text:
    In re Stanley N. ESUKPA.
    No. 2006-OB-0687.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Stanley N. Esukpa, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions declined to certify him for admission to the Bar based upon character and fitness concerns. On petitioner’s application to this court, we appointed the Office of Disciplinary Counsel to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be denied admission to the practice of law. Petitioner did not object to that recommendation.

The record of this matter reveals that petitioner has applied for admission in Louisiana on fourteen occasions since his graduation from law school in 1990, and on each application he failed to disclose his prior arrests as well as a civil matter in which he was named a defendant. Petitioner admitted that these omissions were knowingly and intentionally made because he feared he would not be admitted in the face of an accurate disclosure.

Under the circumstances, there can be no doubt that petitioner has demonstrated a lack of candor which reflects adversely on his character and fitness. We therefore conclude that petitioner has failed to meet his burden of proving he has “good moral character” to be admitted to the Bar of this state. See Supreme Court Rule XVII, § 5(E). Accordingly, it is ordered that the application for admission be and hereby is denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sandy CARMENA, et al. v. The EAST BATON ROUGE PARISH SHERIFF’S OFFICE, et al.
    No. 2006-CA-2680.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

■ _JjThe State of Louisiana invokes the appellate jurisdiction of this court pursuant to La. Const, art. V, § 5(D), on the ground that the district court declared certain executive orders of the governor (KBB 2005-32, KBB 2005-48 and KBB 2005-67) as well as Act 6 of the 2005 Extraordinary Session to be unconstitutional.

Preterraitting the merits, we find the appeal is not properly before this court. Article V, § 5(D) vests appellate jurisdiction in this court in cases in which “a law or ordinance has been declared unconstitutional.A review of the district court’s judgment indicates the court merely granted defendants’ exception of prescription. Nothing in the judgment declares a law or ordinance unconstitutional.

Although the district court’s reasons for judgment discuss the constitutionality of the governor’s executive orders and a subsequent legislative enactment, it is well-settled law that the trial court’s oral or written reasons form no part of the judgment. See La.Code Civ. P. art.1918; see also Haynes v. United Parcel Service, 05-2378 (La.7/6/06), 933 So.2d 765; Spiers v. Roye, 04-2189 (La.App. 1st Cir.2/10/06), 927 So.2d 1158; Davis v. Hoffman, 00-2326 (La.App. 4th Cir.10/24/01), 800 So.2d 1028; LaRocca v. Bailey, 01-0618 (La.App. 3rd Cir.11/7/01), 799 So.2d 1263; Marino v. Marino, 576 So.2d 1196 (La.App. 5th Cir.1991); City of Kaplan v. Mayard, 616 So.2d 826 (La.App. 3rd Cir.1993).

|2Because there is no declaration of unconstitutionality in the district court’s judgment, there is no basis for the exercise of this court’s appellate jurisdiction. Accordingly, the appeal is transferred to the court of appeal, which is instructed to consolidate it with plaintiffs’ pending appeal in that court.

      . In resolving the appeal, the court of appeal should be mindful of the principal that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of this is essential to the decision of the case or controversy. Badeaux v. Southwest Computer Bureau, Inc., 05-0612 (La.3/17/06), 929 So.2d 1211; Cat’s Meow, Inc. v. City of New Orleans, 98-0601 (La.10/20/98), 720 So.2d 1186.


text:
    STATE of Louisiana v. Princess LACAZE.
    No. 2006-KP-1059.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

b Granted. The appellate court’s judgment granting relator post-conviction relief is vacated and relator’s second degree murder conviction and sentence are reinstated.

The undisclosed revelation that the state’s main witness, relator’s former extramarital lover, sought protection for his young son from criminal charges arising out of the same incident before he made a statement to the police was relevant to the witness’s credibility as a possible motive for his testimony as a state witness at trial. See State v. Rankin, 465 So.2d 679, 681 (La.1985)(“The possibility that the prosecution may have leverage over a witness due to that witnesses] pending criminal charges is recognized as a valid area of cross-examination.”); cf. State v. Johnson, 363 So.2d 684, 686 (La.1978)(“Fear that police will inflict additional harm on another has been recognized as a substantial factor in determining the voluntary nature of the confession.”). However, the main source of the witness’s bias and motivation, ie., his own ^involvement in the crime as the triggerman and the favorable plea agreement he struck with the state, was brought to the jury’s attention, along with his criminal record. Furthermore, another witness for the state corroborated relator’s involvement in planning the crime through his testimony that relator told him she would evade charges because the murder weapon was unrecoverable. Finally, relator’s own testimony included an admission that she discussed her husband’s alleged death wish with her lover and was aware he planned to “take care of it.”

Thus, as the district court found, even assuming that they were made, the undisclosed assurances by the state’s investigator shielding the son of the prosecution’s main witness from criminal charges (for which there was little or no basis) do not rise to a level of materiality warranting reversal under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny. See, e.g., State v. Marshall, 81-3115, p. 16 (La.9/5/95), 660 So.2d 819, 826 (“Evidence is material [and reversal warranted] only if it is reasonably probable that the result of the proceeding would have been different had the evidence been disclosed to the defense. A reasonable probability is one which is sufficient to undermine confidence in the outcome.”). Accordingly, the district court did not err in denying relator post-conviction relief.

CALOGERO, C.J., and KIMBALL, J., would grant and docket.


text:
    In re Nancy YEAGER.
    No. 2006-OB-3011.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   JjON APPLICATION FOR REINSTATEMENT

PER CURIAM.

In 2003, petitioner, Nancy Yeager, was suspended from the practice of law for three years, retroactive to the date of her interim suspension, pursuant to a petition for consent discipline. In re: Yeager, 03-2479 (La.11/7/03), 863 So.2d 495. After serving her suspension, petitioner filed an application for reinstatement, asserting that she has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The Office of Disciplinary Counsel (“ODC”) took no position concerning petitioner’s reinstatement. Accordingly, pursuant to Supreme Court Rule XIX, § 24(F) and (G), the matter was referred for a formal hearing before a hearing committee.

After considering the evidence presented, the hearing committee recommended that petitioner be conditionally reinstated to the practice of law. The disciplinary board agreed that petitioner proved by clear and convincing evidence that she satisfies the criteria for reinstatement. Accordingly, the board recommended to this court that petitioner be reinstated to the practice of law, subject to a two-year period of probation with specified conditions. Neither petitioner nor the ODC objected to the disciplinary board’s recommendation.

| {¡After considering the record in its entirety, we will adopt the disciplinary board’s recommendation and reinstate petitioner to the practice of law, subject to a two-year period of supervised probation governed by the conditions recommended by the board. The two-year probationary period shall commence from the date petitioner, the ODC, and the probation monitor execute a formal probation plan. Should petitioner fail to comply with the conditions of probation, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated immediately or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary Enforcement, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record, it is ordered that Nancy Yeager, Louisiana Bar Roll number 21160, be immediately reinstated to the practice of law in Louisiana, subject to a two-year period of supervised probation governed by the conditions as set forth herein. Should petitioner fail to comply with the conditions of probation, or should she commit any misconduct during the period of probation, her conditional right to practice may be terminated immediately or she may be subjected to other discipline pursuant to the Rules for Lawyer Disciplinary En-forceraent, as appropriate. All costs of these proceedings are assessed against petitioner.

      . In its report, the hearing committee observed that one of petitioner's clients, Patricia Walters, raised an issue regarding petitioner's fee in her divorce case. Without passing on the validity of this fee dispute, we note that Ms. Walters has the option of proceeding with fee dispute resolution through the Louisiana State Bar Association, should she choose to do so.


text:
    Susan ARRINGTON, et al. v. GALEN-MED, INC., et al.
    No. 2006-C-2923.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

hln these consolidated applications, the parties seek this court’s review of a judgment of the court of appeal which declared La. R.S. 40:1299.42(B) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.

UNDERLYING FACTS AND PROCEDURAL HISTORY

After medical review panel proceedings, plaintiffs filed the instant suit against Dr. Samudia, Galen-Med, Inc. d/b/a Lake Area Medical Center (“LAMC”) and others, alleging that defendants committed malpractice in connection with treatment of their decedent, William Arrington. Subsequently, the trial court approved a settlement in the amount of $100,000 between plaintiffs and Dr. Samudia. The court also approved a settlement of plaintiffs’ claim against the Patients’ Compensation Fund (“PCF”) in the amount of $500,000. Plaintiffs reserved their rights to proceed against LAMC.

Thereafter, plaintiffs filed a motion for summary judgment, seeking to have | ?the trial court declare the limitation of liability provided in La. R.S. 40:1299.42(B) unconstitutional. In support, plaintiffs argued that the statute violated the separation of powers doctrine pursuant to La. Const. Art. II, §§ 1 and 2; due process pursuant to La. Const. Art. I, § 2; the state constitutional prohibition against special laws pursuant to La. Const. Art. Ill, § 12; and judicial power pursuant to La. Const. Art. V, § 16. Plaintiffs did not argue the statute violated La. Const. Art. I, § 22, relating to access to courts.

Defendants, LAMC the PCF and the State of Louisiana, filed motions for summary judgment. Among other things, they argued that La. R.S. 40:1299.42(B)’s limitation on recovery was constitutional.

The district court denied plaintiffs’ motion for summary judgment on the issue of constitutionality, but granted defendants’ motion for summary judgment, thereby finding La. R.S. 40:1299.42(B) to be constitutional.

Plaintiffs appealed this ruling. A five-judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const. Art. I, § 22.”

From that judgment, LAMC, the PCF and the State of Louisiana applied to this Iscourt, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.

DISCUSSION

It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the uneonstitutionality of a statute in pleadings implies that this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

In the instant case, plaintiffs did not plead La. Const. Art. I, § 22 as a ground for finding La. R.S. 40:1299.42(B) to be unconstitutional. The question of whether |4La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.

Under these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not specially pleaded, nor was it made an issue in the district court. In the absence of properly pleading and initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

DECREE

For the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

CALOGERO, C.J., would grant and docket.

      . This amount represented $390,000 in principal, $90,000 in interest plus $20,000 in expenses.

      . La. R.S. 40:1299.42(B)(1) and (2) provide:
      B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . In apparent recognition of this problem, the court of appeal's opinion indicates that "[a] review of the record shows that plaintiffs in the matter before us carried their burden proving that the cap contained in the Louisiana Medical Malpractice Act violates La. Const. Art. I, § 22...." However, we fail to see how plaintiffs could carry their burden of proving violation of a constitutional provision which they never alleged nor argued before the trial court.

      . Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.


text:
    Charles and Sharon TAYLOR, Jr. v. Dr. Richard J. CLEMENT and The Louisiana Patient’s Compensation Fund.
    No. 2006-C-2518.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

|,In these consolidated applications, the parties seek this court’s review of a judgment of the court of appeal which declared La. R.S. 40:1299.42(B) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiffs, Mr. and Mrs. Charles Ray Taylor, Jr., individually and on behalf of their minor child, Charles Ray Taylor III, filed the instant medical malpractice suit against numerous defendants, including Dr. Richard Clement. Thereafter, plaintiffs filed a supplemental petition seeking a declaratory judgment on the ground that the statutory cap on damages set forth in La. R.S. 40:1299.42(B) of the Medical | ^Malpractice Act is unconstitutional.

Following a trial on the merits, a jury rendered judgment in favor of plaintiffs and awarded damages in excess of the statutory limits of liability contained in La. R.S. 40:1299.42(B). Subsequently, plaintiffs and the Louisiana Patient’s Compensation Fund (“PCF”) entered into a partial discharge in satisfaction of the judgment with plaintiffs reserving their right to challenge the constitutionality of the medical malpractice cap. The PCF then intervened in the action.

Thereafter, plaintiffs filed a supplemental and amending petition in order to more specifically set forth the grounds on which La. R.S. 40:1299.42(B) was unconstitutional. Among other grounds, this supplemental and amending petition asserted that the statute was “violative of Article I, section 22, open courts provision, and right to an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay.”

Defendants, Dr. Clement and PCF, filed a motion for summary judgment, seeking a declaration that La. R.S. 40:1299.42(B) was constitutional. Plaintiffs also filed a motion for summary judgment, arguing that La. R.S. 40:1299.42(B) was unconstitutional pursuant to La. Const. Art. V, § 15 pertaining to the original jurisdiction of the district court; La. Const. Art. Ill, § 1 pertaining to separation of powers; La. Const. Art. I, § 2 pertaining to due process guarantees; and La. Const. Art. Ill, § 12(3) and (7) pertaining to the enactment of local and special laws. Plaintiffs’ motion did not allege the statute violated La. Const. Art. I, § 22.

After a hearing, the district court denied plaintiffs’ motion for summary judgment, but granted defendants’ motion for summary judgment, thereby finding |Rthat La. R.S. 40:1299.42(B) was constitutional. Nothing in the trial court’s ruling discussed La. Const. Art. I, § 22.

Plaintiffs appealed this ruling. A five-judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const. Art. I, § 22.”

From that judgment, Dr. Clement and the PCF applied to this court, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.

DISCUSSION

It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the unconstitutionality of a statute in pleadings implies that |4this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf. LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

In the instant case, plaintiffs plead La. Const. Art. I, § 22 as a ground for unconstitutionality, but did not rely on this ground in their motion for summary judgment. The question of whether La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.

Under these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not made an issue in the district court. In the absence of initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

DECREE

IsFor the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

CALOGERO, C.J., would grant and docket.

      . La. R.S. 40:1299.42(B)(1) and (2) provides: B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost. (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.


text:
    Susan ARRINGTON, et al. v. GALEN-MED, INC., et al.
    No. 2006-C-2944.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

hln these consolidated applications, the parties seek this court’s review of a judgment of the court of appeal which declared La. R.S. 40:1299.42(B) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.

UNDERLYING FACTS AND PROCEDURAL HISTORY

After medical review panel proceedings, plaintiffs filed the instant suit against Dr. Samudia, Galen-Med, Inc. d/b/a Lake Area Medical Center (“LAMC”) and others, alleging that defendants committed malpractice in connection with treatment of their decedent, William Arrington. Subsequently, the trial court approved a settlement in the amount of $100,000 between plaintiffs and Dr. Samudia. The court also approved a settlement of plaintiffs’ claim against the Patients’ Compensation Fund (“PCF”) in the amount of $500,000. Plaintiffs reserved their rights to proceed against LAMC.

Thereafter, plaintiffs filed a motion for summary judgment, seeking to have |athe trial court declare the limitation of liability provided in La. R.S. 40:1299.42(B) unconstitutional. In support, plaintiffs argued that the statute violated the separation of powers doctrine pursuant to La. Const. Art. II, §§ 1 and 2; due process pursuant to La. Const. Art. I, § 2; the state constitutional prohibition against special laws pursuant to La. Const. Art. Ill, § 12; and judicial power pursuant to La. Const. Art. V, § 16. Plaintiffs did not argue the statute violated La. Const. Art. I, § 22, relating to access to courts.

Defendants, LAMC the PCF and the State of Louisiana, filed motions for summary judgment. Among other things, they argued that La. R.S. 40:1299.42(B)’s limitation on recovery was constitutional.

The district court denied plaintiffs’ motion for summary judgment on the issue of constitutionality, but granted defendants’ motion for summary judgment, thereby finding La. R.S. 40:1299.42(B) to be constitutional.

Plaintiffs appealed this ruling. A five-judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const.'Art. I, § 22.”

From that judgment, LAMC, the PCF and the State of Louisiana applied to this Lcourt, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.

DISCUSSION

It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the unconstitutionality of a statute in pleadings implies that this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recove'ry Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

In the instant case, plaintiffs did not plead La, Const. Art. I, § 22 as a ground for finding La. R.S. 40:1299.42(B) to be unconstitutional. The question of whether |4La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.

Under these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not specially pleaded, nor was it made an issue in the district court. In the absence of properly pleading and initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

DECREE

For the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

CALOGERO, C.J., would grant and docket.

      . This amount represented $390,000 in principal, $90,000 in interest plus $20,000 in expenses.

      . La. R.S. 40:1299.42(B)(1) and (2) provide:
      B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . In apparent recognition of this problem, the court of appeal's opinion indicates that "[a] review of the record shows that plaintiffs in the matter before us carried their burden proving that the cap contained in the Louisiana Medical Malpractice Act violates La. Const. Art. I, § 22...." However, we fail to see how plaintiffs could carry their burden of proving violation of a constitutional provision which they never alleged nor argued before the trial court.

      . Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.


text:
    Susan ARRINGTON, et al. v. GALEN-MED, INC., et al.
    No. 2006-C-2968.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

Bln these consolidated applications, the parties seek this court’s review of a.judgment of the court of appeal which declared La. R.S. 40:1299.42(B) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.

UNDERLYING FACTS AND PROCEDURAL HISTORY

After medical review panel proceedings, plaintiffs filed the instant suit against Dr. Samudia, Galen-Med, Inc. d/b/a Lake Area Medical Center (“LAMC”) and others, alleging that defendants committed malpractice in connection with treatment of their decedent, William Arrington. Subsequently, the trial court approved a settlement in the amount of $100,000 between plaintiffs and Dr. Samudia. The court also approved a settlement of plaintiffs’ claim against the Patients’ Compensation Fund (“PCF”) in the amount of $500,000. Plaintiffs reserved their rights to proceed against LAMC.

Thereafter, plaintiffs filed a motion for summary judgment, seeking to have |2the trial court declare the limitation of liability provided in La. R.S. 40:1299.42(13) unconstitutional. In support, plaintiffs argued that the statute violated the separation of powers doctrine pursuant to La. Const. Art. II, §§ 1 and 2; due process pursuant to La. Const. Art. I, § 2; the state constitutional prohibition against special laws pursuant to La. Const. Art. Ill, § 12; and judicial power pursuant to La. Const. Art. V, § 16. Plaintiffs did not argue the statute violated La. Const. Art. I, § 22, relating to access to courts.

Defendants, LAMC the PCF and the State of Louisiana, filed motions for summary judgment. Among other things, they argued that La. R.S. 40:1299.42(B)’s limitation on recovery was constitutional.

The district court denied plaintiffs’ motion for summary judgment on the issue of constitutionality, but granted defendants’ motion for summary judgment, thereby finding La. R.S. 40:1299.42(B) to be constitutional.

Plaintiffs appealed this ruling. A five-judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const. Art. I, § 22.”

From that judgment, LAMC, the PCF and the State of Louisiana applied to this lacourt, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.

DISCUSSION

It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the unconstitutionality of a statute in pleadings implies that this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf. LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

In the instant case, plaintiffs did not plead La. Const. Art. I, § 22 as a ground for finding La. R.S. 40:1299.42(B) to be unconstitutional. The question of whether |4La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.

Under these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not specially pleaded, nor was it made an issue in the district court. In the absence of properly pleading and initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

DECREE

For the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

CALOGERO, C.J., would grant and docket.

      . This amount represented $390,000 in principal, $90,000 in interest plus $20,000 in expenses.

      . La. R.S. 40:1299.42(B)(1) and (2) provide:
      B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . In apparent recognition of this problem, the court of appeal's opinion indicates that "[a] review of the record shows that plaintiffs in the matter before us carried their burden proving that the cap contained in the Louisiana Medical Malpractice Act violates La. Const. Art. I, § 22....” However, we fail to see how plaintiffs could carry their burden of proving violation of a constitutional provision which they never alleged nor argued before the trial court.

      . Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.


text:
    Charles and Sharon TAYLOR, Jr. v. Dr. Richard J. CLEMENT and the Louisiana Patient’s Compensation Fund.
    No. 2006-C-2600.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

Lin these consolidated applications, the parties seek this court’s review of a judgment of the court of appeal which declared La. R.S. 40:1299.42(33) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiffs, Mr. and Mrs. Charles Ray Taylor, Jr., individually and on behalf of their minor child, Charles Ray Taylor III, filed the instant medical malpractice suit against numerous defendants, including Dr. Richard Clement. Thereafter, plaintiffs filed a supplemental petition seeking a declaratory judgment on the ground that the statutory cap on damages set forth in La. R.S. 40:1299.42(B) of the Medical 12Malpractice Act is unconstitutional.

Following a trial on the merits, a jury rendered judgment in favor of plaintiffs and awarded damages in excess of the statutory limits of liability contained in La. R.S. 40:1299.42(B). Subsequently, plaintiffs and the Louisiana Patient’s Compensation Fund (“PCF”) entered into a partial discharge in satisfaction of the judgment with plaintiffs reserving their right to challenge the constitutionality of the medical malpractice cap. The PCF then intervened in the action.

Thereafter, plaintiffs filed a supplemental and amending petition in order to more specifically set forth the grounds on which La. R.S. 40:1299.42(B) was unconstitutional. Among other grounds, this supplemental and amending petition asserted that the statute was “violative of Article I, section 22, open courts provision, and right 'to an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay.”

Defendants, Dr. Clement and PCF, filed a motion for summary judgment, seeking a declaration that La. R.S. 40:1299.42(B) was constitutional. Plaintiffs also filed a motion for summary judgment, arguing that La. R.S. 40:1299.42(B) was unconstitutional pursuant to La. Const. Art. V, § 15 pertaining to the original jurisdiction of the district court; La. Const. Art. Ill, § 1 pertaining to separation of powers; La. Const. Art. I, § 2 pertaining to due process guarantees; and La. Const. Art. Ill, § 12(3) and (7) pertaining to the enactment of local and special laws. Plaintiffs’ motion did not allege the statute violated La. Const. Art. I, § 22.

After a hearing, the district court denied plaintiffs’ motion for summary judgment, but granted defendants’ motion for summary judgment, thereby finding | sthat La. R.S. 40:1299.42(B) was constitutional. Nothing in the trial court’s ruling discussed La. Const. Art. I, §' 22.

Plaintiffs appealed this ruling. A five - judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const. Art. I, § 22.”

From that judgment, Dr. Clement and the PCF applied to this court, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.

DISCUSSION

It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the uneonstitutionality of a statute in pleadings implies that Rthis notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf. LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the- proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

In the instant case, plaintiffs plead La. Const. Art. I, § 22 as a ground for unconstitutionality, but did not rely on this ground in their motion for summary judgment. The question of whether La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.

Under these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not made an issue in the district court. In the absence of initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

DECREE

|sFor the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

      . La. R.S. 40:1299.42(B)(1) and (2) provides: B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.


text:
    Charles and Sharon TAYLOR, Jr. v. Dr. Richard J. CLEMENT and the Louisiana Patient’s Compensation Fund.
    No. 2006-C-2581.
    Supreme Court of Louisiana.
    Feb. 2, 2007.
   PER CURIAM.

hln these consolidated applications, the parties seek this court’s review of a judgment of the court of appeal which declared La. R.S. 40:1299.42(B) to be unconstitutional pursuant to La. Const. Art. I, § 22. For the reasons that follow, we grant the writs, vacate the court of appeal’s judgment of unconstitutionality on procedural grounds and remand the case to the court of appeal for consideration of the remaining issues in the case.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Plaintiffs, Mr. and Mrs. Charles Ray Taylor, Jr., individually and on behalf of their minor child, Charles Ray Taylor III, filed the instant medical malpractice suit against numerous defendants, including Dr. Richard Clement. Thereafter, plaintiffs filed a supplemental petition seeking a declaratory judgment on the ground that the statutory cap on damages set forth in La. R.S. 40:1299.42(B) of the Medical | ^Malpractice Act is unconstitutional.

Following a trial on the merits, a jury rendered judgment in favor of plaintiffs and awarded damages in excess of the statutory limits of liability contained in La. R.S. 40:1299.42(B). Subsequently, plaintiffs and the Louisiana Patient’s Compensation Fund (“PCF”) entered into a partial discharge in satisfaction of the judgment with plaintiffs reserving their right to challenge the constitutionality of the medical malpractice cap. The PCF then intervened in the action.

Thereafter, plaintiffs filed a supplemental and amending petition in order to more specifically set forth the grounds on which La. R.S. 40:1299.42(B) was unconstitutional. Among other grounds, this supplemental and amending petition asserted that the statute was “violative of Article I, section 22, open courts provision, and right to an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay.”

Defendants, Dr. Clement and PCF, filed a motion for summary judgment, seeking a declaration that La. R.S. 40:1299.42(B) was constitutional. Plaintiffs also filed a motion for summary judgment, arguing that La. R.S. 40:1299.42(B) was unconstitutional pursuant to La. Const. Art. V, § 15 pertaining to the original jurisdiction of the district court; La. Const. Art. Ill, § 1 pertaining to separation of powers; La. Const. Art. I, § 2 pertaining to due process guarantees; and La. Const. Art. Ill, § 12(3) and (7) pertaining to the enactment of local and special laws. Plaintiffs’ motion did not allege the statute violated La. Const. Art. I, § 22.

After a hearing, the district court denied plaintiffs’ motion for summary judgment, but granted defendants’ motion for summary judgment, thereby finding pthat La. R.S. 40:1299.42(B) was constitutional. Nothing in the trial court’s ruling discussed La. Const. Art. I, § 22.

Plaintiffs appealed this ruling. A five-judge panel of the court of appeal, over two dissents, reversed the district court’s judgment. The majority granted summary judgment in favor of plaintiffs, finding “the $500,000 cap on medical malpractice damages unconstitutional as failing to provide the plaintiffs an ‘adequate remedy’ as guaranteed under the provisions of La. Const. Art. I, § 22.”

From that judgment, Dr. Clement and the PCF applied to this court, seeking to reverse the court of appeal’s holding. Plaintiffs also applied, requesting that this court consider additional grounds for declaring La. R.S. 40:1299.42(B) unconstitutional.

DISCUSSION

It is well-established that litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Mallard Bay Drilling v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533; Unwired Telecom Corp. v. Parish of Calcasieu, 03-0732, p. 6 (La.1/19/05), 903 So.2d 392 (on rehearing). We have emphasized that the grounds for unconstitutionality must be “made an issue in the court of first instance.” State ex rel. McAvoy v. Louisiana State Bd. of Medical Examiners, 238 La. 502, 115 So.2d 833, 836 (1959). In Vallo v. Gayle Oil Company, Inc., 94-1238, p. 9 (La.11/30/94), 646 So.2d 859, 865, we explained that the purpose of this requirement was to allow the parties to brief and argue the issue at a contradictory hearing in order to make a full record for this court’s review:

The requirement of specially pleading the unconstitutionality of a statute in pleadings implies that Rthis notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

In the instant case, plaintiffs plead La. Const. Art. I, § 22 as a ground for unconstitutionality, but did not rely on this ground in their motion for summary judgment. The question of whether La. R.S. 40:1299.42(B) violated La. Const. Art. I, § 22 was never briefed and argued before the district court, nor was that issue passed upon by the district court in its ruling denying plaintiffs’ motion for summary judgment.

Under these circumstances, we must conclude that any purported violation of La. Const. Art. I, § 22 was not made an issue in the district court. In the absence of initial consideration of this ground by the district court, the court of appeal erred in declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22.

Accordingly, we must vacate the judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22. Because the court of appeal pretermitted the remaining issues in the appeal, we will remand the matter to the court of appeal for consideration of these matters.

DECREE

| sFor the reasons assigned, the writs are granted. The judgment of the court of appeal declaring La. R.S. 40:1299.42(B) to be unconstitutional in violation of La. Const. Art. I, § 22 is vacated and set aside. The case is remanded to the court of appeal to consider the remaining issues in the appeal.

      . La. R.S. 40:1299.42(B)(1) and (2) provides: B. (1) The total amount recoverable for all malpractice claims for injuries to or death of a patient, exclusive of future medical care and related benefits as provided in R.S. 40:1299.43, shall not exceed five hundred thousand dollars plus interest and cost.
      (2) A health care provider qualified under this Part is not liable for an amount in excess of one hundred thousand dollars plus interest thereon accruing after April 1, 1991, for all malpractice claims because of injuries to or death of any one patient.

      . Plaintiffs ask us to exercise our discretionary jurisdiction to consider whether the statute violates any other constitutional provisions. We decline to do so.


author: MARION F. EDWARDS, Judge.

text:
    Kenneth Wayne HUGHES v. Teresa Lynn TALTON.
    No. 06-CA-319.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 14, 2006.

      Nancy K. Durant, Attorney at Law, Me-tairie, Louisiana, for PlaintiffAppellee.
    Alan B. Tusa, Carol T. Richards, Michael A. Tusa, Tusa & Richards, L.L.C., Covington, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and CLARENCE E. McMANUS.
   MARION F. EDWARDS, Judge.

lain this action for child support, defendant/appellant appeals the trial court’s judgment which awarded plaintiff/appellee $302 a month and also appeals the trial court’s findings that that the plaintiff/ap-pellee was not voluntarily underemployed and that his use of a company truck should not be used in the calculation of the child support obligation. For the reasons that follow, the judgment of the trial court is affirmed.

FACTS AND PROCEDURAL HISTORY

On November 16, 2001, plaintiff, Kenneth Hughes (“Mr.Hughes”), filed a Petition for Custody for his minor son, Brandon Hughes (“Brandon”), naming as defendant, Teresa Taitón (“Ms-Talton”). The parties were never married. By a judgment dated January 25, 2005, the parties were awarded joint custody of Brandon, with Mr. Hughes being designated as the domiciliary parent.

| oOn March 8, 2005, Mr. Hughes filed a Rule to Modify/Reduce Child support. In an Interim Judgment dated August 18, 2005, the domestic commissioner ordered Ms. Taitón to pay Mr. Hughes $302 per month in child support retroactive to March 8, 2005. Ms. Taitón then filed an Objection to the domestic commissioner’s Interim Judgment in district court, which went to trial on October 19, 2005.

On November 16, 2005, the trial court upheld the Domestic Commissioner’s Interim Judgment in part but relieved Ms. Taitón of her obligation to pay Mr. Hughes support both for the . month of September 2005 and for her first payment in October 2005.

Ms. Taitón timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Ms. Taitón raises four assignments of error: (1) the trial court erred in ordering her to pay child support; (2)the trial court erred in calculating the support award in favor of Mr. Hughes by using worksheet A, when worksheet B was mandated by state statute; (3) the trial court - erred . in calculating the support award to Mr. Hughes since Mr. Hughes was voluntarily underemployed, and; (4) the trial court erred in not considering Mr. Hughes’ personal use of his company car when calculating child support.

The January 15, 2005 judgment provides that the parties were awarded joint custody of their son, Brandon, as follows: “IT IS HEREBY ORDERED, ADJUDGED AND DECREED that plaintiff Kenneth Hughes and defendant Teresa Taitón shall share joint custody of the minor child.”

When parents of a minor child have a shared custody arrangement, the court is obligated to follow the guidelines set forth in LSA-R.S. 9:315.9, which provides:

[4A. (1) “Shared custody” means a joint custody order in which each parent has physical custody of the child- for an approximately equal amount of time.
(2) If the joint custody order provides for shared custody, the basic child support obligation shall first be multiplied by one and one-half and then divided between the parents in proportion to their respective adjusted gross incomes.
(3) Each parent’s theoretical child support obligation shall then be cross multiplied by the actual percentage of time the child spends with the other party to determine the basic child support obligation based on the amount of time spent with the other party.
(4) Each parent’s proportionate share of work-related net child care costs and extraordinary adjustments to the schedule shall be added to the amount calculated under Paragraph (3) of this Subsection.
(5) Each parent’s proportionate share of any direct payments ordered to be made on behalf of the child for net child care costs, the cost of health insurance premiums, extraordinary medical expenses, or other extraordinary expenses shall be deducted from the amount calculated under Paragraph (3) of this Subsection.
(6) The court shall order each parent to pay his proportionate share of all reasonable and necessary uninsured medical expenses under the provisions of R.S. 9:315(0(7) which are under two hundred fifty dollars.
(7) The parent owing the greater amount of child support shall owe to the other parent the difference between the two amounts as a child support obligation. The amount owed shall not be higher than the amount which that parent would have owed if he or she were a domiciliary parent.
B. Worksheet B reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.

Mr. Hughes argues, however, that custody was properly determined by the court pursuant to LSA-R.S. 9:315.8, which, in relevant part, provides:

|SE. “Joint Custody” means a joint custody order that is not shared custody as defined in R.S. 9:315.9.
(1) In cases of joint custody, the court shall consider the period of time spent by the child with the nondomiciliary party as a basis for adjustment to the amount of child support to be paid during that period of time.
(2) If under a joint custody order, the person ordered to pay child support has physical custody of the child for more than seventy-three days, the court may order a credit to the child support obligation. A day for the purposes of this Paragraph shall be determined by the court; however, in no instance shall less than four hours of physical custody of the child constitute a day.
(3) In determining the amount of credit to be given, the court shall consider the following:
(a) The amount of time the child spends with the person to whom the credit would be applied. The court shall include in such consideration the continuing expenses of the domiciliary party-
lb) The increase in financial burden placed on the person to whom the credit would be applied and the decrease in financial burden on the person receiving child support.
(c) The best interests of the child and what is equitable between the parties.
(4) The burden of proof is on the person seeking the credit pursuant to this Subsection.
(5) Worksheet A reproduced in R.S. 9:315.20, or a substantially similar form adopted by local court rule, shall be used to determine child support in accordance with this Subsection.

In the present case, the trial court implicitly affirmed the findings of the hearing officer and domestic commissioner in using worksheet A pursuant to LSA-R.S. 9:315.8. After a review of the record, we cannot say that the trial court erred in this regard, as the parties clearly have in place a “joint” custody, not “shared” ^custody arrangement that would require the use of worksheet A. We, therefore, find this assignment to be without merit.

We next consider Ms. Talton’s argument that the trial court erroneously found that Mr. Hughes was not voluntarily underemployed. As this Court recently stated in State, Dep’t of Soc. Serv., ex rel. S.McC. v. J.A.McC.

La.R.S. 9:315(C)(6)(b) states, “A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.”
“Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error.” State v. Battson, 36,336, p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 132, 135.
Voluntary underemployment is a question of good faith on the part of the obligor spouse. Havener v. Havener, 29,785, p. 10 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, 539. The trial court, however, has wide discretion in determining the credibility of the witness; whether the obligor spouse is in good faith in ending or reducing his income is a factual determination which will not be disturbed absent an abuse of discretion. Id.

In this case, the only evidence presented regarding Mr. Hughes’ departure from his previous employment with Jefferson Parish was his own testimony, along with a copy of a letter of resignation. Mr. Hughes testified that he tendered his resignation upon the request by four Jefferson Parish councilmen upon a threat that he would otherwise be forcibly removed from the position. At the hearing, the trial judge stated, “I don’t have any-— having worked for the parish government, I know how it works and I don’t have any problem believing that he was forced out.”

17After a review of the record, we find no abuse of discretion in the trial court’s holding that Mr. Hughes was not voluntarily unemployed.

In her final assignment of error, Ms. Taitón asserts that the trial court erred by not taking Mr. Hughes’ personal use of his employer’s truck into consideration when calculating the child support obligation. At trial, the only evidence regarding this issue was presented in the form of testimony by Mr. Hughes. Mr. Hughes indicated that, while he owned his own vehicle, he does use the vehicle to pick up Brandon after school and visit his mother on the north shore if he happens to be working over there in that area. After hearing the testimony, the trial court concluded that Ms. Taitón had not established that Mr. Hughes’ use of the truck was of a personal nature.

If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. After a review of the record, we cannot say that the trial court erred in its finding on this issue.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . We note that this case appears before us for the second time on appeal. See, Hughes v. Talton, 845 So.2d 1098 (La.App. 5 Cir. 4/29/03), writ granted, 847 So.2d 1274 (La.2003).

      . 03-108 (La.App. 5 Cir. 5/28/03), 848 So.2d 121, 125.

      . Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

        . Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 883 (La.1993).


author: Judge ROLAND L. BELSOME. JONES, J.,

text:
    TOURO INFIRMARY v. SIZELER ARCHITECTS, a Professional Corporation. Touro Infirmary v. Sizeler Architects, a Professional Corporation and I. William Sizeler, in His Individual Capacity, et al.
    Nos. 2004-CA-2210, 2005-CA-1265.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.
    Rehearing Denied Feb. 15, 2007.
    Opinion Dissenting From Denial of Rehearing Feb. 15, 2007.
    See also 900 So.2d 200.

      James M. Garner, Timothy B. Francis, Martha Y. Curtis, Howard T. Boyd, III, Sharonda R. Williams, Sher Garner Cahill Richter Klein McAlister & Hilbert, L.L.C., New Orleans, LA, for Plaintiff/Appellee, Touro Infirmary.
    W. Bartlett Ary, Thomas J. Eppling, Staines & Eppling, Metairie, LA, for Wolf-Gordon, Inc.
    Frank A. Piccolo, Preis, Kraft & Roy, APLC, and David W. Leefe, David L. Reisman, Brian A. Jackson, Liskow & Lewis, New Orleans, LA, and Edwin G. Preis, Jr., Preis, Kraft & Roy, APLC, Lafayette, LA, and Elizabeth B. Wright, Peter D. Welin, Daniel M. Haymond, Andrew H. Cox, Jennifer Mingus Mountcastle, Thompson Hiñe LLP, Cleveland, OH, for Defendant/Appellants, Seabrook Wallcov-ering, Inc. and Omnova Solutions, Inc.
    Lawrence J. Boasso, Waller & Associates, Metairie, LA, for New Orleans Metal Works, Inc.
    Thomas P. Diaz, Liskow & Lewis, New Orleans, LA, for Muraspec, N.A., L.L.C.
    Temple A. Stephens, Stephens & Grace, Metairie, LA, for Seabrook Wallcoverings, Inc.
    David P. Salley, Salley, Hite, Rivera & Mercer, New Orleans, LA, for MDC Wall-coverings, Inc.
    Thomas E. Loehn, Charles K. Chauvin, Boggs, Loehn & Rodrigue, Metairie, Louisiana, for Design Tex Group, Inc.; J.M. Lynne.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge ROLAND L. BELSOME).
   Judge ROLAND L. BELSOME.

|! This case arises from the design and construction of the Woldenberg Nursing Home and Assisted Living Facility (“Facility”) owned by Touro Infirmary (“Touro”). In July 2003, Touro discovered the presence of mold and mildew on the floors, walls, ceilings, and windows of the Facility. Touro alleges that repeated attempts to remediate the mold were unsuccessful.

Touro filed suit against Sizeler Architects on April 19, 2003 claiming damages for breach of contract and negligence for various alleged design and expenditure defects. Since that time, Touro has amended and supplemented its petition to include claims of breach of contract, negligence, redhibition, warranty and products liability against various manufacturers and distributors of vinyl wall covering.

On July 19, 2004, the trial court issued a written judgment granting Touro’s partial motions for summary judgment against OMNOVA Solutions (“OMNOVA”) on the issues of liability in redhibition and breach of express warranty. By written judgment dated March 7, 2005, the trial court granted Touro’s partial motions for summary judgment against distributors; Mu-raspec, N.A., L.L.C. (“Muraspec”), MDC Wallcoverings (“MDC”), Seabrook laWallcoverings, Inc. (“Seabrook”), Design Tex Group, Inc. (“DesignTex”), and Wolf-Gordon, Inc. (“Wolf-Gordon”) on the issue of liability in redhibition. The judgments were appealed and those appeals have been consolidated. New Orleans Metal Works (“NOMW”) also seeks appellate review of the trial court’s March 15, 2005 judgment denying its motion to stay, motion to dismiss, and exception of arbitration.

The judgments granting the partial summary judgments by the trial court contained a very basic final judgment certification designating the judgment as final. In R.J. Messinger, Inc. v. Rosenblum, 894 So.2d 1113 (La.03/02/05), the Supreme Court found that when the trial court does not provide reasons for the certification, the appellate court should conduct a de novo review of the record to determine if the certification was proper. The standard of review is whether the trial court abused its discretion. Id.

Messinger provided some factors that may be used in determining whether a partial summary judgment should be certified as appealable. Upon a de novo review of the record in the instant case, we have determined that there is no just reason for delay. Therefore, there was no abuse of discretion on the part of the trial court in certifying the judgments for appeal.

|aThe mover is entitled to judgment as a matter of law if adequate discovery reveals no genuine issues of material fact exist. La. C.C.P. art. 966(C)(1). Using the same criteria as the trial court, the appellate court reviews summary judgments de novo to determine if there is a genuine issue of material fact or if the mover is entitled to judgment as a matter of law. Champagne v. Ward, 03-3211 (La.1/19/05); 893 So.2d 773, citing Ocean Energy v. Plaquemines Parish Government, 04-0066 (La.7/6/04); 880 So.2d 1. The Supreme Court considers an issue to be genuine if reasonable persons could disagree while stating that a fact is material when its existence or nonexistence is relevant to the opposing party’s cause of action or defense under the applicable theory of recovery. Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730, 751 (La.7/5/94).

REDHIBITORY DEFECT

On summary judgment, the trial court found that the vinyl wall covering was impermeable and therefore, redhibitorily defective. The Louisiana Civil Code defines redhibitory defect in article 2520, which states:

Warranty against redhibitory defects

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold.
A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.
A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price, (emphasis added). La. C.C. art. 2520.

14Touro claims that the impermeable nature of the wall covering renders it useless in a hot and humid environment like New Orleans. More specifically, Tou-ro alleges that the vinyl wall covering exhibited a redhibitory defect when installed on the inside surface of exterior walls, trapping moisture and promoting the growth of mold and mildew.

A product must fail its intended purpose to be redhibitorily defective, see Benoit v. Ryan Chevrolet, 428 So.2d 489 (La.App. 2d Cir.1982). OMNOVA does not dispute the impermeable nature of the vinyl wall covering. OMNOVA maintains that the impermeable nature of the product goes to its intended use as a durable and easy to clean wall covering. The record contains an affidavit from experts, J. David Odom and George H. DuBose, supporting OMNOVA’s contention that the impermeable nature of the wall covering does not render it useless, even for use on the interior of exterior walls in the Gulf-south.

OMNOVA claims that the exterior walls of the Facility that experienced the growth of mold and mildew were compromised by excessive water intrusion due to faulty design and/or construction of the building. Touro has conceded such design and construction problems including improperly designed and installed windows, missing shims, improperly installed drip edges at windows, gas and cracks in the exterior facing of the building’s walls that should have been repaired or caulked, roof leaks and condensation from heating and cooling lines. Furthermore, there was no mold or mildew growth on vinyl wall covering installed on the interior of exterior walls that were not compromised by such water intrusion.

| .¡Expert opinions provided to the trial court acknowledge that with the water intrusion the Facility was going to have mold and mildew growth regardless of vinyl wall covering. Additionally, areas where vinyl wall covering was not used have experienced the growth of mold and mildew. Also, Touro’s vice president, Frank Folino testified that there are many areas of the Facility where the vinyl wall covering is being used successfully. In reviewing the record as a whole we recognize the existence of genuine issues of material facts.

Accordingly, this Court must reverse the trial court’s decision on redhibitory defect with respect to OMNOVA and the distributors; Muraspec, MDC, Seabrook, Design Tex, and Wolf-Gordon.

BREACH OF EXPRESS WARRANTY

An express warranty is one that is created by the explicit words of the seller. Black’s Law Dictionary 1619 (8th ed.2004). OMNOVA, one of the manufacturers of the vinyl wall covering used at the Facility prints and distributes “Application Instructions” along with its vinyl wall covering. The Application Instructions include a Warranty, which provides:

OMNOVA SOLUTIONS, INC., Wall-covering Unit, (“Manufacturer”) warrants that for a period of five years from the installation of its commercial wall-covering products (“Products”), Products shall not separate from their backings, exhibit stains caused by bleeding of impurities or support the growth of mildew when Products are properly installed on a sound wall, adequately maintained and used under normal conditions.

Touro alleges that there was a breach of OMNOVA’s express warranty since certain portions of the installed vinyl wall covering 1) separated from the wall; 2) exhibited stains; and 3) supported the growth of mold and/or mildew. These are 1 ^conditions warranted against by OMNO-VA, when its product is “properly installed on a sound wall”.

Touro seeks to recover for OMNOVA’s breach of its express warranty pursuant to Louisiana Civil Code article 2529. Touro contends that it is alleging breach of express warranty under Louisiana law of obligations opposed to the Louisiana Products Liability Act (“LPLA”). Article 2529 provides:

Thing not of the kind specified in the contract

When the thing the seller has delivered, though in itself free from redhibitory defects, is not of the kind or quality specified in the contract or represented by the seller, the rights of the buyer are governed by other rules of sale and conventional obligations.
La. C.C. art. 2529.

OMNOVA disputes Touro’s assertion that the law of conventional obligations applies rather than the LPLA. OMNOVA argues that the LPLA provides the exclusive remedy for recovery against manufacturers of allegedly defective products. La. R.S.A. § 9:2800.52. Alternatively, OMNO-VA challenges the notion that Touro can have a breach of contract claim without being privy to any contract with OMNO-VA.

This Court recognizes that article 2529 gives rise to a cause of action against a seller, which OMNOVA arguably is, for the delivery of a product that is not the kind or quality represented by the seller. The “product” that is at issue is the vinyl wall covering but the seller is the manufacturer, which leads us back to the exclusivity of the LPLA. Courts have consistently held the LPLA subsumes all possible causes of action, with the exception of a claim in redhibition. Hence, the |7breach of express warranty is encompassed by the LPLA and is no longer viable as an independent theory of recovery against a manufacturer. La. R.S.A. 9:2800.54(B)(1-4) See also, Jefferson v. Lead Industries Assoc., Inc., 930 F.Supp. 241 (E.D.La.1996).

Touro also references § 16.26 of the La. Civil Law Treatise: Tort Law in its argument in favor of the contract-based breach of express warranty claim. The treatise section titled Express Warranty, states that “[t]he Act’s express warranty theory of recovery is self-contained and distinct from the express warranty action found in the Civil Code.” However, the treatise goes on to provide that when the express warranty was made to a third party the claim must be derived solely from the provisions of the LPLA. Under the circumstances presented in this case, the distributor/installer would be the third party to whom the express warranty was made and thus, the claim is limited to the provisions of the LPLA.

Touro cites the 1972 opinion of Media Production Consultants, Inc. v. Mercedes- Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (5/1/72) in support of its breach of contract claim against OMNO-VA. In Media Production, the Supreme Court found that the North American distributor of a vehicle was essentially the manufacturer of the vehicle so far as the consumer was concerned and there need not be a privity of contract between that distributor and the consumer for there to be a breach of implied warranty. Id. Based on the transcript of the hearing, the trial court also relied on the Media Production court’s reasoning in granting Tou-ro’s partial motion for summary judgment on this issue.

|sThe Media Production opinion was a pre-LPLA decision dealing with the breach of an implied warranty, essentially a redhibition claim, rather than a breach of express warranty. Although there is no case law directly on point, an interpretation of applicable case law consistently leads to a determination that Touro’s express warranty claim must be brought under the LPLA.

Therefore, any claim of express warranty against OMNOVA is limited to the remedies provided for by the LPLA. For that reason the trial court’s granting of Touro’s partial motion for summary judgment against OMNOVA for breach of express warranty is hereby reversed. In light of this finding there is no need for this Court to address any other arguments raised by either party on the breach of express warranty.

NOMW’S EXCEPTION OF ARBITRATION

NOMW is a subcontractor who, pursuant to a subcontract agreement with the general contractor, Robins and Morton Group (“RMG”), purchased and installed interior finishes at the Facility. NOMW was named as a defendant by Touro in its Fourth Supplemental and Amending Petition filed on October 15, 2003. NOMW filed an answer and exception on January 12, 2004. At that time NOMW was the only subcontractor named as a defendant in the suit. NOMW’s peremptory exception was based on no cause of action. The general contractor, RMG, and seven other subcontractors performing construction work at the facility were added as additional defendants in Touro’s fifth amended petition filed October 18, 2004.

On December 8, 2004, RMG filed an exception of prematurity alleging that the general contract between Touro and RMG contained a mandatory arbitration 1 flclause. NOMW filed an exception of arbitration, motion to stay and motion to dismiss on December 8, 2004 asserting that its subcontract agreement with RMG incorporated the terms and conditions of the general contract, which contains the arbitration clause plead by the general contractor. On February 18, 2005 the trial court granted the exception of arbitration filed by the general contractor, RMG and denied the exception of arbitration filed by NOMW. NOMW is appealing that ruling.

NOMW contends that by way of the subcontract and purchase orders it is subject to the terms and conditions of the contract between the purchaser and the owner. Specifically, Section (18), which provides:

(18) In the event Purchaser is required by the terms of the General Contract to arbitrate any controversy with the Owner or with any other prime or subcontractor or supplier and such controversy involves, in whole or in part, the work or materials of Vendor, then Vendor agrees to participate in the prosecution or defense of such controversy in said arbitration and to be bound by the result thereof. Vendor shall not commence or maintain any action or proceeding against Purchaser for any damages re-suiting from any default, breach or interference by the Owner or for extra work or by virtue of any deduction or refusal to pay by the Owner, except to the extent of the sum ultimately obtained from the Owner on account thereof by Purchaser.

Touro raises two arguments in its opposition to NOMW’s request for arbitration. First, Touro insists that no enforceable arbitration agreement exists. Alternatively, Touro argues that even if a valid arbitration agreement exists, NOMW waived any right to arbitration to which it may have been entitled.

When addressing the issue of enforceable arbitration agreement we look to the language contained in the Purchase Order, Terms and ImConditions. The plain language of section (18) states that once the Purchaser, RMG, is required to arbitrate with the Owner, Touro, under the General Contract, then Vendor, NOMW, participates if the claim involves the work materials of the Vendor. NOMW also agrees to be bound by the result of the arbitration. Clearly, we have this exact scenario playing out. First, RMG has requested and been granted arbitration per the general contract and part of the work at issue includes the workmanship and material used by NOMW. We find that NOMW has a contractual right to participate in arbitration as long as the arbitration agreement between RMG and Touro stands.

Next, we must determine if NOMW waived its right to arbitration. Touro claims that a demand for arbitration should be raised through the dilatory exception of prematurity. Hence, just like a dilatory exception the demand for arbitration must be filed prior to or in the answer.

The following represents NOMW’s participation in this matter: NOMW was named in this lawsuit on October 15, 2003; NOMW filed its answer and peremptory exception on January 12, 2004; on December 3, 2004, the trial court granted Touro’s motion for summary judgment against NOMW on the issue of liability and subsequently denied NOMW’s cross-motion for summary judgment; RMG was named in the lawsuit on October 18,2004; on December 8, 2004, RMG filed an exception of prematurity, asserting its right to arbitration under the general contract; and on December |n8, 2004, NOMW filed an exception of arbitration asserting its right to arbitration through its subcontract agreement with RMG.

Touro relies on the finding in I.D.C., Inc. v. McCain-Winkler Partnership, 396 So.2d 590 (La.App. 3rd Cir.1981) to support its position that NOMW’s actions resulted in a waiver of its right to arbitration. The court in I.D.C. found that a party that requested arbitration for the first time on the day of trial after filing a reconventional demand and requesting the matter be set for trial had effectively waived its right to arbitration.

In Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La.1982), the Supreme Court stated that “[o]nee the court finds an agreement to arbitrate and a failure to comply therewith, the court shall order arbitration.” Matthews-McCracken, 414 So.2d at 757 citing Bartley, Inc. v. Jefferson Parish School Board 302 So.2d 280 (La.1974) (emphasis added). Additionally, this Court is directed by the Supreme Court’s holding in International River Center v. Johns-Manville Sales Corporation, 2002-3060 (La.12/3/03); 861 So.2d 139. In the International River opinion the Supreme Court held that the waiver of a contractual arbitration agreement is an issue to be decided by arbitrators, not the court. Although we are hesitant to remove litigants from the State judicial system in favor of a private court system, it appears that we are mandated to do so under these circumstances.

For the reasons set forth by this Court, the Motions for Summary Judgment granted in favor of Touro on the issues of redhibitory defect and express warranty are reversed as are the denial of NOMW’s exception of arbitration, motion to stay and motion to dismiss.

REVERSED AND REMANDED.

ORDER

IT IS ORDERED that the application for rehearing filed by Touro Infirmary is hereby DENIED.

JONES, J.,

dissents and would grant the application for rehearing.

While I agree that the disposition of this Court was correct, I would grant the application for rehearing for the sole purpose of addressing the legal arguments of the applicant.

Material issues of fact remain, precluding the granting of a motion for summary judgment. However, in denying this application for rehearing, Movers are entitled to have this Court revisit the legal arguments forming the basis for support of the application for rehearing.

      . On December 20, 2005, due to some confusion regarding the scheduling of the appeal, NOMW filed a brief on this issue in the present appeal. On May 2, 2006, Touro filed a motion to strike NOMW's brief on the grounds that the judgment sought to be appealed was not consolidated with the July 19, 2004 and March 7, 2005 judgments. This panel denied the motion to strike and NOMW's appeal was submitted on the briefs.

      . Those factors are as follows:
      1)The relationship between the adjudicated and unadjudicated claims;
      2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
      3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
      4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense and the like.

        Messinger, 894 So.2d at 1122, citing Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3rd Cir.1975).

      . Mr. Odom and Mr. DuBose specialize in moisture and mold-related building problems.

      . The record contains reports drafted by Building Engineering-Consultants, Inc., Engineering Diagnostics, and Meyer Engineers, LTD. Also, Ladd Ehlinger's deposition testimony concedes that with the excessive water intrusion the building was unlikely to escape mold and mildew contamination.

      . William E. Crawford, 12 La. Civil Law Treatise: Tort Law § 16.26 (2002).

      . Touro has relied on language in the purchase order to obtain summary judgment against NOMW for liability. Thus, Touro concedes that the terms and conditions of the purchase agreement are contractually binding.

      . The trial court has ruled that there is an enforceable arbitration agreement between Touro and RMG. This court denied Touro's application for supervisory writ on the issue.


author: WICKER, Judge.

text:
    MAGNOLIA CONSTRUCTION COMPANY, L.L.C. v. PARISH OF ST. CHARLES.
    No. 06-CA-543.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 28, 2006.

      Christopher P. Pierce, Wray & Pierce, L.L.P., Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Robert L. Raymond, Director of Legal Services, Destrehan, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   WICKER, Judge.

| ^Plaintiff, Magnolia Construction Company, Inc. (Magnolia), appeals an adverse judgment of the trial court that dismissed its action for breach of contract asserted against the Parish of St. Charles (Parish). The issue before the trial court was whether Magnolia was entitled to recover additional overhead damages from the Parish for delays on a public works contract. The trial court considered three change orders to the contract, and ultimately denied Magnolia’s claim. We affirm the judgment of the trial court.

Magnolia entered into a contract with the Parish to construct the Montz and Norco Pump Stations, to install 31,000 feet of 10" HDPE/PVC Force Main and 37,000 of 18" HDPE/PVC Force Main. The contract was effective on July 30, 1999 and provided that the project would be substantially complete “within three ^hundred thirty-five (335) calendar days after the date when the Contract Time commences to run.” The contract further provided that final acceptance for the work must be done by three hundred sixty-five days (365). The initial price for the work to be done under the contract was $4,150,992.00.

During the term of the project covered by the contract, the parties executed three change orders that are at issue in this appeal. The parties executed the first of the three change orders in April of 2000. That change order provided for a net increase of payment to Magnolia of $133,314.00. It also extended the time for completion by twenty (20) days. The second change order, which was executed in August of 2000, provided for a net increase to Magnolia of $171,085.61 and provided an additional seventy (70) days for completion. The “final adjustment of unit price, items, extra work and credits” was set forth in the third change order in March of 2001. That change order provided for a net decrease of $33,119.07 and an additional sixty (60) days for completion.

In July of 2001, Magnolia filed suit against the Parish for breach of contract, alleging that certain acts of the Parish prevented Magnolia from “performing the work in accordance with the orderly, progressive and sequential method and schedule for construction which formed the basis of Magnolia’s bid.... ” Magnolia further alleged it was “required to perform additional work and utilize additional materials, above and beyond those quantities originally estimated by Magnolia in the bid.” Magnolia asserts that it was not properly compensated for these additional expenses, and demanded a minimum of $237,129.00 plus interest.

The Parish asserted that Magnolia was compensated totally for its work in the original contract, and in the additional funds provided by the change orders.

After a trial on the merits, the trial court rendered a judgment with written reasons in favor of the Parish. The trial court ultimately found that the parties had Lsettled disputes regarding the additional compensation demanded by Magnolia with the three change orders. The trial court disagreed with Magnolia’s argument that it reserved its rights to claim indirect overhead expenses, and found that Magnolia “lost its right to bring further claims for an increase in contract price and/or contract time when it entered into Change Order No. 1 and Change Order No. 2.” The trial court further found that language in Change Order No. 3 “bars any indirect overhead claim Magnolia may have had under Change Order No. 1 or Change Order No. 2.”

In brief to this Court, Magnolia assigns three errors in which it asserts that the trial court erred in finding that Magnolia waived its right to recover additional delay damages, in failing to award indirect overhead damages, and in failing to award interest on those damages.

Magnolia’s argument on the issue of whether it waived its right to recover indirect overhead expenses is twofold. Mag-noha argues first that the La. R.S. 38:2216 H of the Public Contracts Law provides a statutory prohibition to such waivers by contract, and the trial court erred in failing to apply that law. Further, Magnolia argues that the correct interpretation of the change orders is consistent with its assertion that it reserved the right to recover the damages at issue.

The Parish counters with the argument that Magnolia was paid for all of its delay damages, thus the waiver of its right is not at issue. Therefore, because payment for extra expenses was made, not waived, prohibitions in the Public Contract Law are not applicable to the facts of this matter. The Parish further asserts that the change orders represent the acknowledgment by the parties that adjustments, including indirect overhead damages, were due and the execution of the change orders constitutes full and mutual accord and satisfaction of those damages. We agree.

|5We acknowledge Magnolia’s right to claim overhead or indirect expenses as an element of damages in a breach of contract claim. See: McCarty Corporation v. Industrial Scaffolding, Inc., 413 So.2d 1322 (La.App. 1 Cir.1981). However, for a determination of whether such damages are due we are bound by the fundamental rules of contract interpretation embodied in La. C.C. arts.2045 through 2057. Those rules require the court to determine the common intent of the parties. La.C.C. art.2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La.C.C. art. 2046. We believe the contract and change orders one and two in this case can be interpreted from the four corners, without extrinsic evidence. See: Security Center Protection Services, Inc. v. Lafayette, 95-693 (La.App. 5 Cir. 1/17/96), 668 So.2d 1156, writ denied, 96-0428 (La.3/29/96), 670 So.2d 1217. Further, we find that the testimony offered relating to the final change order supports the trial judge’s reasoning.

Change Order No. 1 gave Magnolia an additional $133,314.00 and an additional twenty (20) days to complete the contract. The change order is supported by documents which show that the increased amount included $18,436.00, requested by Magnolia for initial delay cost. Further, it is noted that the change order contains the following language:

This change order includes not only all direct costs of Contractor such as labor, material, job overhead, and profit markup but also includes any costs for modifications or changes in sequence of work to be performed, delays, rescheduling, disruptions, extended direct or general overhead, acceleration, material or other escalation which includes wages and other impact costs.

The above language makes it clear that Magnolia received payment for all direct and indirect delay damages with the execution of this change order.

|fiIn Change Order No. 2 Magnolia received an increase of $171,085.61 and an additional seventy (70) days. In this change order, Magnolia only requested direct delay damages such as delays “incurred by survey crews” and, “due to lack of servitudes.” Magnolia made no request for indirect damages in this change order. Change Order No. 2 contains the following language:

This change order includes all direct costs of Contractor such as labor, material, job overhead, and profit markup including additional time.

There is no mention of indirect overhead damages due or waived.

The third and final change order was executed after all work on the contract was completed and was for the designated purpose of “final adjustment of unit price, items, extra work and credits.” It decreased the amount of the contract by $33,119.07, after a reconciliation of items originally priced in the contract with those actually installed. This change order contains the following language:

This change order applies only to the items specifically listed. Contractor reserves the right to submit future Change Order requests for items related to delays to this Contract, including overhead and interest expenses. Owner and Contractor agree to waive paragraph SC-10.7 for this Change Order only.

Paragraph SC-10.7 referred to in the above change order is contained in the Supplementary Conditions that supplemented the original contract and reads as follows:

The adjustment in Contract Price and/or Contract Time stated in a Change order shall comprise the total price and/or time adjustment due or owed the CONTRACTOR for the Work or changes defined in the Change Order. By executing the Change Order, the CONTRACTOR acknowledges and agrees that the stipulated price and/or time adjustments include the cost and time adjustments for all work contained in the Change Order, including costs and time adjustments associated with extended overheads, and cumulative impacts or ripple effect on all other non-affected Work under this contract. Signing of the Change Order constitutes full and mutual accord and satisfaction for the adjustment in contract price and/or time as a result of increases or decreases in costs and time of performance caused directly and indirectly from the change, subject to the current scope of the entire Work as set forth in the Contract Documents. |7Acceptance of this waiver constitutes an agreement between OWNER and CONTRACTOR that the Change Order represents an equitable adjustment to the Contract and that CONTRACTOR waives all rights to file a claim on this Change Order after it is properly executed.

The trial judge found, and we agree, that the above clause in the contract was waived only for Change Order No. 3, but was in effect for Change Orders No. 1 and 2. Magnolia received delay damages in the first two change orders, and in accordance with SC 10-7, those change orders constitute full and mutual accord and satisfaction. The waiver on SC 10-7 in Change Order No. 3 does not support a basis for Magnolia’s assertion that it reserved its right to claim new delay damages related to the first two change orders.

Change Order No. 3 related to the reconciliation of the quantities actually installed. The trial court found that none of Magnolia’s claimed indirect overhead was attributable to the subject of Change Order No. 3. That conclusion is born out by the testimony of Jon Simmons, project manager of Magnolia.

At trial Mr. Simmons testified that Magnolia installed the force main with its own crews and subcontracted out the pump stations to Hardtec Corporation. Therefore any claims at issue in this lawsuit are based solely on the installation of the forced mains and are unrelated to the pump station construction. He further testified that Change Order No. 3 was the final reconciliation between the proposed contract quantities to the actual installed quantities, and certain items pertaining to the pump stations.

In conclusion, we find that the judgment of the trial court is correct and well supported by written reasons for judgment. Accordingly, we affirm the judgment from which this appeal is taken.

AFFIRMED.