author: 11 Judge MICHAEL E. KIRBY.

text:
    Judith D. BEAUMONT v. EXXON CORPORATION and Robet A. Balhoff.
    No. 2002-CA-2322.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2004.
    Rehearing Denied April 7, 2004.

      Michael R. Allweiss, Marynell L. Piglia, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    David M. Rivet, Exxon Mobil Corporation, Houston, TX, and Gregory C. Weiss, Weiss & Eason, L.L.P., and Robert B. McNeal, Monica L. Lacks, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD).
   11 Judge MICHAEL E. KIRBY.

In this case the plaintiff/appellant, Judith Beaumont, appeals a Judgment in favor of her former employer, defendant/ap-pellee, Exxon Corporation, which found that plaintiff was not “disabled” or “handicapped” under the Louisiana anti-discrimination statutes; that defendant did not conspire to retaliate in dismissing her; and that defendant did not intentionally inflict emotional distress upon plaintiff. We make one distinction and affirm.

STATEMENT OF THE FACTS

Judith D. Beaumont brought a claim against her former employer, Exxon Corporation (“Exxon”), for disability discrimination, retaliation and intentional infliction of emotional distress, in violation of Louisiana law. See La.Rev.Stat. 46:2251, et seq., Civil Rights for Handicapped Persons; La. Rev.Stat. 51:2231, et seq., Louisiana Commission on Human Rights; La.Rev.Stat. 23:1006, et seq., Louisiana Labor and Workers’ Compensation; and the Louisiana Civil Code.

|¡>Jn 1985, Exxon hired Judith (“Judy”) Beaumont as an in-house attorney. She initially worked in the litigation section and was subsequently assigned to Exxon’s Southeastern Production Division’s law group, where she practiced primarily environmental law. She worked in Exxon’s New Orleans office.

In June 1990, while in the course and scope of her employment for Exxon, plaintiff suffered injuries in an automobile accident. She sustained a closed head injury, which allegedly caused vision problems, post-concussive syndrome, fibromyalgia', memory deficits and impaired concentration. These injuries caused plaintiff to suffer from severe headaches and fatigue.

Plaintiff returned to work at Exxon following the June 1990 accident, working a half-day schedule. Under that schedule, plaintiff would work fewer hours, working both in the office and then at home after she had the opportunity to rest. This informal modification continued for two years under two different supervisors, with plaintiff receiving excellent employee performance appraisals.

When Mr. Robert Balhoff became plaintiffs third post-accident supervisor, he sought to re-assess plaintiffs work schedule. According to Mr. Balhoff, it was due to the fact that after two years Exxon now deemed plaintiffs medical status to be permanent. For whatever reason, good rapport did not exist between Balhoff and plaintiff.

Cassandra Johnson, a former Exxon secretary, testified at trial that Mr. Balhoff investigated daily Ms. Beaumont’s whereabouts. According to Ms. UBeaumont, Mr. Balhoff did not do this with other attorneys under his supervision. Nevertheless, there was testimony from Tracy Neyrey, a former Exxon employee and Mr. Balhoff, that he did this with other attorneys as well. Mr. Balhoff also prohibited her from driving on company business, even though he had no medical basis for making such a determination.

Mr. Balhoff complained often of plaintiffs unavailability. Nevertheless, at trial Ms. Beaumont produced documents and comments by Karen Cox, an Exxon engineer, which stated Ms. Beaumont was very helpful in many instances within a very short time frame. Due to the problems between plaintiff and her supervisor, plaintiff followed Exxon policy and on December 15, 1992, wrote a letter to her supervisor’s superior, Mr. Martens. In that letter she requested to be transferred from Mr. Balhoffs division and requested accommodations. Mr. Martens never responded to this correspondence.

In early May of 1993, a meeting was set to discuss accommodations for the plaintiff. Balhoff specifically told the plaintiff she could not attend. Exxon’s medical adviser on Ms. Beaumont’s case was Ms. Helen Maher, who has a Ph.D. in nursing. She had not been invited to the meeting, but plaintiff contacted her so that she could make plans to attend. Other attendees at the meeting included representatives of Exxon’s human resources and medical departments, as well as Messrs. Balhoff and Martens.

Ms. Maher informed the other Exxon employees in charge of reviewing the plaintiffs schedule as to what accommodations would be medically acceptable. At l^trial she testified that she had stated in an Exxon internal document that Ms. Beaumont was permanently partially disabled.

At the accommodation evaluation meeting, Mr. Balhoff presented a few negative evaluations and omitted other positive ones. Nevertheless, Mr. BalhofFs evaluation of the plaintiff was very complementary, and he brought this evaluation with him to the meeting.

By May 5, 1993, Beaumont alleges Bal-hoff was removing environmental files from her case load. Moreover, after asking for a new copier, enlarging machine or laser jet printer in the fall of 1992, ten months had passed and she had yet to receive any of these accommodations.

The result of the Exxon accommodation evaluation meeting was an Exxon proposal, dated May 12, 1993, that made the following recommended accommodation:

To the extent practicable, employee to be available in the office during a normal flex-time schedule as chosen by the employee. Employee to work such additional time outside of normal flex-time as employee deems necessary to satisfactorily handle assigned responsibilities. Employee should be encouraged to pace the work as much as possible to minimize visual stress (e.g., break up periods of tedious reading with less visually stressful work activity). Further, employee should be allowed and encouraged to take such uninterrupted rest breaks as the employee deems appropriate.

The proposal also provided for office equipment upgrades, such as a printer and access to a copy machine. The proposal also stated it would consider providing home internet access to work there as well after hours.

| rAIso on May 12, 1993, Balhoff and Beaumont met. Balhoff requested feedback on the proposal and also presented Beaumont his appraisal of her work performance, which was very good. On that same day, Beaumont sought medical leave at the suggestion of Dr. Marilyn Skinner. Despite requesting medical leave, Beaumont did not claim to be disabled. From May 20, 1993, plaintiff never returned to work at Exxon, even though she did return for negotiations.

According to Dr. Skinner, Beaumont took leave, in part, due to Exxon’s “delayed, inappropriate, insufficient efforts to resolve her longstanding plea for reasonable accommodation” and described Bal-hoffs proposal as “obviously insufficient.” However, on cross examination, Dr. Skinner admitted that she actually never reviewed Exxon’s draft accommodation proposal, but rather relied on her patient’s description of the proposal.

For approximately one year, Exxon paid Beaumont one hundred percent (100%) of her $105,000 annual salary. Plaintiff collected under Exxon’s Short Term Disability Plan Insurance, even though plaintiff never filled out the application for disability but only the medical release form. Following the exhaustion of the short term disability insurance and until negotiations failed, Exxon paid Ms. Beaumont around $47,000, through a long term disability policy. On May 12, 1994, Exxon terminated her employment for medical reasons.

Ms. Beaumont admitted that while receiving these monies from Exxon’s disability policies she had gone snow skiing, driven regularly and done some work as an independent contract attorney.

| ¿TRIAL

Prior to trial Exxon’s defense counsel had made ex parte contact with one of plaintiffs physicians. This matter was brought before the trial court and addressed as irrelevant. Dr. Mestayer, did not testify live at trial, rather, portions of his deposition taken several years before trial were read to the jury.

In closing arguments defense counsel alluded to a prior lawsuit, which prompted the trial court to admonish defense counsel and plaintiff moved for a mistrial, which was denied by the trial court.

On appeal plaintiff assigns error to the trial court’s wording of the threshold jury interrogatory. Said interrogatory was complex, mainly due to the large content of the Louisiana anti-discrimination statutes and stated:

Do you find that Judith Beaumont was a “handicapped person” under the Louisiana anti-discrimination statutes?

This wording was part of plaintiffs proposed single interrogatory, so plaintiffs counsel did not object to this form. During the jury’s deliberation it sent out the following question to the trial judge:

“An impairment is one that prevents one from accomplishing one of life’s major functions? This includes work. Does that mean that if she is unable to do a particular job and yet can do another job is she handicapped?”

Ms. Beaumont asked the trial court to give the jury a substantive answer to its question. However, the trial court, in agreement with Exxon, simply sent the jury a copy of the pertinent statute. After nine hours of deliberation, the jury answered |7“no” to this interrogatory as well as every other. The trial court then made the jury’s findings its Judgment.

STATEMENT OF THE LAW

The standard of review for factual findings in this case is that of manifest error. First we must determine if there exists a reasonable factual basis in the record for the jury’s finding and, secondly, whether the record establishes that the jury’s finding is not clearly wrong. Walden v. Walden, 2000-2911 (La.App. 1 Cir. 8/14/02), 835 So.2d 513, 517, citing Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Errors of law that are prejudicial require a de novo review of the record. Dupre v. Dupre, 02-0902 (La.App. 3 Cir. 12/30/02), 834 So.2d 1272, 1276. However, even if we would arrive at a different conclusion given the evidence in the record, we cannot reverse a finding of fact where there is a reasonable basis for the jury’s finding.

Louisiana’s Anti-Discrimination Law

The State of Louisiana’s anti-discrimination legislation is contained in three distinct titles of the Revised Statutes: Titles 23, 46 and 51. The majority of these anti-discrimination statutes have been amended since the time of the accident in this matter. Since those applicable to this case are not substantive changes, we apply the statutes as amended.

In Title 23 of the Louisiana Revised Statutes, Chapter 3-A treats the topic of prohibited discrimination in employment. La. R.S. 23:323 states:

A. No otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment
[SB. An employer, labor organization, or employment agency shall not engage in any of the following practices:
(1) Fail or refuse to hire, promote, or reasonably accommodate an otherwise qualified disabled person on the basis of a disability, when it is unrelated to the individual’s ability, with reasonable accommodation, to perform the duties of a particular job or position.
(2) Discharge or otherwise discriminate against an otherwise qualified disabled person with respect to compensation or the terms, conditions, or privileges of employment on the basis of a disability when it is unrelated to the individual’s ability to perform the duties of a particular job or position.
(3) Limit, segregate, or classify an otherwise qualified disabled person in a way in which deprives the individual of employment opportunities or otherwise adversely affects the status of the individual on the basis of a disability when it is unrelated to the individual’s ability to perform the duties of a particular job or position.
* * *

[Emphasis added.]

The definitions of the terms “disabled person” and “reasonable accommodation” are found in La. R.S. 23:322, to wit:

* * *
(3) “Disabled person” means any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment.
(1) “Discrimination” shall include unreasonable segregation or separation.
(2) “Essential functions” means the fundamental job duties of the employment position the disabled person holds or desires. “Essential functions” does not include the marginal functions of the position.
(3) “Impairment” means retardation, any physical or physiological disorder or condition, or prior mental disorder or condition ...
(4) “Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
la(5) “Otherwise qualified disabled person” means a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires.
(9) “Reasonable accommodation” means an adjustment or modification to a known physical limitation of an otherwise qualified disabled person which would not impose an undue hardship on the employer. This shall not require an employer to spend more for architectural modifications than that amount now allowed as a federal tax deduction. However, “reasonable accommodation” shall not be construed to impose on any private sector employer, unless required by law or under any contract with a federal, state, or local promotion of a disabled person. Undue hardship is determined on a case-by-case basis taking into account all of the following:
(a) The employee or applicant for which accommodation is to be made.
(b) The specific disability of employee or applicant.
(c) The essential job duties of the position.
(d) The working environment.

The Louisiana Commission on Human Rights La. R.S. 51:2231, et seq., prohibits disability discrimination in connection with employment and public accommodations. La. R.S. 51:2232(11) defines “disability” using the same language as 42 U.S.C.A. 12101, et seq., commonly referred to as the Americans with Disabilities Act.

Finally, La. R.S. 46:2251, et seq., entitled Civil Rights for Handicapped Persons, also prohibits disability discrimination and under La. R.S. 46:2256 preserves all remedies available under the law to a handicapped person who suffers discrimination. La. 46:2253 states:

(1) “Handicapped person” means any person who has an impairment which substantially limits one or more |inlife activities or (a) has a record of such an impairment or (b) is regarded as having such an impairment.
(2) “Impairment” means retardation; any physical or physiological disorder or condition, or prior mental disorder or condition, but does not include chronic alcoholism or any other form of active drug addiction; any cosmetic disfigurement; or an anatomical loss of body systems.
(3) “Major life activities” mean functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning or working.

In this case, the threshold question is whether the plaintiff falls within the meaning of a “disabled person” or “handicapped person” as defined above. If this question is not answered in the affirmative, then plaintiff is not covered by the Louisiana statutes and she has no remedy under them. At the outset we note that the Louisiana anti-discrimination statutes require a case-by-case analysis to avoid an overly broad application to anyone who is less than a perfect physical specimen. The protections afforded by the statutes are not intended for those who may have only a slight or marginal impairment.

The Louisiana statutory framework allows a person to be classified as handicapped if he or she in fact is handicapped, or if he or she is “regarded as” handicapped. If a person is not found to have a “known physical limitation,” then they are not owed a “reasonable accommodation.” La. R.S. 23:322(9). It follows then, that it is not necessary for an employer to make accommodations for a physical limitation that does not exist. Likewise, an employee cannot prove discrimination or adverse action by a failure to accommodate a nonexistent physical limitation. La. R.S. 23:323.

It is revealing that Exxon’s own internal documents reflect that Ms. Beaumont was “permanently partially disabled,” and that Mr. Balhoff prohibited [nplaintiff from driving Exxon vehicles. While this could be sufficient to prove that Exxon “regarded” Ms. Beaumont “as disabled,” it does not prove she is disabled in fact.

In making this distinction we address plaintiffs argument that the jury was manifestly erroneous because it answered the first interrogatory negatively. (The interrogatory did not make this distinction.) The fact that an interrogatory may be complex does not necessarily lead to a finding of manifest error.

We find the lack of clarity of the jury instructions does not influence the outcome of this case for two reasons. First, the plaintiff did not object to the jury instruction; the instruction was not erroneous; and the perceived lack of clarity was not such that it prevented the jury from reaching a verdict based on the law and facts of the case. Clark v. Jesuit High School of New Orleans, 96-1307, 686 So.2d 998, 1003 (La.App. 4 Cir. 12/27/96). Second, because pre-supposing Exxon regarded plaintiff as disabled, plaintiff still proved no discriminatory or adverse action on the part of Exxon. Exxon cannot be liable for not providing reasonable accommodations to someone who is simply deemed to be (or “regarded as”) disabled or handicapped. In other words, given a finding that Exxon regarded plaintiff as disabled, plaintiff still needed to prove that Exxon took adverse or discriminatory action against her, other than lack of reasonable accommodation. If a trier of fact does not find a plaintiff to be disabled or handicapped, then no reasonable accommodation is required.

The fact that Exxon terminated her employment almost two years after plaintiff took medical leave and collected disability, does not amount to | ^discrimination. Exxon’s basis for termination was not predicated upon how they regarded plaintiff, but rather on their lack of desire to create a part time position. In other words, Exxon did not want to change the job description and requirements for the position plaintiff held for employment. La. R.S. 23:323 states that a person need be “otherwise qualified.”

Other than plaintiffs evidence showing that Exxon did not provide reasonable accommodations, there is no sufficient proof in the record of acts that were adverse or discriminatory on the part of Exxon. Therefore, plaintiffs burden of proof was to show that she was indeed handicapped or disabled in fact according to Louisiana law.

Protected Class of Disabled People

In determining whether or not a claimant falls within the protected class of handicapped or disabled persons, we find federal interpretation of the Americans with Disabilities Act 42 U.S.C.A. 12101, et seq. (A.D.A.) to be persuasive because the Louisiana anti-discrimination law follows its wording. See Allison Duncan, Defining Disability in the ADA: Sutton v. United Airlines, Inc., 60 La. L.Rev. 967, 982 (2000). If plaintiff is not a disabled person as defined by the anti-discrimination statutes then she is not entitled to accommodations.

The United States Supreme Court recently reiterated that “merely having an impairment does not make one disabled” for purposes of the disability discrimination laws. Toyota Motor Mfg., Kentucky, Inc., v. Williams, 534 U.S. 184, 195, 122 S.Ct. 681, 690, 151 L.Ed.2d 615 (2002). Instead, a claimant must be “substantially limited” in a major life activity to qualify as disabled, and “[s]ubstantially in the phrase | ^‘substantially limits’ suggests ‘considerable’ or ‘to a large degree,’ ” and that “the word ‘substantial’ thus clearly precludes impairments that interfere in only a minor way ...” Id., 534 U.S. at 196-97, 122 S.Ct. at 691.

Furthermore:

It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires those “claiming the Act’s protection ... to prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience ... is substantial. Albertson's, Inc. v. Kirkingburg, supra, [527 U.S. 555], at 567, 119 S.Ct. 2162, [144 L.Ed.2d 518] (holding that monocular vision is not invariably a disability, but must be analyzed on an individual basis, taking into account the individual’s ability to compensate for the impairment).

Id., 534 U.S. at 198, 122 S.Ct. at 691-92.

The trial testimony of plaintiffs expert, John Wakeman, Ph.D., her treating neu-ropsychologist, indicated that Ms. Beaumont suffered permanent brain injury in the 1990 automobile accident and that cognitive deficits resulted and remained as late as 1993. Plaintiff also presented the testimony of Marilyn Skinner, M.D., with whom Ms. Beaumont underwent extensive psychotherapy and medication management for treatment of major depression, post-traumatic stress disorder and post-concussive syndrome triggered by the injuries she suffered in the automobile accident. Dr. Maher’s testimony and a letter from Ms. Beaumont’s opthalmologist addressed an ocular muscle imbalance which resulted from Ms. Beaumont’s closed head injury in the 1990 accident. That imbalance caused visual fatigue which necessitated the use of prism glasses and frequent rest intervals.

Nevertheless, under the Toyota Motor Mfg. Kentucky standard, Beaumont’s physicians’ testimony is insufficient to establish that Beaumont was “handicapped” | uabsent “evidence that the extent of the limitation :.. [caused by the impairment] in terms of [her] own experience ... is substantial.” Id. As to Beaumont’s experience, in this court she only cites her complaints about her ability to focus and work, whereas the jury heard plaintiff testify that she actually could work 18 hour days whenever necessary; that she could drive a car and ski in Colorado when she was supposedly disabled; and that she was able to practice law at a sophisticated level.

The jury also heard Ms. Beaumont testify that she sometimes worked 12-18 hours three days in a row, without naps, during the period of time in which she alleged she was substantially impaired and handicapped.

Moreover, the jury heard that while she was collecting payments from Exxon’s disability policy, plaintiff returned to graduate school and completed the bulk of a master’s degree in international studies and trade. When questioned regarding her professional activities after leaving Exxon, she acknowledged that she had “worked very much on this file myself’; that she performed legal work “for companies, corporations doing corporate kind of work, transactional work or incorporating contracts ...”; that she maintains a computer office in her house and travels to clients and law offices; and she has used her Spanish language skills to develop contracts for a company in the oil and gas construction industry. She told the jury about her international work involving Mexican contracts and a project where she traveled to Venezuela and provided the legal services necessary to form subsidiary corporations in Venezuela and to comply with Venezuelan regulatory programs and tax requirements. Aso, the jury heard her testify that she pursued graduate studies to take “my existing language in law and broaden it out to use it in an international setting, like in the Venezuela case or in the Mexican contracts”. In addition, she testified that she worked for attorneys that hired her for particular |1sjobs on an independent basis and work for an international maritime reconstruction firm.

The severity of plaintiffs handicap was called into question by Dr. Skinner. Dr. Skinner testified that Beaumont “managed her own litigation very frequently. I’ve never seen anything like it in my life. She worked hours, and hours, and hours writing all kinds of legal documents ... memos and memoranda.... She was having to oversee a massive amount of the work being done for her ... ”.

Finally, plaintiff even called attention to her trial participation to emphasize that she was physically able to work long hours. When questioned regarding whether she had advised Balhoff that she could only work 6 hours at a time, plaintiff responded that Dr. Wakeman had recommended that for the purpose of accommodation only and stated that I’m present here at trial everyday for more than 6 hours for the past couple of weeks.

The jury had extensive evidence to support a finding that although plaintiff may have had some impairment, she did not have a major impairment. As a result, it was not unreasonable for the jury to find that plaintiff did not fall into the protected class of “handicapped/disabled” people as defined by La. Revised Statutes 46:2253, 23:322(3) and 51:2232.

In sum, even though this court might have arrived at a different conclusion, we cannot disturb a finding of fact on appeal unless it be manifestly erroneous; The jury had a reasonable basis for their conclusions.

Denial of Mistrial

Finally, plaintiff argues that the trial court erred in declining to declare a mistrial because of defense counsel’s conduct in the presence of the jury and ^because of an ex parte communication. An appellate court may not disturb a trial court’s denial of a motion for mistrial absent a showing of an abuse of discretion. Estate of Cristadoro v. Gold Kist, Inc., 2001-0026 (La.App. 4 Cir. 1/23/02), 819 So.2d 1034, 1049. Mistrials are granted only upon proof that there has been such prejudice to a party during trial that it cannot be cured by admonition or instruction to the jury. Coleman v. Deno, 1999-2998 (La.App. 4 Cir. 4/25/01), 787 So.2d 446, 466.

The contested communications between Exxon counsel and Dr. Mestayer occurred. However, Dr. Mestayer did not testify live at trial. Instead, portions of his deposition taken several years before trial were read to the jury. The testimony of Dr. Mestayer was not affected in any way by the disputed communications and they provide no grounds for the setting aside the jury’s verdict.

Similarly, Beaumont’s complaint that error occurred during the reading of Dr. Mestayer’s deposition does not withstand scrutiny. The record shows that Beaumont’s counsel convened a discussion with the trial court and opposing counsel when the page containing the disputed testimony was being read.

The context of the testimony confirms that no error occurred. Prior to Dr. Mes-tayer’s testimony, Dr. Skinner opined that Beaumont’s involvement in multiple litiga-tions had contributed to her problems with alleged depression. It follows that Mes-tayer, as a physician who treated Beaumont, could likewise be asked if having two lawsuits could cause stress or aggravate conditions such as bipolar disorder or depression. This is particularly true where the trial court had already allowed Skinner to testify as to whether Beaumont’s alleged depression could be linked to litigation other than this case. Therefore, there is no prejudice that occurred concerning Dr. Mestayer so as to merit the reversal of the jury.

|17La.Code of Evidence article 408(A) states that evidence of compromise is not admissible to prove invalidity of the claim or its amount. In a subsequent sentence though the Article states:

This article also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness....

While defense counsel referred to “other proceedings”, at no point did he mention settlement or the amount of the award. Obviously the trial court deemed that defense counsel was attacking the plaintiffs credibility and did not make it impossible for the jury to reach a proper judgment.

In any event, the trial court sought to remedy any prejudice that may have occurred during the trial. First the trial court made certain that the jury understood that counsel’s argument was not to be treated as evidence. After opening arguments, the trial court stated:

Ladies and gentlemen of the jury, you have just heard the opening statements from the attorneys, which is what the lawyers had to say about the case. The statements of counsel were merely their suggestions to you as to what they think the evidence is. You must distinguish between their argument and the evidence. The parties will now present their evidence.

After closing arguments, the trial court admonished the jury:

Also, you have heard what the lawyer’s had to say about the evidence and their arguments. You must distinguish between that which counsel may have said by way of argument and the evidence upon which those arguments are based. Just because the lawyer says something is a fact does not mean it is so, no matter how many times it has been repeated by the lawyer in argument.
The arguments of counsel are nothing more than their suggestions to you at to what they think the evidence is and what it has proven. You may accept or disregard | iSthese suggestions as you see fit. What the evidence is and what it has proven is for you and you alone to determine.

In Roger v. Dufrene, 97-1946 (La.App. 4 Cir. 9/9/98), 718 So.2d 592, which was an injured motorists’ personal injury action against employee’s employer and its insurers, we found that any possible prejudicial effect which might have resulted from defense counsel’s statements that injured motorists settled with driver of vehicle and his insurer was cured by the trial court’s admonitions to the jury explaining that jury was to ignore and not consider fact that driver or anyone else was no longer party to action.

Similarly, the Supreme Court gave appellate courts a standard for prejudicial effects when it noted:

The trial judge is in a better position than an appellate court to determine possible prejudicial effects resulting from counsel’s argument before a jury. Therefore his finding that counsel for plaintiffs argument was not so prejudicial as to warrant the granting of a new trial should be accorded much weight.

Temple v. Liberty Mutual Ins. Co., et al., 330 So.2d 891, 894 (La.1976).

This standard is appropriate in this case because during a three-week long trial involving very sophisticated attorneys, some disputes are inevitable. Under the circumstances, the trial court’s denial of plaintiffs motion for mistrial was not an abuse of discretion.

The Judgment is affirmed.

AFFIRMED.

      . FMS (fibromyalgia syndrome) is a widespread musculoskeletal pain and fatigue disorder for which the cause is still unknown. Fibromyalgia means pain in the muscles, ligaments, and tendons — the soft fibrous tissues in the body.

      . In 1991 the plaintiffs supervisor was Mark Harrison and in 1992, Paul Wright.

      . For background on Louisiana’s anti-discrimination statutes in Titles 23 and 51 See
        37 Loy. L.Rev. 313.

      . 42 U.S.C.A. 12102 states: “The term “disability” means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”

      . This is the methodology of federal courts in A.D.A. litigation, which we adopt. See 64 U. Cin.L.Rev. 189.

      . Seal v. State Farm Fire & Casualty Co., 2000-2375 (La.App. 4 Cir. 3/20/02), 816 So.2d 868, 871, writ denied, 2002-1083 (La.6/14/02), 817 So.2d 1160.

      . This prong of analysis we need not explore due to the finding that plaintiff was not disabled.


source: Caselaw Access Project

author: 11 DAVID S. GORBATY, Judge. | ARMSTRONG, C.J.,

license: Public Domain

text:
    SUCCESSION OF Dr. Francisco Manuel GONZALES. Succession of Dr. Francisco Manuel Gonzalez.
    Nos. 2003-CA-0823, 2003-C-0537.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 10, 2004.
    Rehearing Denied April 7, 2004.
    Bernard L. Charbonnet, Jr., Darryl Harrison, Law Office of Bernard L. Char-bonnet, Jr., New Orleans, LA, for Appellant, Nina M. Kelly, Ph.D.
    Val Patrick Exnicios, Liska, Exnicios & Nungesser, New Orleans, LA, for Appellant.
    Harold E. Molaison, Bruce A. North, Adrian F. LaPeyronnie, III, Molaison & Greenberg, L.L.C., Gretna, LA, for Appel-lee, Francisco Manual Gonzalez, Jr.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY).
   11 DAVID S. GORBATY, Judge.

Francisco Manuel Gonzalez, Sr., died on November 26, 2002. Prior to his death, he executed a notarial testament dated July 11, 1990, leaving his entire estate to his then wife, Nina Kelly (Kelly), and designating her as the executrix of his estate. On July 2, 1999, Kelly filed a petition for divorce, which was granted on March 13, 2001.

On December 4, 2002, Dr. Gonzalez’s eldest son, Francisco, Jr., filed a petition to be notified of any application for appointment of succession representative and/or tableau of distribution. The petition alleged that Dr. Gonzalez died intestate. One week later, Kelly also filed a petition to be notified of any application for appointment of succession representative. Kelly alleged that her ex-husband died testate, and that she was designated as the testamentary executrix in the will. However, she declined to serve in that capacity.

In January of 2003, Francisco, Jr., applied to be appointed as independent administrator of his father’s estate, again alleging that his father died intestate. He |?named Kelly as defendant-in-rule, requesting that she be ordered to appear and show cause why he should not be appointed independent administrator.

Subsequent to the aforementioned filing by Francisco, Jr., Kelly filed a petition to have Dr. Gonzalez’s will probated, and to be confirmed as the testamentary executrix. She attached to her petition a photocopy of the will, alleging her belief that the original was maintained by the notary’s former law firm, which no longer existed. Kelly requested the court to appoint a notary to search for the original, but in the event it could not be located, she desired that the photocopy be accepted for probate and that she be confirmed as executrix. Her petition specifically cited to La. Civ. Code art. 1608, a provision enacted in 1997, and which provided that if a legatee is divorced from the testator after the execution of the testament, then any legacies to the ex-spouse or appointments of the ex-spouse are revoked. She argued that the codal provision was substantive in nature, and, therefore, could only be applied prospectively. Thus, the testament should be probated as written.

Francisco, Jr., answered Kelly’s petition denying that his father had died testate based on his interpretation of La. Civ.Code art. 1608. Specifically, by applying art. 1608 to the provisions of the testament offered by Kelly, the testament was revoked by operation of law, rendering his father intestate.

On March 17, 2003, the trial court rendered judgment appointing an attorney theretofore not involved in the litigation as provisional administrator. The court reasoned that because neither Francisco, Jr., nor Kelly met the requirements of La. ¡Codes Civ. Proc. art. 3097(B), it had to appoint an impartial administrator in the interim. The trial court denied Kelly’s petition to be confirmed as testamentary executrix based on the provisions of La. Civ.Code art. 1608(5). Despite the apparent revocation of the will by operation of La. Civ.Code art. 1608(5), the trial court nonetheless ordered the will filed and executed, with the order having the effect of probate. However, the trial court stayed the order of probate “pending a final determination to be made by this court [the trial court], as it relates to who shall be appointed independent or dative testamentary executor of the estate ... at a hearing set for April 21, 2003, in accordance with article 3098 of the Code of Civil Procedure.”

In response to the trial court denying her appointment as testamentary executrix, Kelly filed a petition for suspensive appeal, which was lodged with this Court on May 5, 2003. Francisco, Jr., filed an application for supervisory writ with this Court. The writ panel to which Francisco’s writ was assigned, ordered the writ consolidated with Kelly’s appeal. The panel did so without reasons and without addressing the merits of the writ application.

Louisiana Code of Civil Procedure art. 2974 provides that “[a]ppeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative ... shall be executed provisionally, notwithstanding appeal.” As such there is no right to a ^suspensive appeal. See, Miller v. Miller, 35,934, p. 10 (La.App. 2 Cir. 5/8/02), 817 So.2d 1166, 1173; Succession of Beattie, 163 La. 831, 112 So. 802 (1926).

Nonetheless, it is the opinion of this Court that to dismiss Kelly’s appeal would serve a great injustice upon all parties concerned. The main issue in both Kelly’s appeal and Francisco, Jr.’s, writ application is the applicability of La. Civ.Code art. 1608(5). Until such time as a ruling is made, the parties cannot move forward with the succession, except through the actions of the provisional administrator. To that end, we convert Kelly’s appeal to a supervisory writ and shall address the merits of both writ applications.

DISCUSSION:

The issue in this case is whether La. Civ.Code art. 1608(5) is applicable to a testament executed in 1990. A thorough search of the jurisprudence reveals that the issue is res nova.

Kelly argues that she had a vested right in Dr. Gonzalez’s testament, and to apply La. Civ.Code art. 1608(5) retroactively would unconstitutionally divest her of that substantive right. Francisco, Jr., argues that the issue is not retroactive application of the article because Kelly’s rights did not come to fruition until Dr. Gonzalez died. Thus, the law in effect on the date of death is applicable.

| RLouisiana Civil Code art. 1608(5) is part of the revision law of successions adopted by Act 1421 of 1997, which had an effective date of July 1, 1999. The article provides in pertinent part:

Revocation of a legacy or other testamentary provision occurs when the testator:
* * * *
(5) Is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.

The revision comments to La. Civ.Code art. 1608 explain the addition of item (5) to art. 1608.

(f) An important new provision in item (5) of this Article covers the situation of divorce that is not otherwise covered by the testament itself. The new rule recognizes that when a testator becomes divorced from a spouse, more often than not, he does not want bequests to that spouse to be maintained, and would very likely not want that spouse to serve as the executor or trustee. The new rule is consistent with Louisiana domestic relations law by providing that the divorce must have occurred after the testament was executed, and that there must have been no reconciliation. Furthermore, the testator may provide to the contrary, so that even though the parties may be divorced, the testator may make a bequest to the spouse, or if he wants that spouse to serve in a representative capacity he may so provide. Most states have adopted similar provisions, and this provision fills a gap in the prior law.

Revision comments are, however, not the law, but rather the opinion of the revisionists. Indeed, La. Acts 1997, No. 1421, § 9 provides that “[t]he headings, source lines, and comments in this Act are not part of the law and are not enacted into law by virtue of this inclusion in this Act.”

IfiWhat has been the law since the adoption of the Louisiana Civil Code of 1870 is that the intent of the testator is the single most important guideline in the interpretation of a testament.

Louisiana Civil Code art. 1611, as amended by Acts 1997, No. 1421, provided:

The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules of interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.

Article 1611 was amended by Acts 2001, No. 560, effective June 22, 2001. A second paragraph was added, which reads:

B. When a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of a legacy or other testamentary provision.

The revision comments to Article 1611 explain that “[although the intent of the testator controls the effects of his dispositions, it obviously can do so only to the extent that the dispositions are permissible under Louisiana law. The testator’s intent to write a prohibited disposition cannot override substantive law that prevents it.” Section 3 of Acts 2001, No. 560 provides:

This Act is declared to be interpretive, curative, and procedural in nature and shall apply both prospectively and retroactively; however, this Act shall not apply to successions which have been judicially opened prior to the enactment of this Act.

|7Pr. Gonzalez’s succession was not opened until after the effective date of La. Civ.Code art. 1611 B. Further, at the time Dr. Gonzales executed his will, the legacy to Kelly and the appointment of her as executrix was not prohibited under Louisiana law. The will specificially states that he desires to leave his entire estate to his then spouse, Nina Kelly Gonzalez, and that he desires Nina Kelly Gonzalez to serve as executrix. There is no evidence that Dr. Gonzalez wished to revoke this legacy and appointment. Dr. Gonzalez executed the testament that had been prepared by legal counsel, and appointed that counsel to serve as attorneys for his estate and his chosen executrix. Over 28 months passed between the date Kelly filed the petition for divorce and Dr. Gonzalez’s death. Are we to presume that Dr. Gonzalez, a highly educated man who sought the advice of counsel for preparation of his last will and testament, desired to revoke the legacy and appointment in favor of Kelly, or are we to give effect to his testament as written?

The comments to Article 1608 are general comments that make presumptions, e.g., a testator, more often than not, does not want bequests made to an ex-spouse to be maintained. A similar comment states that the testator would very likely not want that spouse to serve as the executor/trix. What of the occasions when a testator has every intention of maintaining a bequest despite having been divorced from the legatee? Are we to interpret the testament to give it the effect intended or are we to make presumptions to give effect to laws created after the testament was written? During argument at the February 28, 2003 hearing in this matter, counsel for Francisco stated that Kelly gave up all of her rights [to |sDr. Gonzalez’s estate] when she filed for divorce on July 2, 1999. He argued that Kelly was charged with knowledge of the law at that time that provided for revocation of any testamentary dispositions in her favor by filing her petition for divorce. Is Dr. Gonzalez not charged with the same knowledge of the law? Could he not have changed his will if he no longer desired Kelly to be his universal legatee and executrix?

Francisco, Jr., argues that he does not wish to invalidate his father’s will, but merely wishes to revoke the legacy and appointment of Kelly. To that end, he argues that La.Rev.Stat. 9:2440 does not apply. Revised Statute 9:2440 was also enacted by La. Acts 1997, No. 1421, and provided at that time:

A testament executed prior to January 1, 1998, and valid under the law and jurisprudence prior to that date, when executed, is not invalidated by the passage of Acts 1997, No. 1421.

However, revocation of the legacy and appointment made in Dr. Gonzalez’s testament will effectively invalidate the testament because no legacies or appointments remain. La. Civ.Code art. 1612, one of the rules of interpretation referenced in Art. 1611, states that “[a] disposition should be interpreted in a sense in which it can have effect, rather than in one in which it can have none.” To apply La. Civ.Code art. 1608(5) to Dr. Gonzalez’s testament would fly in the face of 19long-standing law and jurisprudence. Accordingly, we find that La. Civ.Code art. 1608(5) does not apply to the last will and testament of Dr. Francisco Manuel Gonzalez.

In his writ application, Francisco, Jr., assigned as error the trial court’s appointment of a “stranger” as provisional administrator. Having ruled that Kelly is to be appointed testamentary executrix, that matter is now moot.

Accordingly, the portion of the judgment granting Francisco, Jr.’s, exception of no right of action is reversed, and the portion of the judgment denying Kelly’s petition to be appointed testamentary executrix is reversed. This matter is remanded for the trial court to lift the stay of its order of probate and to proceed according to law with the appointment of Kelly as testamentary executrix, and all other matters relative to the succession of Dr. Francisco Manuel Gonzalez.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs in the result.

| ARMSTRONG, C.J.,

concurs in the result.

I agree with the result reached by the majority because La. C.C. art. 1608(5), which was enacted as a part of Acts 1997, No.1421, to revoke testamentary provisions in favor of a legatee when the testator is divorced from the legatee subsequent to the execution of those testamentary provisions, was enacted simultaneously with La. R.S. 9:2440 which declares that testaments executed prior to January 1, 1998, are not invalidated by the passage of Acts 1997, No. 1421.

I respectfully concur for the sole purpose of elaborating on Ms. Kelly’s argument that she had a vested right in Dr. Gonzalez’s testament such that to apply La. C.C. art. 1608(5) retroactively would unconstitutionally divest her of a substantive right. Louisiana has always adhered to the doctrine of nemo est haeres viventis. Succession of Harvey, 573 So.2d 1304 (La. App. 2 Cir.1991); Cox v. Von Ahlefeldt, 30 So. 175, 105 La. 543 (1900); Bothick v. Voorhies, 9 So. 489, 43 La.Ann. 553 (1891); McKenzie v. Bacon, 4 So. 65, 40 La.Ann. 157 (1888). According to this doctrine, no one is the heir of a living person. As applied to this case it means that Ms. Kelly has no vested rights in Dr. Gonzalez’s testament until he dies. A legatee has no contractual or substantive interest in a testament prior to the death of the testator. See also La. C.C. art. 949 and Revision Comments thereunder. Therefore, the legislature had the right to make La. C.C. art. 1608(5) | ¡.retroactive had it chosen to do so. However, La. R.S. 9:2440 shows that the legislature chose not to do so, but instead chose to apply La. C.C. art. 1608(5) prospectively only.

      . It does not appear from the record that the April 21st hearing took place.

      . Kelly cites Succ. of Martinez, 98-962 (La.App. 5 Cir. 2/10/99), 729 So.2d 22, as authority for her position. However, the facts of that case are distinguishable in that the testator in Martinez died before the effective date of La. Acts 1997, No. 1421.

      . La.Rev.Stat. 9:2440 was again amended by Acts 2003, No. 74, § 1, to add the language "testamentary provision, legacy, or other appointment” after the word "testament” in the first line. The Act indicates that it is intended to be remedial and curative. Francisco, Jr., has filed an Exception of No Cause of Action in this Court to urge the unconstitutionality of the revision. However, the amendment to La.Rev.Stat. 9:2440 is not germane to our decision because the entire testament, including testamentary provisions and appointments, would be invalidated if La. Civ.Code art 1608 were applied. Thus, the "clarification” of intent encompassed by the revision to La.Rev.Stat. 9:2440 is not relied on by this Court. Accordingly, the Exception of No Cause of Action is denied.


author: SMITH, Presiding Justice,

text:
    WAYNE GENERAL HOSPITAL, Cirila Reyes, M.D., R. Kelvin Sherman, M.D., and William E. Powell, M.D. v. Wanda HAYES, Individually, and as Next Friend and Natural Guardian of Latarius Hayes, A Minor on behalf of All Who are entitled to Recover under the Wrongful Death and Survival Statute for the Death of Wa’Landra Mesha Hayes, Deceased.
    No. 2001-IA-00320-SCT.
    Supreme Court of Mississippi.
    March 25, 2004.

      Matthew D. Miller, Robert D. Gholson, Laurel, J. Robert Ramsay, Hattiesburg, attorneys for appellants.
    Gerald Patrick Collier, attorney for ap-pellees.
   ON MOTION FOR REHEARING

SMITH, Presiding Justice,

for the Court.

¶ 1. The motion for rehearing is denied. The previous opinions of this Court are withdrawn, and this opinion is substituted therefor.

¶ 2. This interlocutory appeal arises from the Circuit Court of Hinds County, where the trial judge refused to grant the defendants’ motion for transfer of venue. We reverse and remand this action for proceedings consistent with this opinion, finding that: (1) the plaintiffs were not reasonably diligent in investigating the cause of their decedent’s injuries; considering the facts and circumstances present at the time of death, the plaintiffs knew or reasonably should have known enough to recognize that some negligent conduct had occurred; therefore, the plaintiffs do not benefit from the discovery rule; their claims against the University of Mississippi Medical Center, Dr. Mark Dabagia, and Dr. Avinash Gulanikar (“UMMC Defendants”) were time barred, and, as a result, the UMMC defendants were not proper parties to this lawsuit; (2) the trial judge abused his discretion in refusing the defendants’ motion to transfer venue since there was no reasonable basis for the plaintiffs’ claims against the UMMC defendants; (3) Wayne General Hospital (“WGH”) is a community hospital for purposes of the MTCA and is therefore entitled to venue in Wayne County as a matter of right; and (4) the issue of whether the plaintiffs’ claims against WGH should have been dismissed is not properly before this Court.

FACTS

¶ 3. On September 22, 1997, Wa’Landra Mesha Hayes was admitted by Dr. Kelvin Sherman to Wayne General Hospital (“WGH”) for twenty-four hour outpatient observation for pneumonia. While at WGH, Wa’Landra exhibited respiratory distress, facial edema, liver enlargement, and signs of renal failure and was thereafter transferred to the UMMC. There is a gap in the record between September 23, 1997, and September 28, 1997. During this time, it is unknown where Wa’Landra was hospitalized and what procedures and medications were given.

¶ 4. The UMMC doctors determined that Wa’Landra required a peritoneal dialysis catheter. Dr. Mark Dabagia (“Dr.Da-bagia”) performed the procedure. Wa’Landra’s bowels were perforated, and this resulted in peritonitis. A serious infection then developed in Wa’Landra’s blood stream. She was later transferred to Arkansas Children’s Hospital in Little Rock, Arkansas.

¶5. Wa’Landra died on October 13, 1997. Her death certificate lists cardiom-yopathy, congestive heart failure, and sepsis as the causes of death. The plaintiffs contend that UMMC and its treating physicians contributed to Wa’Landra’s death.

¶ 6. In the fall of 1999, Wanda Ann Hayes met a former employee of WGH, Venus McDougle. Venus was a nurse at WGH during the time that Wa’Landra was treated there. During this chance meeting, Venus alleged that she witnessed negligent care of Wa’Landra at WGH. Thus, the plaintiffs contacted an attorney and proceeded with a claim. On December 21, 1999, some 2 years and 2 months after Wa’Landra’s death, plaintiffs submitted Notice of Claim letters, as required by the MTCA. On March 27, 2000, the Plaintiffs filed a complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi. The complaint listed the following as defendants: WGH, the UMMC Defendants, Dr. Kelvin Sherman, Dr. William Powell, Dr. Cirila Reyes, and John Doe Persons and Entities. WHG, Dr. Sherman, Dr. Powell, and Dr. Reyes are all residents of Wayne County. The UMMC Defendants are all residents of Hinds County.

¶ 7. The UMMC Defendants filed a motion for summary judgment claiming lapse of the applicable statute of limitations under the MTCA, denial of negligence, individual immunity, and improper notice under the MTCA. Both Dr. Dabagia and Dr. Gulanikar submitted affidavits in support of the motion.

¶ 8. In response to the defendants’ motion for summary judgment, the plaintiffs asserted that they properly complied with the MTCA. The Plaintiffs submitted an affidavit of Dr. John A. Tilelli. After a review of the medical records, Dr. Tilelli concluded that WGH, Dr. Sherman, Dr. Reyes, and Dr. Powell had been negligent in their care of Wa’Landra. However, Dr. Tilelli made no mention of the UMMC Defendants in his affidavit. The plaintiffs also responded with an affidavit of Netra McElroy, a certified nurse practitioner.

¶ 9. The plaintiffs subsequently agreed to dismiss the UMMC Defendants from this action. As a result, the trial entered an Agreed Order of Dismissal Without Prejudice as to the UMMC Defendants. After the dismissal, WGH, joined by Dr. Sherman and Dr. Powell, moved to transfer venue. The trial court denied the motion.

¶ 10. On February 22, 2001, the defendants, WGH, Dr. Reyes, Dr. Sherman, and Dr. Powell, filed a Petition for Interlocutory Appeal in which we granted. See M.R.A.P. 5

DISCUSSION

I. THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, DR. MARK DABAGIA, AND DR. AVI-NASH GULANIKAR WERE NEVER PROPER PARTIES TO THIS LAWSUIT SINCE ANY CLAIMS AGAINST THEM WERE BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS PROVIDED BY MISS. CODE ANN. § 11-46-11(3).

¶ 11. This Court applies the de novo standard of review when deciding issues of law. ABC Mfg. Corp. v. Doyle, 749 So.2d 43, 45 (Miss.1999). The “application of a statute of limitations is a question of law.” Sarris v. Smith, 782 So.2d 721, 723 (Miss.2001). Therefore, the de novo standard applies to our review of WGH’s first assignment of error.

¶ 12. Defendants WGH, Dr. Sherman, Dr. Powell, and Dr. Reyes argue that venue in Hinds County was never proper since all claims against the UMMC Defendants were barred by the one year statute of limitations provided for in the MTCA. Additionally, they assert that the discovery rule is not applicable because there was no latent injury and the Plaintiffs were not reasonably diligent in attempting to investigate the cause of Wa’Landra’s death.

¶ 13. Plaintiffs, Wa’Landra’s heirs, argue that venue in Hinds County was always proper since the discovery rule was applicable to all claims against the UMMC Defendants, tolling the statute of limitations until the plaintiffs discovered the alleged negligence and omissions in the fall of 1999. Furthermore, they argue that the discovery rule applies in this case since the acts or omissions causing the injuries resulting in Wa’Landra’s death were latent and could not have been discovered.

¶ 14. The Mississippi Tort Claims Act (“MTCA”) sets out certain requirements that a plaintiff must satisfy in bringing a claim against a government entity or its subdivisions. At least ninety days before filing suit, a plaintiff must file a notice of claim with the chief executive officer of the government entity. Miss.Code Ann. § 11-46-11(1) (Rev.2002). In addition, the MTCA provides a one-year statute of limitations that begins to run from the date of the “tortious, wrongful or otherwise actionable conduct on which the liability phase of the action is based.” Id. § 11^16-11(3).

¶ 15. The discovery rule applies to the one-year MTCA statute of limitations. Moore ex. rel. Moore v. Mem’l Hosp. of Gulfport, 825 So.2d 658, 667 (Miss.2002) (citing Barnes v. Singing River Hosp. Sys., 733 So.2d 199, 204 (Miss.1999)). Williams v. Clay County, 861 So.2d 953, 976 (Miss.2003). The discovery rule will toll the statute of limitations “until a plaintiff ‘should have reasonably known of some negligent conduct, even if the plaintiff does not know with absolute certainty that the conduct was legally negligent.’ ” Id. (quoting Sarris v. Smith, 782 So.2d at 725).) Stated differently, “ ‘the operative time [for the running of the statute of limitations] is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.’ ” Id. (quoting Smith v. Sanders, 485 So.2d 1051, 1052 (Miss.1986). Moreover, to claim benefit of the discovery rule, a plaintiff must be reasonably diligent in investigating the circumstances surrounding the injury. “The focus is on the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury.” Smith, 485 So.2d at 1052 (emphasis added). See also Punzo v. Jackson County, 861 So.2d 340, 346 (Miss.2003); Sweeney v. Preston, 642 So.2d 332 (Miss.1994).

¶ 16. Assuming without deciding that the injuries alleged here were latent, we find that the discovery rule did not operate to toll the statute of limitations. First, the plaintiffs were not reasonably diligent in investigating the cause of Wa’Landra’s injuries. They filed suit after a chance meeting with Venus McDougle, a former employee of WGH. The record does not reflect any type of investigation into Wa’Landra’s treatment prior to this chance meeting, which occurred approximately two years after her death. The intent of the discovery rule is to protect potential plaintiffs who cannot, through reasonable diligence, discover injuries done to them.

¶ 17. Moreover, the plaintiffs, at that time of Wa’Landra’s death, had enough information such that they knew or reasonably should have known that some negligent conduct had occurred, even if they did not know with certainty that the conduct was negligent as a matter of law. Since the death certificate included sepsis as one of the causes of death, it should have been apparent to the plaintiffs that some negligent conduct had occurred. Additionally, Wa’Landra was hospitalized at Arkansas Children’s Hospital subsequent to the bowel perforation which allegedly occurred at the University of Mississippi Medical Center. This should have alerted her survivors of possible problems with her medical treatment.

¶ 18. The plaintiffs filed their action against the UMMC defendants after the expiration of the MTCA statute of limitations. Thus, their action against the UMMC Defendants was time barred, and the UMMC Defendants were never proper parties to this action.

II. VENUE CANNOT REMAIN IN HINDS COUNTY SINCE THE PLAINTIFFS ONLY JOINED THE UNIVERSITY OF MISSISSIPPI MEDICAL CENTER, DR. MARK DABAGIA, AND DR. AVINASH GULANIKAR FOR THE PURPOSE OF FIXING VENUE IN HINDS COUNTY.

¶ 19. The defendants argue that this action should not have remained in Hinds County after the dismissal of the UMMC Defendants. First, the defendants contend that the plaintiffs had no reasonable claim of liability against the UMMC Defendants. Moreover, the Defendants argue the UMMC Defendants were joined for no other purpose but to fix venue of this action in Hinds County.

¶ 20. Plaintiffs argue that at the time of filing they asserted valid claims against the UMMC Defendants and at all times believed they had a good faith claim against these defendants. Plaintiffs further argue that venue is determined at the time of filing, therefore venue was proper in Hinds County at the time of filing and is still proper even after the claims against these defendants were dismissed. Additionally, they argue that the voluntary dismissal does not change the rule that venue is determined at time of filing.

¶ 21. In reviewing a trial court’s ruling on a motion to change venue, this Court applies the abuse of discretion standard. Guice v. Miss. Life Ins. Co., 836 So.2d 756, 758 (Miss.2003). A trial judge’s ruling on such an application “will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the ease.” Id.

¶ 22. Rule 82(b) of the Mississippi Rules of Civil Procedure provides that “[ejxcept as provided by this rule, venue of all actions shall be as provided by statute.” Miss.Code Ann. § 11-11-3(1) provides that “[cjivil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue.” Moreover, “proper venue is determined at the time the lawsuit is originally filed, and subsequent dismissal of the defendant upon whom venue is based does not destroy proper venue.” Estate of Jones v. Quinn, 716 So.2d 624, 628 (Miss.1998) (citing Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss.1988)).

¶ 23. In Estate of Jones, we concluded that “[i]n suits involving multiple defendants, where venue is good as to one defendant, it is good as to all defendants. This is true where the defendant upon whom venue is based is subsequently dismissed from the suit.” Estate of Jones, 716 So.2d at 627. Moreover, in such cases, “venue as to the remaining defendants continues despite the fact that venue would have been improper, if the original action had named them only.” Id. However, we have also held:

Where an action is properly brought in a county in which one of the defendants resides, it may be retained notwithstanding there is a dismissal of the resident defendant, provided the following exists — [1] the action was begun in good faith in the bona fide belief that plaintiff had a cause of action against the resident defendant;- [2] the joinder of the local defendant was not fraudulent or frivolous, with the intention of depriving the non-resident defendant of his right to be sued in his own county; [3] and there was a reasonable claim of liability asserted against the resident defendant.

Estate of Jones, 716 So.2d at 627 (citing New Biloxi Hosp., Inc. v. Frazier, 245 Miss. 185, 146 So.2d 882, 885 (1962)). When determining whether fraud was involved in the joining of defendants “the proper question is not whether the plaintiffs attorney intended to fraudulently establish venue, but whether the facts support inclusion of the defendant upon whom venue is based.” Estate of Jones, 716 So.2d at 628 (citing Jefferson v. Magee, 205 So.2d 281, 283 (Miss.1967)). The defendants argue that the plaintiffs had no reasonable claim of liability against the UMMC Defendants and therefore fail to satisfy the third prong of the Frazier test. We agree.

¶ 24. This Court has held:

[I]n order to prevail in a medical malpractice action, a plaintiff must establish, by expert testimony, the standard of acceptable professional practice; that the defendant physician deviated from that standard; and that the deviation from the standard of acceptable professional practice was the proximate cause of the injury of which plaintiff complains.

Brown v. Baptist Mem’l Hosp. DeSoto, Inc., 806 So.2d 1131, 1134 (Miss.2002) (citing Phillips ex rel. Phillips v. Hull, 516 So.2d 488, 491 (Miss.1987)). See also Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss.1990).

¶ 25. Here, in response to the UMMC Defendants’ motion for summary judgment, the Plaintiffs responded with two affidavits. The first witness, Netra McEl-roy, was at the time a certified Family Nurse Practitioner and Clinical Nurse Specialist. We have held that a nurse is not qualified to testify as to the causal nexus between death and an alleged deviation from the standard of care. Richardson v. Methodist Hosp. of Hattiesburg, Inc., 807 So.2d 1244, 1247-48 (Miss.2002). Moreover, the plaintiffs’ second witness, Dr. John Tilelli, made no mention of the UMMC Defendants or their alleged negligence in his affidavit.

¶26. Instead of moving forward, the plaintiffs voluntarily dismissed their claims against the UMMC Defendants. The logical inference is that the plaintiffs’ claims against the UMMC Defendants were not capable of withstanding a motion for summary judgment. If the plaintiffs’ claims could not survive a motion for summary judgment, as is obviously the case here, then they clearly failed to assert a reasonable claim of liability against the UMMC Defendants. Thus, the plaintiffs failed to satisfy the third prong of the Frazier test. The trial judge therefore clearly erred in concluding that venue was proper in Hinds County after the voluntary dismissal of the UMMC Defendants. Furthermore, it is clear that the trial judge abused his discretion in refusing the defendants’ application for a change of venue.

III. WAYNE GENERAL HOSPITAL IS A “COMMUNITY HOSPITAL” UNDER THE MISSISSIPPI TORT CLAIMS ACT ENTITLING IT TO EXCLUSIVE VENUE IN WAYNE COUNTY.

¶27. The defendants argue that under Miss.Code Ann. § 41-13-10, WGH is a 'community hospital’ as defined in the MTCA. Hospitals and physicians protected by the MTCA enjoy their own unique venue statute provided for in Miss.Code Ann. § 11-46-13(2). The defendants argue that under Miss.Code § 11-46-13(2) the only proper venue is Wayne County, Mississippi.

¶ 28. Plaintiffs argue that Miss.Code Ann. § 11-46-13(2) does not preclude other venues. They argue that the statute does not provide for only one venue; therefore, venue may be determined by Miss.Code Ann. § 11-11-3(1).

¶ 29. The MTCA provides the exclusive remedy for suits and claims asserted against the state and its political and corporate subdivisions. Miss.Code § 11-46-1 (g) defines the term “governmental entity” to include “state and political subdivisions as herein defined.” For purposes of the MTCA,

“Political subdivision” means any body politic or body corporate other than the state responsible for governmental activities only in geographic areas smaller than that of the state, including, but not limited to, any county, municipality, school district, community hospital as defined in Section 41-13-10, Mississippi Code of 1972, airport authority or other instrumentality thereof, whether or not such body or instrumentality thereof has the authority to levy taxes or to sue or be sued in its own name.

Miss.Code Ann. § 11-46-1® (2002) (emphasis added). According to Miss.Code Ann. § 41-13-10(c) (2001),

“Community hospital” shall mean any hospital, nursing home and/or related health facilities or programs, including without limitation, ambulatory surgical facilities, intermediate care facilities, after-hours clinics, home health agencies and rehabilitation facilities, established and acquired by boards of trustees or by one or more owners which is governed, operated and maintained by a board of trustees.

Miss.Code Ann. § 11-46-7(1) provides the exclusive remedy “against the governmental entity or its employees or the estate of the employee for the act or omission which gave rise to the claim or suit.” Furthermore, “any claim made or suit filed against a governmental entity or its employee to recover damages for any injury ... shall be brought only under the provisions of this chapter; notwithstanding the provisions of any other law to the contrary.” Id. The MTCA venue statute reads as follows:

The venue for any suit filed under the provisions of this chapter against the state or its employees shall be in the county in which the act, omission or event on which the liability phase of the action is based, occurred or took place. The venue for all other suits filed under the provisions of this chapter shall be in the county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located. The venue specified in this subsection shall control in all actions filed against governmental entities, notwithstanding that other defendants which are not governmental entities may be joined in the suit, and notwithstanding the provisions of any other venue statute that otherwise would apply.

Miss.Code Ann. § 11-46-13(2). The second sentence of this statute “controls only in ‘all other suits filed under the provisions of this chapter,’ meaning all suits other than those filed against state employees.” Estate of Jones, 716 So.2d at 628.

¶ 30. This Court has held that where a plaintiff sues a county, the only proper venue is that county:

There is sound reason for requiring a county to be sued in the county, or in the court which sits at the county site and has jurisdiction of the suit. A county can only act through it’s officers, and these officers are charged with various duties for the public welfare. In defending suits against counties, the officers might be taken out of the county or called away from their public duties and the public interests would suffer in many cases by reason of their absence from the duties while attending court in other places than at the county site. The records might often have to be carried away from the county site, if such suits were maintained, to the place where the suit was tried and would endanger the safety of the said records and discommode the safety of the said records and discommode the public who might desire to resort to the records for any lawful purpose for which they are made and used.

Boston v. Hartford Acc. & Indem. Co., 822 So.2d 239, 246 (Miss.2002) (quoting City of Jackson v. Wallace, 189 Miss. 252, 196 So. 223, 224-25 (1940)).

¶ 31. Here, it is clear that venue was proper only in Wayne County. First, WQH is, as the plaintiffs put it, “a creature of the state of Mississippi.” According to WGH, it is “a hospital institution owned and operated by Wayne County and its Board of Supervisors and thus is a political subdivision of the state of Mississippi.” Thus, there is no dispute that the MTCA applies to WGH. In addition, the plaintiffs do not dispute that WGH is a “community hospital” for purposes of the MTCA.

¶ 32. The MTCA is clear on this point: where a plaintiff files suit against an MTCA-protected public entity other than the state of Mississippi or its employees, venue is proper only in the “county or judicial district thereof in which the principal offices of the governing body of the political subdivision are located.” As we concluded in Estate of Jones, this portion of Miss.Code Ann. § 11-46-13(2) refers to all suits other than those filed against state employees. The plaintiffs do not allege that WGH is a state employee, and the record shows that WGH is a political subdivision of Wayne County, Mississippi. Thus, the second sentence of Miss.Code Ann. § 11-46-13(2) applies to this case. Having determined that Hinds County was never a proper venue for this action, we conclude that the only proper venue for the plaintiffs’ action against WGH is Wayne County, Mississippi.

IV. THE PLAINTIFFS’ CLAIMS AGAINST WAYNE GENERAL HOSPITAL SHOULD HAVE BEEN DISMISSED BY THE CIRCUIT COURT JUDGE SINCE NO NOTICE OF CLAIM WAS TIMELY FILED AND ANY CLAIMS ARE BARRED BY THE ONE YEAR STATUTE OF LIMITATIONS UNDER MISS. CODE § 11-46-11(3).

¶ 33. Defendants argue that the circuit court judge erred in refusing to grant their motion to dismiss. According to the defendants, the plaintiffs failed to timely submit a Notice of Claim under Miss.Code § 11^16-11(1). They further argue that under Miss.Code § 11-46-11(3) the Notice of Claim and any cause of action must be commenced within one year after the date of the alleged acts of negligence or omissions.

¶ 34. Plaintiffs argue that the circuit court judge did not err in his refusal to grant the defendants’ motion to dismiss. They argue that the defendants failed to raise this argument in their Petition for Interlocutory Appeal and are therefore precluded from raising the issue now. Furthermore, plaintiffs argue that the statute of limitations provided for in Miss. Code § 11-46-11(3) is subject to the discovery rule, therefore the statute of limitations on their action did not begin until the fall of 1999. Moreover, plaintiffs argue that the trial judge reserved ruling on the motion — that is, the trial judge did not rule on the motion.

¶ 35. The defendants acknowledge that they failed to raise this issue on appeal, but they cite Tinnon v. Martin, 716 So.2d 604, 613 (Miss.1998), where the Court addressed a defendant’s constitutional argument that was not raised on appeal in order to promote judicial economy in the courts. They argue that in the interest of judicial economy this Court should consider this issue on appeal. However, it is clear that this issue is not properly before the Court. Under our Rules of Appellate Procedure, a party requesting permission to take interlocutory appeal must submit a petition which

shall contain a statement of the facts necessary to an understanding of the question of law determined by the order of the trial court; a statement of the question itself; and a statement of the reasons why the certification required by Rule 5(a) properly was made or should have been made.

M.R.A.P. 5(b) (emphasis added). The defendants concede that they did not include this assignment of error in their Petition for Interlocutory Appeal. We are therefore procedurally barred from deciding this issue.

CONCLUSION

¶ 36. We conclude that the learned trial judge abused his discretion in denying the defendants’ motion to transfer venue. At the time of Wa’Landra’s death, the plaintiffs knew or reasonably should have known enough to recognize that negligent conduct had occurred in connection with her medical treatment. Moreover, the heirs were not reasonably diligent in investigating the cause of Wa’Landra’s injuries. As a result, the discovery rule does not apply in this case. The plaintiffs’ claims against the University of Mississippi Medical Center, Dr. Mark Dabagia, and Dr. Avinash Gulanikar (“UMMC Defendants”) were, therefore, time-barred, and the UMMC Defendants were never proper parties to this lawsuit. Second, venue is improper in Hinds County as to the remaining defendants because the plaintiffs failed to assert a reasonable claim of liability against the UMMC Defendants; therefore, pursuant to Frazier, venue is not proper in Hinds County as to the remaining defendants since the resident UMMC Defendants have been dismissed. Third, Wayne General Hospital is a community hospital for purposes of the MTCA and is therefore entitled to venue in the county in which the principal offices of its governing body are located, i.e., Wayne County. Finally, we decline to pass on whether WGH’s motion for dismissal should have been granted since that issue is not properly before this Court. Therefore, we reverse the trial court’s order denying the defendants’ motion to transfer venue, and we remand this case to the trial court with directions that it promptly transfer the venue of this case to the Circuit Court of Wayne County for further proceedings consistent with this opinion.

¶ 37. REVERSED AND REMANDED.

PITTMAN, C.J., WALLER, P.J., COBB, CARLSON AND DICKINSON, JJ., CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.