author: JOHNSON, Justice. WEIMER, J.,

text:
    Harold Ross PERRITT, et al. v. Grant DONA, M.D., et al. Roger Arnold, M.D., et ux. v. Grant A. Dona, M.D. Ella Richmond v. Douglas C. Brown, M.D.
    Nos. 2002-CC-2601, 2002-CC-2603.
    Supreme Court of Louisiana.
    July 2, 2003.

      John L. Hammons, Cornell R. Flournoy, Nelson, Hammons & Self, Shreveport, for Applicant in No. 2002-CC-2603.
    David E. Verlander, III, McCleod & Verlander, Monroe, Gordon L. James, Brady D. King, II, Jesse D. McDonald, Hudson, Potts & Bernstgein, Monroe, for Respondent in No. 2002-CC-260B.
    David E. Verlander, III, McCleod & Verlander, Monroe, for Applicant in No. 2002-CC-2601.
    John L. Hammons, Cornell R. Flournoy, Nelson, Hammons & Self, Shreveport, Gordon L. James, Brady D. King, II, Jesse D. McDonald, Hudson, Potts & Bernst-gein, Monroe, for Respondent in No. 2002-CC-2601.
    Amy W. Phillips, Baton Rouge, for ami-cus curiae, Louisiana State Medical Society.
    Guice A. Giambrone, III, Dante V. Mar-aldo, Stephen M. Pizzo, Metairie, for ami-cus curiae, Louisiana Patient’s Compensation Fund & Healthcare Indemnity, Inc.
    Robert I. Baudouin, New Orleans, Guice A. Guimbrone, III, Kurt S. Blankenship, Metairie, for amicus curiae, Memorial Medical Center.
    Thomas E. Gottsegen, Don S. McKinney, New Orleans, for amicus curiae, Ochs-ner Clinic Foundation and Tulane Educational Fund Administrators.
   JOHNSON, Justice.

This matter arises out of three medical malpractice claims filed against several health care providers where the proceedings are pending before medical review panel. The health care providers sought to require the plaintiffs to provide more information. In one suit, the district court ordered the plaintiff to amend his claim and provide details of the alleged malpractice. The plaintiff applied for supervisory writs, which the court of appeal denied. In the other suits, the district court denied the health care providers’ request. The health care providers applied for supervisory writs. The court of appeal denied their applications. The parties then applied for writs of review. This Court consolidated the cases, granted the applications, and remanded the cases Uto the Second Circuit to determine whether a defendant in a case pending in the medical review panel may compel the plaintiff to respond to interrogatories requesting information on the standard of care allegedly breached by the defendant. On remand, the court of appeal held that interrogatories are not allowed during the medical review panel proceeding. The aggrieved parties appealed this ruling. This Court finds that after a strict interpretation of LSA-R.S. 40:1299.47, interrogatories are not permitted during the medical panel review.

FACTS & PROCEDURAL HISTORY

This matter involves three individual medical malpractice claims pending before medical review panels, in which the health care providers or defendants have asserted that the plaintiffs’ claims did not provide sufficient notice of material facts. These cases are: 1) Harold Perritt v. Dr. Grant Dona; 2) Dr. Roger Arnold v. Dr. Grant Dona; and 3) Ella Richmond v. Dr. Douglas C. Brown.

PERRITT v. DONA

Perritt filed a letter claim with the Patients’ Compensation Fund (“PCF”) and the Commissioner of Administration, alleging a medical negligence claim against Dr. IsDona and others. This letter set forth the dates of Perritt’s treatment and the alleged date of malpractice and maintained that the defendants deviated from the applicable standard of medical care. The letter named as defendants: Dr. Dona, Dr. Rowland Torres, St. Francis Medical Center, and Healthsouth Rehabilitation Hospital. The defendants filed a Motion to Compel requesting that the plaintiff provide a more detailed description of his claim. In Perritt, the district court granted the defendants’ motion and ruled that the letter “does not contain a recitation of facts or allegations (surrounding the alleged malpractice) sufficient enough to afford the defendants proper notice.” The district court ordered the plaintiff to amend the letter. Thereafter, the court of appeal denied the plaintiffs application for supervisory review. The plaintiff sought review from this Court. This Court, finding that the three cases arose from similar facts and circumstances, consolidated the three cases, granted the plaintiffs writ application, and remanded the matter to the court of appeal instructing them to resolve whether interrogatories are permissible in the medical review panel proceeding. Also, this Court ordered the court of appeal to address the ruling in Solomon v. Medical Ctr. of Louisiana at New Orleans, 97-0783 (La.App. 4th Cir.5/14/97), 694 So.2d 1229. On remand, the court of appeal affirmed the district court’s ruling. The court of appeal noted that although Dr. Dona’s pleading was captioned “Motion to | ¿Compel,” it was in fact an “exception of no cause of action or in the alternative, an exception of vagueness.” The court of appeal held that the district court did not err in granting the defendant’s exception of no cause of action and/or vagueness since the plaintiff failed to list the injury he suffered or the alleged facts of causation linked to those injuries. The plaintiff appealed.

ARNOLD v. DONA

In Arnold, Dr. Dona propounded several interrogatories that were answered, but the defendants found the answer to the following question inadequate:

INTERTOGATORY NO. 1: Please state each and every respect in which you contend that [defendant] breached the standard of care applicable to him in connection with your care, being specific as to what it is you claim he did that she [sic] should have done, or did not do that she [sic] should have done.

In response, the plaintiff answered that he suffered “from osteomyelisis which plaintiff believes was caused, or substantially contributed to, by substandard care on the part of Dr. Dona.” Dr. Dona was not satisfied with this answer; therefore, he filed a Motion to Compel. The plaintiff filed a motion for a protective order. The district court denied Dr. Dona’s motion and granted the protective order. Thereafter, the court of appeal denied Dr. Dona’s application for supervisory review. The defendant sought review from this Court. As noted above, this Court consolidated the three matters, granted the defendants’ writ applications, and remanded the matter to the court of appeal. On remand, the court of appeal affirmed the district court’s ruling.

In Arnold and Richmond (discussed below), the court of appeal distinguished those cases from Perritt by contending that those cases propounded interrogatories requesting the specifics on each doctors’ action or inaction and the applicable | ¡^standards of care, instead of challenging the plaintiffs’ claims by filing exceptions. Here, the court of appeal held that:

The process employed by the defendants in Arnold and Richmond is faulty. First, there was no showing in the district court regarding any insufficiency in the plaintiffs’ claims to the PCF. Without evidence of the plaintiffs’ PCF letters or claims instituting the medical review panel proceedings, the trial court could presume that the information requested in the disputed interrogatories is contained in the initial claims. If not, an exception to the claim and proof of the insufficiency of the statement of the claims may yet be made.

The defendants appealed this ruling.

RICHMOND v. BROWN

In Richmond, Dr. Brown propounded interrogatories, where he requested the following:

INTERTOGATORY NO. 1: Please state each and every respect in which you contend that [defendant] breached the standard of care applicable to him in connection with your care, being specific as to what it is you claim he did that she [sic] should have done, or did not do that she [sic] should have done.
INTERTOGATORY NO. 2: Please state, with respect to each of the allegations of substandard care made in your answers to Interrogatory No. 1, what it is that you claim the standard of care applicable to Dr. Brown requires, and your basis for so defining the standard of care.

In response, the plaintiff answered that she was not an expert on the medical standards of care and that all she knew was “that she suffered harm or complications which she simply did not feel should have occurred under the circumstances-” Dr. Brown then filed a Motion to Compel. The district court granted the doctor’s motion and ordered that the plaintiff state all the grounds of malpractice. Thereafter, the court of appeal granted the plaintiffs application for supervisory review, stating in pertinent part that:

16These interrogatories go well beyond the scope of the matters before the medical review panel. No lawsuit has been filed in this matter, and we consider these interrogatories — asking the patient to relate the health care provider’s conduct to standards of care yet unestablished by the panel — to be too burdensome.

The defendant sought review from this Court. As noted above, this Court consolidated the three matters, granted the defendants’ writ applications, and remanded the matter to the court of appeal. On remand, the court of appeal reversed the district court ruling, which ordered the plaintiff to answer the defendant’s written interrogatories. As noted in Arnold, the court of appeal found that interrogatories are not allowed in the medical review panel.

In sum, the court of appeal held that: l)the plaintiffs are not required to allege the health care provider’s applicable standard of care in the medical panel review proceeding; 2) the plaintiffs’ claims that failed to state their injuries suffered or the facts of causation linking those injuries to the health care provider were insufficient; and 3) the health care providers can not propound interrogatories in the medical review panel proceeding. The court of appeal found that Solomon, supra could be distinguished from the cases at hand in that Solomon did not involve a discovery dispute over interrogatories. Specifically, the court of appeal held that:

... Discovery in the present non-judicial proceeding is not in keeping with the intended nature of the proceeding as described by our Supreme Court nor is discovery through written interrogatories expressly provided in the MMA ... Section 1299.47(D) of the MMA provides for the form of evidence to be considered by the medical review panel. The section allows for the taking of depositions by the parties or at the request of any two panel members. La. |7R.S. 40:1299.47(D)(3) and (4).... Section 1299.47(D), when considered as a whole, addresses the written evidence which may be obtained for submission to the panel. Its aim is not for broad discovery process by the parties, but for submission of evidence to the panel. It does not allow for written interrogatories to be exchanged between the parties.

The court of appeal concluded that the Medical Malpractice Act “MMA” was subject to strict interpretation and that the objective of an efficient, non-judicial screening for medical malpractice claims would be defeated by an open-ended discovery process with attendant motion practice at the district court level. The court of appeal noted that according to LSA-R.S. 40:1299.47(B)(2)(a), the MMA permits a health care provider the right to raise “any exception” in court prior to the completion of the panel proceedings. The court of appeal concluded that a complaint should clearly set forth the facts forming the basis of a malpractice claim to give notice of the civil action. The court of appeal also found that LSA-R.S. 40:1299.47(D) does not allow the parties to exchange written interrogatories since the MMA was subject to strict interpretation. The defendants appealed this ruling.

DISCUSSION

At the outset, we note that the physicians and hospitals named as defendants can be classified as “health care providers” as defined in LSA-R.S. 40:1299.41(A)(1). Any action against the health care providers concerning medical malpractice is subject to the MMA. The purposes of the MMA are: 1) to limit the liability of the health care providers who qualify under the Act (Tucker v. Lain, 98-2273, 01-0608, 01-0609 (La.App. 4 Cir. 9/5/01), 798 So.2d 1041, writ denied, 01-2715 (La.1/4/02), 805 So.2d 210; Prisk v. Palazzo, 95-1475 (La.App. 4 Cir. 1/19/96), 668 So.2d 415, writ denied, 96-0487 (La.4/8/96), 671 So.2d 335); and 2) to provide compensation to medical malpractice victims who have been injured by qualified health care providers (A Copeland Enterprises, Inc. v. Slidell Memorial Hospital, 94-2011 (La.6/30/95), 657 So.2d 1292, Tucker, supra.). This Court, in Hutchinson v. Patel, 93-2156 (La.5/23/94), 637 So.2d 415, stated that the MMA’s purpose is to reduce or stabilize medical malpractice insurance and to provide the public affordable medical services.

The MMA requires that all claims against health care providers be reviewed or “filtered” through a medical review panel before proceeding to any other court. LSA-R.S. 40:1299.47(A)(1). Everett v. Goldman, 359 So.2d 1256 (La.1978). As stated above this “filtering” is done to “weed out frivolous claims without the delay or expense of a court trial.” Id. at 1263. In other words, this “filtering” or “pre-screening” is done to pressure either the claimant to abandon a worthless claim or the defendant to settle the case reasonably. Id.

To better understand this “filtering” process, we must now discuss the medical panel review and its role. In Everett v. Goldman, this Court noted that:

Under the Louisiana act the medical review panel is made up of three physicians and a nonvoting attorney-chairman. R.S. 40:1299.47(0). Two of the physicians are selected by the plaintiff and defendant respectively, and these two choose a third, all of whom are required to serve. Evidence is presented to the panel only in writing by such means as medical charts, laboratory tests, depositions, and the like. Any party can cause to issue subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence. | flEither party may question the panel regarding any matters relevant to issues to be decided by the panel. Under certain conditions the panel may consult with medical authorities.
The sole duty of the panel is to express its expert opinion(s). Within thirty days but in all events within one hundred and eighty days after selection of the last member of the panel, the panel shall render signed and in writing one or more of the following expert opinions:
(1) The evidence supports the conclusion that the defendant or defendants failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant or defendants failed to meet the applicable standard of care as charged in the complaint.
(3) That there is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court.
(4) Where Paragraph (2) above is answered in the affirmative, that the conduct complained of was or was not a factor of the resultant damages. If such conduct was a factor, whether the plaintiff suffered: (a) any disability and the extent and duration of the disability, and (b) any permanent impairment and the percentage of the impairment. R.S. 40:1299.47(G).
No findings are made by the panel as to damages.
The findings of the medical review panel are not binding on the litigants. The claimant, whose time of filing a suit is suspended until ninety days following issuance of the opinion by the panel, may file suit in a court of law. R.S. 40:1299.47(A). The report containing the panel’s opinion will be admissible as evidence in later litigation, but the expert opinion shall not be conclusive and either party has the right at trial to call at his cost any member of the medical review panel as a witness.

Id. at 1264. (Emphasis added).

ISSUE ONE

The first issue we must decide is whether the parties before the medical review panel may propound interrogatories at all, or whether they are limited to discovery by deposition. The statute that applies to discovery under the private Medical 110Malpractice Act is LSA-R.S. 40:1299.47(D), which provides that:

(1) The evidence to be considered by the medical panel review panel shall be promptly submitted by the respective parties in written form only.
(2) The evidence may consist of medical charts, x-rays, lab tests, excerpt of treatises, depositions of witnesses including parties, affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel.
(3) Depositions of the parties and witnesses may be taken prior to the convening of the panel.
(4) Upon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection and/or copying.
(5) The chairman of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel as provided in Subsection G.

In the case sub judice, the defendants urge that the plaintiffs’ complaint failed to set forth the basic material facts necessary to put them on notice as to the alleged malpractice asserted; thus, the plaintiffs should be compelled to answer their interrogatories.

In support of their argument, the defendants rely upon Solomon, supra, where a potential malpractice suit was pending before the medical panel review and the district court ruled that the plaintiff failed “to adequately answer an interrogatory requesting detailed information concerning ‘each and every act of medical malpractice’ being asserted by the plaintiff against the defendant, including ‘the specific nature’ of the act or omission and the date the act or omission occurred.” The plaintiff answered, alleging that she was not required by the MMA to set forth specific allegations of fault. She also alleged that her answering the interrogatory would prejudice her case. The plaintiff appealed the district court’s ruling. The Fourth Circuit held that the plaintiff could be compelled to answer these interrogatories concerning the alleged acts of medical malpractice being asserted. The Fourth Circuit In noted that the MMA contains a specific provision allowing discovery to be used in submissions to the medical review panel. LSA-R.S. 40.1299.39.1(D). The court also found that the interrogatories complied with all legal requirements; thus, the court concluded that allowing discovery in a case in the medical review panel was consistent with liberal discovery rules. The court further found that the information requested was neither privileged, work product, nor expert opinion and was therefore discoverable during the medical review panel. LSA-C.C.P. art. 1422.

In response, the plaintiffs argue that according to SeWell Hospital v. Doctors Hospital, 600 So.2d 577 (La.1992), this Court ruled that the MMA is a special legislation in derogation of the general tort law and must therefore be strictly construed. The plaintiffs note that nothing in the statute refers to interrogatories specifically; the only discovery contemplated is by deposition. The plaintiffs also note that there is no authority to support the proposition that the Code of Civil Procedure | ^supplements the MMA. The plaintiffs also argue that Solomon can be distinguished from the case at hand. The plaintiffs note that Solomon refers to the public act (LSA-R.S.40:1299.39.1(D) whereas this case is governed by the private act (LSA-R.S.40:1299.47(D). Hence, the ruling in Solomon is not applicable to the case at hand.

To properly address the issue at hand, we must determine whether LSA-R.S. 40:1299.47 must be construed strictly or liberally. Although the Second Circuit in Solomon found that the Louisiana discovery rules should be liberally construed, this Court has previously held in Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00) 758 So.2d 116, 120, that all statutes limiting provisions applicable to qualified health care providers are “special legislation in derogation of the rights of tort victims;” thus, these provisions are all strictly construed. Sewell v. Doctors Hosp., 600 So.2d 577, 578 (La.1992). LSA R.S. 40:1299.47(D) does not expressly provide for written discovery. The statute does allow “medical charts, x-rays, lab tests, excerpt of treatises, depositions of witnesses including parties, affidavits and reports of medical experts, and any other form of evidence,” but is silent as to interrogatories. The parties concede that both plaintiffs and defendants have propounded and answered interrogatories while before a medical review panel. We must decide whether this informal practice is recognized by any statute, and can therefore be compelled. Both sides concede that written interrogatories are the most cost efficient method of obtaining information. However, a strict reading of the statute does not allow interrogatories in the medical review panel stage. We note that Solomon did not cite any authority nor was it clear that the rules of the Civil Code of [^Procedure are applicable in the MMA. Because there was no statutory requirement allowing interrogatories, we can not conceptually compel parties to answer interrogatories. Therefore, we find that interrogatories are not permitted in the medical review panel stage.

Since the defendants specifically requested that the plaintiffs be compelled to provide information on the standard of care breached by the defendants, we must discuss the statutory requirements of the complaint presented to the medical review panel. LSA-R.S. 40:1299.47(B)(l)(a)(i) provides that:

No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.

Here, we find that the statute says nothing further about the required format for the “proposed complaint;” therefore, defendants can not require the plaintiffs to specify the health care providers’ standards of care. Furthermore, the language of LSA-R.S. 40:1299.47(G) suggests that it is the duty of the medical review panel to determine the appropriate standard of care based on the evidence presented and whether defendant breached that standard. As properly noted by the Second Circuit, setting out the appropriate standard of care is the role of the medical expert and not a claimant. We note that the MMA does not specifically delineate that the parties are entitled to “notice.” The claim is not required to be a fact pleading with the specificity that may be required of a petition in a lawsuit; rather, the claim need only present sufficient information for the panel to make a determination as to whether the defendant is entitled to the protection of the Act.

\UISSUE TWO

Now, we turn to the second issue of whether defendants may file an exception of no cause of action or exception of vagueness while the claim is before the medical review panel.

The plaintiffs argue that LSA-R.S. 40:1299.47(B)(2)(a) limits the available motions and/or exceptions at the panel stage to those listed in LSA-R.S. 9:5628. The plaintiffs argue that any exceptions except the peremptory exceptions of prescription are impermissible. The defendants contend that when the plaintiffs’ complaint is so vague and deficient in statement of a claim the defendants may file exceptions in the district court.

LSA-R.S. 40:1299.47(B)(2)(a) provides that:

A health care provider, against whom a claim has been filed under the provisions of this Part, may raise any exception or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel.

Legislation is a solemn expression of legislative will; therefore,, interpretation of a law is primarily the search for the Legislature’s intent. LSA-C.C. art. 2; O’Regan v. Preferred Enterprises, Inc., 98-1602 (La.3/17/00), 758 So.2d 124, 128; Cat’s Meow v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186, 1198. The starting point for interpretation of any statute is the language of the statute itself. Touchard v. Williams, 617 So.2d 885 (La.1993). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written, and no further interpretation maybe made in search of legislative intent. LSA-C.C. art. 9. Moreover, all statutes limiting provisions applicable to qualified health care providers are “special legislation in derogation of the rights of tort victims” and are strictly construed. Se-well, supra.

In the present case, LSA-R.S. 40:1299.47(B)(2)(a) allows a health care provider to “raise any exception or defenses available pursuant to R.S. 9:5628.” (Emphasis added).

As we recognized in Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502, 509:

LA. REV. STAT. ANN. § 9:5628 not only corresponds with the basic one year prescriptive period for delictual actions provided in LA.CIV.CODE art. 3492, it embodies the discovery rule delineated as the fourth category of contra non valentem, that is with the “single qualification that the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.” Hebert, 486 So.2d at 724; see also Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960, 963; White v. West Carroll Hospital, Inc., 613 So.2d 150, 155 (La.1992) (holding that LA. REV. STAT. ANN. § 9:5628 embodies contra non va-lentem in medical malpractice suits).
A straight forward reading of LA. REV. STAT. ANN. § 9:5628 clearly shows that the statute sets forth two prescriptive limits within which to bring a medical malpractice action, namely one year from the date of the alleged act or one year from the date of discovery with a three year limitation from the date of the alleged act, omission or neglect to bring such claims. Hebert thoroughly examined the legislative history of LA. REV. STAT. ANN. § 9:5628 and determined that it was clearly a “prescription statute with a qualification, that is, the contra non valentem type exception to prescription embodied in the discovery rule is expressly made inapplicable after three years from the act, omission or neglect.” Hebert, 486 So.2d at 724-25.

Based upon the provisions of LSA-R.S.9:5628 and LSA-R.S. 40:1299.47(B)(2)(a) a health care provider is allowed to only assert the peremptory exception of prescription during the medical panel review stage of the proceedings.

|16We further point out the dilatory exception of vagueness addresses the detailed sufficiency of the petition and the peremptory exception of no cause of action tests the legal sufficiency of the pleadings detailed in the petition. See Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890; Kuebler v. Martin, 578 So.2d 113 (La.1991). In the present case, there is a “claim” pending before the medical review panel for review, not a petition. See LSA-R.S. 40:1299.47(A)(1) and (A)(2)(a). Thus, it is clear the exceptions of vagueness and no cause of action are inapplicable to the medical panel review stage of the proceedings.

CONCLUSION

For the reasons set forth above, we conclude that the lower courts correctly ruled that interrogatories are not permissible in the medical review panel proceeding. We also affirm the court of appeal’s finding that plaintiffs are not required by the MMA to allege the standard of care breached by the health care providers. However, we reverse the court of appeal’s ruling that the plaintiffs can be required to respond in the district court to exceptions of no cause of action and/or vagueness. DECREE

AFFIRMED IN PART; REVERSED IN PART.

WEIMER, J., concurs and assigns additional reasons.

VICTORY, J., concurs.

WEIMER, J.,

concurs and assigns additional reasons.

I agree with the majority’s conclusions concerning interrogatories and exceptions. However, it necessary to elaborate on what is, I believe, required in the complaint.

The issue which is common in all three of the cases under consideration concerns the sufficiency of the statement of the material facts of plaintiffs’ “proposed | ..complaint” for the presentation of a claim to the medical review panel. A petition is the pleading for institution of a suit in a Louisiana court of competent jurisdiction. LSA-C.C.P. art. 891. However, LSA-R.S. 40:1299.47, providing for the institution of the medical review proceeding, does not use the term “petition,” and the medical review panel has no adjudicatory power. Thus, not all of the criteria of the Code of Civil Procedure for the sufficiency of a petition apply to a proposed complaint in the non-judicial setting of the medical review panel. Nevertheless, the proposed complaint a claimant files with the Patient’s Compensation Fund (PCF) must set forth basic material facts upon which the claim for medical malpractice can be screened. The PCF forwards the proposed complaint to the qualified health care provider. Perritt v. Dona, 35,628, 35,724, 35,841, p. 8 (La.App. 2 Cir. 9/20/02), 827 So.2d 1222, 1228.

The question then becomes twofold: (1)what is the nature of the material facts that must be set forth in the request, and (2) must the applicable standard of care be alleged therein? In resolving this question, the court of appeal analogized the medical review panel proceeding to an action brought in court under general tort theory. Perritt, 35,628, 35,724, 35,841 at 6-12, 827 So.2d at 1226-1230.

The standard of care in a duty/risk analysis coincides with the defendant’s duty. Fault or negligence in a tort action stems from “conduct which violates the standard of reasonableness in the community.” Hero Lands Company v. Texaco, Inc., 310 So.2d 93, 97 (La.1975). In the duty/risk analysis, the duty is an issue of law which is determined by the court. Meany v. Meany, 94-0251, p. 6 (La.7/5/94), 639 So.2d 229, 233. The court then charges the jury with that duty or standard of care. See, e.g., 18 H. ALSTON JOHNSON, III, LOUISIANA CIVIL LAW TREATISE: CIVIL JURY INSTRUCTIONS § 3.01 (2d ed.2001).

In court, a medical malpractice plaintiff must establish the standard of care applicable to the charged health care provider, a violation of that standard of care, and a causal connection between the health care provider’s alleged negligence and the plaintiffs injuries resulting therefrom. LSA-R.S. 9:2794(A); Pfiffner v. Correa, 94-0924, 94-0963, 94-0992, pp. 1-2 (La.10/17/94), 643 So.2d 1228, 1230. In the instant cases, the defendants urge the plaintiffs must make allegations in their proposed complaints that mirror the burden of proof requirements under LSA-R.S. 9:2794(A). They point to the provisions of LSA-R.S. 40:1299.47(G) which reference the claimant’s “complaint” while describing two of the conclusions which may be reached by the medical review panel. The statute provides, in pertinent part:

G. The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care. After reviewing all evidence ... the panel shall ... render one or more of the following expert opinions ...:
(1) The evidence supports the conclusion that the defendant ... failed to comply with the appropriate standard of care as charged in the complaint.
(2) The evidence does not support the conclusion that the defendant ... failed to meet the applicable standard of care as charged in the complaint. (Emphasis supplied.)

Although the highlighted phrases would seem to indicate a necessity for a statement of the standard of care in a claimant’s proposed complaint, such a necessity |4is tempered by the nature of the nonjudicial setting and the differing roles of the experts on the review panel and the lay persons bringing the claims.

In the judicial setting of a trial of a medical malpractice claim, the plaintiff must prove the applicable standard of care through expert medical testimony, with some limited exceptions. Pfiffner, 94-0924, 94-0963, 94-0992 at 8, 643 So.2d at 1233. The trier-of-fact, who can be expected in an ordinary tort action to understand and apply the “reasonably prudent person” standard of care, has no medical expertise regarding the standard of care in most medical malpractice actions. In contrast, the medical professionals serving on medical review panels understand and can apply the standard of care by rendering their “expert opinions” as directed by LSA-R.S. 40:1299.47(G). By analogy, the health care provider’s standard of care presents to the medical review panel what the duty element of the duty-risk analysis presents to the trial judge in the ordinary tort action. From the expertise of the medical review panel or the trial judge, as the case may be, the standard of care or duty is pronounced. Perritt, 35,628, 35,-724, 35,841 at 11, 827 So.2d at 1229.

Under Louisiana’s system of fact pleading, it is unnecessary to plead a legal duty or standard of care. LSA-C.C.P. art. 854, cmt. (a). Indeed, a cause of action is not set forth by stating the plaintiffs conclusions of law, such as duty; facts must be stated from which such conclusions of law are drawn. Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. Likewise, the material fact allegations necessary for the malpractice complaint that commences the medical review panel proceedings must be sufficient for the expert panel to draw their conclusions regarding the applicable standard of care and whether a breach of that standard occurred. The material fact allegations should state, in laymen’s terms, the health care provider’s | ^action or inaction and the claimant’s injury that would not otherwise have been incurred. Factual allegations of this nature thus satisfy the requirement in LSA-R.S. 40:1299.47(G)(1) and (2) that the expert panel’s conclusion be drawn from “the applicable standard of care as charged in the complaint.” LSA-R.S. 40:1299.47(G); Perm, 35,628, 35,724, 35,841 at 12, 827 So.2d at 1229-1230.

      . According to Perritt v. Dona, 01-3175 (La.3/15/02), 812 So.2d 624; Arnold, v. Dona, 01-3073 (La.3/15/02), 812 So.2d 623; and Richmond v. Brown, 02-0241 (La.3/15/01),
      812 So.2d 624, this Court specifically stated in a per curiam that:
      These separate writ applications involve the common question of whether a defendant in a case pending in the medical review panel may compel the plaintiff to respond to interrogatories requesting information on the standard of care allegedly breached by the defendant. After reviewing the applications, we find further consideration of these cases are warranted in the court of appeal.
      Accordingly, the writ applications are remanded to the court of appeal for its consideration. Upon remand, the court of appeal should render an opinion, after appropriate briefing and argument from the parties, which definitively sets forth the position of the circuit on this issue. The court should also address the case of Solomon v. Medical Ctr., 97-0783 (La.App. 4 Cir. 5/14/97), 694 So.2d 1229, in its opinion.

      . Perritt v. Dona, 01-3175 (La.3/15/02), 812 So.2d 624.

      . In a concurrence, Judge Peatross found that discussion of Perritt was "superfluous” since this Court remanded the case to determine whether the defendant in a malpractice case had the right to compel the plaintiff to respond to interrogatories regarding the breach of standard of care. Chief Judge Brown and Judge Williams agreed with the majority’s conclusion that interrogatories were not permitted at the medical panel review stage; however, they disagreed with the majority's finding that exceptions (other than prescription) could be raised at the panel stage. They noted that the MMA is a screening stage, which does not require a plaintiff to articulate the standard of care requiring a medical expert. They also noted that the MMA allows only the exceptions of prescription at the screening state. They further noted that the particulars of the injury and causation would become clear in the written materials submitted to the panel. They concluded that the filing of exceptions of no cause of action and/or vagueness while the medical claim is pending before the review panel would be "costly, burdensome and dilatory."

      . The defendant’s pleading was specifically entitled "Petition to Compel Discovery Responses.”

      . Arnold v. Dona, 01-3073 (La.3/15/02), 812 So.2d 623.

      . Richmond v. Brown, 2002-0241 (La.3/15/02), 812 So.2d 624. This Court granted the writ applications according to Supreme Court Rule X, Section 1, because of the ruling in Richmond clearly conflicted with the rulings in Arnold and Perritt.

      . In this five-judge panel, the majority, Judges Gaskins, and Caraway, affirmed its prior ruling, with Judge Peatross concurring and Judges Brown and Williams concurring in part and dissenting in part.

      . Cited later for emphasis.

      . LSA-R.S. 40:1299.41(A)(1) provides in pertinent part that:
      "Health care provider" means a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, nursing home....

      .LSA-R.S. 40:1299.47(A)(1) provides that:
      All malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section.

      . LSA-R.S. 40:1299.39.1(D) provides, in pertinent part, that:
      (1) The evidence to be considered by the state medical review panel shall be promptly submitted by the respective parties in written form only.
      (2) The evidence may consist of medical charts, x-rays, lab tests, excerpts of treatises, depositions of witnesses including parties, affidavits and reports of medical experts, and any other form of evidence allowable by the state medical review panel.
      (3) Depositions of the parties and witnesses may be taken prior to the convening of the panel.
      (4) Upon request of any party, or upon request of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection or copying, or both.

      . In Lane Memorial Hospital v. Watson, 98-0273 (La.App. 1 Cir. 3/3/99), 734 S.2d 28, writ granted, decision vacated, 99-0930 (La.5/28/99), 743 So.2d 676, writ granted, decision vacated, 99-0947 (La.5/28/99), 743 So.2d 676, the court determined that while medical malpractice claim is being reviewed by medical review panel, a party may initiate a discovery proceeding by the filing a petition in district court. The court noted that:
      the discovery proceeding authorized by LSA-R.S. 40:1299.47(D)(4) is merely a procedural mechanism to facilitate prosecution of the ultimate action, i.e., a medical malpractice suit. Additionally, any necessary judicial intervention at this preliminary stage (i.e., a petition to conduct or compel discovery ...) is simply a vehicle to aid in the determination of the ultimate claim and has no independent basis, except as a preliminary or related component of the anticipated medical malpractice suit.

      . We recognize the defendants’ argument that in Barraza v. Scheppegrell, 525 So.2d 1187 (La.App. 5th Cir.1988)), the court held that a conflict between the Code of Civil Procedure and the medical malpractice act should be resolved in favor of the Code. However, this case is distinguishable from the instant case, in that, Barraza involved the unique fact situation of whether a health care provider’s failure to file a timely exception of prematurity prior to filing his answer in a district court suit waived his right to request a review panel.

      . LSA-R.S. 40:1299.47(G) provides in pertinent part that:
      The panel shall have the sole duty to express its expert opinion as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care....

      . LSA-R.S. 9:5628 provides in part that:
      No action for damages for injury or death against any physician ... hospital ... duly licensed under the laws of this state ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

      .The majority concludes "that interrogatories are not permissible in the medical review panel proceeding.” I agree that the applicable statutory provisions do not contemplate interrogatories. However, practically speaking, there is no prohibition against the continued voluntary use of interrogatories by one party and voluntary answers by the other party in an effort to expedite matters during the medical review panel proceeding. As the majority notes, the parties in the instant cases concede that interrogatories are the least expensive means of exchanging information during discovery. Thus, what we decide today is that a party cannot be compelled to respond to written interrogatories during the medical review panel proceeding. Reasonableness dictates most interrogatories should be answered voluntarily.

      . Various provisions within LSA-R.S. 40:1299.47 make reference to the "proposed complaint,” the "complaint,” the "claim,” and the "request for review.” See, e.g., LSA-R.S. 40:1299.47; Perritt v. Dona, 35,628, 35,-724, 35,841, p. 7 (La.App. 2 Cir. 9/20/02), 827 So.2d 1222, 1227.

      . Article 891 provides, in pertinent part, that a petition "shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.”

      . Abrogated on other grounds by Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Darnell TURNER.
    No. 2003-KK-1837.
    Supreme Court of Louisiana.
    June 28, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 01-0430; to the Court of Appeal, Fifth Circuit, No. 03-K-764.

Denied.

CALOGERO, C.J., recused.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    In re Christopher B. HEBERT.
    No. 2003-OB-1814.
    Supreme Court of Louisiana.
    June 30, 2003.
   In re Hebert, Christopher B.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2003. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this court, supported by appropriate documentary evidence, setting forth the facts of the 1996 honor code violation and explaining his failure to disclose this violation of his bar application.


text:
    STATE of Louisiana v. Joel PEDELAHORE.
    No. 2003-KK-1829.
    Supreme Court of Louisiana.
    July 3, 2003.
   In re Pedelahore, Joel; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, Nos. 337-850, 337-851, 337-852; to the Court of Appeal, First Circuit, No. 2003 KW 1286.

Stay lifted. Writ denied.


text:
    In re Dedrick Arvell MOORE.
    No. 2003-OB-1937.
    Supreme Court of Louisiana.
    July 11, 2003.
   In re Moore, Dedrick Arvell; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2003. Within fifteen days of the completion of the examination, Petitioner shall file a brief and supporting documentation with the Committee on Bar Admissions, responding to its objections to his application for admission.


text:
    Myra Simone BELLANGER v. Gregory Paul FORTMAYER.
    No. 2003-CC-1867.
    Supreme Court of Louisiana.
    July 15, 2003.
   In re Bellanger, Myra Simone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. C, No. 386-531; to the Court of Appeal, Fifth Circuit, No. 03-C-591.

Denied.


text:
    STATE of Louisiana in the Interest of D.J.
    No. 2003-CK-1990.
    Supreme Court of Louisiana.
    July 15, 2003.
   In re D.J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 00-298-01-QB; to the Court of Appeal, Fourth Circuit, No. 2003-C-1252.

Denied on the showing made. Issue may be re-raised.


text:
    In re Patrick Joseph Quinn WOOD.
    No. 2003-OB-1993.
    Supreme Court of Louisiana.
    July 17, 2003.
   In re Wood, Patrick Joseph Quinn;— Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2003. Within fifteen days of notification that he has satisfactorily passed this examination, Petitioner may file a brief with this Court, supported by appropriate documentary evidence, setting forth the facts of the alcohol-related offenses and explaining his failure to disclose the 2001 DWI arrest on his bar application.

VICTORY, J., would deny the application.

TRAYLOR, J., would deny the application.


author: GREMILLION, Judge.

text:
    Jack SINGLETON and Louisiana Gin Co., Inc. v. AMERICAN SECURITY BANK OF VILLE PLATTE, INC.
    No. 02-1109.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.

      Hon. Jerold Edward Knoll, The Knoll Law Firm, Marksville, LA, E. Joseph Bleich, Gerald Wade Burnett, Ruston, LA, for Plaintiffs/Appellants, Jack Singleton, Louisiana Gin Co., Inc.
    Johnny Everett Dollar, Dollar, Laird, LLP, Monroe, LA, for Plaintiff/Appellant, Jack Singleton.
    Keith Wayne Manuel, Marksville, LA, for Plaintiff/Appellant, Louisiana Gin Co., Inc.
    Darryl J. Hebert, Eunice, LA, John Carl Davidson, Alexandria, LA, for Defendant/Appellee, American Security Bank of VillePlatte, Inc.
    Vincent Ross Cieardo, Alexandria, LA, In Proper Person/Intervenor, Vincent Ross Cieardo.
    Thomas Overton Wells, Alexandria, LA, for Intervenors, Melvin Jordan, Thomas R. Douglas, Jr.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

Both the plaintiffs, Jack Singleton and the Louisiana Gin Company, Inc., and the defendant, American Security Bank of Ville Platte, appeal the judgment of the trial court regarding this banking matter. The trial court held that American Security wrongfully offset the Gin’s checking account in order to satisfy its and Singleton’s personal obligations. It further held that American Security wrongfully took Singleton’s $10,000 certificate of deposit, which it had on deposit, in order to satisfy the Gin’s obligations. Also appealing, as an interve-nor, is V. Ross Cieardo, who represented several farmers who intervened in this matter at the trial court level. All three parties appeal from this judgment. For the following reasons, we affirm in part, reverse in part, and remand.

FACTS

This lawsuit stems from actions taken by American Security in offsetting the checking account of the Gin following a deposit by Singleton of money belonging to individual cotton farmers. The December 20, 1994 deposit totaled $316,804.58. That same day, American Security offset a total of $186,820.58, in repayment of obligations owed by both the Gin and Singleton, personally. This offset started a chain of events which eventually led to the Gin’s downfall.

In 1993, a group of shareholders formed the Louisiana Gin Company, Inc. and purchased an existing cotton gin located on the Cane River in Natchitoches Parish, Louisiana. The shareholders borrowed $450,000 from American Security, in addition to the $200,000 they contributed, in order to purchase the gin. This loan was secured by a collateral mortgage note and mortgage in the amount of $500,000. | ^Singleton signed this note both individually and in his capacity as vice-president of the Gin.

The Gin borrowed an additional $133,855 from American Security on August 16, 1994, in order to purchase cotton module builders. This loan was secured by a commercial security agreement covering certain equipment owned by the Gin. On April 18, 1994, Singleton personally borrowed $60,199 from American Security, which was secured by collateral contained within a UCC-1F Financing Statement, including vehicles, equipment, and approximately 900 acres of cotton, as well as a $10,000 certificate of deposit on deposit with American Security.

After incurring overdraft charges on its checking account beginning in February 1994, the Gin entered into an overdraft protection agreement with American Security. This security line carried a maximum credit line of $50,000 and was secured by a UCC Collateral Security Agreement and the $500,000 collateral note and mortgage. The first advances on this overdraft line occurred in June 1994. By September 1994, Singleton had become the president and majority shareholder of the Gin.

On October 5, 1994, the Gin borrowed $50,030 from American Security. The loan, numbered 460183803, was to be paid in one payment due on October 14, 1994, and was secured by the $500,000 collateral mortgage note and mortgage. This loan was paid off on October 20, 1994. American Security alleged the existence of a second loan in October 1994, for $50,030, loan number 460183804. The only evidence of this loan produced by the bank was a photocopy of the original October 5, 1994 loan, which contains handwritten changes to the original by Donald Meeker, |3a loan officer with American Security and the manager of its Bunkie branch.

On December 20, 1994, Singleton deposited four checks at American Security’s Alexandria branch, which he had received from Maxwell Cotton Co., Inc. Maxwell Cotton had purchased a block of cotton grown by several different farmers and pooled together by the Gin. The deposits totaled $316,804.58. There is a dispute as to what was to happen to these funds. As soon as these deposits were made, the Bunkie branch of American Security offset a total of $186,820.58 from the Gin’s checking account for the following reasons: (1) to pay off Singleton’s personal loan in the amount of $63,887.73; (2) to pay off the Gin’s loan, numbered 460183804, in the amount of $50,934.65; (3) to replenish the Gin’s overdraft checking account in the amount of $21,291.70; (4) to repay the Gin’s automatic security fine in the amount of $50,411.79; (5) to pay the automatic security line in the amount of $189.71; and, (6) to pay an overdraft fee in the amount of $105.00.

Although Meeker and Singleton both testified that they were in almost daily contact with each other, Meeker testified that Singleton gave him permission to withdraw funds from the checking account in order to apply them towards certain obligations belonging to him, personally, and to the Gin. Singleton, however, testified that he contacted Meeker and told him not to offset the funds since they belonged to the individual farmers whose cotton was sold to Maxwell Cotton. He stated that Meeker agreed not to do so. Meeker denied he was told that the funds belonged to the farmers.

Once the Gin’s checking account was offset, its ending balance on December 20, 1994, was $112,148.20. On December 21, 1994, Singleton wrote a |4check to “Billy Dowden Farms, H.A. Boughton, Helena Chemical Company” in the amount of $188,810.60. This check was presented for payment to American Security on December 27, 1994. At this point, the testimony differs again as to what happened. Singleton testified that Meeker called him and told him that there was not enough money in the Gin’s account to cover the check because of the prior offsets. Singleton told him that the account should not have been offset because the money deposited belonged to the farmers and not to the Gin. He stated that Meeker then told him not to worry about it, that he would take care of the problem. Singleton then called Brenda Saucier at the Ville Platte branch and was told that she was sending the check back due to an improper endorsement. He called Meeker again, who told him that the check was being returned for an improper endorsement and that he would have to issue a new check. At this point, Singleton thought that the problem had been taken care of and that the offsets would be reversed. Meeker, however, denied having any conversations about the $188,810.60 check, and denied telling Saucier to cancel an NSF action on the check in order to send it back due to an improper endorsement.

On December 29, 1994, Singleton wrote two more cheeks pertaining to funds received from the Maxwell Cotton deal. He wrote a check to Melvin Jordan in the amount of $140,633.58, which was presented for payment on January 3, 1995. It was dishonored for insufficient funds on January 4, 1995. Helen Patterson, of the Bank of LeCompte, handled Jordan’s accounts. She contacted Meeker about the check, and was told that there had been some problems, but that if she sent the check back through it would be paid. The check was presented for payment on January 6, 1995. It was again dishonored for insufficient funds.

USingleton wrote a second check to Douglas Farms in the amount of $136,894.49. This check was presented to American Security for payment on January 4,1995. After the check was returned, Karen Vidrine Pettijean, a bookkeeper at Evangeline Bank, called American Security and spoke to either Brenda Saucier or Peggy Tate in the bookkeeping department about the check. She was told to send the check back through and was assured that it would be honored. When the check was presented for payment a second time on January 11, 1995, it was again dishonored for insufficient funds. Meeker denied that assurances were given to the bankers that the checks would be honored. Instead, he stated that they were told to run the checks through and that they would be honored if there were sufficient funds in the Gin’s account at that time.

On January 5, 1995, Singleton wrote another check to “Billy Dowden, H.A. Bough-ton, Helena Chemical” in the amount of $188,810,60. This check was presented for payment on January 9, 1995, but was returned on January 10,1995, for insufficient funds.

As a result of these incidents, the Gin experienced an interruption in its cash flow. Due to the seriousness of the problem, Singleton contacted Ag Services of America, Inc., an Iowa company, and discussed the possibility of it acquiring American Security’s interest in the Gin. After several months of negotiations, Ag Services was prepared to purchase American Security’s notes and collateral position in the Gin. It hired a Louisiana law firm to handle the transaction and thought it had reached an agreement with American Security. However, on May 19, 1995, the date the transaction was to be carried out, Ag Services learned that American Security had IrSoM the mortgage to NMP, Inc. Ag Services later acquired the mortgage from NMP, Inc., and allowed Singleton to continue operating the Gin. However, the Gin never regained its former footing due to its and Singleton’s reputation concerning the dishonored checks, and foreclosure proceedings were later brought against them. As a result of this situation, numerous lawsuits have been filed against both the Gin and Singleton in federal and state court. Singleton has also been arrested twice and charged with issuing worthless checks.

The Gin and Singleton filed suit seeking to recover damages arising from the actions of American Security in wrongfully offsetting the Gin’s checking account. Following a bench trial, the trial court issued its original and supplemental written reasons for judgment finding that American Security wrongfully offset the Gin’s account in the amount of $114,822.38, representing the personal obligation of Singleton and the modified October 25, 1994 loan. The trial court found no evidence that the Gin endorsed or was responsible for Singleton’s personal obligation, nor was their any evidence that Singleton personally endorsed the Gin’s obligations. It further held that American Security never gave any notice of default to either the Gin or Singleton. Accordingly, it held that Singleton was entitled to the return of the $10,000 from his seized certificate of deposit and further awarded him $5,000 in attorney’s fees.

With regard to the remaining $71,998.20 offset from the Gin’s checking account, the trial court held that these amounts were correctly offset since they were authorized by the security line agreement existing between the Gin and American Security, and by operation of law. The trial court held that the verbal assurances |7given by Meeker to Singleton that the offsets would not be made and that the checks deposited for and on behalf of the farmers would be paid were not binding on American Security. In its supplemental reasons, it held that the verbal communications by the employees of the other banks and by the farmers themselves, were insufficient to apprise American Security of the fact that the monies deposited belonged to them as opposed to the Gin.

With regard to liability, the trial court held that American Security was hable for any consequential damages suffered by the Gin. However, in its supplemental reasons, it stated that Singleton was a sophisticated businessman, who should have been aware that the Gin’s checking account was deeply overdrawn. It further stated that Singleton could have protected the farmers’ money by depositing the funds in an escrow account or in the Gin’s account at a different bank. Although the trial court found that the actions of American Security aggravated the Gin’s financial situation, it stated that the Gin’s cash flow was already in shambles at the time of the actions at issue. Consequentially, it held that American Security was not the cause of the Gin’s demise or the cause of its losses. The trial court further held that American Security was not liable to Singleton personally.

A judgment was rendered on April 29, 2002, awarding the Gin $110,199, which was the amount wrongfully offset from its checking account. It awarded Singleton $10,000 for the wrongfully seized certificate of deposit, along with $5,000 in attor-ne/s fees. The judgment east American Security with all costs. It further recognized the interventions of Thomas Douglas and Melvin Jordan against Singleton and the Gin in the amounts of $79,000 and $46,000, respectively. Singleton, the Gin, | sand American Security all appeal from this judgment. The intervenors, Douglas and Jordan, also appeal. An intervention was filed in this matter by Cicardo, who represented Douglas and Jordan at the trial court level. Following the rendition of the judgment, his services were terminated by them. He now files an intervention in this matter seeking to have this matter remanded to the trial court for a determination of the legal fees and expenses owed him.

ISSUES

On appeal, the Gin raises three assignments of error. It argues that the trial court erred in finding that American Security was authorized to use the farmers’ funds to satisfy its overdraft checking account and security line of credit, in failing to award it consequential damages as a result of American Security’s actions, and in finding that it would not have been able to pay its outstanding checks even if American Security had not improperly debited its account.

Singleton raises one assignment of error, arguing that the trial court erred in holding that American Security was not personally liable to him.

American Security also raises only one assignment of error on appeal. It claims that the trial court erred in finding that it improperly debited $114,822.38 from the Gin’s account, and that the application of Singleton’s $10,000 certificate of deposit was improper.

Cicardo argues that this matter should be remanded to the trial court for a determination of his legal fees and expenses owed to him by Douglas and Jordan.

Douglas and Jordan have not filed briefs in this matter.

1 «LOUISIANA GIN

Overdraft Charges

In its first assignment of error, the Gin argues that the trial court erred in finding that American Security was authorized to use the funds on deposit in its checking account to satisfy its overdraft checking account and its security line of credit. We disagree.

The Gin entered into the security line agreement with American Security in May 1994, after incurring overdraft charges on its checking account beginning in February 1994. The security line agreement had a maximum credit line of $50,000 and was secured by a UCC Collateral Security Agreement and a pledge of the $500,000 collateral note and mortgage. The agreement provided in pertinent part:

Pay All: I am required to make a deposit to pay the full balance of the “Security Line” within every 30 day billing cycle; in addition, if my new balance exceeds the maximum credit level for any reason, the excess will also be due and charged to my checking or savings account; if there is a balance on the “Security Line”, payments will be taken as often as deposits are made to the account.
Security: I am giving you a security interest or mortgage on my Commercial R.E. & Equip, to secure my accumulated outstanding balance of whatever I borrow under this agreement or may owe the Bank at any time. I also agree to having the above collateral secure any other debts the undersigned may have with the Bank whether direct or indirect. In the event this or any other debt is not paid timely, the Bank -will have the legal right to have any of my property in the Bank’s possession or control taken from me and sold to reduce my debt; this includes the right of “setoff’ against any account we the undersigned may have on deposit with the Bank. Any property held or pledged to the Bank may be held as security against payment of any debt I owe the Bank....

11flPursuant to Louisiana law, a bank is entitled to treat any funds deposited in an account as belonging to the owner of the account, unless notified otherwise by the depositor. La.R.S. 6:317; Guillot v. Union Bank, 617 So.2d 1343 (La.App. 3 Cir. 1993). La.R.S. 6:316 further provides that “compensation takes place by operation of law between funds held on deposit with any bank ... and any loan, extension of credit, or other obligation incurred by the depositor in favor of the bank,” except against those funds held in a tax deferred account. La.R.S. 6:316(A). This right is in addition to any contractual rights of compensation or setoff contained within agreements existing between the bank and its customer. La.R.S. 6:316(E). In Guil-lot, 617 So.2d at 1346, we further held that verbal notification to bank employees that the funds on deposit at the bank belonged to a specific depositor, rather than all of the named depositors on the certificate of deposit, was insufficient “legally to rebut the presumption of ownership or to negate the pledge rights acquired by [the bank] conventionally and by operation of law.”

Considering the above stated law, we find that American Security was entitled to treat the funds found in the Gin’s checking account as belonging to it. We further find that the verbal communications to Meeker by Singleton, Pettijean, and Patterson, that the funds belonged to the farmers, were insufficient to rebut the presumption that the funds found in the Gin’s account did belong to it.

Accordingly, we find that American Security was authorized, pursuant to its contractual rights and by operation of law, to offset the Gin’s account in order to replenish its overdraft checking account in the amount of $21,291.70; to repay its automatic security line in the amount of $50,411.79; to pay an automatic security line Inpayment of $189.71; and, to pay an overdraft fee in the amount of $105.00. The judgment of the trial court finding that American Security properly offset the Gin’s account in these amounts is affirmed. This assignment of error is dismissed as being without merit.

Since we have found that American Security properly offset the Gin’s accounts, the Gin’s remaining two assignments of error have been rendered moot. Accordingly, we need not address them.

SINGLETON

In his one assignment of error, Singleton argues that the trial court erred in failing to find that American Security was liable to him personally as a result of its actions in improperly debiting the Gin’s account. We find no merit in this argument.

Pursuant to La.R.S. 6:1124, no fiduciary relationship exists between a bank and its customers or third parties unless it is agreed in writing that a relationship of agency or trust exists between the parties. In this instance, no such agreement has been introduced into evidence. Accordingly, we find that American Security owed no fiduciary duty to Singleton personally.

Further, a bank is liable to its customer for damages it causes by the wrongful dishonor of an item. La.R.S. 10:4-402(b). A customer is a person having an account with the bank. La.R.S. 10:4-104(a)(5). In this instance, the customer whose checks were dishonored was Louisiana Gin, not Singleton. Thus, American Security is not liable to Singleton. The judgment of the trial court denying Singleton damages is affirmed.

I ^AMERICAN SECURITY

In its assignment of error, American Security argues that the trial court erred in finding that it improperly debited $114,822.38 from the Gin’s checking account and improperly applied Singleton’s $10,000 certificate of deposit. This amount represented the $63,887.73 applied to pay off Singleton’s personal loan and the $50,934.65 applied to pay off the Gin’s loan as alleged by American Security.

In holding that American Security improperly offset the $63,887.73 to payoff Singleton’s loan, the trial court found that there was no evidence that the Gin endorsed or was responsible for Singleton’s personal obligation. The paperwork for the loan reveals that the note was secured by collateral contained in a UCC-1F Financing Statement including a bole buggy, a module builder, Ford and GMC pickups, a Case tractor, approximately 900 acres of cotton, and a $10,000 certificate of deposit on deposit at American Security. The note was signed by Singleton, personally, and not in his capacity as an officer and majority shareholder of the Gin. Accordingly, we find no error in the trial court’s finding that the Gin was not responsible for this note. Thus, American Security improperly offset the Gin’s account in the amount of $63,887.73, in order to payoff Singleton’s personal obligation.

The trial court further held that the Gin’s October 25, 1994 loan of $50,030 was unenforceable because American Security was unable to produce the original of the note. The only evidence of this note is a photocopy of the October 5,1994 promissory note bearing loan number 460183803, which contained handwritten changes by Meeker. These changes include changing the loan date from October 5, 1131994 to October 25, 1994; changing the loan number from 460183803 to 460183804; and changing the maturity date of the note from October 14, 1994 to December 25, 1994.

We agree with the trial court that this photocopied note was unenforceable. A promissory note is evidence of a debt which allows the holder of the note certain rights, including the right to enforce collection of the underlying debt. However, enforcement is impossible unless the original note is produced. Richey v. Richey, 98-1195 (La.App. 3 Cir. 3/10/99), 733 So.2d 618, writ denied, 99-2122 (La.10/29/99), 749 So.2d 639. Accordingly, the trial court correctly held that this note was unenforceable and that American Security improperly offset the $50,934.65 from the Gin’s account.

However, we agree with American Security that the trial court erred in finding that it improperly applied Singleton’s $10,000 certificate of deposit to the Gin’s obligations. The August 16, 1993 promissory note by the Gin in favor of American Security, in the amount of $133,855, contains Singleton’s signature in both his individual capacity and as an officer of the Gin. Thus, he personally assumed responsibility for this note. Pursuant to La.R.S. 6:316(A), if the Gin defaulted on this obligation, then American Security would have the right, by operation of law, to apply the funds from Singleton’s certificate of deposit towards that obligation. Mahler v. First Natl Bank of Houma, 93-0619 (La.App. 1 Cir. 3/11/94), 634 So.2d 22. Accordingly, the judgment awarding Singleton the return of the $10,000, plus $5,000 in attorney’s fees, is reversed.

luCICARDO

In the final assignment of error, Cicardo request that we remand this matter to the trial court so that his legal fees and expenses may be determined. We find that Cicardo could have intervened in this matter at the trial court level, thus, he has the right to appeal this matter pursuant to La.Code Civ.P. art.2086. However, we agree that the determination of his legal fees and his expenses is best left to the trial court. Accordingly, we remand this matter to the trial court for a determination of legal fees and expenses owed him by Douglas and Jordan.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed insofar as it awards Singleton $10,000 and $5,000 in attorney’s fees. In all other respects, the judgment of the trial court is affirmed. This matter is remanded to the trial court so that the legal expenses of V. Ross Ci-cardo may be determined. The costs of this matter are assessed fifty percent to the defendant-appellee appellant, American Security Bank of Ville Platte, and fifty percent to the plaintiffs-appellants appel-lees, Louisiana Gin Company, Inc. and Jack Singleton.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


author: EDWARD A. DUFRESNE, Jr., Chief Judge.

text:
    Kenneth OBRIEN v. Sheriff Harry LEE, et al.
    No. 03-CA-142.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Kenneth OBrien, in Proper Person, Me-tairie, LA, for Plaintiff-Appellant.
    Daniel R. Martiny, Attorney, Franz L. Ziblich, Metairie, LA, for Defendant-Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and JAMES L. CANNELLA.
   EDWARD A. DUFRESNE, Jr., Chief Judge.

This is an appeal by Kenneth OBrien, plaintiff-appellant, from a judgment dismissing with prejudice his suit against Jefferson Parish Sheriff Harry Lee and several of his deputies on grounds that plaintiff failed to request service of his petition within 90 days of filing as required by La. R.S. 13:5107D. For the following reasons we amend the judgment to provide that it be “without prejudice,” but otherwise affirm it.

OBrien’s pro se petition alleges that on September 3, 1995, an altercation broke out between him and several neighbors. Jefferson Parish deputies responded to a call and eventually arrested OBrien on charges of public intimidation and disturbing the peace. He filed suit on August 29, 1996, for false arrest against Sheriff Harry Lee and the deputies, as well as a Kenner police officer, and against several of his neighbors for various other alleged torts. No service of this suit was then requested as to any party. An amended petition was filed three years later, on July 23, 1999, naming XYZ Insurance Co. and an additional non-governmental party as defendants.

| ¡¡Sheriff Harry Lee and his deputies urged a motion to dismiss based on plaintiffs failure to request service of process on these governmental agents or employees within 90 days of filing suit, as required by La. R.S. 13:5107D. That motion was granted after a contradictory hearing. Plaintiff has now appealed devolutively from that judgment. As far as can be determined from the record, the suit is still pending against all other named defendants.

The statute pertinent here is La. R.S. 13:5107, originally effective on May 9, 1996, and its amended version effective on January 1, 1998. The 1996 version provided that in all suits against certain governmental bodies and employees request for service had to be made within 90 days of filing suit. Failure to do so constituted grounds to have the suit dismissed by the governmental defendants. The 1998 version made several minor changes in the statute and further provided that this ‘amended and re-enacted’ version was to apply only to suits filed on or after its effective date of January 1,1998.

In Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01), 779 So.2d 704, plaintiffs suit had been filed after May 9, 1996, but before January 1, 1998. He failed to request service within 90 days of suit and the governmental defendant moved for dismissal, which was granted. On appeal he argued that the “amended and re-enacted” 1998 version effectively vacated the 1996 version, thus making the 90 day rule no longer applicable to suits filed between the 1996 and 1998 versions. The court disagreed, and held that the “amended and reenacted” language was simply a phrase routinely used in drafting statutes, and did not evince a clear legislative intent to vacate the 1996 statute. Because plaintiff makes a similar appeal to the 1998 statute as exempting his suit from the 90 day rule as to governmental entities, we must rule against him. We thus hold that his failure to timely request service as to Harry Lee, the Jefferson Parish Sheriffs Department Land the Jefferson Parish deputies properly resulted in his suit being dismissed against those defendants.

However, we further rule that the judgment was improperly granted “with prejudice.” Section D(2) of La. R.S.13:5107 specifically provides that the remedy for failure to timely request service “shall be dismiss[al] without prejudice.” We therefore amend the judgment to provide that it be “without prejudice.” See Naquin v. Titan Indemnity Co, supra.

For the foregoing reasons, we amend the judgment to provide that it be “without prejudice,” and as amended affirm it.

JUDGMENT AMENDED AND AFFIRMED AS AMENDED.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Sonny ALLEN.
    No. 2003-KA-0192.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 28, 2003.
    Eddie J. Jordan, Jr., District Attorney, Donna R. Andrieu, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Karen G. Arena, Metairie, LA, for Defendant, Sonny Allen.

      (Court composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.)
   LEON A. CANNIZZARO, JR., Judge.

This case involves an error patent in the sentence imposed on the defendant, Sonny Allen. This Court affirms the defendant’s conviction but amends his sentence in part.

STATEMENT OF THE CASE

On May 17, 2002, the defendant was charged by bill of information with two counts of violating La. R.S. 40:966(A)(1). One count was for distribution of heroin, and the other count was for possession of heroin with intent to distribute. At a hearing on July 12, 2002, the trial court found probable cause to bind the defendant over for trial and denied the defendant’s motion to suppress the evidence. A trial was held on October 28, 2002, and a twelve-member jury found the defendant guilty as charged of distribution of heroin and guilty of the lesser included offense of attempted possession of heroin with intent to distribute. He was sentenced on November 13, 2002, to serve five years on each count without benefit of parole, probation, or suspension of sentence with the sentences to run concurrently. The defendant’s motion for an appeal was granted on November 18, 2002.

I ^STATEMENT OF THE FACTS

At trial New Orleans Police Department (“NOPD”) Detective Robert Ferrier, Jr. testified that on April 25, 2002, he was part of a surveillance team working in a New Orleans housing development (the “Development”). The team was conducting surveillance in the 2400 block of Martin Luther King Boulevard and the 2400 block of Thalia Street. On each street was an apartment building, and between the two buildings was a courtyard that was accessible through breezeways in the buddings. There were two banks of mailboxes on the courtyard side of the Martin Luther King Boulevard building. Detective Ferrier was in a secluded position on the Martin Luther King Boulevard side of the courtyard from which he could observe the courtyard without being seen. NOPD Detective Ryan Lubrano was in a secluded position on the Thalia Street side of the Development from which he could see cars leaving the area.

As he began his surveillance, Detective Ferrier noticed the defendant loitering by himself in the courtyard. Then an unidentified man approached the defendant, and the two spoke briefly. The man handed the defendant what appeared to Detective Ferrier to be money, which the defendant put in his front pocket. The defendant then walked to the bank of mailboxes at 2419 Martin Luther King Boulevard, reached into one of the mailboxes, and removed a brown napkin. The defendant then walked back to the unidentified man, removed a small object from the napkin and gave it to the man. The man took the object and walked away. The defendant then walked back to the mailbox and returned the napkin.

Detective Ferrier suspected a drug transaction, and he radioed his backup team that a man who had purchased drugs was leaving the courtyard in the Development. That man was never apprehended.

| sAbout fifteen minutes later, however, two other men approached the defendant and spoke with him. One of the men handed the defendant what appeared to be currency, which the defendant put in his front pocket. The defendant then walked back to the mailbox to which he had gone previously, removed a brown napkin, and took out a few objects. He put the napkin back in the mailbox, walked to the second man, and gave to him the small objects. The two men then left the courtyard. Again the detective notified his backup team that men who appeared to have bought contraband were leaving the courtyard.

Detective Lubrano testified at trial regarding his involvement in the surveillance of the 2400 block of Thalia Street. He saw two men park and get out of a brown van. The two men walked through a breezeway into the courtyard of the Development that was under surveillance. Detective Lubra-no then heard Detective Ferrier’s dispatch concerning the description of two men seen in a drug transaction. Shortly thereafter the same two men who had gotten out of the van returned to it, got in the van, and drove away.

NOPD Detective Andrew Palumbo, who was part of the backup team, testified at trial that he got a description of the van and the two men from the two detectives conducting the surveillance at the Development. Detective Palumbo saw the brown van at the corner of Simon Bolivar Boulevard and Thalia Street. He and his partner, NOPD Detective Jeff Giroir, followed the vehicle to the 100 block of Elk Street, where they conducted a takedown. Also, NOPD Detectives Kyle Hinrich and Trevor Reeves testified at trial that they assisted Detectives Palumbo and Giroir in the investigatory stop of the van until they ascertained that it was safe for Detectives Palumbo and Giroir to proceed alone.

[¿During the investigatory stop, the vehicle pulled over, and the driver was asked to get out of the van. As the driver did so, Detective Palumbo saw him drop three foil packets onto the floorboard of the van. Detective Palumbo retrieved the packets and observed that they contained a powder he believed to be heroin. When the front seat passenger and the rear seat passenger were ordered to exit the van, cocaine-laced cigarettes and a bag of crack cocaine were found on the person of the back seat passenger. All three passengers were arrested and tried separately from the defendant.

Shortly after the three passengers were arrested, Detective Ferrier instructed Detectives Hinrichs and Reeves to come to the courtyard that was under surveillance in the Development. When they entered the courtyard, Detectives Hinrichs and Reeves immediately recognized the defendant from the description Detective Ferrier had given them. Then they arrested the defendant. Detective Hinrich went to the mailbox that had been frequented by the defendant and found four pieces of foil in a brown napkin. In each piece of foil was a substance that was determined to be heroin.

At trial the parties stipulated that the substance in the four pieces of foil found in the napkin in the mailbox was heroin. The parties also stipulated that the substance contained in the three foil packets found during the arrests of the three persons in the van was heroin.

The defendant testified at trial. He denied going to the mailbox where the pieces of foil containing heroin were found, and he denied that he sold any drugs.

At trial the defendant was found guilty on two counts. One count was distribution of heroin in violation of La. R.S. 40:966(A)(1), which provides, inter alia, that it shall be unlawful to distribute certain controlled dangerous substances, including heroin. The other count was attempted possession of |Rheroin with the intent to distribute in violation of La. R.S. 40:979(B) and La. R.S. 40:966(A)(1). The defendant was sentenced to five years to run concurrently on each count without benefit of probation, parole, or suspension of sentence.

ASSIGNMENT OF ERROR

The only assignment of error in this ease is that the trial court erred in imposing the defendant’s sentence without the benefit of parole. The State of Louisiana (the “State”) has conceded that imposing the sentence without the benefit of parole was error.

DISCUSSION

Statutory Penalty Provisions

La. R.S. 40:966(B)(1) provides the penalty for any person who violates the provisions of La. R.S. 40:966(A) with respect to certain narcotic drugs, including heroin. Any person convicted of violating that statute with respect to the specified narcotic drugs shall “upon conviction ... be sentenced to imprisonment for not less than five nor more than fifty years at hard labor at least five years of which shall be served without benefit of probation, or suspension of sentence.... ”

La. R.S. 40:979(B) provides the penalty for anyone who attempts to possess with intent to distribute certain narcotic drugs, including heroin. That statute provides that any person'who attempts to possess with intent to distribute certain narcotic drugs, including heroin, “shall, upon conviction, be imprisoned at hard labor for not less than eight nor more than fifty years without benefit of parole, probation or suspension of sentence....”

Error Patent

The defendant was sentenced as to each of the two counts of which he was convicted to “serve five (5) years at hard labor in the custody of the | (¡Louisiana Department of Corrections.” The sentence was imposed “without benefit of probation, parole or suspension of sentence” to run concurrently as to each count.

The defendant’s argument that his sentence should be without benefit of probation and suspension of sentence only and not without benefit of parole is clearly valid for the conviction on the count relate ing to the distribution of heroin in violation of La. R.S. 40:966(A)(1). The penalty provision of that statute is contained in La. R.S. 40:966(B), which provides that the sentence shall be without benefit of probation or suspension of sentence for at least five years of the sentence. The statute does not provide, however, that the sentence is restricted as to parole.

The defendant has raised as his sole assignment of error the imposition of his sentence for the distribution of heroin without the benefit of parole. Not only does the defendant raise this error, but also the State agrees that the defendant’s argument on this issue has merit. This Court agrees.

Discrepancy in Statutoiy Sentencing Provisions

La. R.S. 40:979(B) contains the penalty provisions for the defendant’s conviction on the count relating to the attempted possession of heroin with intent to distribute. This Court notes that the minimum sentence for attempted possession of heroin with intent to distribute exceeds by three years the minimum sentence for the actual distribution of heroin. Further, the sentence for the attempted crime is to be imposed without not only the benefit of probation and suspension of sentence but also without the benefit of parole. Thus, the minimum mandatory sentence for the lesser included offense of attempted possession of heroin with intent to distribute is greater than the minimum mandatory sentence for the crime of actual distribution of heroin.

|7In the instant case, the sentence imposed on the defendant was on its face illegally lenient, because the defendant was not sentenced to the mandatory minimum of eight years as required by La. R.S. 40:979(B) for the attempted crime conviction. This Court has the authority to correct an illegal sentence at any time. La. C.Cr.P. art. 881.6. However, were this Court to impose the sentence statutorily mandated by La. R.S. 40:979(B) as the minimum sentence for attempted possession of heroin with intent to distribute, the defendant would be required to serve a significantly more stringent sentence for the attempted crime than for the completed crime.

Excessive Sentence

The United States Constitution prohibits cruel or unusual punishment, U.S. Const. Amend. VIII, and the Louisiana Constitution prohibits not only cruel or unusual punishment but also excessive punishment. La. Const. Art. 1, § 20. Before this Court corrects the defendant’s sentence to impose the minimum punishment mandated by La. R.S. 40:979(B), this Court must consider the constitutionality of doing so. The issue to be resolved by this Court is whether imposing a sentence for an attempted crime that is greater than the sentence for the actual crime itself violates the Eighth Amendment of the United States Constitution and section 20 of article 1 of the Louisiana Constitution.

In State v. Brogdon, 457 So.2d 616 (La.1984), the Louisiana Supreme Court stated that “[a] constitutionally excessive sentence is one that is grossly out of proportion to the severity of the crime.... ” Id. at 625. In State v. McKeel, 443 So.2d 753, (La.Ct.App. 4th Cir.1983), aff'd in part and amended on other grounds, 452 So.2d 1171 (La.1984), this Court stated as follows:

A comparison of punishments in the same jurisdiction for other offenses is helpful in determining whether a particular sentence is so disproportionate as to constitute “cruel” or “unusual” punishment under the Eighth Amendment to the United States Constitution, or “excessive” punishment under Article I, Sec. 20 of the Louisiana Constitution of 1974.

443 So.2d at 756.

In State v. Vanvorst, 505 So.2d 123 (La.Ct.App. 4th Cir.1987), this Court stated that “[t]he imposition of a sentence although within statutory limit, may be unconstitutionally excessive if it is grossly disproportionate to the severity of the crime.... ” Id. at 126. In State v. Richardson, 97-1995 (La.App. 4 Cir. 3/3/99), 729 So.2d 114, this Court noted as follows:

Courts have the power to declare a sentence excessive although it falls within the statutory limits. The trial court has the authority to reduce a mandatory minimum sentence for a particular of-fence and offender if the sentence would be unconstitutionally excessive.

97-1995, p. 24, 729 So.2d at 126 (citation omitted). See also State v. Pollard, 93-0660 (La.10/20/94), 644 So.2d 370.

In the instant case this Court finds that the trial court’s sentence of five years for attempted possession of heroin with intent to distribute was proper. By not sentencing the defendant to the mandatory minimum of eight years for the attempted crime when the defendant was sentenced to the five year mandatory minimum for the actual crime, the trial court effectively exercised his power to declare the mandatory minimum sentence for the attempted crime excessive.

This Court notes, however, that the sentence for the attempted possession of heroin with the intent to distribute is required to be imposed without the benefit of parole as well as without the benefit of probation or | ^suspension of sentence. This Court finds that the imposition of a more stringent sentence for the attempted crime committed by the defendant than for the actual crime committed by the defendant to be the imposition of an excessive sentence in violation of section 20 of article 1 of the Louisiana Constitution. Therefore, when this Court corrects the error patent in the defendant’s sentence, the sentence for the attempted crime will exceed that for the actual crime and will be an excessive sentence. Thus, the sentence for the attempted crime should also be imposed absent the restrictions regarding parole.

CONCLUSION

The defendant’s sentence for his conviction on one count of distribution of heroin in violation of La. R.S. 40:966(A) is hereby amended to provide that the defendant is to serve five years at hard labor in the custody of the Louisiana Department of Corrections without benefit of probation or suspension of sentence. The defendant’s sentence for his conviction on one count of attempted possession of heroin with the intent to distribute in violation of La. R.S. 40:979(B) and La. R.S. 40:966(A) is amended to provide that the defendant is to serve five years at hard labor in the custody of the Louisiana Department of Corrections without benefit of probation or suspension of sentence. The defendant’s conviction on both counts of which he was convicted is hereby affirmed, and his sentence for both counts is hereby affirmed in all respects except as specifically amended in this opinion.

CONVICTION AFFIRMED AND SENTENCE AMENDED IN PART.

      . This discrepancy is something that the legislature will have to address, if the discrepancy in the relevant statutes is to be eliminated.