author: GREMILLION, Judge.

text:
    Nadine LANTHIER v. FAMILY DOLLAR STORE.
    No. 06-779.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Michael B. Miller, Miller & Miller, Crowley, LA, for PlaintiffAppellee, Nadine Lanthier.
    Michael J. Tarleton, Matthew J. Ungari-no, David I. Bordelon, Ungarino & Eckert, Metairie, LA, for Defendant/Appellant, Family Dollar Store.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

hThe defendant, Family Dollar Store, appeals the judgment of the workers’ compensation judge reinstating the indemnity-benefits of the plaintiff, Nadine Lanthier, and casting it with penalties and attorney’s fees. For the following reasons, we affirm as amended.

FACTS

This matter has previously been before us several different times. We refer to our preceding opinions for the facts pertaining to Lanthier’s work-related injury. Lanthier v. Family Dollar Store, 02-429 (La.App. 3 Cir. 10/2/02), 827 So.2d 547, vacated, 02-2663 (La.11/27/02), 836 So.2d 5, on remand, 02-429 (La.App. 3 Cir. 1/8/03), 848 So.2d 605; Lanthier v. Family Dollar Store, 01-437 (La.App. 3 Cir.) 813 So.2d 1212, writ denied, 02-1253 (La.8/30/02), 823 So.2d 951.

At the commencement of the current dispute, Lanthier was receiving supplemental earnings benefits (SEBs) in the amount of $491.78 per month. On May 1, 2003, she filed an amended disputed claim for compensation based on an alleged violation of La.R.S. 23:1208 by a Family Dollar employee. Fourteen days later, Family Dollar filed a motion to compel Lanthier to participate in the vocational rehabilitation efforts provided for her by Sharon Hebert, a vocational rehabilitation counsel- or for Intracorp. Intracorp was hired by St. Paul Travelers Insurance Company, Family Dollar’s workers’ compensation provider. Hebert had attempted to meet with Lanthier on several occasions, but was prevented from doing so because she did not agree to conditions set out by Lanthier’s attorney concerning the services provided by her. Despite this failure, she identified several jobs within sedentary^ight?. duty restrictions identified by a functional capacity evaluation (FCE) and approved by Dr. Nason. A list of these positions were sent to Lanthier’s attorney, on April 4, 2003, and was approved by Dr. Nason on April 28, 2003.

Following a hearing on Family Dollar’s motion to compel, the workers’ compensation judge ordered Lanthier to meet with Hebert within thirty days of the issuance of its order, July 16, 2003. The order further provided that Intracorp would “conduct its vocational rehabilitation services and counseling pursuant to the Louisiana Revised Statutes regarding same.” Three days later, Stephanie Nadler, St. Paul Travelers’ claims adjuster, terminated Lanthier’s SEBs based on the labor market survey performed by Hebert indicating the availability of jobs within the sedentary/light duty range and based on Dr. Nason’s approval of the positions.

Lanthier amended her disputed claim to seek penalties and attorney’s fees based on Family Dollar’s failure to authorize treatment, tests, and medication recommended by Dr. Nason. During the trial on the merits, the workers’ compensation judge sustained Family Dollar’s motion for a directed verdict on the issue of the alleged La.R.S. 23:1208 violation. At the conclusion, the matter was taken under advisement. Thereafter, the workers’ compensation judge issued oral reasons finding that Family Dollar arbitrarily and capriciously terminated Lanthier’s SEBs and awarded her $6000 in penalties and $10,000 in attorney’s fees based on Family Dollar’s failure to authorize the recommended treatment, tests, and medication. This suspensive appeal by Family Dollar followed.

ISSUES

Family Dollar argues two errors were committed by the workers’ ^compensation judge in reaching his decision. It argues that it cannot be penalized for Lanthier’s failure to cooperate with the vocational rehabilitation counselor and that the workers’ compensation judge erred in finding that it acted arbitrarily and capriciously in terminating her benefits. Lan-thier answered the appeal seeking penalties based on Family Dollar’s arbitrary and capricious termination of her SEBs and its failure to provide her proper vocational rehabilitation. She further seeks judicial interest on all amounts awarded to her and additional attorney’s fees for work performed on appeal.

TERMINATION OF BENEFITS

We will address Family Dollar’s two assignments of error together as they address the same issue: its termination of Lanthier’s SEBs.

In Chelette v. Riverwood International USA, Inc., 02-1347, pp. 4-5 (La.App. 3 Cir. 4/30/03), 843 So.2d 1245, 1249, rev’d in part on other grounds, 03-1483 (La.10/17/03), 858 So.2d 412, we stated:

Supplemental earnings benefits are awarded when a work-related injury prevents the claimant from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97); 696 So.2d 551; La.R.S. 23:1221(3)(a).
Once the claimant has met this initial burden of proving entitlement to SEB, the burden of proof shifts to the employer if it wishes to prove the employee is earning less than he or she is able to earn. The employer bears the burden of proving that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in the employee’s or the employer’s community or reasonable geographic region. Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989).
|4In Banks, 696 So.2d at 557, the Louisiana Supreme Court concluded that “an employer may discharge its burden of proving job availability by establishing, at a minimum, [three criteria] by competent evidence.” The employer must show:
(1) the existence of a suitable job within claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.
Id.
Later, in 1999, this court decided East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99); 746 So.2d 715, which co-exists with Banks and clarifies the Banks criteria. In Eash-Garrett, we stated:
We find that it is implicit in the holding of Banks that the employer must establish that the jobs are still in existence when it is determined that they are within the employee’s capabilities. Otherwise, the employee may be put in a position of having to apply for jobs that she might not be capable of performing, essentially a vain and useless act.

Id. at 721.

Louisiana Revised Statute 23:1226(E) provides the only recourse available to an employer when an employee refuses to accept rehabilitation. In that instance, the “[r]efusal to accept rehabilitation as deemed necessary by the workers’ compensation judge shall result in a fifty percent reduction in weekly compensation, including supplemental earnings benefits pursuant to La.R.S. 23:1221(3), for each week of the period of refusal.” However, the reduction may only take place after the issue is presented to the workers’ compensation judge by the employer; unilateral action by the employer is not allowed. First Baptist Church of Lake Arthur v. Fontenot, 98-1158 (La.App. 3 Cir. 2/3/99), 736 So.2d 230.

Lanthier was already receiving SEBs at the time Family Dollar terminated her benefits, so her entitlement to such benefits is not an issue. Accordingly, the burden is on Family Dollar to prove that it satisfied the requirements of Banks, as clarified by East-Garrett v. Greyhound Bus Lines, 99-421 (La.App. 3 Cir. 11/3/99), 746 So.2d 715. After reviewing the evidence, we find that although it satisfied the first two requirements of Banks, it did not satisfy the third by proving that the positions identified by Hebert were still available on April 28, 2003, when they were approved by Dr. Nason.

The workers’ compensation judge found that these positions were stale, pursuant to Chelette. We agree. Hebert testified that she identified six positions, four on April 4, 2003, and two on April 11, 2003. She sent notice of these positions to Dr. Nason on April 14, 2003, which were approved by him on April 28, 2003. Based on Dr. Na-son’s approval of the positions, which paid more than ninety percent of Lanthier’s pre-injury wage, Nadler terminated Lan-thier’s SEBs on July 19, 2003. This was three days after the workers’ compensation judge ordered Lanthier to meet with her vocational rehabilitation counselor within thirty days. .

Family Dollar presented no evidence that the positions identified by Hebert were still available on April 28, 2003. Although it raised the issue of Lanthier’s refusal to accept vocational rehabilitation, it did not allow her time to comply with the workers’ compensation judge’s order before terminating her benefits. Moreover, a total termination of benefits is not allowed when an employee refuses vocational rehabilitation. All that is allowed is a fifty-percent reduction, to be ^enforced by the workers’ compensation judge. Accordingly, Family Dollar overstepped its rights by unilaterally terminating Lanthier’s SEBs. Finding no error in the workers’ compensation judge’s judgment, we affirm.

ANSWER TO APPEAL

In answering Family Dollar’s appeal, Lanthier argues that the workers’ compensation judge erred in failing to award her penalties based on Family Dollar’s arbitrary and capricious termination of her SEBs and in failing to provide her proper vocational rehabilitation. She further argues that she should be awarded judicial interest on all amounts awarded to her and additional attorney’s fees for work performed on appeal.

Penalties

With regard to the award of penalties, we note that La.R.S. 23:1201 was amended, effective July 3, 2003, to provide in part:

I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary and capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.

The workers’ compensation judge found and we affirmed that Family Dollar was arbitrary and capricious in terminating Lanthier’s SEBs. Thus, it is subject to a penalty as a result of its actions. As La. R.S. 23:1201(1) was in effect at the time Family Dollar withheld Lanthier’s compensation benefits, it controls the amount of penalties that may be awarded. Lanthier has already been awarded $6000 in penalties. Thus, we may only award her an additional $2000 in penalties based on Family Dollar’s arbitrary and capricious termination of her SEBs. As no further 17penalties may be awarded, we will not address her request for additional penalties based on Family Dollar’s failure to provide her proper vocational rehabilitation.

Judicial Interest

Louisiana Revised Statute 23:1201.3(A) provides that “[a]ny compensation awarded and all payments thereof directed to be made by order of the workers’ compensation judge shall bear judicial interest from the date compensation was due until date of satisfaction.” Accordingly, Lanthier is entitled to an award of judicial interest on her SEBs retroactive from July 20, 2003, until paid. However, she is not entitled to judicial interest on the amounts awarded as penalties and attorney’s fees. Pursuant to Smith v. Quarles Drilling Co., 04-0179 (La.10/29/04), 885 So.2d 562, judicial interest on penalties and attorney’s fee will not be awarded in the absence of a prayer for such relief. As there has been no such prayer in this instance, Lanthier is not entitled to interest on these awards.

Work Performed on Appeal

Lanthier further requests that we award her additional attorney’s fees for work performed by her attorney on appeal. As she has successful defended Family Dollar’s appeal, we award her an additional $2000 in attorney’s fees.

CONCLUSION

For the foregoing reasons, the judgment of the workers’ compensation judge is amended to award Lanthier an additional $2000 in penalties and judicial interest on the compensation benefits reinstated, as of July 20, 2003, until paid. The judgment is affirmed in all other respects. An additional $2000 in attorney’s fees is awarded to Lanthier for work performed on appeal. The costs of this matter are ^assessed to the defendant-appellant, Family Dollar Store.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES, BUREAU OF LICENSING v. ADOPTIONS WORLDWIDE, INC.
    No. 06-0774.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Anthony C. Caruso, Department of Social Services, Baton Rouge, LA, for Appellant State of Louisiana.
    Yul D. Lorio, Doucet Lorio, Lake Charles, LA, for Defendant/Appellee Adoptions Worldwide, Inc., Blaine Doucet and Angela Doucet.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   PETERS, J.

| Nor the second time in this litigation, the State of Louisiana, through the Department of Social Services (Department), appeals the trial court’s dismissal of its petition for injunctive relief and assessment of fines pursuant to La.R.S. 46:1401, et seq., the Child Care Facility and Child-Placing Agency Licensing Act (Act), on an exception. We again reverse the trial court’s grant of the exception, a declinato-ry exception of lack of subject matter jurisdiction, and remand this matter for further proceedings.

DISCUSSION OF THE RECORD

On September 9, 2002, the Department instituted this action against Adoptions Worldwide, Inc. and Blaine and Angela Doucet in their capacities as corporate directors. In its initial action, the Department asserted that the defendants were operating an unlicensed child-placing agency in violation of the provisions of the Act, and sought to enjoin this activity and to recover statutory fines. The defendants responded to this petition by filing, among other pleadings, a peremptory exception of no cause of action. The trial court granted that exception, and that judgment gave rise to the Department’s first appeal.

In granting the exception of no cause of action and dismissing the Department’s suit, the trial court concluded that there exists no statutory requirement for a child-placing agency to obtain a license. This court reversed the judgment and remanded the matter to the trial court for further proceedings. State, Department of Social Services v. Adoptions Worldwide, Inc., 03-1674 (La.App. 3 Cir. 6/2/04), 878 So.2d 778. In reversing the judgment, this court interpreted the Act to mean that child-placing agencies were subject to the licensing requirements of La.R.S. 46:1404.

On October 21, 2003, the Doucets dissolved Adoptions Worldwide, Inc. and Mr. Doucet began to operate his business under the trade name of Adoptions Worldwide, an unincorporated association, but through his legal limited liability company, Blaine A. Doucet, L.L.C., attorney at law. On March 7, 2003, the Department amended its petition to name Blaine and Angela Doucet as defendants in their individual capacities.

In granting the exception of no cause of action which gave rise to the first appeal, the trial court did not consider a number of other pending exceptions, including an exception of lack of subject matter jurisdiction. On remand, the defendants argued that the trial court lacked subject matter jurisdiction because Mr. Doucet’s conduct giving rise to the suit by the Department was in his capacity as an attorney at law and was not the operation of an adoption agency as defined by the Act. Specifically, they asserted that Mr. Doucet was engaged in the practice of law, specializing in matters relating to the adoption of children on both a domestic and international level. The defendants argued that because Mr. Doucet’s business was that of the practice of law, the Louisiana Supreme Court had the .exclusive jurisdiction to license and regulate his activity. The defendants further asserted that Mrs. Dou-cet was merely an employee of the law office.

The trial court heard testimony and argument on the exception on February 14, 2006, and, after completion of the testimony and argument, granted the exception and dismissed the Department’s suit against all of the defendants. After the trial court | «signed a judgment to this effect on February 21, 2006, the Department perfected this appeal.

OPINION

“Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La. Code Civ.P. art. 1. Subject matter jurisdiction “is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” La.Code Civ.P. art. 2.

In the matter before us, the lack of subject matter jurisdiction is not apparent on the face of the Department’s petitions. Thus, the burden is on the defendants to offer evidence in support of the exception. La.Code Civ.P. art. 930. The defendants did nothing more than establish Mr. Dou-cet’s profession and the relationship between that profession and the complaint at issue. Based on that relationship, the defendants argued that Mr. Doucet is an attorney and not an adoption agency and can only be regulated by the Louisiana Supreme Court.

In its oral reasons for judgment, the trial court concluded that only Mr. Dou-cet’s status as a lawyer precluded him from having to comply with the requirements of the Act because he was clearly functioning as an adoption agency. Addressing the jurisdictional issue, the trial court noted its prior experience in adoptions as a practicing attorney and stated the following:

I was never required to be licensed [under the Act] because I was under the impression that I was always exempt, as I believe Mr. Doucet is exempt. I think that the area to control Mr. Doucet is with the Supreme Court, as far as engaging an improper practice of law. I find that this court has no jurisdiction over him insofar as engaging in the Ladoption practice in which he does. So, I am going to sustain the exception of lack of subject matter jurisdiction.

In reaching its conclusion that lawyers are exempt from the licensing requirements of the Act, the trial court relied on the provisions of La.R.S. 46:1425(0) which exempts lawyers from certain advertising prohibitions contained in La.R.S. 46:1425(A). In effect, the trial court found that, if in his practice of law Mr. Doucet engaged in the placement of children for adoption, it had no jurisdiction over a suit to enjoin his child-placing operation for failure to obtain a license.

In reversing the trial court judgment, we note that what is before us is the review of a declinatory exception of lack of subject matter jurisdiction. Thus, we are limited in that review and cannot address the merits of the litigation. The specific question before us is not whether the defendants are required to obtain a license, but whether the trial court has jurisdiction to determine that issue after a trial on the merits. In concluding that the trial court does have subject matter jurisdiction, we do not reach the issues of whether the defendants are operating a child-placement agency or the nature of the exemption that Mr. Doucet enjoys by virtue of La.R.S. 46:1425. Those issues were improperly reached by the trial court in considering this exception and necessarily belong to the merits of the Department’s entitlement to an injunction.

While it is true that La. Const, art. 5, § 5(B) provides that the Louisiana Supreme Court has exclusive original jurisdiction of disciplinary proceedings against a member of the bar, the action herein is not a disciplinary proceeding against Mr. Doucet as a member of the bar. Louisiana Constitution Article 5, § 16 provides that district courts have original jurisdiction over all civil matters, and simply because a civil ease involves an attorney as a party does not mean that the supreme court has original and exclusive jurisdiction over the subject matter. Attorneys are subject to the same laws Las other citizens. Although a lawyer can engage in both the practice of law and the operation of a child-placing agency, they are two different vocations and each has licensing requirements. Whether both apply to an attorney operating a child-placing agency is a question for the merits, and since the defendants failed in their burden of proof to establish that the trial court did not have subject matter jurisdiction, we find that the trial court erred in granting that exception. Hayden v. Schulte, 97-0422, (La.App. 4th Cir.10/29/97), 701 So.2d 1354, writ denied, 97-2941 (La.2/6/98), 709 So.2d 737. Accordingly, we reverse the judgment.

DISPOSITION

For the foregoing reasons, we reverse the judgment of the trial court and remand the matter for further proceedings. We assess all costs of this appeal to Adoptions Worldwide, Inc. and Blaine and Angela Doucet.

REVERSED AND REMANDED.

      . Blaine and Angela Doucet are husband and wife, and Blaine Doucet is an attorney at law.

      . The Department sought to assess statutory fines from November 2, 2000, forward.

      . With regard to the individual defendants, the Department sought the same injunctive relief, but sought statutory fines from November 2, 2002, instead of November 2, 2000.


author: DECUIR, Judge.

text:
    Larry DUPUY v. Billy L. WILEY, et al.
    No. 06-751.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      John T. Bennett, Attorney at Law, Marksville, LA, for PlaintiffiAppellee, Larry Dupuy.
    James B. Reichman, Reichman Law Firm, Alexandria, LA, for Defendant/Appellant, State Farm Automobile Insurance Company.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   DECUIR, Judge.

11 Uninsured motorist coverage carrier appeals a judgment of the trial court awarding penalties and attorney fees for arbitrary and capricious handling of the plaintiffs claim.

FACTS

On April 1, 2004, Larry Dupuy was rear-ended by Billy Wiley. Dupuy, who is confined to a wheelchair due to childhood muscular dystrophy and a prior hip removal, was injured in the accident. Specifically, his hip bounced up into the steering wheel, and he severely bruised his right calf. His passengers were also injured. Wiley’s liability coverage limits were exceeded, and Dupuy proceeded against his UM insurer, State Farm Automobile Insurance Company.

Dupuy received medical treatment from Dr. Bryan McCann on twelve separate occasions during the first four months after the accident. During that period, he complained of back and hip pain and continued to have the bruised calf, which hardened into scar tissue.

There followed a gap in Dupuy’s treatment of nine months. In May 2005, Du-puy returned for treatment and continued until September 2005. Dupuy’s insurer, State Farm Automobile Insurance Company, paid $4,318.15 under the medical payments portion of its policy and unconditionally tendered $3,600.00 under its UM coverage. After a bench trial, the court awarded Dupuy general damages of $42,500.00, penalties of $5,000.00 and attorney fees of $5,000.00. State Farm lodged this appeal seeking reversal of the penalties and attorney fees. Dupuy answered seeking a correction in the calculation of the judgment amount and an increase in penalties and attorney fees.

| .DISCUSSION

State Farm first alleges that the trial court erred in awarding penalties and attorney fees where entitlement to them was not specifically pled. The only reference to penalties and attorney fees in the petition is the following reference in plaintiffs prayer: “Plaintiff further prays for any other sums and accounts found to be due him from the defendants, including medical payments, penalties, interest and attorney fees.”

The crux of State Farm’s argument is that penalties and attorney fees are special damages and, therefore, must be specifically pled. This would appear to be the traditional view, but the waters have been muddied of late. In Boone v. Mid-State Marketing, 03-1032, pp. 6-7 (La.App. 3 Cir. 3/3/04), 867 So.2d 91, 97, writ denied, 04-878 (La.6/25/04), 876 So.2d 833, a divided panel of this court said:

Louisiana Code of Civil Procedure Article 861 states that, “[w]hen items of special damage are claimed, they shall be specifically alleged.” Although some cases have ruled that, pursuant to La. Code. Civ.P. art. 861, attorney fees and penalties are items of special damages and thus must be specifically alleged, we decline to follow this line of cases. See Smith v. Howell Indus., Inc., 579 So.2d 1236 (La.App. 3 Cir.1991); Mix v. Mougeot, 446 So.2d 1352 (La.App. 1 Cir.1984). Damages are provided to make the victim whole. On the other hand, penalties and attorney fees are punitive in a nature and are not provided to make the victim whole. Rather, the primary purpose is to deter the irresponsible handling of workers’ compensation claims. See Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Nation v. D & J Tire, Inc., 31,345 (La.App. 2 Cir. 12/9/98), 722 So.2d 364; Jeansonne v. American Native Const., 97-1228 (La.App. 3 Cir. 3/6/98), 710 So.2d 306; Sharp v. Daigre, 545 So.2d 1063 (La.App. 1 Cir.), writ granted, 550 So.2d 640 (La.1989) [555 So.2d 1361 (La.1990) ]. Special damages usually include items such as medical costs, loss wages and loss of earning capacity. See Dorvilier v. Gagliano, 02-2765 (La.App. 4 Cir. 8/27/03), 855 So.2d 393; Gagnard v. Baldridge, 612 So.2d 732 (La.1993). Because penalties and attorney fees are punitive in nature, they are not special damages.

The dissenting judge opined:

Although penalties and attorney’s fees are punitive in nature, I conclude that they are “items of special damages” within the meaning of La.Code 13Civ.P. art. 861. See Box v. City of Baton Rouge, 02-0198 (La.App. 1 Cir. 1/15/03), 846 So.2d 13; Coscino v. Louisiana State Boxing and Wrestling Com’n, 97-2733 (La.App. 4 Cir. 9/9/98), 718 So.2d 1016; Dennis v. Allstate Ins. Co., 94-305 (La.App. 5 Cir. 10/25/94), 645 So.2d 763; Smith v. Howell Industries, Inc., 579 So.2d 1236 (La.App. 3 Cir.1991); Mix v. Mougeot, 446 So.2d 1352 (La.App. 1 Cir.1984).

Id. at 101.

While we are inclined to adopt the position espoused by the dissenting judge, doing so would not resolve the issue completely. The question still remains whether the request for penalties and attorney fees in this case is sufficient given that the same panel of this court said the following regarding penalties and attorney fees:

Moreover, La.Code Civ.P. art. 862 provides: “a final judgement shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”

Id. at 97.

Again, we are inclined to disagree with the majority of that panel, but decline to do so because we believe State Farm’s second argument has greater merit.

In its second argument, State Farm contends that, even if the plaintiffs pleadings are found to be adequate, the evidence fails to establish that it was arbitrary and capricious in its handling of this claim. We agree.

While we are mindful of the weight to be afforded to the trial court on factual determinations such as these, we find no evidence to support the trial court’s conclusion that State Farm acted arbitrarily and capriciously in this case. State Farm paid Dupuy’s medicals and tendered $3,600.00 in general damages despite the fact that the only objective injury was a bruise on his calf. Moreover, given that Dupuy did not seek medical treatment for nine months or refill his pain prescriptions, State Farm had cause to doubt the legitimacy of his claims of continual pain. The fact that the trial court ultimately determined that Dupuy was not a malingerer does not render |4State Farm’s actions arbitrary and capricious or deprive it of its right to have its obligations determined by the court. Accordingly, we find the trial court erred in awarding penalties and attorney fees in this case.

Dupuy answered the appeal seeking additional penalties and attorney fees and alleging that the judgment against State Farm contains a calculation error and should be in the amount of $19,900.00 rather than $19,100.00. The request for additional penalties and attorney fees is denied. However, there does appear to be a calculation error given that State Farm’s policy limits are $25,000.00 and $1,500.00 was paid to one of Dupuy’s passengers and $3,600.00 was tendered to Dupuy. Accordingly, the trial court judgment should read $19,900.00 rather than $19,100.00.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed in part and affirmed as amended in part. All costs of these proceedings are taxed to appellee, Larry Dupuy.

REVERSED IN PART; AFFIRMED AS AMENDED IN PART.


author: PAINTER, Judge.

text:
    Lydia ELDRIDGE, et al. v. HERITAGE MANOR, L.L.C., et al.
    No. 06-718.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Frederick B. Alexius, Jeremy C. Cedars, Alexandria, LA, for Defendanb-Appellee, Community Care Center of Alexandria, L.L.C.
    Georgia P. Kosmitis, Adrienne L. Mouton, Shreveport, LA, for Plaintiffs-Appellants, Lydia Eldridge, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

|! Plaintiffs, Lydia Eldridge, individually and on behalf of her sister, Oreliea Metoyer, appeal the ruling of the district court which granted an exception of prematurity in favor of Community Care Center of Alexandria, L.L.C. (Community Care Center). The sole issue in this case is whether Plaintiffs’ allegations are covered under La.R.S. 40:1299.41 et seq., the Louisiana Medical Malpractice Act (MMA), such that they must first be submitted to a medical review panel. For the reasons that follow, we affirm the ruling of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Oreliea Metoyer was admitted to Heritage Manor on June 19, 2001. Heritage Manor of Alexandria II (incorrectly identified as Heritage Manor, L.L.C.) is a nursing home facility that is operated by Community Care Center. On November 24, 2004, Eldridge, individually and on behalf of her sister, Ms. Metoyer, filed suit against Heritage Manor and Community Care Center. The suit was styled a “Petition for Personal Injury.” The suit alleges that, at the time of her admission, Ms. Metoyer was fifty-two years of age but was totally disabled due to a stroke and required twenty-four hour professional nursing care since she was “totally depen-dant upon the nursing staff for all activities of daily living and medical care.” In that petition, Plaintiffs alleged the following:

It will be shown that the defendant [sic], Heritage Manor, L.L.C. and Community Care Center[,] breached their duty and contract and contributed to the damages and injuries of Ms. Metoyer and petitioners and to the worsening of Ms. Metoyer’s overall condition and deterioration in her status in the following ways:
1. Failed to properly care and treat their patient;
2. Failed to implement an adequate care plan to meet their patient’s needs;
| a3. Failed to make routine inspections and take appropriate nursing interventions;
4. Failed to provide adequate number of trained nursing staff;
5. Failed to properly monitor and respond to changes in the patient’s condition, provide that information and change of status to the family and physician;
6. Failed to provide adequate skin care to prevent and treat the development of pressure sores, skin breakdown and infection;
7. Failed to provide adequate nail care, therapy, aids and devices to prevent Ms. Metoyer’s fingernail from becoming embedded in her palm;
8. Failed to provide necessary range of motion exercises and other therapies and devices to prevent cont-ractures;
9. Failed to obtain timely medical care and necessary consultations;
10. Failed to obtain and provide therapy and assistance devices and safety;
11. Breached the duties owed to petitioner in accordance with standards of care for professional practice and quality;
12. Failed to honor their contract to provide 24 hour professional skilled nursing care;
13. Failed to adhere to quality care standards and allocate proper funding for care and services to meet the needs of their patients.

More specifically, Plaintiffs alleged that Ms. Metoyer suffered events of aspiration, dehydration to the point that her mouth bled, repeated urinary tract infections due to inadequate fluid intake, decreases in her mental and physical well being, suffered a broken finger that was unexplained by the nursing staff, and had a fingernail that became entrenched in her hand due to the nursing home’s failure to ensure that splints were properly utilized. Further, Plaintiffs alleged violations of La.R.S. 40:2010.8, the [Nursing Home] Residents’ Bill of Rights. Based on these allegations, Plaintiffs sought damages and attorney’s fees.

Defendants filed several exceptions. Heritage Manor filed an exception of no cause of action based on the allegation that Community Care Center was the licensed operator of the facility. Heritage Manor and Community Care Center filed an exception of no right of action based on the limitation of recovery found in La.R.S. 40:2010.9. Community Care Center filed an exception prematurity based on its status 13as a qualified health care provider under the MMA. Following a hearing, the district court granted all of these exceptions.

Plaintiffs did not object to the dismissal of Heritage Manor, L.L.C. as they conceded that the wrong entity was named and that Community Care Center was the correct entity to be named as Defendant. Plaintiffs also agreed that their claims were only for the years 2003 and 2004, such that their recovery was limited to injunctive relief as provided by the 2003 amendments to the [Nursing Home] Residents’ Bill of Rights. Plaintiffs now appeal and assert as their sole assignment of error that the district court erred in finding that their claims were premature and must be submitted to a medical review panel. The granting of the exceptions of no right of action and no cause of action in favor of Heritage Manor has not been briefed on appeal; therefore, we consider these issues to be abandoned pursuant to Rule 2-12.4 of the Uniform Rules — Courts of Appeal. For the reasons that follow, we affirm the judgment of the district court.

DISCUSSION

Plaintiffs denominate their claims as ones for negligence, breach of contract for services to be provided, breach of duties, and violation of rights. However, since Plaintiffs conceded that Community Care Center’s exception of no right of action was correct with respect to the fact that their recovery under the [Nursing Home] Residents’ Bill of Rights would be limited to injunctive relief, they argue that many of their claims were for violations of custodial duties and, thus, fall outside of the MMA.

The dilatory exception of prematurity is provided for by La.Code Civ.P. art. 926. The burden of proving prematurity is on the exceptor such that Community Care 1¿Center must show that it is entitled to a medical review panel. Williamson v. Hosp. Service Dist. No. 1 of Jefferson, 04-451 (La.12/1/04), 888 So.2d 782. Under the MMA, a claim for medical malpractice against a qualified healthcare provider is premature if it has not been reviewed by a medical review panel pursuant to the provisions of La.R.S. 40:1299.47. It is undisputed that Community Care Center is a qualified healthcare provider under the MMA. The sole issue in this appeal is whether Plaintiffs’ claims are medical malpractice. This determination involves a question of law, which we will review de novo to determine whether the district court was legally correct in granting the dilatory exception of prematurity in favor of Community Care Center. Quinney v. Summit of Alexandria, 05-237 (La.App. 3 Cir. 6/1/05), 903 So.2d 1226.

It is well settled that the MMA applies only to malpractice as it is defined in La. R.S. 40:1299.41 A(8):

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health care providers, or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

In fashioning a standard for defining a medical malpractice claim, the supreme court has said:

In determining whether certain conduct by a qualified health care provider constitutes “malpractice” as defined under the MMA this court has utilized the following three factors:
“[1] whether the particular wrong is ‘treatment related’ or caused by a dereliction of professional skill,
| f¡[2] whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, and
whether the pertinent act or omission involved assessment of the patient’s condition.”

Sewell v. Doctors Hospital, 600 So.2d 577, 579 n. 3 (La.1992)(quoting Holly P. Rockwell, Annotation, What Patient Claims Against Doctor, Hospital, or Similar Health Care Provider Are Not Subject to Statutes Specifically Governing Actions and Damages for Medical Malpractice, 89 A.L.R.4th 887, 1991 WL 741765 (1991)). The latter annotation lists three additional factors that courts have considered, and we now add those to our Sewell list; to wit:

whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
whether the injury would have occurred if the patient had not sought treatment, and
whether the tort alleged was intentional.

89 A.L.R.4th at 898.

Coleman v. Deno, 01-1517, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-316 (footnote omitted).

Applying the Coleman test to the matter before us, we conclude, as did the district court, that when reviewing the totality of the allegations of the petition in this case, these allegations fall under care, treatment, and assessment so as to require this matter to first be presented to a medical review panel. First, all of Plaintiffs’ allegations are related to treatment (or lack thereof) and contain statements concerning “dereliction in professional skill.” Taking the allegations of Plaintiffs’ petition as true, Ms. Metoyer was admitted to the facility because she required twenty-four hour nursing care. Second, we find that expert medical testimony would be necessary to determine whether the applicable standard of care was breached with | ^respect to the care and treatment of Ms. Metoyer. This is not a case of obvious negligence or where the alleged conduct could be evaluated based on common knowledge, since the actions and/or inac-tions involve treatment modalties and the need therefor. Third, all of the alleged actions and/or inactions involved the assessment (or lack of assessment) of Ms. Metoyer’s condition. Fourth, the allegations all involve actions and/or inactions taken within the scope of activities which Community Care Center was licensed to perform. Fifth, as the supreme court stated in Coleman, “[cjommon sense indicates that a claim based on failure to provide enough treatment is clearly linked to treatment.” Id at 318. Finally, there is no allegation that any of the alleged tortious conduct was intentional.

DECREE

For the foregoing reasons, we conclude that the entirety of the conduct upon which Plaintiffs’ base their claims against Community Care Center fits within the statutory definition of “malpractice” and is, therefore, governed by the MMA. Accordingly, the judgment of the district court is affirmed. All costs of this appeal are assessed to Plaintiffs, Lydia Eldridge, individually and on behalf of her sister, Oreliea Metoyer.

AFFIRMED.


author: PICKETT, Judge.

text:
    Eric R. CERWONKA v. Joe D. BAKER and Teresa Cothran Baker.
    No. 06-856.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Walter Evans Dorroh Jr., Attorney at Law, Jena, LA, for Defendant-Appellee, Joe D. Baker.
    Donald Wilson, Gaharan & Wilson, Jena, LA, for Defendant-Appellee, Teresa C. Baker.
    Michael Roy Hubbell, James R. Raines, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Plaintiff-Appellant, Eric R. Cer-wonka.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

JL^Eric Cerwonka, the biological father of Steven Baker, appeals a judgment of the trial court granting sole custody to the legal father, Joe Baker, subject to visitation by Dr. Cerwonka and the mother, Teresa Baker.

STATEMENT OF THE CASE

Steven Baker was born on May 22, 1998. At the time, his mother, Teresa Baker, was married to Joe Baker. Ms. Baker had maintained an intimate relationship with Eric Cerwonka at the time Steven was conceived. Paternity testing later revealed that Dr. Cerwonka was the father of the Steven. Mr. Baker did not know about the relationship between Ms. Baker and Dr. Cerwonka, or the possibility that Steven was not his biological son, until the spring of 2001. At about the same time, Ms. Baker filed for divorce from Mr. Baker. The judgment granting the divorce was signed on October 11, 2001. Ms. Baker was named domiciliary parent of Steven in the initial divorce proceeding, subject to visitation by Mr. Baker.

In January 2002, Dr. Cerwonka filed a Petition for Custody/Visitation. He sought recognition as the biological father of Steven and custody of and visitation with Steven. The parties were able to reach an agreement in May 2002 concerning custody of Steven, wherein Dr. Cerwonka was given joint custody of Steven and allowed visitation. This agreement was never memorialized in a judgment. When the relationship between Ms. Baker and Dr. Cer-wonka deteriorated, they each filed several motions in the district court seeking that the other party be held in contempt for violation of the custody agreement. They also sought modification of the custody arrangement. After a full year of allegations, motions, evaluations by mental health care professionals by all parties, and two separate hearings in the district court, the | ¡¡trial court issued a Joint Custody Plan, which the trial court signed on May 8, 2003. Mr. Baker was named domiciliary parent of Steven and Ms. Baker and Dr. Cerwonka were awarded visitation.

In September 2003, the parties began attacking the arrangements under the Joint Custody Plan. Mr. Baker filed a motion asking the court to order Dr. Cerwon-ka to refrain from taking Steven to a counselor appointed by the court, Mary Girard. (The motion was later withdrawn by Mr. Baker.) Dr. Cerwonka filed a rule seeking to be named co-domiciliary parent and that the court establish procedures to facilitate communication between the parties. (The record is not clear about how this rule was disposed of by the trial court.) In February 2004, Ms. Baker sought a modification of the Joint Custody Plan. She alleged that she had fulfilled the conditions imposed on her by the trial court and that she had moved from Jena, Louisiana to Pineville, Louisiana. She asked the court that she be named domiciliary parent following the end of the 2003-2004 school year. Also, Dr. Cerwonka moved from New York to Lafayette, Louisiana, which necessitated a change in the visitation arrangements. The minutes of court indicate a hearing was held on April 20, 2004, to dispose of outstanding matters in this case, including the request of Ms. Baker that she be named domiciliary parent. The minutes and the judgment indicate the parties entered into an agreement whereby Ms. Baker would be named domiciliary parent. (The transcript is not in the record.) The trial court held that following the school year Ms. Baker would become domiciliary parent subject to visitation by Mr. Baker and Dr. Cerwonka in a judgment signed November 12, 2004.

The trial court held hearings on December 9, 2004, and January 17, 2005, to dispose of further motions filed by the parties because they were unable to abide by |3the Joint Custody Plan. The trial court issued a very detailed Interim Joint Custody Plan on March 10, 2005.

In December 2005, all three parties again submitted issues to the district court for its determination. Dr. Cerwonka filed motions seeking a change in the joint custody plan and an order that the parties be subject to psychological evaluation again pursuant to La.R.S. 9:331. Ms. Baker filed a rule to show cause why Dr. Cerwon-ka should not be held in contempt for failure to pay child support. Mr. Baker filed an exception of vagueness to Dr. Cer-wonka’s motion, and a motion that should the court determine that a change in custody is necessary, the court should award Mr. Baker domiciliary custody.

The trial court held a hearing on these motions on January 23 and 24, 2006. At the conclusion of the hearing, the trial court ruled in open court that Mr. Baker would be awarded sole custody of Steven, subject to monthly visitation by Ms. Baker and Dr. Cerwonka. A judgment in conformity with the trial court’s oral ruling was signed on April 18, 2006. Dr. Cer-wonka has appealed that judgment.

ASSIGNMENTS OF ERROR

The appellant, Eric Cerwonka, asserts five assignments of error:

1. The trial court erred in granting Joe Baker sole legal care, custody and control of the minor child, Steven Baker, where Joe Baker stated in his pleadings that he opposed any modification of custody, and that if the Court determined it necessary to modify custody, he requested only that he be named domiciliary parent of the minor child.

2. The trial court erred in granting Joe Baker sole legal care, custody and control of the minor child, Steven Baker, where the burden of proof was not met to modify custody.

3. The trial court erred in granting Joe Baker sole legal care, custody and control of the minor child, Steven Baker, depriving Eric R. Cerwonka of his Constitutional rights under the Due Process Clause.

|44. The trial court erred in granting Joe Baker sole legal care, custody and control of the minor child, Steven Baker, where the burden of proof was not met to grant custody to a non-parent.

5. The trial court erred in not appointing a mental health evaluation of the parties as allowed under La.R.S. 9:331.

DISCUSSION

In Arrington v. Campbell, 04-1649, p. 2 (La.App. 3 Cir. 3/9/05), 898 So.2d 611, 612, this court stated:

This court has clearly stated the standard of review for an appellate court in child custody matters. “The trial court is in a better position to evaluate the best interest of the child from its observances of the parties and witnesses; thus, a trial court’s determination in a child custody case is entitled to great weight on appeal and will not be disturbed unless there is a clear abuse of discretion.” Hawthorne v. Hawthorne, 96-89, p. 12 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, 625, writ denied 96-1650 (La.10/25/96), 681 So.2d 365. Under Louisiana Civil Code Article 131, decisions regarding custody of the children are made with the best interest of the child being paramount. Louisiana Civil Code Article 134 provides a number of factors to be considered in making the best interest determination. These factors are merely suggested factors, and the trial court is free to use other factors to make its determination. Aucoin v. Aucoin, 02-756 (La.App. 3 Cir. 12/30/02), 834 So.2d 1245. However, the trial court should consider the totality of the facts and circumstances in its analysis of the best interest of the child.

Since the second assignment of error concerns the burden of proof required below to modify the existing custody arrangement, we will address that assignment first. Dr. Cerwonka argues that each of the previous judgments rendered by the trial court were considered decrees, and therefore could not be modified unless the high burden imposed in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), had been met. In Bergeron, the supreme court stated:

When a trial court has made a considered decree of permanent custody the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and |sconvincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Id. at 1200.

Dr. Cerwonka argues that either the May 8, 2003 judgment, the November 12, 2004 judgment, or the March 10, 2005 judgment was a considered decree, and thus the “heavy burden” imposed in Ber-geron is applicable. At the beginning of the trial on January 23, 2006, the trial court addressed this issue. The trial court explained to counsel before any evidence was taken that it was working under the belief that they were not dealing with a considered decree. The trial court explained that the May 8, 2003 judgment was a considered decree, but the 2004 custody plan altering that judgment was agreed to among the parties and not subject to the heightened proof standards enunciated in Bergeron. The counsel for each of the parties, including Dr. Cerwonka, agreed with the trial court’s characterization of the previous judgments. Thus, Dr. Cer-wonka is technically estopped from arguing in this court that the trial court’s ruling is incorrect. See La.Code Civ.P. art. 2085. We find, however, no error in the trial court’s characterization of the previous judgments.

The May 8, 2003 judgment was a considered decree. It was modified in 2004 to take into account the fact that Dr. Cerwonka moved from New York City to Lafayette, Louisiana, and Ms. Baker moved from Jena to Pineville and was named domiciliary parent. The parties agreed to the modification of this decree to take into account the changes in circumstance. It was not a considered decree in the sense that the parties came to an agreement about the changes with the approval of the court. Peyton v. Peyton, 614 So.2d 185 (La.App. 3 Cir.1993). The March 10, 2005 judgment is not subject to the Bergeron standards because it was an interim custody plan, and Bergeron only applies to a “considered decree of permanent custody.” [ fiThus, the burden of proof in this case is that for a non-considered decree. The party seeking a change in the custody arrangement must prove: “1) a change in circumstances affecting the welfare of the [child] had occurred since the original decree, and 2) the proposed modification is in the best interest of the [child].” Aucoin, 834 So.2d at 1249.

The trial court heard evidence that the inability of Dr. Cerwonka and Ms. Baker to communicate with each other about Steven’s needs, their past histories of manipulation of Steven, and their incivility toward one another had a negative effect on Steven. The trial court found that Steven was not subject to the same problems when he was with Mr. Baker. The trial court also found that Mr. Baker was able to effectively communicate with both Dr. Cerwonka and Ms. Baker, and that he was in a better position to facilitate visitation with Dr. Cerwonka and Ms. Baker. The trial court has had these parties before it for over four years now, and has become very familiar with the parties. We cannot say that the trial court abused its discretion by awarding domiciliary custody to Mr. Baker and visitation to Dr. Cerwon-ka and Ms. Baker.

The trial court, however, awarded sole custody to Mr. Baker. In his first assignment of error, Dr. Cerwonka argues that it was error to remove Steven from the joint custody of Dr. Cerwonka because, in his pleadings, Mr. Baker only asked that he be granted domiciliary custody and the pleadings were not expanded during the trial to allow for an award of sole custody to Mr. Baker. This position is supported by the second circuit’s opinion in Havener v. Havener, 29,785 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, wherein the trial court held that the award of sole custody |7to the father was in error where he only sought domiciliary custody with his former wife having joint custody.

In response, Mr. Baker acknowledges that he only sought domiciliary custody in his pleadings. He argues, however, that the pleadings were expanded during the course of the trial to justify an award of sole custody to Mr. Baker. Mary Girard, a social worker who had counseled Steven, and Dr. Kelly Pears, a psychologist who reviewed the previous psychological examinations of the parties, testified about the difficulties that a child may experience when his separated parents have a bad relationship, and specifically about the difficulties Steven has had in dealing with the relationships among his three parents, especially Dr. Cerwonka and Ms. Baker. At no point in their testimony did either of them suggest that Dr. Cerwonka or Ms. Baker was incapable of caring for Steven’s needs. Thus, we do not find that the pleadings were expanded to justify the trial court’s award of sole custody to Mr. Baker. The judgment is amended to provide that all three parents are awarded joint custody and Mr. Baker is named the domiciliary parent.

The trial court did not err in awarding physical custody of Steven to Mr. Baker as Dr. Cerwonka suggests in arguing his second assignment of error. Based on the testimony of Ms. Girard, Dr. Pears, and the parties, the trial court found that Mr. Baker was in the best position to care for Steven, and that he was the most likely to foster a healthy relationship between Steven and his other parents. Essentially, the relationship between Dr. Cerwonka and Ms. Baker was too volatile to allow for Steven to live with either of them and continue to have a good relationship with the other. The trial court did not abuse its discretion in reaching this finding.

| sDr. Cerwonka also argues that the trial court relied too heavily on Ms Girard’s testimony in reaching its decision. He argues that Ms. Girard had seen Steven only once in the last year, and that Ms. Baker had also attended counseling sessions with Ms. Girard. Dr. Cerwonka made no contemporaneous objection to the foundation of Ms. Girard’s testimony during the trial. Furthermore, the expert produced by Dr. Cerwonka, Dr. Pears, had never seen Steven, only the records of the evaluations of all of the parties. The trial court used Ms. Girard’s testimony to give further support to its independently reached conclusion.

Dr. Cerwonka’s third assignment of error is moot. He complains that the trial court violated his due process rights by granting sole custody to Mr. Baker. By granting joint custody to all three parents, this alleged constitutional defect is cured. Further, this assignment of error will not be considered by this court because it is raised for the first time on appeal. The supreme court has enunciated the rule that “issues not submitted to the trial court for decision will not be considered by the appellate court on appeal.” State v. Williams, 02-898, 02-1030, p. 7 (La.10/15/02), 830 So.2d 984, 988. See also Uniform Rules— Courts of Appeal Rule 1-3.

Dr. Cerwonka’s fourth assignment of error is that Mr. Baker, as the legal father of Steven, is a non-parent and should only be given custody if the requirements of La. Civ.Code art. 133 are met. Article 133 states:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

Dr. Cerwonka argues that a legal father is a non-parent, and thus Mr. Baker should only be awarded sole custody if joint custo-

dy to Dr. Cerwonka and Ms. Baker would | flresult in “substantial harm” to Steven. The argument rests on Louisiana cases denying legal fathers the right to recover in tort suits when the biological father is a party. In as much as we find an award of joint custody to all three parents is appropriate, with Mr. Baker named domiciliary parent, this assignment of error is moot.

The fifth assignment of error raised by Dr. Cerwonka is whether the trial court erred in refusing to order mental health evaluations of the parties pursuant to La.R.S. 9:331, which states:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

The language of the statute is permissive, and the decision to require the evaluations lies in the discretion of the court. Bourque v. Bourque, 03-1254 (La.App. 5 Cir. 3/30/04), 870 So.2d 1088.

Here, the trial court already had access to psychological evaluations of the parties which were performed in 2003. Both experts who testified that the pathology of the parties would not significantly change in three years, and that counseling to help treat the problems was more helpful. While Dr. Pears did state that Pippen evaluations are generally done on all parties involved, he did not testify that further testing would be beneficial. The trial court did not abuse its discretion in failing to require further psychological evaluation of the parties.

| 1 pCONCL USION

We amend the judgment of the trial court to reflect an award of joint custody to Joe Baker, Teresa Baker, and Eric Cer-wonka. Joe Baker is designated as domiciliary parent. The judgment of the trial court is affirmed in all other respects. Costs of this appeal are assessed to Eric Cerwonka.

AFFIRMED AS AMENDED AND RENDERED.


text:
    SOUTHWEST LOUISIANA HOSPITAL ASSOCIATION d/b/a Lake Charles Memorial Hospital v. SUPERIOR CARRIERS, INC.
    No. 06-807.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      John Stanton Bradford, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiff/Appellee, Southwest Louisiana Hospital Association.
    Perry R. Staub, Jr., Mark Van Horn, Larry E. Demmons, Taggart, Morton, Ogden, Staub, Rougelot & O’Brien, L.L.C., New Orleans, LA, for Intervenor/Appellee, CCN, Inc.
    H. Clay Ward, III, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Superior Carriers, Inc.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   DECUIR, Judge.

It This is a claim filed in district court by a provider to recover payment for medical services rendered to a workers’ compensation claimant. The defendant appeals a grant of summary judgment in favor of the provider finding that PPO network discounts are invalid under workers’ compensation law.

FACTS

On December 8, 2003, Southwest Louisiana Hospital Association, d/b/a Lake Charles Memorial Hospital (LCMH), rendered medical services to Steven G. Hollie, an employee of defendant, Superior Carriers, Inc. LCMH billed $4,605.00 for these services. Instead of reimbursing LCMH the workers’ compensation schedule rate of $4,144.50, Superior’s workers’ compensation carrier, Great West Casualty Company, paid the PPO network discount amount of $3,914.29.

LCMH filed this petition for declaratory relief asking the court to declare this discount invalid and unenforceable for failing to comply with the Louisiana Preferred Provider Organization Act (La. R.S.40:2203.1) and for discounting this workers’ compensation bill below the lesser of LCMH’s actual charge or the fee schedule amount in violation of La.R.S. 23:1033. The trial court granted the relief sought in both instances. Superior lodged this appeal. CCN, Inc., the administrator of the PPO network, filed a motion to intervene, which this court referred to the merits.

DISCUSSION

Superior first argues that this case should be reversed based on the en banc opinion of this court in Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553. We agree. In Beutler England, the court held that La.R.S. 23:1310.3(E), as amended, applies retroactively and grants original and exclusive jurisdiction over contractual and coverage disputes like the ones in the case at bar to workers’ compensation judges. LCMH argues that, even if |Pthat is the case, the district court had jurisdiction over the claim for violation of La.R.S. 40:2203.1 and that part of the judgment should stand. We are unpersuaded by this argument. Aside from the court’s interest in avoiding piecemeal litigation, the resolution of that dispute affects the payment of benefits under the workers’ compensation act and, therefore, the Office of Workers’ Compensation had exclusive jurisdiction. Accordingly, the district court lacked subject matter jurisdiction in this case.

We need not discuss the remaining issues raised by the parties because this finding is dispositive. Likewise, the motion to intervene filed by CCN, Inc. is denied.

DECREE

For the foregoing reasons, the judgment of the district court is reversed for want of subject matter jurisdiction. All costs of this appeal are taxed to appellant, Superi- or Carriers, Inc.

REVERSED.


author: GREG G. GUIDRY, Judge.

text:
    Lane B. DAVIS and Jeanne D. Davis v. Stephen K. CONROY and Conroy Law Firm, A Professional Law Corporation.
    No. 06-CA-321.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 14, 2006.
    Rehearing Denied Dec. 11, 2006.

      Robert H. Matthews, Pauline M. Warri-ner, Attorneys at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Michael P. Mentz, Alayne R. Corcoran, Attorneys at Law, Metairie, Louisiana, Daniel A. Rees, Attorney at Law, Breaux Bridge, LA, for DefendanVAppellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

12The Plaintiff, Lane B. Davis appeals from the trial court ruling granting the exception of no cause of action filed by Defendants, Stephen K. Conroy and The Conroy Law firm (Conroy). For the reasons which follow, we reverse and remand.

The petition, filed on January 10, 2003, provides the factual background in this case. It is alleged that in June 1997 Plaintiff and his wife entered into a verbal agreement with his parents, Barbara Blun-dell Davis and Dr. Robert W. Davis, to purchase the family home located at 5225 Cleveland Place, in Metairie, for the sum of $350,000. On January 4, 1998, Plaintiffs mother died unexpectedly. At the time of her death, Plaintiff had just completed renovations on the Cleveland Place property and had moved in on January 1, 1998. The parties had not, however, gone to Act of Sale on the property prior to Mrs. Davis’ death.

|3In July 2001, Plaintiff entered into an “Agreement to Purchase and Sell and Release of Claims Relating to Real Estate” on the Cleveland Place property with his three siblings whereby each of his siblings agreed to sell their interest in the property to Plaintiff for $38,500.00. Plaintiffs father refused to sign the agreement. In August 2001, Conroy was retained by Plaintiff and his three siblings to pursue the administration of Mrs. Davis’ succession. Plaintiffs sister, Virginia Davis, was appointed Administratrix of the Succession. On October 1, 2001, Conroy filed a petition for authority to sell the Cleveland Place property. A Judgment Homologat-ing Petition to Sell Immovable Property at Private Sale was entered on November 9, 2001. The Act of Sale was to take place within ninety days and was scheduled for February 2002. However, on January 18, 2002, Conroy informed Plaintiff that Plaintiffs father’s position was adverse to his and that the Administratrix would not attend the Act of Sale. On February 1, 2002, Conroy informed Plaintiff that the Admin-istratrix was prepared to comply with the Agreement to Purchase but only as to the one-half interest in the Cleveland Place property owned by the Succession of Plaintiffs mother.

In April 2002, Plaintiffs father filed a petition to nullify the November 9, 2001 judgment authorizing the sale of the Cleveland Place property and requested a preliminary injunction. On April 12, 2002, Conroy signed a document, Waiver of Service of Petition, Accompanying Notice, Rules to Show Cause and Order of Court Assigning the Date and Hour of Trial Thereon and Of Preliminary and Permanent Injunction, without notifying Plaintiff of the relief being sought against him. Plaintiff contends that as a result of Con-roy’s acts and omissions, he has sustained damages.

In response, Conroy filed a Peremptory Exception of No Cause of Action or, in the Alternative, Motion for Summary Judgment. In the accompanying | ¿Memorandum, Conroy argues that Plaintiffs claims are perempted under La. R.S. 9:5605. More specifically, Conroy argues under La. R.S. 9:5605 Plaintiff has one year from the date of discovery of the alleged act or omission supporting the legal malpractice claim to file suit. In this case, according to Conroy, more than a year elapsed from the time Plaintiff discovered the act or omission allegedly giving rise to his claim and the day he filed suit. Conroy notes that Plaintiff hired another attorney, Ralph Alexis. Mr. Alexis reviewed the succession documents, participated in settlement negotiations and was made aware of any conflicting interests between Plaintiff and Conroy more than a year before suit was filed herein.

Following a hearing in which only argument was presented, the trial court, after taking the matter under advisement, rendered judgment on May 11, 2005, concluding “the Defendant’s Exception of No Cause of Action is GRANTED.” In the reasons for judgment the trial court found that “any alleged cause of action that the plaintiff may have had against the succession attorney is perempted, as a matter of law, under La. R.S. 9:5605.” It is from this judgment that Plaintiff appeals.

On appeal Plaintiff argues that the trial court erred in granting the exception of no cause of action because that exception must be decided on the face of the petition alone. The well pleaded allegations in the petition and amended petition do not show on their face that the case was untimely filed. Plaintiff also argues that the trial court erred in finding that Plaintiff knew or should have known of the alleged malpractice more than one year before he filed suit. Plaintiff contends that he did not know Conroy was taking a position that conflicted with his own until January 18, 2002, when he took action adverse to Plaintiffs interests by advising | Bhim that the Administratrix would not attend the scheduled sale of the Cleveland property. Plaintiff filed suit within a year of this event, on January 10, 2003.

Conroy argues that because his exception of no cause of action was grounded on peremption under La. R.S. 9:5605, it should be treated like a prescription exception in which evidence may be introduced to support the objection when the grounds thereof do not appear in the petition. On the merits, Conroy argues that when Plaintiff hired another attorney who participated in settlement negotiations regarding the succession, Plaintiff knew or should have known of the alleged acts of legal malpractice involving Conroy’s conflict of interest. Therefore, Plaintiffs suit, filed more than a year thereafter, is untimely.

It is well settled that reasons for judgment do not form part of the judgment. Appeals are taken from adverse judgments, not from opinions of the court. The trial court’s written reasons, while defining the principles upon which the court is deciding a case, form no part of the official judgment from which the appeal is taken. Vintage Contracting, L.L.C. v. Dixie Bldg. Material Co., Inc., 03-422 (La.App. 5th Cir.9/16/03), 858 So.2d 22. In this case, the trial court ruling, notwithstanding the reasons for judgment, only-granted Conroy’s exception of no cause of action.

It is also well settled that an exception of no cause of action must be considered on the face of the petition and any amendments thereto. In this case, the petition and amendments do not evidence the fact that Plaintiffs case is untimely. Such a conclusion can only be reach upon consideration of attachments to the memorandum in support of the exception, which is impermissible in considering an exception of no cause of action.

Conroy points out that the no cause of action exception was filed in the alternative with a motion for summary judgment. Since attachments can be | ficonsidered with a motion for summary judgment, Conroy argues that the Court should consider the attachments herein. We disagree.

The trial court did not rule on the motion for summary judgment but rather ruled only on the exception of no cause of action, consideration of which is limited to the petition and any amendments thereto. Furthermore, even if we were to consider the motion for summary judgment, action favorable to Conroy would be precluded by the existence of material issues of fact which are not to be resolved on motion for summary judgment.

Under La. C.C. art. 3460 peremption may be noticed by the court on its own motion. This may very well occur upon remand. However, because this appeal is before us on an exception of no cause of action/ motion for summary judgment, which was argued in the trial court without a hearing and the presentation of evidence, we cannot resolve the peremption issue on the record before us. Thus, we must remand the case for a hearing and the presentation of evidence or trial on the merits for resolution of the necessary factual questions.

Accordingly, for the reasons set forth, the judgment of the trial court, granting the Conroy’s exception of no cause of action, is reversed and the case is remanded for farther proceedings consistent with the views expressed herein. Costs for this appeal are to be divided between the parties.

REVERSED AND REMANDED.

      . Lane Davis' wife was originally a named plaintiff in this lawsuit but was dismissed on a defense exception of no right of action. That ruling is not part of this appeal.

      . A subsequent order was entered by the trial court on a Stipulated Motion to Amend Judgment to include Conroy's professional liability insurer, Continental Casualty Company. Plaintiff also perfected his appeal as to this amended judgment.

      . Conroy takes the position that peremption began to run when Plaintiff hired his own attorney. Plaintiff takes the position that per-emption didn’t begin to run until Conroy took official action adverse to Plaintiff's interests. It appears more likely that the peremptive period began to run sometime between the two perimeter points asserted herein, and, the resolution of this question requires a factual determination.


author: COBB, Presiding Justice,

text:
    CAPITAL ONE SERVICES, INC., and Capital One Bank v. Eartha PAGE.
    No. 2005-IA-00153-SCT.
    Supreme Court of Mississippi.
    Nov. 16, 2006.
    Fred L. Banks, Jr., James W. Shelson, Rebecca Hawkins, Kenneth J. Grigsby, Jackson, attorneys for appellants.
    A. Regnal Blackledge, Hattiesburg, David Shoemake, attorneys for appellee.
   COBB, Presiding Justice,

for the Court.

¶ 1. Eartha Page filed suit in the Cov-ington County Circuit Court on September 12, 2003, against Capital One Services, Inc., and Capital One Bank (collectively Capital One). The suit was based on Capital One’s alleged failure to disclose certain terms of a credit card account with Page, which included numerous fees and charges and resulted in a significant increase in the amount she owed Capital One. Page made discovery requests for a list of all Mississippians who were issued accounts from January 1, 1999, to April 13, 2004, utilizing acceptance certificate forms identical to the one she completed. She also requested the forms themselves. After Capital One objected to this request, Page filed a motion to compel. The circuit court granted her motion in part, limiting its scope and ruling that Capital One would not have to produce the actual forms at that time. On Motion for Reconsideration the trial court further limited its ruling to place restrictions on how the compelled information could be used, and ordered “an appropriate confidentiality order in a form agreed to by the parties to be submitted to and entered by the court.” Although the trial court denied certification for interlocutory appeal, it did stay further proceedings pending appeal. Capital One’s challenge to this discovery ruling is the only issue now before this Court on this interlocutory appeal which we granted. See M.R.A.P.5.

FACTS

¶ 2. Page’s amended complaint against Capital One alleged failure to disclose essential terms of the Mastercard account agreement with Capital One, breach of contract, breach of Capital One’s duty of good faith and fair dealing, fraudulent inducement, and gross negligence in managing the account. Page claimed that Capital One’s failure to disclose information regarding membership fees, payment protection, past due fees, over limit fees, finance charges and the interest rate resulted in the accumulation of debt that she should not have to pay. Specifically, Page claimed that from approximately July of 2000 to January of 2001, charges totaling about $243 were made against her account, that she had paid approximately $647 on the account, and still owed approximately $1,474.

¶ 3. The case proceeded to the discovery phase, and Page requested that Capital One produce a list of the names, addresses, and telephone numbers of all Mississippians who completed the same form she completed, known as a form 4136 acceptance certificate, and who were issued an account during the five year period from January 1, 1999 until April 13, 2004. Page also requested that Capital One produce the form 4136 acceptance certificates completed by each of these persons. Capital One objected, arguing, inter alia, that the request was overly broad in scope and time period, was unduly burdensome and was not reasonably calculated to lead to the discovery of admissible evidence. Further, and most notably, Capital One argued that Page’s requests sought disclosure of information protected and precluded by the Gramm-Leach-Bailey Act, 15 U.S.C. §§ 6801-6809 (2006) (hereafter GLBA).

¶ 4. The trial court granted Page’s motion to compel in part, limiting the scope of the request to cover only names and addresses of Mississippians who had completed the form within a two-year period between July 1999 and June 30, 2001. Subsequently, on motion for reconsideration, the trial court specifically and strictly set forth limitations as to how and by whom the information obtained could be used. The court’s order required the parties to prepare an agreed confidentiality agreement, and provided directions as to certain provisions which must be included. (See ¶ 19, infra). The order denied the request to compel Capital One’s production of the actual form 4136 acceptance certificates. From that order on motion to reconsider, Capital One filed this interlocutory appeal contending the trial judge erred because the GLBA protects the information sought in Page’s request, and because the request was not reasonably calculated to lead to the discovery of admissible evidence.

ANALYSIS

¶ 5. In its order denying the motion for reconsideration, the trial court noted that this Court had withdrawn its opinion in an earlier case which “concluded that the GLBA prevented the discovery of nonpublic information from customer files of financial institutions.” Further noting that a similar ruling by a Louisiana federal district court was vacated on other grounds, the trial court also pointed out that “three other jurisdictions have found the GLBA not to be a bar to discovery in similar situations” and concluded “that in the absence of binding authority to the contrary the discovery here at issue should be permitted with appropriate limitations as to confidentiality and use.”

I. THE GLBA

¶ 6. This Court applies a de novo standard of review to statutory interpretation. Warren v. Johnston, 908 So.2d 744, 746 (Miss.2005). The trial court is afforded considerable latitude in handling discovery matters, and its order will not be disturbed absent an abuse of discretion. City of Jackson v. Internal Engine Parts Group, Inc., 903 So.2d 60, 65 (Miss.2005). The GLBA contains a statement of policy regarding protection of nonpublic personal information, as follows:

It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers’ nonpublic personal information.

15 U.S.C. § 6801(a). The statute goes on to state:

Except as otherwise provided in this subchapter, a financial institution may not, directly or through any affiliate, disclose to a nonaffiliated third party any nonpublic personal information, unless such financial institution provides or has provided to the consumer a notice that complies with section 6803 of this title.

15 U.S.C. § 6802(a). However, Congress also provided general exceptions to the notice and opt out provisions of Section 6802, including the following:

(8) to comply with Federal, State, or local laws, rules, and other applicable legal requirements; to comply with a properly authorized civil, criminal, or regulatory investigation or subpoena or summons by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes as authorized by law.

15 U.S.C. § 6802(e)(8).

¶ 7. There are two schools of thought concerning the application of this statute to discovery in civil suits. Capital One argues that the purpose of the GLBA is to protect the privacy of customers of financial institutions and that to allow circumvention of the privacy protections contained in the act would negate much of its effectiveness. It maintains that to permit a court to order disclosure of private information to a private plaintiff would eviscerate the protections established by the GLBA.

¶ 8. On the other hand, Page wants this Court to adopt the approach applied by the highest courts in West Virginia and Alabama, as well as federal district courts in Texas and West Virginia. These courts have decided that the judicial process exception in 15 U.S.C. § 6802(e)(8) allows for discovery of customer information in civil cases. See Choate v. State Farm Lloyds, No. Civ. A. 3:03-CV-2111-M, slip op. at 4, 2005 WL 1109432 (N.D.Tex. May 5, 2005); Marks v. Global Mortgage Group, Inc., 218 F.R.D. 492, 496 (S.D.W.Va.2003); Ex parte Nat’l W. Life Ins. Co., 899 So.2d 218, 226 (Ala.2004); Martino v. Barnett, 215 W.Va. 123, 595 S.E.2d 65, 72 (2004). One basis for this view is articulated in Martino, 595 S.E.2d at 71:

The legislative history indicates that the House Bill, which added the privacy protections to the GLBA, envisaged an independent judicial process exception. See H.R. 74, 106th Cong. 93, 108-09, [202] (1999) (discussing a judicial process exception without reference to “government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes authorized by law”).

Ex parte Mutual Savings Life Insurance Co., 899 So.2d 986, 992-93 (Ala.2004), states another reason for this approach:

A plain reading of the GLBA reveals that the phrase “to respond to judicial process” is independent from the phrase “to respond to ... government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes authorized by law.” See 15 U.S.C. § 6802(e)(8). Clearly, when a party discloses information pursuant to a court order, the party engages in a judicial process. See Ex parte Nat’l Western Life Ins. Co., 899 So.2d 218 (Ala.2004)(providing a thorough explanation of the reasons civil discovery falls within the judicial-proceedings exception to the GLBA).

¶ 9. Additionally, in an amicus brief in support of Page, the Mississippi Trial Lawyers Association (MTLA) argues that if this Court adopts the view Capital One advocates, the Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691(a)(1), Fan-Housing Act (FHA), 42 U.S.C. §§ 3605 and 3617, Civil Rights Act of 1964 (CRA), 42 U.S.C. §§ 1981, 1982, and §§ 2000(a-l)-2000(e-4), and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, will essentially be rendered void. For example, the requirements of a prima facie claim under the FHA, 42 U.S.C. §§ 3605 and 3617 and the ECOA, 15 U.S.C. § 1691(a)(1) include a showing by the claimant that: (1) he or she is a member of a protected class; (2) he applied for and was qualified for a loan; (3) the loan application was rejected despite his or her qualifications; and (4) the lender continued to approve loans for applicants with qualifications similar to those of the plaintiff. See, e.g., Michigan Prot. and Advocacy Serv., Inc. v. Babin, 18 F.3d 337, 346 (6th Cir.1994). The same four elements are required to make a prima facie case under the CRA. See, e.g., Selden Apartments v. United States Dep’t of Hous. & Urban Dev., 785 F.2d 152, 159 (6th. Cir.1986). In addition, the RICO statute requires the claimant to show a pattern of racketeering activity. 18 U.S.C. § 1962(b). The MTLA argues that if this Court accepts Capital One’s interpretation of 15 U.S.C. § 6802(e)(8), then the claimant will not be able to show a pattern of behavior to make out a prima facie case under the ECOA, the FHA, the CRA, and the RICO.

¶ 10. This Court has stated “[o]ur duty is to carefully review statutory language and apply its most reasonable interpretation and meaning to the facts of a particular case.” Pope v. Brock, 912 So.2d 935, 937 (Miss.2005). Further, the polestar consideration for this Court is legislative intent. Miss. Gaming Comm’n v. Imperial Palace of Miss., Inc., 751 So.2d 1025, 1028 (Miss.1999). To reiterate, 15 U.S.C. § 6802(e)(8) is an exception to the general rule that the names and addresses cannot be released, and it explicitly says:

to comply with Federal, State, or local laws, rules, and other applicable legal requirements; to comply with a properly authorized civil, criminal, or regulatory investigation or subpoena or summons by Federal, State, or local authorities; or to respond to judicial process or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes as authorized by law.

The key inquiry is whether “judicial process” was meant to stand apart from the latter part of the sentence that states “having jurisdiction over the financial institution for examination, compliance, or other purposed as authorized by law.”

¶ 11. The contrary view is that the words “judicial process” stand apart from the rest of the sentence, meaning that the exception applies when a financial institution is acting to comply with judicial process, and/or when a government regulatory authority is investigating the institution. See Marks, 218 F.R.D. at 496.

¶ 12. When reading 15 U.S.C. § 6802(e)(8) on its face, both views represent fair interpretations. The legislative history reveals the discussion of a stand alone judicial process exception without reference to government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other purposes authorized by law. Martino, 595 S.E.2d at 71.

¶ 13. Further, while Capital One’s interpretation of 15 U.S.C. § 6802(e)(8) will not have as drastic an effect as the MTLA argues that it will, it would make it more difficult to show a pattern of behavior when making a prima facie case under the ECOA, 15 U.S.C. § 1691(a)(1), FHA, 42 U.S.C. §§ 3605 and 3617, CRA, 42 U.S.C. §§ 1981, 1982, and 2000(a-1)-2000(e-4), and the RICO, 18 U.S.C. § 1962. It is illogical to believe that Congress intended to undercut these federal statutes. See Doe v. Bridgeport Police Dep’t, 198 F.R.D. 325, 341 (D.Conn.2001) (Legislature is presumed to have intended a consistent body of law); see also Fla. E. Coast Ry. v. United States, 259 F.Supp. 993, 996 (M.D.Fla.1966) (“It is incumbent upon [the court] to seek to rationalize the statutes involved here and make of them, to the extent that what Congress has written will permit, a harmonious functional body of law”).

¶ 14. Further, even if the words “judicial process” were not meant to be separated from “or government regulatory authorities having jurisdiction over the financial institution for examination, compliance, or other pwposes as authorized by law ”, that catch-all at the end of the sentence clearly allows for other purposes authorized by law. Having jurisdiction for other purposes authorized by law would reasonably include responding to an order compelling discovery in a court that has jurisdiction over the financial institution in a civil case. This interpretation of 15 U.S.C. § 6802(e)(8) is reasonable and faithful to the intent of Congress.

¶ 15. A major factor in this Court’s decision in the present case is the specificity of the trial court’s order requiring the parties to agree upon and prepare a confidentiality order to be entered by that court, “which shall provide, among other things” the following:

that the list is provided solely for use in this litigation; that the information provided shall be held strictly confidential; that the list will not be used to solicit the persons on the list for any purpose including but not limited to legal representation; that the plaintiffs attorney shall not in the future represent persons whose names appear on the list against Capital One with respect to transactions similar to the one here in issue and which have occurred prior to production of the list unless permitted to do so by further order of this court; and that the list shall not be shared with any person other than counsel of record for plaintiff who shall all be bound by the terms of the confidentiality order.

II. THE SCOPE OF DISCOVERY

¶ 16. The scope of discovery is broad and non-privileged evidence is discoverable when it “appears reasonably calculated to lead to the discovery of admissible evidence.” West v. West, 891 So.2d 203, 219 (Miss.2004) (citing M.R.C.P. 26(b)(1)). The trial court has considerable discretion relating to matters of discovery; its order will not be reversed unless there has been an abuse of that discretion. Harkins v. Paschall, 348 So.2d 1019, 1022 (Miss.1977). This Court does not favor interlocutory appeals regarding discovery issues.

¶ 17. Capital One contends that, even though the GLBA does not prohibit the release of the names and addressed of all Mississippians who completed a Form 4136 over the period of two years, the information is still outside the scope of discovery. On the other hand, Page argues the evidence sought is reasonably calculated to lead to the discovery of admissible evidence because she wants to know what disclosures were made to other Mississippians, if any, who completed a Form 4136. Apparently, Capital One produced “samples” of what they allege Page received pertaining to the credit account. Page asserts she never received these documents and seeks to ask other applicants if they received them to prove Capital One is incorrect or untruthful.

¶ 18. Considering the wide discretion afforded to trial judges in making discovery decisions, we cannot say there was an abuse of discretion here. The evidence sought is probative to validate Page’s claim that she did not receive adequate disclosures pertaining to her credit account with Capital One. If a significant number of applicants say they also did not receive such disclosures, it strengthens her claim. And the converse would, of course, be true. The requested evidence could be probative of fraud should it reveal a clear pattern of non-disclosure. See Ex parte Allstate Ins. Co., 401 So.2d 749, 751 (Ala.1981) (“Evidence of similar misrepresentations made to others by the defendant is admissible in a fraud action.”). Moreover, this Court has stated that Mississippi law favors discovery, and limitations on discovery should be respected, but not extended. Elec. Data Sys. Corp. v. Miss. Div. of Medicaid, 853 So.2d 1192, 1210 (Miss.2003) (citing Dawkins v. Redd Pest Control Co., 607 So.2d 1232, 1235 (Miss.1992)). Accordingly, we affirm the trial judge’s discovery order.

CONCLUSION

¶ 19. The GLBA does not prohibit the strictly limited disclosure in discovery of the names and addresses of other Mississippians who completed a Form 4136 identical to that completed by Page. This information is reasonably calculated to lead to admissible evidence. Therefore, we affirm the trial judge’s order and remand this case to the trial court so the parties may prepare the agreed confidentiality order to be presented to, and entered by, the trial court prior to discovery.

¶ 20. AFFIRMED AND REMANDED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOPLH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

      . We could not find any authority to support this reading of the statute, or to denounce it. Rather, the cases focus on the judicial process exception.