficient to inform Mrs. Mannina of the risk of ulceration and scarring. First, it did not mention the risk of long-term scarring. “In order for a reasonable patient to be aware of a risk, she should be told in lay language the nature and severity of the risk and the likelihood of its occurrence.” Plumber v. State, Dept. Health & Human Resources, 93-869, p. 5 (La.App. 3 Cir. 3/2/94), 634 So.2d 1347, 1350, urrit denied, 94-811 (La.5/6/94), 637 So.2d 1056, (citing Hondroulis, 553 So.2d at 421). Moreover, the language used in the second part of the video did not use lay language in conveying the risk of ulceration. Like the first part of the video, the purpose of the second part was to educate physicians regarding the history and present treatment of varicose veins as well as the discovery of the causes of varicose veins and was not limited to the use of the sclerotherapy procedure. Thus, Dr. Borland’s assertion that the videotape informed Mrs. Mannina of the ulceration and scarring risk is without merit.

Dr. Borland further argues that because Mrs. Mannina had a second opinion regarding the surgery, she was informed of the risks of the surgery and also underwent a second similar procedure from another doctor subsequent to the procedure that is the subject of the present appeal. With respect to her second varicose vein removal procedure, there is nothing in the record indicating the method used, the results of that procedure or when she had it done. Further, the fact that she underwent a similar procedure is not proof that she knew of the risks of ulcerations and scarring and would have consented to Dr. Borland’s sclerotherapy procedure. This argument is without merit.

There is no question the material risk of leg disfigurement occurred. When the bandages were removed subsequent to the prescribed recovery time, Mrs. Mannina’s legs eschibited several open wounds, which ultimately developed into Uscars. The scarring that resulted from the ulcerations was so bad that Mrs. Mannina sought treatment from a plastic surgeon.

We further agree with the trial court that there is a causal connection between Dr. Borland’s failure to inform Mrs. Mannina and the realization of the risk. “[W]hen the risk is greater or the need for surgery lesser, reasonable patients could differ as to whether they would consent to the surgery. In such cases, in which reasonable persons might differ, the failure to inform the patient of a material risk can be the cause of the harm if the risk materializes.” Coscino v. Wolfley, 96-702, p. 9 (La.App. 4 Cir. 6/4/97), 696 So.2d 257, 263, writs denied, 97-2317, 97-2539 (La.1/9/98), 705 So.2d 1100, 1102. Mrs. Mannina was not suffering from a life-threatening condition. The sclerother-apy procedure was to rid her legs of unsightly veins. Therefore, we agree with the trial court’s finding that Mrs. Mannina would have refused treatment had she been made aware of the possibility of major, long-term scarring to her legs.

Written Consent

Throughout his -written reasons for ruling, the trial court found that Dr. Borland did not obtain a written consent from Mrs. Mannina and, in fact, it was conceded by Dr. Borland that written consent for this procedure was never obtained. However, Dr. Borland argues that he did not have to inform Mrs. Mannina in writing and have her sign a consent form because La.R.S. 40:1299.40(0) requires that patients be given an opportunity to ask questions. We find that the contention of Dr. Borland misstates the requirements of La.R.S. 40:1299.40(0).

The Louisiana Legislature has not determined what medical procedures should require a patient to sign a written consent or what medical procedures should | ^require some lesser form of patient consent. Accordingly, we must turn to the Uniform Consent Law embodied in La. R.S. 40:1299.40.

Louisiana Revised Statutes 40:1299.40(C) allows a patient to consent to medical treatment, other than in writing, under specific circumstances. The patient must be informed, in general terms, of the nature and purpose of the procedure, together with the possible known risks of the procedure of death, brain damage, quadriplegia, paraplegia, the loss of function of any organ or limb and of disfiguring scars. Furthermore, the patient must acknowledge that such disclosure has been made and an opportunity to ask questions and receive answers must take place. If these conditions are not met, the patient is deemed not to have given their informed consent to the procedure.

In our opinion, Dr. Borland did describe and discuss, in general terms, with Mrs. Mannina the nature and purpose of the procedure. Dr. Borland may also have given her the opportunity to ask questions about the procedure. However, the potential known risks of the procedure were not disclosed to Mrs. Mannina as required by La.R.S. 40:1299.40(0). The trial court found, and we agree, that the video tape supplied by Dr. Borland was not sufficient to inform Mrs. Borland of the potential risks associated with this procedure. As such, Dr. Borland’s failure to adhere to all of the requirements of La.R.S. 40:1299(0) negates the possibility that informed consent to this procedure was obtained from Mrs. Mannina.

y.

CONCLUSION

For the above reasons, the judgment of the trial court concluding that Dr. Borland did not obtain the informed consent of Mrs. Mannina prior to conducting the sclerotherapy procedure, is affirmed at defendant-appellant’s cost.

AFFIRMED.


author: EZELL, Judge.

text:
    MALLARD BAY DRILLING, INC. v. John Neely KENNEDY, Secretary of Department of Revenue, State of Louisiana.
    No. CA 03-1495.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Stephen Hawley Myers, Lafayette, LA, for Plaintiff'Appellee, Mallard Bay Drilling, Inc.

      Marlon Van Harrison, Baton Rouge, LA, for Defendant/Appellant, John Neely Kennedy, Secretary of Department of Revenue, State of Louisiana.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD, Judges.

       Honorable Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   EZELL, Judge.

This case involves a request for a tax refund from Mallard Bay Drilling, Inc., to the Sales Tax Division of the Louisiana Department of Revenue (hereinafter the DOR) for $238,442.08 in sales taxes for diesel fuel for Mallard Bay’s drilling barges. The DOR appeals the decision of the trial court granting Mallard Bay a refund in that amount. For the following reasons, we affirm the decision of the trial court.

Mallard Bay is involved in the business of drilling oil and gas wells along the Gulf Coast, utilizing drilling vessels in excess of fifty tons displacement. Their vessels are towed from place to place, with diesel fuel used to power the drilling operations. Mallard Bay’s rigs also act as a temporary platform to secure oil or gas once drilling is completed. Once a well site is secure, Mallard Bay’s vessels are moved to a different location and the oil or gas is offloaded to be shipped to refineries and into the stream of commerce.

On June 17, 1996, the DOR received a request from Mallard Bay for a refund for taxes paid on diesel fuel used on Mallard Bay’s barges for the tax period of January 1, 1993 through December 31, 1995. The DOR denied this request. Mallard Bay appealed to the Board of Tax Appeals, alleging that it was entitled to the refund under the exemption from sales taxes under La.R.S. 47:305.1(B) for materials and supplies used in foreign or coastwise interstate commerce. This appeal was denied, mainly because the diesel fuel was used for vessels operating within state waters. Finally, Mallard Bay appealed to the trial court, who ruled in favor of Mallard Bay, overturning the decision of the Board of Tax Appeals. The trial court found that, although Mallard Bay was operating on Louisiana soil at the time in question, its intrastate activities qualified as interstate commerce and was therefore, exempt from sales and use taxes. Accordingly, the trial court awarded Mallard Bay a refund in the | aamount of $238,442.08. From this decision, the DOR appeals.

The DOR asserts four assignments of error that truly amount to one, that the trial court erred in finding that Mallard Bay’s actions within Louisiana waters qualified as interstate commerce for the exceptions to sales and use taxes under La.R.S. 47:305.1. We disagree.

Louisiana Revised Statutes 47:302(A) states: “[t]here is hereby levied a tax upon the sale at retail, the use, the consumption, the distribution, and the storage for use or consumption in this state, of each item or article of tangible personal property, as defined herein.... ” Diesel fuel is tangible personal property susceptible to Louisiana sales tax unless specifically exempted or excluded from such tax. McNamara v. John E. Chance & Assoc., Inc., 491 So.2d 154 (La.App. 3 Cir.1986), (citing La.R.S. 47:301(16)). A tax exemption is an exceptional privilege which must be expressly and clearly conveyed in plain terms. Showboat Star Partnership v. Slaughter, 00-1227 (La.4/3/01), 789 So.2d 554; Bill Roberts Inc. v. McNamara, 539 So.2d 1226 (La.1989). Tax exemptions are strictly construed against the taxpayer claiming the benefit thereof and must be clearly, unequivocally and affirmatively established by the taxpayer. McNamara v. Central Marine Serv., 507 So.2d 207 (La.1987).

The DOR claims that Mallard Bay’s actions did not qualify as interstate commerce because their vessels did not leave Louisiana during the period in question. In Archer Daniels Midland Co. v. Parish Sch. Bd. of the Parish of St. Charles, 01-0511 (La.11/28/01), 802 So.2d 1270, the Louisiana Supreme Court ruled that tugboats that 1 ^operated on rivers in state did not operate exclusively in foreign or interstate coastwise commerce within the meaning of the sales tax exemption for materials and supplies purchased by the owners or operators of ships or vessels operating exclusively in foreign or interstate coastwise commerce, even though the cargo traveled in interstate commerce, overruling Cooper Stevedoring Co., Inc. v. Secretary of La. Dept. of Revenue and Taxation, 555 So.2d 32 (La.App. 1 Cir. 1989). That court ruled that “in determining whether a taxpayer’s ships or vessels operate ‘exclusively in foreign or interstate coastwise commerce’ within the meaning of LSA-R.S. 47:305.1(B), the focus must be on the movement of the taxpayer’s ships or vessels.” Archer Daniels Midland v. Parish Sch. Bd., 802 So.2d at 1277 (emphasis in original).

However, this approach was specifically legislatively overruled. Section 2 of Acts 2002, No. 40 (§ 1 of which amends subsection C and enacts subsection D to La.R.S. 47:305.1) provides:

The provisions of this Act are interpretative of R.S. 47:305.1 and are intended to explain and clarify its original intent, notwithstanding the contrary interpretation given in “Archer Daniels Midland Company v. The Parish School Board of the Parish of St. Charles,” 01-C-0511 (La.11/28/01), 802 So. 2nd 1270, and all cases consistent therewith. Therefore, the provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and to all claims arising or actions filed on and after its effective date.

Louisiana Revised Statutes 47:305.1 (emphasis added) states, in pertinent part:

B. The taxes imposed by taxing authorities shall not apply to materials and supplies purchased by the owners or operators of ships or vessels operating exclusively in foreign or interstate coastwise commerce, where such materials and supplies are loaded upon the ship or vessel for use or consumption in the maintenance and operation thereof....
C. (1) For purposes of this Section, the term “foreign or interstate coastwise commerce” shall mean and include trade, traffic, transportation, or movement of passengers or property by, in, or on a ship or vessel:
(a) Between a point in one state and a point outside the territorial | boundaries of such state;
(b) Between points in the same state where the trade, traffic, transportation, or movement of passengers or property traverses through a point outside of the territorial boundaries of such state;
(c) At a point in or between points in the same state as part of or in connection with the business of providing or delivering materials, equipment, fuel, supplies, crew, repair services, laundry services, dredging waterways services, stevedoring services, other loading or unloading services, or ship or vessel movement services to or for ships or vessels that are operating in foreign or interstate coastwise commerce as defined in this Subsection; or
(d) At a point in or between points in the same state when such trade, traffic, transportation, or movement of passengers or property is part of or consists of one or more segments of trade, traffic, transportation, or movement of passengers or property that either (i) follows movement of passengers or property into or within the state from a point beyond the territorial boundaries of such state, (ii) precedes movement of the passengers or property from within the state to a point outside the territorial boundaries of such state, or (in) is part of a stream of trade, traffic, transportation, or movement of passengers or property originating or terminating outside the territorial boundaries of such state or otherwise in foreign or interstate coastivise commerce, as defined in this Subsection.

Under the definition of “foreign or interstate coastwise commerce” under La.R.S. 47:305.1, it is clear that Mallard Bay’s actions fall under the exception, although Mallard Bay’s ships may not always cross state borders. The actions taken by Mallard Bay are part of a stream of commerce terminating outside the borders of Louisiana. Mallard Bay’s vessels are towed from place to place to drill for oil. The vessels also act as a temporary platform to secure the oil or gas produced once drilling operations are completed. Once the well site is secure, the vessels are moved off to a different location, with the oil shipped to refineries, primarily in Louisiana and Texas. Once refined, the oil and gas continues in interstate commerce to be consumed virtually anywhere. The flow of gas [oil] from the wellhead to the ultimate consumer is nothing other than interstate commerce. Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981). “Gas crossing a state line at any stage of its | smovement to the ultimate consumer is in interstate commerce during the entire journey.” Id at 2134. Accordingly, we find no error in the decision of the trial court.

The decision of the trial court is affirmed. Because the State shall not be required to pay court costs in any judicial proceeding instituted or prosecuted by or against it under La.R.S. 13:4521, we need not assess court costs in this proceedings.

AFFIRMED.

      . The DOR also claims that the trial court erred in hearing a constitutional challenge to any sales tax imposed pursuant to La.R.S. 47:302, et seq. by Mallard Bay. However the trial court's ruling did not address the constitutionality of any statute, but rather, used 47:305.1 to rule that its exception to sales taxes applied to Mallard Bay. Because this argument is of no moment, we need not address it further.