author: CALOGERO, Chief Justice.

text:
    Gabriel LEWIS, Jr. v. SUCCESSION OF Matthew JOHNSON, et al.
    No. 2005-C-1192.
    Supreme Court of Louisiana.
    April 4, 2006.

      Bruce A. Gaudin, Opelousas, for Applicant.
    Guglielmo, Lopez, Tuttle, Hunter & Jar-rell, Alex L. Andrus, III, James P. Doherty, Jr., for Respondent.
   CALOGERO, Chief Justice.

Lin this case, we are called upon to decide whether a practice of providing notice of the delinquent property taxes on immovable property, to only one co-owner of property owned with others in indivi-sión, deprives the other co-owners of due process, thus rendering a subsequent tax sale null and void. The district court and court of appeal held this tax sale valid, finding that the tax collector provided sufficient notice to the property owners, defendants’ ancestors in title. Following our review of the facts and applicable legal principles, we find that the delinquent tax notice provided to only one co-owner of immovable property in this case is deficient, rendering the subsequent tax sale null and void with regard to the other co-owners’ interests in the property. Further, a tax collector may not substitute for actual or written notice a publication advertising a tax sale, which is similarly deficient for failing to list each property owner’s name or failing to furnish an additional means of reasonable identification of the property.

FACTS AND PROCEDURAL HISTORY

On June 15, 1994, the Sheriff and Tax Collector of the Parish of St. Landry (hereinafter “sheriff’) sold a thirteen-acre property to Plaintiff, Gabriel Lewis, Jr. | ¡.,(hereinafter referred to as “Lewis”) for the sum of $90.00. At the time of the St. Landry Parish tax sale, Deola Mae Johnson James, Matthew Johnson, Sr., Myrtle Johnson Franklin, and Aaron Perry Johnson, Sr. (hereinafter collectively referred to as “the Johnson siblings”) co-owned the thirteen-acre property. Defendants, Matthew Johnson, Jr., Saida Johnson Baker, Sidney B. Johnson, Allen Johnson, Charles Franklin, Cynthia Franklin Steward, and Aaron Perry Johnson, Jr. (hereinafter collectively referred to as “the Johnson heirs”) inherited the property from the four Johnson siblings. On April 2, 2003, Lewis filed a petition to quiet tax title. The Johnson heirs challenged this petition and argued that the sale was null because they had not received proper notice of the tax sale, which violated the co-owners’ rights to due process under the Fourteenth Amendment of the United States Constitution.

Prior to the tax sale, the thirteen-acre tract had been in the Johnson family name since 1962 when Laura Aaron Johnson, wife of Ned Johnson, acquired the property in a partition with the heirs of Simon Aaron. Fifteen years later in 1977, Laura Johnson sold the thirteen acre-tract to her four children, who in the act of sale are identified as “Deola Mae Johnson James, Matthew Johnson, Sr., Myrtle Johnson Franklin, and Aaron Perry Johnson, Sr.” The four siblings remained the record co-owners at the time of the tax sale in 1994.

The St. Landry Parish’s Assessor’s Office assessed the thirteen-acre tract in the name of “Johnson, Matthew, et ais., c/o Deola Mae James, 4020 Ave. M, Galveston, TX 77550.” Although the record does not indicate why only Deola Mae, instead of all four co-owners, received the annual tax notice, it was she who was the only co-jownerg that had received the tax notice for sixteen successive years. At trial, Chief Deputy Priscilla Taylor of the St. Landry Parish Assessor’s Office testified concerning the practice of preparing the tax rolls as follows: <cWe normally send one tax notice. If the property is undivided it doesn’t matter how many people own it, we only generate one tax notice.” According to her, in the ordinary course of business, the assessor assesses the property in the name of the first named vendee in the act transferring title, unless the property owners request that the property be assessed in a name other than the first named vendee. The assessor sends no notice to the remaining co-owners.

Until 1993, the United States Post Office successfully delivered the tax notice to Deola Mae Johnson James, and the property taxes were timely paid. In 1993, however, the taxes were not paid. A delinquent tax notice was prepared and sent to “Johnson, Matthew, et ais., c/o Deola Mae James, 4020 Ave. M, Galveston, TX 77550.” The sheriff sent the notice by certified mail return receipt requested on three separate dates, but on each occasion, the notice was returned and marked unclaimed by the United States Postal Service. Consequently, the sheriff advertised in The Daily World, a newspaper published in the city of Opelousas, Louisiana, the upcoming tax sale on three different occasions: May 23, 1994, June 5, 1994, and June 14, 1994. In short, the newspaper notice stated that the thirteen-acre tract would be sold at 10:00 a.m. on Wednesday, June 15, 1994, for non-payment of the 1993 property taxes. The sheriff did not make any other attempts to notify Deola Mae nor any | ¿attempt, apparently, to find and/or notify the other co-owners.

At the tax sale, Lewis purchased two tracts, the thirteen-acre tract of land involved in this case and a second property, a fifteen-acre tract of land that had also been owned by the Johnson siblings before they sold that tract to one J.C. Guillory on August 18, 1993, almost ten months before the involved tax sale. On April 11, 1996, the sheriff executed a certificate of redemption for the fifteen-acre tract after receiving $319.23 from Deola Mae Johnson James. When Lewis attempted to quiet title to the thirteen acre tract in 2003, the Johnson heirs contested the tax sale. They alleged that not a single Johnson sibling had received proper notice of the tax sale. The Johnson heirs sought dismissal of Lewis’s lawsuit.

The district court rendered judgment in favor of Lewis and upheld the tax sale. |R Assigning reasons for judgment, the district court determined that the sheriff had taken the proper steps by mailing the appropriate tax notices, issuing the appropriate delinquency notices, and making the appropriate advertisements. The district court further added that neither the sheriff nor the assessor could have easily ascertained the addresses of the various owners of the property.

The Johnson heirs appealed the district court’s judgment to the Court of Appeal, Third Circuit, arguing that the tax sale was invalid because none of the co-owners of the property had received proper notice. Rejecting the Johnson heirs’ argument, the court of appeal majority affirmed the district court judgment. Lewis v. Succession of Johnson, 04-1413 (La.App.3 Cir. 4/20/05), 900 So.2d 1114. After acknowledging the obvious, that the sale of property at a tax sale is an action that affects property rights under the Fourteenth Amendment, the court of appeal agreed with the district court’s finding that the sheriff had taken additional reasonable steps to notify the taxpayer of the delinquency after the original notice was returned undelivered. Id. The panel opined that to require the sheriff or the assessor to conduct a title search would impose an overly burdensome duty. Id. The appellate court concluded that, under La.Rev. Stat. 47:2180, the sheriff had taken the requisite steps by sending legal notice to the owners’ “duly designated representative,” Deola Mae, at the valid and duly designated address, followed by proper publication of the tax sale on three separate occasions. Id.

The Johnson heirs filed an application for writ of certiorari in this court, seeking review of the lower courts’ rulings. In their application, the Johnson heirs essentially adopted the argument of the dissenting judge in the court of appeal. The dissenting judge found, and the Johnson heirs argued, that because the sheriff and the | (Assessor's Office did not provide reasonable notice to all of the co-owners of the property as required under the Fourteenth Amendment and United States Supreme Court precedent, the tax sale is an absolute nullity. Our court has not had occasion to address this Fourteenth Amendment issue as it applies in a case of co-owners after 1983 when the United States Supreme Court rendered its opinion in Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). We granted this application to consider the merit of the Johnson heirs’ arguments. Lewis v. Succession of Johnson, 05-1192 (La.12/9/05), 916 So.2d 1037.

LAW AND DISCUSSION

The Johnson heirs contend that none of their four ascendants had received notice of the tax sale and consequently, that the tax sale of June 15, 1994 is null and void. We must, therefore, determine whether the tax sale is null and void because of the deficiencies in the notice that was given. In this case, the sheriff sent notice by registered mail to Deola Mae James on three separate occasions, but did not send notice to her siblings, causing this court to evaluate the notice provided to the siblings separately from the notice provided to Deola Mae. Thus, we must address whether the sheriff sufficiently notified the Johnson siblings of their delinquent property taxes as required by the Fourteenth Amendment and whether the subsequent tax sale deprived the Johnson siblings of their property rights as co-owners of the immovable property.

In Mennonite Board of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983), the United States Supreme Court recognized that the sale of property for nonpayment of taxes is an action that affects a property right protected by the Due Process Clause of the Fourteenth Amendment. In Mennonite, the 17mortgagee of a property contested a tax sale that occurred after the homeowner had failed to pay her property taxes. Mennonite, 462 U.S. at 794, 103 S.Ct. 2706. The mortgagee was not provided notice of the mortgagor’s delinquent payment of the taxes or the subsequent tax sale. Id. After evaluating the mortgagee’s claim from a due process perspective, the Supreme Court held that “a mortgagee possesses a substantial property interest that is significantly affected by a tax sale” and therefore “is entitled to notice reasonably calculated to apprise him of a pending tax sale.” Id. at 798, 103 S.Ct. 2706.

.More specifically, and of even greater relevance to the case before us, the Supreme Court has held that notice must be sent by mail or other means certain to ensure actual notice if the party’s name and address are readily ascertainable. Mennonite, 462 U.S. at 800, 103 S.Ct. 2706. Mennonite is not the only authority requiring notice to the record owner of property. La. Const, art. VII, § 25 also requires the tax collector to provide notice to a delinquent taxpayer. In enacting La.Rev.Stat. 47:2180, the Legislature has established the manner in which notice of delinquencies in immovable property taxes should be provided in compliance with La. Const, art. VII, § 25. At the time of the tax sale, La.Rev.Stat. 47:2180 provided in pertinent part:

§ 2180. Immovable property, notice of delinquency
A. On the second day of January each year, or as soon thereafter as possible, the tax collector shall address to each taxpayer who has not paid all the taxes, which have|sbeen assessed to him on immovable property, or to the record owner of the property for which the taxes are delinquent, or to the actual owner in the event the record owner is deceased, written or printed notice in the manner provided for herein that his taxes on immovable property must be paid within twenty days after the service or mailing of the notice, or that the property will be sold according to law.
B. The tax collector shall send to each taxpayer by certified mail, with return receipt requested, the notice prescribed herein, provided that in cities containing a population of over fifty thousand persons, the tax collector may either send this notice by certified mail or may make personal or domiciliary service on the taxpayer. In the event the certified notice is returned as being undeliverable by the post office, the tax collector may comply with Article 7 Section 25 of the Constitution of Louisiana and the provisions of this Section by advertising the tax debtor’s property in the advertising required for unknown owners in Subsection C of this Section. After the tax collector shall have completed the service by the notices herein required, either by mail or by personal or domiciliary service, he shall make out a proces verbal stating therein the names of delinquents so notified, their post office addresses, a brief description of the property, the amount of taxes due and how the service of notice was made.
C.The tax collector shall publish one general notice substantially in the form set forth herein, addressed to all unknown owners of assessed immovable property situated in his parish, and to nonresident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll. Such notice shall be published once a week for two weeks in a newspaper published in his parish, or if there be none published in the parish, then such notice shall be given in the manner provided by law for judicial sales.

Thus, under Louisiana law, in order to give property owners reasonable notice so as not to deprive them of constitutionally protected property rights, the tax collector is required to provide “each taxpayer” with written notice, sent by certified mail return receipt requested, alerting each record owner of the immovable property that the owner’s failure to pay the taxes within twenty days will result in the sale of the property. In sum, notice is a constitutional requirement, and want of notice is fatal |9to a tax sale. Adsit v. Park, 81 So. 430, 144 La. 934 (1919).

We turn now to the issue of the validity of the tax sale of the Johnson siblings’ immovable property in St. Landry Parish on June 15, 1994. Tax sales are presumed valid, and a tax deed shall be prima facie evidence of validity of the tax sale. La. Const, art. VII, § 25(A). Since at least 1919, however, this court has held that a sale of property for delinquent taxes is invalid if the tax collector has failed to comply with the legal requirements for giving notice to the tax debtor and, if in consequence, the tax debtor did not have notice prior to the sale. See Adsit, 81 So. at 430-431. The Johnson heirs, therefore, must establish that the tax collector did not take appropriate steps to give notice to the Johnson siblings of possible actions that would affect their property rights. They must show that the sheriff did not respect the due process rights of the co-owners nor the dictates of La.Rev.Stat. 47:2180. We must determine whether the sheriff took reasonable steps to notify each Johnson family co-owner that the 1993 property taxes were delinquent.

First, where the tax debtor’s correct address is known and used, certified mail is a reasonable method of notifying the debtor, and it is unnecessary that notice actually be received in order to satisfy due process requirements. Koeppen v. Raz, 29,880 (La.App. 2 Cir. 10/29/97), 702 So.2d 337; Dennis v. Vanderwater, 498 So.2d 1097 (La.App. 3rd Cir.1986). Still, where the mailing of a tax notice is required, and a mailed notice is returned to the tax collector undelivered or unclaimed, the tax collector must take additional reasonable steps to notify the tax debtor of a delinquency. Estate of Willis v. Cairns, 630 So.2d 805 (La.App. 3d Cir.1993).

The requirement that the tax collector take additional reasonable steps to notify a delinquent taxpayer is a longstanding principle. For example, this court has previously held that “when informed that the notice had not been delivered to the tax |indebtor, the tax collector should have used some diligence to make an effective service of notice; and ... his failure in that respect was fatal to the tax sale.” Adsit, 81 So. at 432 (citing McCrory v. Bradford, 57 So. 892, 130 La. 212 (1912)). More significantly, this court has interpreted the Louisiana Constitution to include a similar notice requirement since the adoption of the Louisiana Constitution of 1879. In Hoyle v. Southern Athletic Club, Chief Justice Nicholls stated, “Article 210 of the Constitution [of 1879] in requiring that notice should be given to the taxpayer, evidently contemplated that reasonably diligent steps should be taken to make the notice effectual.” 19 So. 937, 48 La.Ann. 879 (La.1896). In the Hoyle decision, the property was assessed in the name of “Estate of J.M. Hoyle” and a notice was addressed by the tax collector to the “Estate of J.M. Hoyle,” placed and prepaid in the post office. Id. The notice was held to be insufficient to demonstrate a diligent effort by the collector to notify multiple owners of property. Id. Thus, the requirement that the tax collector take reasonable steps to notify each co-owner of delinquent taxes is not a new or novel legal requirement.

The Johnson heirs argue that the sheriff could easily have found the names and addresses of all of the co-owners by reviewing the conveyance records in the Office of the Clerk of Court. Had he done so, the sheriff would have discovered an August 1993 sale of the fifteen-acre tract of land to Mr. Guillory, which occurred about ten months before the sale for taxes of the fifteen-acre and thirteen-acre tracts. As the Johnson heirs explain, the act of sale for that fifteen-acre property included each co-owner’s current name and address, indicating that the necessary information could have been discovered if the tax collector had made an additional inquiry and surveyed the conveyance records for each Johnson sibling listed in the 1977 act of sale by which the Johnson siblings acquired the property for which they owed taxes. The ^sheriff, however, did not take such additional step because he claimed that any such or other additional step would be unduly burdensome. In addition, the sheriff contends that an additional step was unnecessary because the sheriff complied with La.Rev.Stat. 47:2180, when he advertised the upcoming tax sale of the property in the local newspaper on three separate occasions, after return of the notices sent to Deola Mae.

To determine the reasonableness of the sheriffs actions, we must examine the method used by the sheriff'in his attempt to notify the Johnson siblings. This court’s jurisprudence offers some guidance. We have traditionally found that advertisements of tax sales provide insufficient notice, except in the case of unknown owners whose identities are not reasonably ascertainable. Adsit, 81 So. at 432. In addition, the United States Supreme Court specifically addressed the issue of whether advertisements of public sales affecting property owner’s rights are sufficient to satisfy due process in Mennonite, 462 U.S. at 799, 103 S.Ct. 2706 and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Mullane, the United States Supreme Court stated:

Chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper, and if he makes his home outside the area of the newspaper’s normal circulation the odds that the information will never reach him are large indeed. The chance of actual notice is further reduced when ... the notice required does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention. In weighing its sufficiency on the basis of equivalence with actual notice we are unable to regard this as more than a feint.

Mullane, 339 U.S. at 315, 70 S.Ct. 652.

More than thirty years later, the United States Supreme Court revisited this issue with regard to public advertisement of tax sales. Mennonite, 462 U.S. at 799, 103 S.Ct. 2706. | ^Expanding on its decision in Mullane, the Court added that notice by publication and posting is “designed primarily to attract prospective purchasers to the tax sale” and, consequently, is “unlikely to reach those who, although they have an interest in the property, do not make special efforts to keep abreast of such notices.” Id. As a result, the United States Supreme Court concluded that “notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” Id. at 800, 103 S.Ct. 2706 (emphasis in original). Thus, the notice of the tax delinquency by publication of an advertisement for an upcoming tax sale, alone, does not pass constitutional muster if the owners of the property can be identified or are easily discovered. A taxpayer, therefore, must also have the opportunity to receive written notice, as a minimum requirement, to ensure protection of the owner’s property rights under the Fourteenth Amendment.

In this case, however, the question before this court is whether each of multiple co-owners is entitled to written notice. In the case of co-owners, we hold that the absence of notice to each co-owner is fatal to the tax sale. We find support for our holding today in three previous opinions of this court.

First, this court held in Adsit that the tax collector committed a serious error by failing to address properly the notice of delinquency to the owners of the property. 81 So. at 433. In Adsit, a tract of land owned in indivisión by Joe M. Park, Sam Park, A.W. Wilcox, and G.R. Warnsbrough was sold at a tax sale for unpaid taxes. Id. at 431. The property was assessed in the name of “Park, Wilcox, et al.” Id. The notice of delinquency was sent by registered letter addressed to “Park, Wilcox, et al., Beaumont, Texas.” Id. Because the letter was returned to the tax collector, he knew 1 isthat the tax debtors had not received notice of the intended sale. Id. The collector in that case made no further effort to notify the taxpayers. Adsit, 81 So. at 431. In Adsit, the full name of each of the four co-owners of the property was declared in their title deed which had been of record for some ten years before the property was sold for taxes. 81 So. at 431. At that time, the method of notification required the tax collector to provide each delinquent taxpayer with written or printed notice, which was to be sent by registered mail to the residence or place of business of each delinquent taxpayer. See Adsit, 81 So. at 432 citing 1898 La. Acts ■ 170, which became 47:2180 in the Revised Statutes of 1950. This court held that “it is well settled that addressing a notice to one of several joint owners ‘et ah’ is not a compliance with the law, as to other joint owners.” Adsit, 81 So. at 432. Concluding that the assessment of the property was not made in the name of the owners of the property and that the owners were not given notice of delinquency, this court declared the tax sale null.

Then, in Le Blanc v. Babin, 197 La. 825, 2 So.2d 225, 231 (1941), this court concluded that the assessment and delinquency notices to the co-owners of property were illegal, null, and void. In Le Blanc, the plaintiffs each owned an undivided one-third interest in property that was sold at a tax sale. Id. at 227. The property was assessed, according to the advertisement and tax deed, in the name of “Burton, Le Blanc, et als., St. Gabriel, La.” Id. The plaintiffs argued that the parish was required to assess the property in their proper names. Id. The trial court, however, held that the assessment was legal and valid because the notice was sent by registered mail to “Burton, Le Blanc, et als., St. Gabriel” and receipted by “John Richard, agent.” Id. Finding that it is legally required that the property be assessed in the name of the record owner, this court disagreed with the trial court and held that the assessment was “certainly |ubad as to all the owners save the one named, and possibly so as to him.” Le Blanc, 2 So.2d at 228. Contrary to the trial court’s ruling, this court determined that the notice of the tax delinquency was not in compliance with the law as it applied to the other joint owners, who were not listed in the assessment. Id. at 229. This court concluded that the tax sale was also a nullity with regard to Burton Le Blanc, the co-owner named in the notice, because no proof existed that Richard, the alleged agent, was authorized to act as agent in any respect related to the plaintiffs’ property. Id. In closing, this court warned that “neither the tax collector nor the courts are allowed to disregard the rules prescribed by the statute, and to sell, or maintain sales, for taxes, made in a manner different from that prescribed by law.” Id. at 230.

Finally, in Magee v. Amiss, 502 So.2d 568 (La.1987), this court held that a wife, with a legally protected interest in community property acquired by her husband during the course of their marriage and recorded in both their names, was entitled to notice of sale of property, and in absence of notice, she was entitled to a judgment voiding the sale of the property as to her interest in the property. Prior to the sale of the property, a roofing company received a judgment to satisfy a lien on the separated couple’s property, and the property was subsequently offered for sale and ultimately sold. Magee, 502 So.2d. at 569. The wife demanded that the sheriffs sale be declared a nullity because she had not received any notice of the sale. Id. at 571. This court concluded that under Mennon ite, alienation of the property without her consent required some notice to her apart from mere publication and advertisement of the sale. Id. at 572. This court emphasized the fact that her interest in the property was apparent on the face of the public records, and concluded that her due process rights were violated by the lack of notice. Id.

Adsit and Le Blanc support our conclusion that each individual co-owner of | ^immovable property owned in indivisión must receive to notice of an impending threat of alienation of such property by tax sale for failure to pay taxes. In Magee, we held that a co-owner of community property is entitled to notice under Mennonite if her undivided interest in immovable property is threatened by public auction because such interest is a property right deserving of due process protection under the Fourteenth Amendment. Thus, with regard to the facts of the case before us, we are called upon to draw the next conclusion—that each co-owner is entitled to individual written notice of delinquent taxes because alienation by tax sale of immovable property, owned in indivisión, without notice to each co-owner deprives the owners of due process. We now apply these decided legal principles to the Johnson heirs’ claims.

The Johnson heirs argue that the practice of the St. Landry Parish Assessor’s Office, which allows the sheriff as tax collector to notify only one owner per immovable property regardless of the number of co-owners readily identifiable, violated their ascendants’ rights as co-owners of the immovable property under the Fourteenth Amendment. In this case, only one co-owner was sent notice—Deola Mae. The other co-owners were not notified, and testimony from the Chief Deputy Assessor indicates that, even if each co-owner had requested notification of delinquent taxes, the assessor would have continued to send notice to only one co-owner. This practice by the assessor and the sheriff deprived Deola Mae’s siblings of notice. Considering this court’s comment in Adsit concerning the potentially fatal use of “et al.,” the notice was facially deficient because it was addressed and sent to “Johnson, Matthew, et als. c/o Deola Mae James, 4020 Ave. M., Galveston, TX, 77550.” Furthermore, no other co-owner received notice, thereby delivering the fatal blow to the tax sale. As a result, the tax collector did not afford due process h ((protection to Deola Mae’s co-owners of the property.

Plaintiff Lewis, however, alleges that Deola Mae was an authorized representative for each co-owner. As support for this position, he relies upon two factors. First, he states that the notices had been prepared in this manner for at least sixteen years, and each year until 1993, the taxes had been paid. Second, Lewis explained that the practice of the St. Landry Parish Assessor’s Office is to provide notice to the first record owner listed on the deed of the property, and in this case, he states that the deed listed Matthew Johnson, not Deola Mae Johnson James, as the first record owner. He contends that since Deola Mae James is the designated recipient of correspondence, the Assessor’s Office has illustrated that there must have been an agreement between and among the co-owners to have Deola Mae appointed as the representative of the siblings with regard to this property. Otherwise, absent an instruction to send notice elsewhere, in Lewis’s view, the Assessor would have sent the notice to Matthew Johnson, the vendee listed first in the act of sale.

The question then is whether Deola Mae’s siblings made her a designated man-datary with regard to the property. A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal. La. Civ. Code art. 2989. While a contract of mandate is not required to be in any- particular form, the existence of a mandate must be substantiated by evidence indicating that the principal authorized the mandatary to act on his behalf. La. Civ.Code art. 2993. The question of mandate/agency is basically a factual determination. Self v. Walker Oldsmobile Co., Inc., 614 So.2d 1371 (La. App. 3rd Cir.1993). The essential test to determine whether implied agency exists is whether the principal has the right to control the conduct of the agent and whether the agent has the right and authority to represent or bind the principal. Anderson Windows and Patio Co., Inc. v. Dumas, 560 So.2d 971 (La.App. 4 Cir. 1990).

■ Lewis has not presented any testimony or other proof indicating that the John-sons’ authorized Deola Mae to act as a mandatary in this situation. Moreover, Lewis’s position cannot be proven or dis-1 proven by the parties to the. mandate, the Johnsons, because Deola Mae and her three siblings were deceased when Lewis petitioned to quiet title and had left no written evidence regarding the existence of a mandate. Without any such proof and because it cannot simply be assumed, there is no proof of a designation of Deola Mae as an.agent or mandatary under a contract of mandate.

We, therefore, conclude that the absence of notice of tax delinquency and subsequent tax sale offended Deola Mae’s co-owners rights to due process. Written notice to one co-owner cannot be imputed to other co-owners. While the sheriff did follow the advertising procedure detailed in La;Rev.Stat. 47:2180, the advertisement in the local newspaper, even if otherwise complete, is an inadequate substitute for written notice to each co-owner. The sheriff is required to take additional reasonable steps to ascertain the names and addresses of each co-owner. The circumstances of the case demonstrate the reasonableness of the additional steps the tax collector might have taken. In this case, the circumstances indicate that a simple search of the conveyance records would have revealed the addresses of the co-owners. We, therefore, determine that Deola Mae’s co-owners were not afforded' sufficient notice to protect their rights to due process. Consequently, the tax sale was null and void.

In a separate and distinct legal issue, we have to decide whether the sale was rendered null and void with regard to Deola Mae Johnson James’s own interest in the property. While we have in this opinion concluded that the lack of notice received lisby Deola Mae’s siblings provided grounds to invalidate the sale, the question remains whether Deola Mae Johnson James’s interest has been divested, considering that contrary to what did not take place regarding Deola Mae’s siblings, the tax collector did take steps to send notice to Deola Mae. The issue, ■ of course, is whether these steps were sufficient to satisfy the minimum requirements set forth in Mennonite and our statutory law as well.

In Mennonite, the United States Supreme Court held that “notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interests of any party.” 462 U.S. at 800, 103 S.Ct. 2706 (emphasis in original). Furthermore, in Mullane, the United States Supreme Court established that “an elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” 339 U.S. at 314, 70 S.Ct. 652.

The Legislature also requires the tax collector to provide written notice to the taxpayer. La.Rev.Stat. 47:2180(B). The Legislature has determined that when a written notice to a known owner is returned because it is undeliverable, the same method used to provide notice to an unknown owner may be used as an additional method to attempt notification of the known owner. The Legislature has recited in La.Rev.Stat. 47:2180(B), which permits the tax collector to utilize subsection (C) “in the event the certified notice is returned as being undeliverable by the post office.” By adopting this provision, the Legislature has told the tax collector, he may supplementally publish an advertisement in a newspaper by “addressing] to all unknown owners of assessed immovable property situated in his parish, and to | ^nonresident owners of such property whose post office address is unknown, in which he shall describe the property as described in the tax roll.” La.Rev.Stat. 47:2180(C)(emphasis added). Therefore, the general scheme adopted by La.Rev. Stat. 47:2180 apparently intended to treat the process for notification of a known owner, whose mailed notice is undeliverable, in the same manner as an unknown owner, i.e., notice by publication. Thus, we consider a publication in accord with La.Rev.Stat. 47:2180(0) as an adequate notification to the known owner, as to whom mail is undeliverable, if the publication identifies each such owner and the property in the advertisement for the tax sale.

In our case, the sheriff on three separate occasions sent notice by registered mail to Deola Mae James, but on each occasion, the notice was returned “unclaimed.” At trial, the Johnson heirs admitted that the Galveston address on the unclaimed notice sent by the sheriff was Deola Mae Johnson James’s correct address in 1994 at the time he sent the notices, published the advertisement, and held the tax sale. After the attempts to notify Deola Mae Johnson James through registered mail failed, the sheriff advertised in The Daily World newspaper, which is permitted by La.Rev.Stat. 47:2180. In order to ascertain the sufficiency of notice, we must determine whether the publication in The Daily World provides adequate notice to the owner, whose name was known to the sheriff, after the required registered mail was returned unclaimed.

|2oBy publishing the advertisement of the upcoming tax sale, the sheriff took this additional step to notify Deola Mae Johnson James. The advertisement, however, did not identify Deola Mae Johnson James, nor her siblings. Instead of listing each co-owner, and with no clear identification of Deola Mae Johnson James, the advertisement regarding at least thirty-one distinct properties up for sale at this tax sale included the following:

01 05087000.00 JOHNSON, MATHEW, ET ALS C/O DEOAAS YM VT TAXES OWED ARE 45.37 WITH IN- ' TEREST AN D 15.00 AC N PRUDEN-TIALS S COURVILLE E W PREIS-609226 (Y-20-511) 01 05087500.00 JOHNSON, MATHEW, ET ALS C/O DEOLA M E AENX0 TAXES OWED ARE 64.00 WITH INTEREST ASOED 13 AC IN SEC 14 T-7S R-3E LOT 2 611185 (0 [verbatim]

In addition to failing to list each co-owner of the property individually and adequately, it appears that the advertisement regarding the properties, presumably the thirteen-acre tract and the fifteen-acre tract, actually did not identify Deola Mae Johnson James or her co-owner siblings. Rather, the tax debtor is identified as “JOHNSON, MATHEW, ET ALS C/O DEOAAS” and “JOHNSON, MATHEW, ET ALS C/O DEOLA M E AENX0.” The advertisement, therefore, fails to comply with La.Rev.Stat. 47:2180(0, which requires that the publication be directed to all owners of the property. This advertisement is a prime example of the type of publication about which the Supreme Court warned in Mullane, when it said that “the notice ... does not even name those whose attention it is supposed to attract, and does not inform acquaintances who might call it to attention.” Mullane, 339 U.S. at 315, 70 S.Ct. 652.

Under these circumstances, we find that the sheriff attempted to take additional steps to notify the tax debtor, perhaps Deola Mae Johnson James and her sibling co-owners, of the delinquent taxes and the impending tax sale by publishing an advertisement in the local newspaper. The advertisement, however, was not written | Min a manner that could apprise Deola Mae Johnson James of the pendency of the tax sale nor afford Deola Mae Johnson James an opportunity to present her objections. Thus, we conclude that Deola Mae Johnson James did not receive sufficient notice that complied with La.Rev.Stat. 47:2180, and that renders the tax sale null and void as it pertains to Deola Mae Johnson James’s interests in the property.

CONCLUSION

For the reasons assigned, we find that a tax collector is required to provide each co-owner owning property in indivisión with another or others, with actual notice or written notice of delinquency sent by registered mail. Furthermore, under the facts of this case, the Sheriff did not provide written notice under La.Rev.Stat. 47:2180 to three of the Johnson siblings. By failing to do so, the Sheriff infringed upon the Johnson siblings’ rights to due process guaranteed by the United States Constitution. The tax sale, is therefore, null and void as it pertains to Matthew Johnson, Sr., Myrtle Johnson Franklin, and Aaron Perry Johnson, Sr. Additionally, the advertisement, which would have been an additional reasonable step to notify Deola Mae Johnson James if in proper form, was insufficient for the reasons cited hereinabove so the tax sale as it relates to Deola Mae Johnson James was null and void. There was insufficient notice to the three siblings and to Deola Mae Johnson James, failing, as those notices did, to meet the minimum constitutional requirements concerning notice.

DECREE

We reverse the judgment of the Court of Appeal. We declare the tax sale to plaintiff, Gabriel Lewis, an absolute nullity with regard to Matthew Johnson, Sr., Myrtle Johnson Franklin, Deola Mae Johnson James and Aaron Perry Johnson, Sr.’s [ 22mdividual one-fourth interests in the property. We, therefore, annul the tax sale.

REVERSED.

      . The immovable property consisted of a thirteen-acre piece of land in Section 14, T-7-S, R-3-E, designated as "Tract 2” in St. Landiy Parish.

      . Not only does the record not indicate why Deola Mae was the only sibling notified, but there was no testimony or other proof concerning the reason for this exclusion of the other siblings. Testimony from the Johnson siblings was not available when the case was tried because none of the four, Deola Mae or her three siblings, survived.

      . A photocopy of the advertisement purchased by the Sheriff is included in the record and is reproduced below:
      PUBLIC NOTICE
      LEGAL NOTICE TAX SALE OF IMMOVABLE PROPERTY
      TAX DEBTORS AND NOTICE OF MORTGAGE CREDITORS
      STATE OF LOUISIANA VS. DELINQUENT TAX DEBTORS PARISH OF ST. LANDRY LOUISIANA
      By virtue of authority vested in me by the constitution and laws of the State of Louisiana, I will sell at the principal front door of the Court House in which the civil district court of said parish is held, at the legal hour for judicial sales beginning at 10:00 a.m. on Wednesday, June 25, 1994, continuing on each succeeding day until said sales are completed, immovable taxes are now due to the State of Louisiana and Parish of St Landry, and Levee District, to enforce collection, assessed in the year 1993 from the 31st of December, 1993, at the rate of fifteen percent per annum until paid and costs.... 01 05087000.00 JOHNSON, MATHEW, ET ALS C/O DEOAAS VM VT TAXES OWED ARE 45.37 WITH INTEREST AN D 15.00 AC N PRUDENTIALS S COURVILLE E W PREIS-609226 (Y-20-511)
      01 05087500.00 JOHNSON, MATHEW, ET ALS C/O DEOLA M E AENX0 TAXES OWED ARE 64.00 WITH INTEREST ASOED 13 AC IN SEC 14 T-7S R-3E LOT 2 611185 (0 [verbatim]

      . The Johnson heirs argue that the sheriff erroneously applied this payment to the fifteen-acre tract instead of the thirteen-acre tract. We need not ascertain whether the Johnson heirs’ contention in this regard is correct. Whether true or not, that has no bearing on our resolution of this case.

      . The Johnson heirs contend that a simple search in the conveyance records would have provided the names and addresses of all of the co-owners.

      . The Fourteenth Amendment to the United States Constitution states:
      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . In pertinent part, La. Const, art. VII, § 25(A) states:
      (A) Tax Sales. (1) There shall be no forfeiture of property for nonpayment of taxes. However, at the expiration of the year in which the taxes are due, the collector, without suit, and after giving notice to the delinquent in the manner provided by law, shall advertise for sale the property on which the taxes are due (emphasis added).

      . We note that La.Rev.Stat. 47:2180 and La. Rev.Stat. 47:2181 contemplate two different types of publications. La.Rev.Stat. 47:2180 addresses the publication of the notice of delinquency while La.Rev.Stat. 47:2181 addresses the publication of the advertisement for sale, which is to occur twenty days after notice of delinquency is given. It appears that the sheriff was actually attempting to provide notice under La.Rev.Stat. 47:2181 because the advertisement followed the form set forth therein when the advertisement was published in The Daily World. We address both statutes, however, because regardless of the notice provided, both La.Rev.Stat. 47:2180(C) and 47:2181 require that the property be addressed in the name of the person or persons who at the time the assessment was made appeared to be the owners of the assessed immovable property.

      . We annul the tax sale subject of course to La. Const, art VII, § 25(C), and its included provision: "no judgment annulling a tax sale shall have effect until the price and all taxes and costs are paid, and until ten percent per annum interest on the amount of the price and taxes paid from date of respective payments are paid to the purchaser,” Gabriel Lewis.


source: Caselaw Access Project

author: WEIMER, Justice.

license: Public Domain

text:
    Julia S. MOSS, Individually and on Behalf of her Deceased Husband, Michael Moss, Caitrin H. Moss and Sean M. Moss v. STATE of Louisiana and State of Louisiana through the Department of Transportation and Development, et al.
    No. 2005-CC-1963.
    Supreme Court of Louisiana.
    April 4, 2006.

      Charles C. Foti, Jr., Attorney General, Shows, Cali & Berthelot, E. Wade Shows, Carlos A. Romanach, Ronnie J. Berthelot, Special Assistant Attorneys General, for applicant.
    Johnson, Stiltner & Rahman, Travis R. LeBleu, Baton Rouge, Thomas Law Firm, Richard S. Thomas, for respondent.
    Billy Smith, in proper person.
   WEIMER, Justice.

|TIn this case the State of Louisiana through the Department of Transportation and Development (“DOTD”) seeks access to a deceased non-party’s medical records pursuant to the provisions of LSA-R.S. 13:3715.1. We granted certiorari to review the court of appeal’s determination that the release of medical records can never be “proper” within the meaning of LSA-R.S. 13:3715.1(B)(5) if, after a contradictory hearing, it is determined that a health care provider-patient privilege exists under LSA-C.E. art. 510 and there is no applicable exception or waiver of the privilege. Finding that both lower courts erred in construing the statutory language, we reverse and remand this matter to the district court for the purpose of conducting a contradictory hearing consistent with the guidelines announced herein.

FACTS AND PROCEDURAL HISTORY

At approximately 7:00 a.m. on December 8, 1997, a vehicle being operated by Juanita Smith crossed the center line of Louisiana Highway 964 in Zachary, | ¡..Louisiana, and collided head-on with a vehicle operated by Michael Moss. Both Mrs. Smith and Mr. Moss died at the scene of the accident.

On October 26, 1998, Julia Moss and her children filed a “Petition for Wrongful Death and Survival Action” against the State of Louisiana and DOTD, alleging that the accident that took the life of Mr. Moss occurred when “for some unknown reason,” the vehicle being operated by Mrs. Smith crossed the center line and proceeded directly into the path of Mr. Moss, who had no opportunity to avoid the ensuing collision because of the defective condition of the roadway. DOTD answered the petition, denying liability and asserting the affirmative defense of comparative fault on the part of Mrs. Smith.

Because blood samples extracted from Mrs. Smith following the accident tested positive for the barbiturate Phenobarbital and the autopsy report revealed evidence of prior brain surgery, DOTD attempted to discover information regarding Mrs. Smith’s pre-accident medical condition. To that end, DOTD deposed Billy Smith, Mrs. Smith’s widower and the executor of her estate. Although Mr. Smith testified that his wife took Phenobarbital for headaches brought on following brain surgery for an aneurism she suffered approximately 14 years prior to the accident, he did not know the prescribed dosage. He refused to sign a medical authorization for the release of his late wife’s medical records.

DOTD filed a motion seeking an order authorizing the release of Mrs. Smith’s pre-accident medical records pursuant to LSA-R.S. 13:3715.1. The motion was set for contradictory hearing. At that hearing, Mr. Smith appeared and testified to his continuing objection to a release of his late wife’s medical records, expressing his Isbelief that there had been a thorough investigation of the accident, that he and his family had been through enough, and that he did not wish to re-live the events of that horrible day. For its part, DOTD offered into evidence (among other items) the accident report, which indicated that Mrs. Smith had previously suffered a stroke and experienced blackouts; the autopsy report, which confirmed that Mrs. Smith had undergone brain surgery in the past; a scientific analysis report from the State Police Crime Lab, which revealed the presence of Phenobarbital in Mrs. Smith’s blood system at the time of her death; a second scientific analysis report from the Crime Lab, which analyzed the pills found in Mrs. Smith’s possession at the time of the accident, one of which contained Butalbital, another controlled dangerous substance; and the deposition of Billy Smith, which confirmed that his late wife took Phenobarbital to control the headaches she experienced as a result of brain surgery to correct an aneurism, but which indicated that he did not know the dosage. DOTD argued that because the scientific analysis report did not indicate the level of Phenobarbital in Mrs. Smith’s blood stream at the time of the accident, a review of her pre-accident medical records was necessary to determine what drugs had been prescribed to Mrs. Smith, their dosage and effects, the effects of Mrs. Smith’s failure to take any of her prescribed medications, and whether she had been placed under any driving restrictions by her physician.

At the conclusion of the hearing, the district court denied DOTD’s motion. In doing so, the court examined the language of LSA-R.S. 13:3715.1(B)(5) and concluded that an order authorizing disclosure could issue only (1) with the consent of the patient, or (2) after a finding that the release of the information is “proper.” Citing LSA-C.E. art. 510, which sets forth the health care provider-patient privilege, the court determined that none of the enumerated exceptions to the privilege, outlined |4in Subsection B(2) of the article, applied in this case. Acknowledging DOTD’s “very valid interest in seeking these records,” the district court nevertheless reasoned that release of the records would not be “proper” within the meaning of LSA-R.S. 13:3715.1(B)(5) because such a release, in the absence of an applicable exception, would contravene the general privilege set forth in LSA-C.E. art. 510. The court recognized that although the records are relevant, and may be helpful to the final determination of what really happened in this case, the disclosure of the records would bring “further hardship and remembrance” to the Smith family. Therefore, the court found no basis for authorizing release of the medical records or overcoming “the very sacrosanct privilege that exists with regard to medical records.”

DOTD sought supervisory review of the district court’s adverse ruling in the Court of Appeal, First Circuit which initially declined to exercise its supervisory jurisdiction, citing Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

DOTD then applied to this court for review. We granted DOTD’s application and remanded the case to the court of appeal for briefing, argument, and an opinion. Moss v. State, 05-0222 (La.3/18/05), 896 So.2d 988.

In Moss v. State, Department of Transportation and Development, 04-2160 (La. App. 1 Cir. 6/24/05), 917 So.2d 45, the court of appeal denied DOTD’s writ application on the merits. In reaching its decision, the court of appeal, like the district court, first determined that the information sought by DOTD was privileged under LSA-C.E. art. 510 and that none of the exceptions to the privilege set forth in Subsection B(2) of the article applied in this case. The court then turned to an examination of the provisions of LSA-R.S. 13:3715.1(B), which specify the exclusive | ¿means by which medical, hospital, or other records relating to an individual’s medical treatment, history, or condition may be obtained from or disclosed by a health care provider. Because it found that LSA-R.S. 13:3715.1 “was not designed to circumvent the health care provider-patient privilege” conferred by LSA-C.E. art. 510, the court of appeal reasoned that the statute was intended to protect health care providers by providing clear ground rules for the release of medical information and by providing a procedural mechanism for a patient or his statutorily authorized representative to object to the release of information. Citing LSA-C.E. art. 510(E), which provides for only a limited waiver pursuant to LSA-R.S. 13:3715.1 when one of the Subsection B(2) exceptions applies, the court of appeal determined that discovery of a privileged communication is proper under LSA-R.S. 13:3715.1 only if there is a waiver of the privilege or if an exception to the health care provider-patient privilege exists under LSA-C.E. art. 510(B)(2). The court ultimately concluded:

DOTD seeks access to a deceased non-party’s medical records pursuant to LSA-R.S. 13:3715.1. DOTD was unsuccessful in obtaining permission from an authorized person for the release of Mrs. Smith’s medical records. Following a contradictory hearing, the trial court determined that the information was protected by the healthcare provider-patient privilege recognized in LSA-C.E. art. 510 and that there was no applicable exception or waiver of this privilege. A party may not obtain discovery of privileged matter. LSA-C.C.P. art. 1422. The release of the requested information can never be “proper” under LSA-R.S. 13:3715.1 B(5) if, after a contradictory hearing, it is determined that a privilege exists and there is no exception to, or waiver of, that privilege. Accordingly, we find no error in the trial court’s conclusion that release of Mrs. Smith’s medical records would not be “proper” under LSA-R.S. 13:3715.1 B(5).

Moss, 04-2160 at 6, 917 So.2d at 48-49.

We granted certiorari to review the correctness of the court of appeal’s ruling. Moss v. State, 05-1963 (La.11/28/05), 916 So.2d 121.

IbLAW and ANALYSIS

The precise issue we are called upon to resolve is whether the lower courts erred in denying DOTD’s request, pursuant to LSA-R.S. 13:3715.1, for disclosure of the medical records of Mrs. Smith, a deceased non-party to the instant litigation.

As a general rule, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. LSA-C.C.P. art. 1422. Thus, the threshold question is whether the information sought by DOTD is privileged. In this case, both the district court and the court of appeal concluded that the medical records of the late Mrs. Smith are protected by Louisiana’s health care provider-patient privilege.

At the outset, we note that federal law and state law are at odds over whether there should be a general health care provider-patient privilege. EDWARD J. IM-WINKELRIED, THE NEW WIGMORE: A TREATISE ON EVIDENCE: EVI-DENTIARY PRIVILEGES § 6.2.6 (2002). Federal courts have largely refused to recognize the privilege. Id. It does not exist at common law; rather, the privilege is purely a creation of statute. Id. The first statutory health care provider-patient privilege was adopted by the state of New York in 1828 and has since been adopted in one form or another by forty-two of the fifty states. Id.; Laburre v. East Jefferson General Hospital, 555 So.2d 1381, 1383 (La.1990).

The principal purpose of the health care provider-patient privilege is to encourage full disclosure by the patient of his or her condition in order to ensure proper diagnosis and treatment. Laburre, 555 So.2d at 1383. To obtain this end, the |7privilege seeks to secure the patient from disclosure, in court, of potentially humiliating, embarrassing or disgraceful information, or information that could be the basis for the patient’s legal liability. Id. Another rationale for the privilege is the recognition of a patient’s interest in the privacy of therapeutic matters. Id.

In Louisiana, the health care provider-patient privilege was first introduced in civil cases with the passage of 1968 La. Acts No. 499, which enacted LSA-R.S. 13:3734. Laburre, 555 So.2d at 1383; Darryl J. Foster, Comment, Competent Opinions and Privileges, 21 Loy.L.Rev. 422, 443 (1975). In 1992, with the passage of 1992 La. Acts No. 376, the Louisiana legislature enacted Chapter 5, “Testimonial Privileges,” of the Code of Evidence, and in particular, Article 510, which now governs testimonial privileges, exceptions and waivers with respect to communications between a health care provider and a patient in noncriminal proceedings. LSA-R.S. 13:3734(B).

Louisiana Code of Evidence article 510 provides, in relevant part:

B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.

The patient for whom protection was intended by this article is a person in need of medical care who might otherwise withhold relevant information for fear that it may later embarrass him or her or be used against the individual in legal proceedings. Laburre, 555 So.2d at 1383. By definition, a “confidential communication” includes medical records generated in the course of obtaining advice, diagnosis, or treatment with respect to a particular health condition. LSA-C.E. art. 510(A)(8)(b). The privilege extended by the article may be claimed by the patient or by his or her legal ^representative. LSA-C.E. art. 510(D). Section (B)(2) of Article 510 sets forth numerous exceptions to the privilege. However, as the lower courts correctly noted, not one of the exceptions applies to the facts of the instant case. As a |flresult, it is clear that the medical records of the late Mrs. Smith fall within the purview of the health care provider-patient privilege set forth in LSA-C.E. art. 510.

Nevertheless, the rule barring discovery of disclosures to health care providers is not a rule of incompetency of evidence, which serves the end of protecting an adverse party against unreliable or prejudicial testimony. 1 McCORMICK ON EVIDENCE § 102, p. 410 (5th ed.1999). “It is a rule of privilege protecting the extrinsic interest of the patient and designed to promote health, not truth.” Id. As a privilege that benefits the patient, the privilege bestowed by LSA-C.E. art. 510 may be waived by the patient (or the individual to whom the privilege applies). Merhige v. Gubbles, 95-1106 (La.App. 4 Cir. 6/29/95), 657 So.2d 1098, 1101. This waiver may be express or implied. Succession of Smith v. Kava/naugh, Pierson & Talley, 513 So.2d 1138 (La.1987).

Conceding that Mr. Smith refused to authorize the release of his late wife’s medical records and, therefore, did not expressly waive the health care provider-[patientm privilege, DOTD nevertheless argues that Mr. Smith impliedly waived the privilege by testifying in deposition as to the facts surrounding his late wife’s medical history. According to DOTD, this partial disclosure of information regarding Mrs. Smith’s medical condition waived the privilege as to all communications on the subject.

In Succession of Smith, we explained that waiver in the context of a privilege includes not merely words or conduct expressing an intention to relinquish a known right, but conduct which would make it unfair for the privilege-holder to insist on the privilege. Succession of Smith, 513 So.2d at 1143. We pointed out that the kind of unfairness which justifies a finding of waiver most commonly results from a privilege-holder’s abuse of his or her privilege in three types of situations: (1) “partial disclosure,” a strategic introduction into evidence at trial of only part of a larger class of privileged material; (2) “pretrial partial disclosure,” a pretrial disclosure of a privileged communication indicating a decision to rely on privileged evidence at trial; and (3) “placing privileged communications at issue,” an affirmative pleading of a claim or defense that inevitably requires the introduction of privileged communications. Id. at 1143-44.

In each of these three instances, the unfairness which results in a finding of waiver occurs when the privilege-holder elects to make the privileged communication an element of his or her case at trial, while attempting to maintain unfettered editorial control over the content of the available evidence. In the instant case, the privilege-holder is not a party to the proceedings. As a non-party, there is clearly no intention on the part of the privilege-holder to introduce or rely on privileged evidence at trial. There has been no attempt on the part of the privilege-holder to interject as an issue the content of any privileged communication, either by way of claim or defense. As l^a result, the situations discussed in Succession of Smith that traditionally support a finding of waiver simply do not apply in this case.

Moreover, Mr. Smith did not voluntarily disclose any information concerning his late wife’s medical condition, but testified only as a result of his compelled attend-anee at a deposition at which he was not represented by counsel. See, e.g., Buffa, v. Scott, 147 Ariz. 140, 708 P.2d 1331 (App.1985) (acknowledging “weight of authority” holding that disclosures under compulsory cross-examination at a deposition are not voluntary, and thus do not constitute a waiver). His testimony at that deposition largely centered around the facts comprising Mrs. Smith’s medical history; he did not disclose the contents of any privileged communications between Mrs. Smith and her treating physicians. 1 McCORMICK ON EVIDENCE § 103 at 416 (When the patient in direct testimony does not reveal any privileged matter respecting the consultation, but testifies only to his or her physical or mental condition existing at the time of the consultation without disclosure of privileged matter, there is no waiver.) See, e.g., Succession of Smith, 513 So.2d at 1149-51 (on rehearing). Considering the totality of circumstances, we do not find that Mr. Smith by virtue of his deposition testimony impliedly waived the privilege attaching to his late wife’s medical records.

Having determined that Mrs. Smith’s medical records are subject to the health care provider-patient privilege and that there is no exception under LSA-C.E. art. 510(B)(2) that applies in this case, and no waiver of the privilege, we consider the question of whether such otherwise privileged information may still be discoverable under the provisions of Louisiana law.

hgln the courts below, DOTD sought access to the pre-accident medical records of Mrs. Smith through the procedure outlined in LSA-R.S. 13:3715.1(B), which provides, in pertinent part:

The exclusive method by which medical, hospital, or other records relating to a person’s medical treatment, history, or condition may be obtained or disclosed by a health care provider, shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner:
(1) A health care provider shall disclose records of a patient who is a party to litigation pursuant to a subpoena issued in that litigation, whether for purposes of deposition or for trial and whether issued in a civil, criminal, workers’ compensation, or other proceeding, but only if: ‘ the health care provider has received an affidavit of the party or the party’s attorney at whose request the subpoena has been issued that attests to the fact that such subpoena is for the records of a party to the litigation and that notice of the subpoena has been mailed by registered or certified mail to the patient whose records are sought, or, if represented, to his counsel of record, at least seven days prior to the issuance of the subpoena; and the subpoena is served on the health care provider at least seven days prior to the day on which the records are to be disclosed, and the health care provider has not received a copy of a petition or motion indicating that the patient has taken legal action to restrain the release of the records. If the requesting party is the patient or, if represented, the attorney for the patient, the affidavit shall state that the patient authorizes the release of the records pursuant to subpoena. No such subpoena shall be issued by any clerk unless the required affidavit is included with the request.
(3) Any attorney requesting medical records of a patient who is deceased may obtain the records by subpoena, as provided in Paragraph (1) hereof, by written authorization of the person authorized under Louisiana Civil Code Article 2315.1 or the executor or administrator of the deceased’s estate, or by court order, as provided in Paragraph (5) hereof.
(5) A court shall issue an order for the production and disclosure of a patient’s records, regardless of whether the patient is a party to the litigation, only: after a contradictory hearing with the patient, or, if represented, with his counsel of record, or, if deceased, with those persons identified in Paragraph (3) hereof, and after a finding by the 11scourt that the release of the requested information is proper; or with the consent of the patient.

In the district court, and later, before the court of appeal, DOTD argued that pursuant to Section B(5) of the statute, the district court has discretion to order the release of Mrs. Smith’s medical records in the absence of consent from her legal representative or an applicable exception to the health care provider-patient privilege under LSA-C.E. art. 510(B)(2), if, after a contradictory hearing, the district court determines that such disclosure is “proper.” In other words, DOTD argued that LSA-R.S. 13:3715.1(B)(5) allows the district court to compel the disclosure of otherwise privileged information upon a finding that disclosure is “proper.” Both lower courts disagreed.

In its analysis, the court of appeal examined the provisions of LSA-R.S. 13:3715.1 and noted that Section B(3) outlines the means by which an attorney may obtain the medical records of a deceased individual. If the decedent’s estate is a party to the litigation, the decedent’s medical records may be obtained by subpoena. In the alternative, written authorization for the release of the medical records may be obtained from the person authorized under LSA-C.C. art. 2315.1, or the executor or administrator of the decedept’s estate. If the records cannot be obtained by subpoena or written authorization, an attorney may seek a court order pursuant to provisions of LSA-R.S. 13:3715.1(B)(5).

The court of appeal reasoned that this procedure for obtaining medical information “was not designed to circumvent the health care provider-patient privilege.” Moss, 04-2160 at 5, 917 So.2d at 48. Rather, the court determined that LSA-R.S. 13:3715.1 primarily “serves as a protection to health care providers by providing clear ground rules that authorize the release of information,” and also |14provides a procedural mechanism for a patient or his statutorily recognized representative to object to the release of information and for. the judicial disposition of contested matters in this regard. Id. The court noted that the policy reasons for the rule include preventing breach of the health care provider-patient privilege and protecting the patient’s privacy. Id. citing Davis v. American Home Products Corporation, 98-2160 (La.App. 4 Cir. 1/15/99), 727 So.2d 647, 653, unit denied, 99-0452 (La.4/9/99), 740 So.2d 632.

Drawing on the provisions of LSA-C.E. art. 510(E), the court ultimately concluded that, in the absence of consent or waiver, discovery of a privileged communication is “proper” under LSA-R.S. 13:3715.1(B)(5), only if one of the exceptions to the health care provider-patient privilege set forth in LSA-C.E. .art. 510(B)(2) exists. In other words, the court found that LSA-R.S. 13:3715.1 only establishes a procedure for the release and transfer of medical information that is not protected by a privilege.

Before this court, DOTD contends that the court of appeal’s interpretation of LSA-R.S. 13:3715.1 is contrary to the express language of the statute and the rules of statutory construction. DOTD argues that the issuance of a court order for the production and disclosure of a patient’s records pursuant to LSA-R.S. 13:3715.1(B)(5) is not controlled by the exceptions to the health care provider-patient privilege, and that the contradictory hearing described in that section is rendered meaningless when all discretion is removed from the district court.

h Jn examining the merit of DOTD’s argument and resolving the issue of the proper interpretation to be accorded LSA-R.S. 13:3715.1, we must keep certain principles of judicial interpretation of statutes in mind. The fundamental question in all cases of statutory interpretation is legislative intent. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695, p. 11 (La.6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. The rules of statutory construction are designed to ascertain and enforce the intent of the legislature. Id.; Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766.

The meaning and intent of a law is determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature in enacting the law. SWAT 24 Shreveport Bossier, 2000-1695 at p. 11, 808 So.2d at 302; Succession of Boyter, 99-0761 at p. 9, 756 So.2d at 1129. A statute must be applied and interpreted in a manner that is logical and consistent with the presumed purpose and intent of the legislature. Id.

Further, it is presumed that every word, sentence, or provision in a law was intended to serve some useful purpose, that some effect is to be given to each such provision, and that no unnecessary words or provisions were employed. Sultana Corporation v. Jewelers Mutual Insurance Company, 03-0360, p. 9 (La.12/3/03), 860 So.2d 1112, 1119. As a result, courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause or word as meaningless and surplusage if a construction giving force to, and preserving, all words can legitimately be found. St. Martin Parish Police Jury v. Iberville Parish Police Jury, 212 La. 886, 33 So.2d 671, 676 (1947); State v. Fontenot, 112 La. 628, 36 So. 630, 634 (1904). Finally, it is presumed that the legislature acts with full knowledge of welh|ettled16 principles of statutory construction. Sultana Corporation, 03-0360 at p. 9, 860 So.2d at 1119.

In addition to the above judicial principles which are guides to determine the intent of the legislature, the legislature has enacted rules for the construction of statutes in the provisions of the revised statutes. The following are pertinent to this case.

Louisiana Revised Statutes 1:3 provides:

Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
The word “shall” is mandatory and the word “may” is permissive.

Louisiana Revised Statutes 1:4 provides:

When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.

Louisiana Revised Statutes 1:9 provides:

Unless it is otherwise clearly indicated by the context, whenever the term “or” is used in the Revised Statutes, it is used in the disjunctive and does not mean “and/or.”

We have consistently held that the starting point in interpreting any statute is the language of the statute itself. Touchard v. Williams, 617 So.2d 885, 888 (La.1993); Theriot v. Midland Risk Insurance Company, 95-2895 (La.5/20/97), 694 So.2d 184, 186; State v. Johnson, 03-2993 (La.10/19/04), 884 So.2d 568, 575. Applying the above rules of construction, we begin our analysis.

At issue in this case is the interpretation to be accorded LSA-R.S. 13:3715.1(B)(5), which states that “[a] court shall issue an order for the production and disclosure of a patient’s records, regardless of whether the patient is a party to the |17Iitigation, only: after a contradictory hearing with the patient, or, if represented, with his counsel of record, or, if deceased, with those persons identified in Paragraph (3) hereof, and after a finding by the court that the release of the requested information is proper; or with consent of the patient.”

The court of appeal examined this language and concluded therefrom that LSA-R.S. 13:3715.1 was not designed to circumvent the health care provider-patient privilege set forth in LSA-C.E. art. 510, but rather is controlled by it, and that the release of requested medical information “can never be ‘proper’ under LSA-R.S. 13:3715.2(B)(5) if, after a contradictory hearing, it is determined that a privilege exists and there is no exception to, or waiver of, that privilege.” Moss, 04-2160 at 6, 917 So.2d at 49.

An examination of the language of the statute, applying well-settled rules of statutory construction, belies this conclusion. First, there is no support in the language of LSA-R.S. 13:3715.1 for the conclusion that Section B(5) was not intended to “circumvent,” or create an additional exception to, the privilege set forth in LSA-C.E. art. 510. To the contrary, LSA-R.S. 13:3715.1(B) expressly distinguishes between the methods of obtaining medical records under LSA-C.E. art. 510 and the court order contemplated by Section B(5), providing that the exclusive method by which medical records may be obtained or disclosed by a health care provider “shall be pursuant to and in accordance with the provisions of R.S. 40:1299.96 or Code of Evidence Article 510, or a lawful subpoena or court order obtained in the following manner.” (Emphasis added.)

|! «Secondly, the plain language of LSA-R.S. 13:3715.1(B)(5) clearly contemplates that in instances in which a non-party’s medical records are being sought and the non-party or, if deceased, the non-party’s representative, has not authorized the release of the medical records, there is to be a contradictory hearing and a finding by the district court that release of the requested medical information is “proper.” The required contradictory hearing and determination by the district court that release is “proper” is rendered meaningless, however, under an interpretation which concludes there are only two scenarios in which the medical records of a non-party are discoverable: (1) where the non-party, or, if deceased, the non-party’s representative consents to disclosure (either expressly or by waiver); and (2) where the records fall under one of the exceptions to the privilege outlined in LSA-C.E. art. 510(B)(2). In either scenario, the required contradictory hearing is rendered meaningless. If the non-party or non-party’s representative consents to or authorizes release of the records, there is obviously no need for a contradictory hearing. In instances such as this one in which the non-party or non-party’s representative refuses to authorize the release of medical records and not one of the statutory exceptions to the health care provider-patient privilege exists, the contradictory hearing is an empty exercise.

Had the legislature intended another interpretation, that intent would have been reflected in a different choice of words. The statute could simply have provided that a non-party’s medical records are subject to release only (1) upon the non-party’s authorization or consent, or (2) where one of the exceptions enumerated under LSA-C.E. art. 510(B)(2) exists. However, the statute does not so provide. Rather, LSA-R.S. 13:3715.1(B)(5) expressly requires a contradictory hearing and a finding by the court that the release is “proper.” We cannot support an interpretation of this |1 slanguage that would render it meaningless. St. Martin Parish Police Jury, 33 So.2d at 676-677 (“We are convinced, however, that the Legislature in-eluded these words in the statute for some definite purpose, and that they cannot be declared meaningless if we can give them a reasonable interpretation.”).

Finally, in examining the words of the statute, we find the legislature’s choice of the word “proper” to be significant in conveying its intent. The word, defined as “[t]hat which is fit, suitable, appropriate, adapted, correct,” is deliberately non-specific. It is a broad, generic term imparting some degree of discretion to the courts according to specific factual situations in a particular case. By way of example, as noted by DOTD, the legislature has incorporated the word in LSA-C.C.P. art. 2164, which provides, in pertinent part:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. [Emphasis added.]

The Official Revision Comments to this article explain that “[t]he purpose of this article is to give the appellate court complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” See, Comment (a), Official Revision Comments— 1960. In other words, the article extends to the courts discretion to effectuate the interests of justice in instances where an injustice would otherwise result.

Because it is presumed that the legislature acts with full knowledge of all existing laws, and the well-settled rules of statutory construction, Theriot v. Midland Risk Insurance Company, 95-2895 at p. 4, 694 So.2d at 186-187, we can assume that in incorporating the word “proper” in LSA-R.S. 13:3715.1(B)(5), the legislature intended it to impart a similar meaning: the courts are vested with some discretion to evaluate, on a case by case basis and according to the particular facts presented, whether the interests of justice would be served by the release of medical records not authorized by other statutory provisions.

Therefore, contrary to the conclusion that LSA-R.S. 13:3715.1 was not intended to provide litigants a mechanism for circumventing the health care provider-patient privilege, we find precisely the opposite. We find that the most reasonable construction of the statute, giving meaning to all its provisions, is that Section B(5) confers on the court the power to compel disclosure of privileged medical information, following a contradictory hearing, if disclosure is “proper” or necessary to promote the interests of justice, even in the absence of one of the statutory exceptions enumerated in LSA-C.E. art. 510(B)(2).

This construction of the statute reflects, in our opinion, a recognition on the part of the legislature that the health care provider-patient privilege, when strictly applied, without the exercise of discretion on the part of the court, can occasionally be unjust, because the effect of such a privilege is to cut off access to information and potentially the truth. United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974) (“Whatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed for they are in derogation of the search for the truth.”). Obviously, the legislature intended the health care provider-patient privilege to be a shield and not a sword, for with the enactment of LSA-R.S. 13:3715.1 the legislature was careful to grant the court authority to order disclosure when “proper”.

In enacting LSA-R.S. 13:3715.1, and in particular Section B(5) thereof, the legislature has entrusted the courts with the duty of determining, in the context of a contradictory hearing, on a case by case basis, according to the unique facts presented, whether disclosure of a non-party’s otherwise privileged medical information is “proper” in a particular case in the absence of consent or a waiver. This determination is not, as explained above, confined solely to ascertaining whether a statutory exception to the privilege exists.

In the instant case, both the district court and the court of appeal committed legal error by confining their determinations of whether disclosure of the late Mrs. Smith’s medical records is “proper” to ascertaining whether a statutory exception to the privilege exists. In his reasons, the district court judge, although acknowledging the relevancy of the requested records and discussing the hardship that disclosure would bring to the Smith family, ultimately found that because not one of the LSA-C.E. art. 510(B)(2) exceptions to the health care provider-patient privilege exists, there is nothing that “indicates that the request is ‘proper’ as required by the statute |22because it would be in violation of the privilege allowed by Code of Evidence article 510.” The court of appeal reached a similar conclusion, holding: “The release of the requested information can never be ‘proper’ under LSA-R.S. 13:3715.1(B)(5) if, after a contradictory hearing, it is determined that a privilege exists and there is no exception to, or waiver of, that privilege.” Moss, 04-2160 at 6, 917 So.2d at 49. Because both lower courts applied an incorrect legal standard in assessing the merits of DOTD’s motion, we find it necessary to reverse the rulings of the lower courts and remand this matter to the district court for the purpose of conducting another contradictory hearing to determine whether the release of the late Mrs. Smith’s medical records is “proper” within the meaning of LSA-R.S. 13:3715.1(B)(5).

Admittedly, there are no clear guidelines set forth in the statute itself for determining what is “proper” in a particular instance. See, e.g., Judge Byrnes’ dissent in Goldstein v. St. Paul Fire & Marine Insurance Company, 95-2542 (La. App. 4 Cir. 12/6/95), 665 So.2d 1267, 1271, lamenting the lack of clear standards in the statute. The task left to the district court requires a balancing of competing interests. In determining whether the disclosure of otherwise privileged information is “proper,” the court is required to assess whether, in a particular case, the eviden-tiary need for the disclosure outweighs the patient’s privacy interests. See e.g., Laburre, 555 So.2d at 1384 (in which this court applied such a balancing test to conclude that the identity of blood donors should not be disclosed because the donors’ privacy interests and the public’s interest in maintaining an adequate blood supply outweighed the defendant’s need for disclosure); Most v. Tulane Medical Center, 576 So.2d 1387 (La.1991) (in which this court employed the same balancing test to reach the opposite conclusion: that the plaintiffs’ need in that case for the identity of the blood donor outweighed the donor’s privacy interest and any public interest that would be served by non-disclosure).

Balancing of interests is not a unique task for the court, which engages in similar exercises in the context of determining whether otherwise relevant evidence should be excluded because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. LSA-C.E. art. 403. The task involves recognizing and balancing competing interests: those protected by shielding the evidence sought with those advanced by disclosure.

Each case must be resolved on its own facts. Nevertheless, there are guidelines the courts should follow in assessing the propriety of disclosure in any particular ease. In light of the significant policy reasons supporting the legislatively established health care provider-patient privilege and the constitutional dimensions of the privacy expectations protected thereby, the .burden is on the party seeking to overcome the privilege to establish the propriety of disclosure. In light of those same considerations, the privilege should not be subject to casual breach by every litigant in single-minded pursuit of the last piece of evidence which may marginally contribute to his or her case. There should be a substantial showing of relevance and need, ie. lack of ability to obtain the evidence elsewhere, by the party seeking disclosure. Further, any exception to the privilege should be narrowly tailored and should extend only to information necessary and relevant to the condition relied on as a defense or claim. In other words, it is “proper” to disregard the privilege only to the limited extent necessary to access information which is directly related to [^determining the truth. Following these guidelines, the courts can insure that both the privacy interests of the patient and the due process rights of the litigant seeking disclosure are respected.

In fashioning a remedy, there are numerous tools available to the courts, including in camera inspections, excising highly personal and/or irrelevant matters, or allowing depositions limited to specific relevant questions. What is to be avoided is unbridled evaluation of one’s complete medical records.

CONCLUSION

For the reasons expressed above, the decisions of the court of appeal and the district court are reversed. This matter is remanded to the district court for purposes of conducting a contradictory hearing, consistent with the guidelines announced herein, on DOTD’s motion pursuant to LSA-R.S. 13:3715.1(B)(5).

REVERSED and REMANDED.

JOHNSON, J., concurs.

      . Phenobarbital is a Schedule IV controlled dangerous substance under LSA-R.S. 40:964. According to the testimony of DOTD's expert, while Phenobarbital was once prescribed by physicians as a sedative and to treat insomnia, today it is used primarily as a seizure medication.

      . Moss v. State, 04-2160 (La.App. 1 Cir. 1/10/05) (unpublished).

      . While there is disagreement as to whether courts should recognize a general health care provider-patient privilege, there is unanimity in the jurisdictions as to the existence of the narrower psychotherapist-patient privilege. EDWARD J. IMWINKELRIED, THE NEW WIGMORE: A TREATISE ON EVIDENCE: EVIDENTIARY PRIVILEGES § 6.2.7 at 502.

      . LSA-C.E. art. 510(B)(2) provides:
      Exceptions. There is no privilege under this Article in a noncriminal proceeding as to a communication:
      (a) When the communication relates to the health condition of a patient who brings or asserts a personal injury claim in a judicial or worker's compensation proceeding.
      (b) When the communication relates to the health condition of a deceased patient in a wrongful death, survivorship, or worker’s compensation proceeding brought or asserted as a consequence of the death or injury of the deceased patient.
      (c) When the communication is relevant to an issue of the health condition of the patient in any proceeding in which the patient is a party and relies upon the condition as an element of his claim or defense or, after the patient's death, in any proceeding in which a party deriving his right from the patient relies on the patient's health condition as an element of his claim or defense.
      (d) When the communication relates to the health condition of a patient when the patient is a party to a proceeding for custody or visitation of a child and the condition has a substantial bearing on the fitness of the person claiming custody or visitation, or when the patient is a child who is the subject of a custody or visitation proceeding.
      (e) When the communication made to the health care provider was intended to assist the patient or another person to commit or plan to commit what the patient knew or reasonably should have known to be a crime or fraud.
      (f) When the communication is made in the course of an examination ordered by the court with respect to the health condition of a patient, the fact that the examination was so ordered was made known to the patient prior to the communication, and the communication concerns the particular purpose for which the examination was made, unless the court in its order directing the examination has stated otherwise.
      (g)(i) When the communication is made by a patient who is the subject of an interdiction or commitment proceeding to his current health care provider when such patient has failed or refused to submit to an examination by a health care provider appointed by the court regarding issues relating to the interdiction or commitment proceeding, provided that the patient has been advised of such appointment and the consequences of not submitting to the examination.
      (ii) Notwithstanding the provisions of Su-bitem (I) of this Item, in any commitment proceeding, the court-appointed physician may review the medical records of the patient or respondent and testify as to communications therein, but only those which are essential to determine whether the patient is dangerous to himself, dangerous to others, or unable to survive safely in freedom or protect himself from serious harm. However, such communications shall not be disclosed unless the patient was informed prior to the communication that such communications are not privileged in any subsequent commitment proceedings. The court appointed examination shall be governed by Item B(2)(f).
      (h) When the communication is relevant in proceedings held by peer review committees and other disciplinary bodies to determine whether a particular health care provider has deviated from applicable professional standards.
      (i) When the communication is one regarding the blood alcohol level or other test for the presence of drugs of a patient and an action for damages for injury, death, or loss has been brought against the patient.
      0 When disclosure of the communication is necessary for the defense of the health care provider in a malpractice action brought by the patient.
      (k) When the communication is relevant to proceedings concerning issues of child abuse, elder abuse, or the abuse of disabled or incompetent persons.
      (Z) When the communication is relevant after the death of a patient, concerning the capacity of the patient to enter into the contract which is the subject matter of the litigation.
      (m) When the communication is relevant in an action contesting any testament executed or claimed to have been executed by the patient now deceased.

      . LSA-C.E. art. 510(E) provides:
      Waiver. The exceptions to the privilege set forth in Paragraph B(2) shall constitute a waiver of the privilege only as to testimony at trial or to discovery of the privileged communication by one of the discovery methods authorized by Code of Civil Procedure Article 1421 et seq, or pursuant to R.S. 40:1299.96 or R.S. 13:3715.1.

      . LSA-R.S. 40:1299.96 permits release of a patient’s medical records by a health care provider upon presentation of written authorization and payment of copying and handling charges.

      . Black’s Law Dictionary 1216 (6th ed.1990).

      . That the word "proper” imparts discretion, in appropriate circumstances, to effectuate the ends of justice is likewise reflected in the language of LSA-C.C.P. art. 1433, which provides, in pertinent part:
      B. If the court finds that the perpetuation of testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken.

      . Our construction of the statute comports with that of the fourth circuit, which, although not addressing the issue directly, intimated in two decisions that the medical records of a non-party patient could be discoverable pursuant to the contradictory hearing authorized by LSA-R.S. 13:3715.1(B), even in the absence of an exception under LSA-C.E. art. 510. See, Davis v. American Home Products Corporation, 98-2160, p. 5 (La.App. 4 Cir. 1/15/99), 727 So.2d 647, 650, writ denied, 99-0452 (La.4/9/99), 740 So.2d 632 ("Absent the existence of a statutory exception, permission from the non-party patients, or a contradictory hearing, the medical records of non-party patients are not discoverable in Louisiana.”) (Emphasis added.); Goldstein v. St. Paul Fire & Marine Insurance Company, 95-2542, p. 4 (La.App. 4 Cir. 12/6/95), 665 So.2d 1267, 1270, writ denied, 95-2967 (La. 12/14/95), 666 So.2d 657 ("There is no question that the executor could obtain a non-party’s medical records from any other health care provider under the provisions of LSA-R.S. 13:3715.1(B)(2)(a), which sets out the procedure for the release of such records.”).

      . Such a proviso is not unique to Louisiana, but has been adopted by the legislatures of North Carolina and Virginia as well.
      Va.Code Ann. § 8.01-399 provides, with respect to communications between physicians and patients, that "disclosure may be ordered when a court in the exercise of sound discretion, deems it necessary to the proper administration of justice.”
      Likewise, N.C. Gen.Stat. § 8-53 provides that “[a]ny resident or presiding judge in the district ... may ... compel disclosure if in his opinion disclosure is necessary to a proper administration of justice.”

      . Under the present circumstances, we are constrained to remand. At oral argument, counsel for the parties indicated that discovery subsequent to the hearing pursuant to LSA-R.S. 13:3715.1 has altered the discovery landscape. As such, it would be inappropriate for this court to resolve this matter on this out-dated record.

      . See LSA-Const. art. I, § 5.