author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Sandra M. HARVIN, Wife of/and Joseph B. Harvin v. ANPAC LOUISIANA INSURANCE COMPANY.
    No. 06-CA-204.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 17, 2006.

      Lawrence D. Wiedemann, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Steven B. Witman, Valerie Theng Math-erne, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12This is a personal injury suit arising from a motor vehicle accident. Defendant, ANPAC Louisiana Insurance Company, appeals a judgment based on a jury verdict, as well as the denial of its motion for judgment not withstanding the verdict (“JNOV”) and the grant of plaintiffs motion for JNOV. Plaintiff, Sandra M. Har-vin, answered the appeal.

Sandra M. Harvin, wife of/and Joseph B. Harvin, filed suit for damages against defendant, their uninsured/underinsured motorist (“UM”) carrier, alleging that on or about May 3, 2002 Sandra M. Harvin’s (“Mrs.Harvin”) vehicle was struck in the rear by another vehicle operated by Maggie L. Anderson (“Ms.Anderson”). Ms. Anderson’s automobile insurer, Geico, subsequently paid the Harvins the policy’s liability limit of $10,000.00. Defendant paid them $10,541.52 in payment of past medical expenses incurred by Mrs. Harvin and tendered $23,300.00 in settlement of all of their claims under their primary and umbrella | .^insurance policies with defendant. The Harvins alleged in their petition that their damages far exceed the liability limits of Ms. Anderson’s insurer and the tender made by defendant.

At the conclusion of evidence in the trial of this matter, plaintiff moved for a directed verdict on liability and the trial judge granted the motion. Therefore, the only questions before the jury pertained to the damages sustained by Mrs. Harvin. On March 24, 2005, the jury found that Mrs. Harvin had proven by a preponderance of the evidence that she sustained damages that were proximately caused by the May 3, 2002 accident and awarded the following damages:

(a) General damages (pain and suffering and mental anguish, past, present and future, and past and future loss of ability to enjoy life and pursue happiness) $ -0-
(b) Past Medical expenses $ 4,000.00 (epidurals)
(c) Future medical expenses, if any $125,000.00
(d) past and future loss of income $ -0-
(e) past and future loss of physical function TOTAL $129,000.00

The jury further found that the defendant was not arbitrary, capricious, and without probable cause in failing to properly handle the Harvin’s claim. The trial judge subsequently adopted the jury verdict in a May 19, 2005 judgment.

Plaintiff filed a motion for JNOV, or, in the alternative a motion for a new trial, seeking an award of general damages. Defendant also filed a motion for JNOV seeking to set aside the awards for past and future medical expenses. A hearing on both motions was held on August 3, 2005. In a judgment rendered on August 9, 2005, the trial judge, without written reasons, denied defendant’s motion for JNOV and granted plaintiffs, finding that Mrs. Harvin is entitled to $150,000.00 |4in general damages. Defendant filed a sus-pensive appeal of the May 19, 2005 and August 9, 2005 judgments and plaintiff answered the appeal urging that the general damage award was inadequate.

The following evidence was presented at trial. Plaintiff, Sandra Harvin, testified that on the morning of May 3, 2002, five to ten seconds after entering Interstate 10 at the Bonnabel Boulevard ramp and merging into the right lane, she was rear ended. The “very strong impact” knocked her car forward approximately one car length and lifted her up out of her seat. She stated that she was thrust forward and then pulled back by her seatbelt, hitting her head on the steering wheel and then the back of her head against the seatbelt. Mrs. Harvin testified that she subsequently experienced headaches at work that day; and during the next few days she developed pain in the back of her neck and between her shoulder blades, as well as low back pain. Her back pain started at the right hip and radiated down her leg to her foot. She explained that the pain was “like shocks, pins and needles.” Sometimes she had numbness in her leg and at other times sharp pains traveled down her leg.

Mrs. Harvin testified that prior to the accident at issue, she would occasionally experience brief back pain, but only after performing various chores in and around the house, such as mopping, gardening, and cleaning carpets. She admitted that she was diagnosed with scoliosis at age eleven by an orthopedic surgeon. However, she stated that she never had any problems with her back related to the scoliosis. She also admitted that she visited a chiropractor about twenty years ago, but could not recall the reason for the visit.

Mrs. Harvin testified that she would go on to see a series of doctors following the accident. Approximately three to four days after the accident Mrs. Harvin visited Stewart Altman, M.D. for treatment of her neck and back. She received physical therapy from Dr. Altman for a period of two to three months. In addition to Dr. | (¡Altman, she also began seeing a chiropractor, Dr. Robert Lizano. Under Dr. Altman’s treatment, her neck pain eventually went away. Initially, Dr. Lizano’s treatment for her back helped a great deal. However, over a period of time, her condition worsened, prompting Dr. Lizano to suggest that she see an orthopedist and have an MRI performed. Dr. Hamsa, an orthopedic surgeon, prescribed anti-inflam-matories, pain medication, and muscle relaxants. Mrs. Harvin stated she did not take the pain medication every day because it made her head “feel funny” and interfered with work. The treatments recommended by Dr. Hamsa, i.e., facet blocks in her lumbar spine and a series of epidural injections, provided only temporary relief. Eventually, with no improvement in her back or leg, Dr. Hamsa suggested that she see a neurosurgeon, Dr. Stefan Pribil. After reviewing her CAT Scan results, Dr. Pribil recommended a three-level fusion with BAK cages. Mrs. Harvin testified that she did not have the surgery because it is a “real severe” and “dangerous” surgery and it scares her.

On August 12, 2003, Mrs. Harvin visited John Cazale, M.D., an orthopedic surgeon, for an evaluation, at defendant’s request. She testified that Dr. Cazale recommended a drug called Neurontin, which proved ineffective. Subsequent to the above recommendations and treatments, in September of 2004, she was involved in a motor vehicle accident in Gulfport, Mississippi while on her way to Copa Casino. According to Mrs. Harvin she was not injured.

Mrs. Harvin further stated that her condition has worsened, with periods during which the pain is so severe that she can barely walk. She testified that she now believes that she will have to have the three-level fusion with BAK cages surgery. The record includes estimates for the cost of the surgery, with the total ranging from $123,400.00 to $130,472.00.

In July of 2003 the Harvins decided to move from Metairie to Slidell. In January of 2004, Mrs. Harvin resigned, effective March 31, 2004, from the law firm |fishe had been employed by for fifteen years as a legal secretary. The record includes Mrs. Harvin’s letter of resignation in which she states, “since my accident of May 3, 2002, I have found it increasingly difficult to travel to, and from, the office by car and even more difficult to sit at my desk and type for 8 hours per day.” However, shortly thereafter, in February of 2004, Mr. Harvin opened a law office in Slidell and Mrs. Harvin assisted in setting up the office and training her daughter to work for the firm. At the time of trial she was still going into the office at least once every week. She also babysits for her grandchild, born November 10, 2003, when her daughter is at the law office and at other times during the day.

Mrs. Harvin also testified regarding her personal activities since the May 3, 2002 accident. On June 1, 2002, she and her husband spent a week in California visiting their daughter Jennifer. While there they drove and walked around Beverly Hills and took a boat ride to Catalina Island. Mrs. Harvin stated that she had difficulty walking around Catalina and had to keep stopping. Eventually because of her problems, they decided to tour the area by car, rather than walking. In August of 2002 and 2004, plaintiffs traveled to South Carolina, where Mr. Harvin’s mother lives. Mrs. Harvin also confirmed that she and her husband took a cruise to Mexico in April of 2003. Their excursions during the cruise included a bus ride “which didn’t help me” and kayaking, during which she sat while her husband paddled. Mrs. Har-vin also testified that she drives to casinos in the New Orleans area and occasionally Gulfport, Mississippi.

Joseph Harvin testified that prior to the May 3, 2002 accident, his wife had only routine aches and minor pains in her back. The evening of the accident he observed and she reported that she was having severe headaches; the following morning she felt stiff and “achy all over,” but primarily her neck and shoulder were starting to cause her problems. By the time of her appointment with Dr. Altman, he observed that she was having back problems. She began having low back problems 17and pain radiating down her leg. He testified that the recommended treatments such as facet blocks and epidurals provided only temporary relief of her symptoms and her condition is getting worse. Mr. Harvin further testified that his wife resigned her job as a legal secretary because the drive from Sli-dell to work in New Orleans was causing her too much pain. He stated that he and his wife have discussed her having back surgery and he does not think that she has any other choice but to have the surgery because of her ongoing problems.

Two former co-workers of Mrs. Harvin, Judy Ward and Kendrick Harding, also testified at trial. Ms. Ward testified that she has known Mrs. Harvin for twenty-eight years and worked with her as a legal secretary for twenty-five years. Prior to the May 3, 2002 accident, she never knew Mrs. Harvin to have any problems with her back. She described Mrs. Harvin before the accident as “always perky and bouncy and happy and singing.” After the accident Mrs. Harvin “would always grab her back, she would — couldn’t sit at her desk for any extended period of time because of — well, I guess it hurt her.” Ms. Ward further stated, “it just changed her, I mean she was just not as happy because I guess when you’re in pain, you just don’t go around bouncy and bubbly, you know.” Mr. Harding testified that he has known Mrs. Harvin for more than sixteen years. He stated that before the accident she was a “jolly go lucky person, she was full of energy.” He also never knew her to have any back problems prior to the May 3, 2002 accident. After the accident “she was kind of moving slow, always trying to sit around, sometimes lays around crying out about her back problems.”

Physicians Rudolf D. Hamsa, M.D., Stefan Pribil, M.D., and John Cazale, M.D., all testified at trial. Dr. Hamsa, an orthopedic surgeon, was accepted by the court as an expert in the field of orthopedic surgery. He testified that Mrs. Harvin was under his care for chronic pain management. Her first visit to his office was on September 6, 2002, after her thoracic and cervical problems had resolved. At that Igtime she was suffering from a sciatic type pain into the thighs and calf. He reviewed Mrs. Harvin’s MRI and it indicated a pos-teriorly ruptured disk at L5-S1 and disk dehydration and degenerative changes at L1-L2 and L2-L3. Additionally, he noted Grade 1 spondylolisthesis at L4-L5, an inherited condition. Dr. Hamsa recommended chiropractic treatment, a 3/8 inch heel lift to the right shoe to correct a congenital pelvic tilt, and medications (an anti-inflammatory and a muscle relaxant). At Mrs. Harvin’s next visit Dr. Hamsa learned that the chiropractic treatment was not helping. He continued her medications and recommended selective facet injections. Following the facet injections Mrs. Harvin reported three days of relief, then a slow return of her symptoms. Dr. Hamsa next recommended that Mrs. Har-vin see a neurosurgeon, Dr. Pribil, about possible future surgical intervention.

Dr. Hamsa further testified that at a subsequent visit, Mrs. Harvin reported the September 2004 accident and that she had not been injured. At her visit on April 20, 2004, Mrs. Harvin indicated that she had continued pain in the lower back and had to retire from work activity on March 31, 2004. Dr. Hamsa stated that he recommended surgical intervention because she continued to have pain in the back and radiation of pain in the legs after conservative measures had been exhausted. When asked at trial if he found any increase in her symptomology or further evidence of injury as a result of the September 2004 accident, Dr. Hamsa stated that he “couldn’t relate anything one way or the other.” Dr. Hamsa further testified that based on Mrs. Harvin’s history, the May 3, 2002 accident is “apparently” the precipitating cause of her symptomology, her need for surgery, and the treatment he prescribed for her.

Dr. Pribil, a board certified neurological surgeon, also testified at trial. The court accepted him as an expert in the field of neurological surgery. Dr. Pribil testified that he first saw Mrs. Harvin on March 25, 2003. Her general medical examination was, for the most part, unremarkable. Her strength was normal and he |flcould not find any objective evidence of pain going down into the legs from the lumbar spine. He stated that her MRI study showed extensive disease in the lumbar spine with evidence of misalignment at the L4-L5 level and disk herniation at several other levels, as well as the presence of scoliosis. He was most concerned that her symptoms of back pain were referable to the L4-L5 level where she had a “fairly profound” area of narrowing, a “strangling of the nerves” due to the misalignment. He further explained that when you have misalignment of vertebrae to as great an extent as Mrs. Harvin, you have rupture of the ligaments that would normally hold the vertebrae in alignment. The misalignment is also an area of “potential weakness”, “much more subject to damage if it is involved in some high force situation or whatever great force is exerted, either bending, lifting, stooping or accident or what not.”

After this initial visit, Dr. Pribil recommended a CAT Scan to get a better picture of the “bony outline” and proposed minimally invasive percutaneous endoscopic disk surgery for temporary respite from the compressed nerve. However, after the CAT Scan revealed that there was a second bony abnormality at the L3-L4 level, the operation was abandoned. When asked at trial what type of surgery he finally recommended to Mrs. Harvin, Dr. Pribil responded that her MRI films were now nearly two years old so he would recommend that she have a stand-up MRI performed before he made his final recommendations. If the new MRI shows no change, then his recommendation would be a mid-line operation; typically the impairment rating from such a surgery would be from 25 to 30 per cent for the body as a whole. His surgical fee for such a procedure ranges from $25,000.00 to $30,000.00. However, if the symptoms do not warrant it, he “wouldn’t touch that back.” His preference is to avoid surgery whenever possible.

Dr. Pribil further testified that there is a reasonable probability that some of the spinal problems revealed by the MRI and CAT Scan were caused by the May 3, |1fl2002 accident. Also, in his opinion, there is a reasonable medical probability that the symptoms reported by Mrs. Harvin after the accident and the necessity for surgery were caused by the May 3, 2002 accident. However, on cross-examination he admitted that the spondylolisthesis in Mrs. Har-vin’s lumbar spine more likely than not existed before the May 3, 2002 accident and the extensive degeneration in her spine which resulted in fissures, could also possibly be of a longstanding nature. He further testified that the longstanding combination of scoliosis and degenerative disk disease can cause increased stress on other levels of the spine above and below and contribute to pain and more degeneration over time. Additionally, he could not say that the accident caused any of the anatomical findings.

John Cazale, M.D., a board certified orthopedic surgeon testified at trial. He was accepted by the court as an expert in orthopedic surgery. Dr. Cazale first saw Mrs. Harvin on August 12, 2003, at the request of defendant, to evaluate and advise them of her condition. Mrs. Harvin complained of having back and right leg pain but was able to change positions easily. The neurological examination revealed that her reflexes and strength were okay. His only neurological finding was that she complained of some decrease in sensation over the lateral aspect of her leg. Her straight leg raising test, which is performed to determine if something is pressing on the nerve, was negative. And she was able to stand on her heels and toes without any difficulty. She had a full range of motion of the lower back and he did not observe any particular muscle spasm at that time. He did observe an “obvious” curvature to her spine secondary to scoliosis when she bent forward. Dr. Cazale also reviewed both her MRI and her CAT Scan on that day. He noted a scoliotic curve and a slippage of one vertebra on the other, i.e., spondylolisthesis. Dr. Cazale stated that she has a Grade 1 spondylolisthesis (25% of the bone has slipped) at L4-L5 which is degenerative in nature. She was also noted to have some degenerative changes in the joints that connect the lower spine at L3-4, 4-5, and 5-1 and a bulging Indisk at L5-S1. He opined that these degenerative changes are longstanding; and it is more probable than not that the scoliosis and the degenerative findings of the spondylolisthesis pre-existed the May 3, 2002 accident. He further opined that pain going down into the leg from a pinched nerve, with the diagnostic findings that he established, can occur in the absence of a motor vehicle accident. He recommended continued conservative care, the anti-inflammatory Neurontin, an epidural steroid injection, and an EMG nerve conduction study if leg pain persisted.

Dr. Cazale next saw Mrs. Harvin on December 30, 2004. At this visit she did not inform him of the September 2004 accident. She reported flare ups of back pain and intermittent episodes of right leg pain; however, since she had stopped working, her pain was somewhat better. Her neurological examination was basically unchanged from the previous one. She had not had any further diagnostic studies or therapeutic injections. Accordingly, Dr. Cazale’s recommendations were unchanged. He did not think she was a candidate for a three-level anterior lumbar fusion.

Defendant argues on appeal that the jury abused its discretion when it awarded plaintiff future medical expenses of $125,000.00. Defendant contends that any future medical treatment and expenses claimed by plaintiff and awarded by the jury are speculative, and are not supported by the expert medical testimony. Further, the trial court committed reversible error when it denied defendant’s motion for JNOV which would have set aside the award for future medical expenses.

Future medical expenses, as special damages, must be established with some degree of certainty, and a plaintiff must demonstrate that such expenditures will, more probably than not, be incurred as a result of the injury. Mendoza v. Mashburn, 99-499, 99-500 (La.App. 5 Cir. 11/10/99), 747 So.2d 1159, writ not considered, 00-0040, 00-0043 (La.2/18/00), 754 So.2d 957, writ denied, 00-0037 (La.2/18/00), 754 So.2d 976. The plaintiff bears the burden of proving entitlement to future medical 112expenses by a preponderance of the evidence. Id. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost. LeMasters v. Boyd Gaming Corp., 04-1054 (La.App. 5 Cir. 2/15/05), 898 So.2d 497, writ denied, 05-0751 (La.5/6/05), 901 So.2d 1103. Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838, 843. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Id.

At trial Dr. Hamsa testified that he recommended surgical intervention for Mrs. Harvin and referred her to a neurosurgeon, Dr. Pribil, to discuss possible future surgical intervention because she continued to have pain after conservative measures had been exhausted. Mrs. Har-vin testified that after reviewing her CAT Scan results, Dr. Pribil recommended a three-level fusion with BAK cages. She stated that she did not have the surgery at that time because it is a “real severe” and “dangerous” surgery that scares her. However, she also testified that her symptoms have worsened and she now believes that she will have to have the three-level fusion with BAK cages surgery. Although at trial Dr. Pribil refused to make a final recommendation for Mrs. Harvin without the benefit of a new MRI, he did testify that if there is no change from her earlier MRI and the symptoms warrant it, then he would recommend surgery. The evidence also sets out the probable cost of the surgery, with the total ranging from $123,400.00 to $130,472.00. While Dr. Cá-zale testified that he did not think Mrs. Harvin was a candidate for a three-level anterior lumbar fusion, a fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. Therefore, we find that the jury did not err in awarding plaintiff $125,000.00 in future medical expenses and the trial judge did not err in denying defendant’s motion for JNOV.

| ^Defendant also argues on appeal that the trial court committed reversible error when it granted plaintiffs motion for JNOV and awarded plaintiff $150,000.00 general damages in addition to the amounts already received by plaintiff prior to trial. Plaintiff answered the appeal, asserting that the March 24, 2005 jury verdict, awarding her past and future medical expenses and no award for general damages was erroneous per se under Wainwright v. Fontenot, 00-0492, (La.10/17/00), 774 So.2d 70; and further, that the August 9, 2005 judgment granting her motion for JNOV and increasing the award to plaintiff by $150,000.00 in general damages is grossly inadequate and should be increased by $250,000.00 in general damages.

The standard of review for determining when a JNOV has been properly granted was reiterated in Joseph v. Broussard Rice Mill, Inc., 00-0628 (La.10/30/00), 772 So.2d 94, as follows:

As enunciated in Scott [Scott v. Hospital Serv. Dist. No. 1, 496 So.2d 270 (La. 1986)], a JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Scott, 496 So.2d at 274. In making this determination, the trial court should not evaluate the credibility of the witnesses, and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Anderson v. New Orleans Pub. Serv., Inc., 583 So.2d 829, 832 (La.1991). This rigorous standard is based upon the principle that “[w]hen there is a jury, the jury is the trier of fact.” Scott, 496 So.2d at 273; Jinks v. Wright, 520 So.2d 792, 794 (La.App. 3 Cir.1987).
In reviewing a JNOV, the appellate court must first determine if the trial judge erred in granting the JNOV. This is done by using the aforementioned criteria just as the trial judge does in deciding whether to grant the motion or not, i.e. do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error |uto grant the motion and the jury verdict should be reinstated. Anderson, 583 So.2d at 832.
Joseph v. Broussard Rice Mill, Inc., 772 So.2d at 99.

The Supreme Court, in Wain-ivright, supra, stated that a verdict awarding medical expenses yet denying general damages is not per se invalid. A reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses, but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the fact-finder has abused its much discretion can that court conduct a de novo review of the record.

On our review, we find that the jury abused its discretion in failing to award general damages. Mrs. Harvin testified in detail and without contradiction about the effects of the accident on her, and that her condition has deteriorated so that she will consent to surgery that she considers dangerous in order to relieve her pain. She testified that her activities since the accident have been performed on a limited basis, and often in pain. Her husband and former co-workers corroborated her testimony that she did not experience severe problems until after the accident. Drs. Hamsa and Pribil testified as to the connection between Mrs. Harvin’s current symptoms and the accident. It is clear from the evidence that the accident greatly exacerbated her pre-existing degenerative condition. One injured through the fault of another is entitled to full indemnification for damages caused thereby. “[A] defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” Wainwright v. Fontenot, supra, citing American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La. 1991).

Because the facts and inferences pointed strongly and overwhelmingly in favor of plaintiff, the jury abused its discretion in failing to award general damages. Consequently, we find that the trial court did not err in granting a JNOV.

|1fiPlaintiff complains that the general damages awarded by the JNOV were inadequate. General damages are inherently speculative in nature and cannot be fixed with mathematical certainty, and include pain and suffering. Wainwright v. Fontenot, supra. The assessment of “quantum,” or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, “the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.” Id. Before a Court of Appeal can disturb an award made by a factfinder, the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Id.

In reviewing this case, we find that the trial judge did not abuse his vast discretion in determining the amount of general damages. The cases cited by plaintiff are in-apposite to the circumstances in the present matter. Further, because we find no abuse of discretion, we need not compare the general damages determination in this case to that in past cases of similar injuries. Under the circumstances presented here, we hold that the award granted by the trial court sufficiently compensates Mrs. Harvin for her general damages.

For the foregoing reasons, the jury verdict granting future medical expenses is affirmed. The judgment granting the JNOV with regard to special damages is affirmed. Costs of this appeal are assessed to defendant.

AFFIRMED.

      . Plaintiff, Joseph B. Harvin, later moved to dismiss his claims and the trial judge, in a May 19, 2005 judgment, ruled that "all claims of plaintiff, Joseph B. Harvin, be and the same are hereby withdrawn and dismissed, with prejudice, each party to bear its own costs.”

      . Pursuant to this Court's August 23, 2006 order, the trial judge ruled on plaintiffs motion for a new trial, denying the motion on August 25, 2006.

      . Lost wages are considered special damages, and in the present case, the jury interrogatories reflect that past and future losses of income were separate items from general damages. Plaintiff appealed only the general damages.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge Ad Hoc.

license: Public Domain

text:
    Rickey BARNES v. Burl CAIN, Warden, Louisiana State Penitentiary and Dora Rabalais, Legal Programs Department.
    No. 2005 CA 2128.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 18, 2006.
    Rickey Barnes, Angola, Proper Person Plaintiff/Appellant, Rickey Barnes.
    L. Bruce Dodd, Baton Rouge, for Defendant/Appellee, Burl Cain, Dora Rabalais and Louisiana State Penitentiary.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr., serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   JAMES F. McKAY III, Judge Ad Hoc.

| ¶This action was filed by Rickey Barnes, an inmate seeking review of a disciplinary decision of the Disciplinary Board of the Louisiana Department of Public Safety and Corrections (DPSC). The district court, upon the recommendation of the Commissioner, rendered judgment in favor of the DPSC and against the inmate at his cost. We affirm.

Rickey Barnes, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, assigned prisoner # 119466, housing assignment JSK3/L, Disciplinary Board Appeal No. LSP-2003-14271-W, and housed in the Louisiana State Penitentiary in Angola, Louisiana, appeals the district court’s judgment, rendered in accordance with LSA-R.S. 15:1178, as well as LSA-R.S. 15:1184,1187, and 1188 of the Prison Litigation Reform Act, dismissing his claims against the DPSC, and others.

The appellant was cited by prison officials for violation of Disciplinary Rules # 3-Defiance; Rule # 1-Contraband; Rule # 5-Aggravated Disobedience, and another Rule # 5-Aggravated Disobedience. A full hearing on the infractions was held on August 1, 2003, before the Disciplinary Board where he was found guilty of all charges. He was | ^imposed a 30-day cell confinement on each report for a total of 90 days cell confinement on all charges.

The appellant filed a request for relief with the 19th Judicial District Court pursuant to LSA-R.S. 15:1177, challenging the decision of the Disciplinary Board. On August 19, 2003, Dora Rabalais of the Legal Programs Department notified the appellant of his appeal number. On September 17, 2003, the appellant was advised by the Legal Programs Department that the response to his appeal was delayed beyond the allowed thirty-day period.

On June 30, 2004, Warden Burl Cain denied the appellant’s appeal from the Disciplinary Board’s decision. On July 28, 2004, an answer was filed on behalf of the defendant in response to Rickey Barnes’ petition.

The matter was docketed to the district court for review in case # 52008, Section 8, which resulted in a signed Commissioner’s Recommendation on June 20, 2005.

A hearing was held before the Commissioner on April 11, 2005. On June 20, 2005, the Commissioner issued a report, “Commissioner’s Recommendation.” In this report the Commissioner found that the appellant had not demonstrated that he was prejudiced by the delay complained of as no good time was taken as a penalty. The Commissioner also found that the appellant was sentenced to a more restrictive housing and custody status but there was no loss of good time that would result in any increase in the amount of time the appellant would spend in custody. Furthermore, the penalty imposed did not constitute an “atypical” deprivation or prejudice of the appellant’s substantial right as required by LSA-R.S. 15:1177(A).

|3On July 26, 2005, a judgment was rendered dismissing the appellant’s request for judicial review, with prejudice. In its judgment the district court adopted as its reasons the Commissioner’s Report.

On September 15, 2005, an order was entered granting the appellant a devolutive appeal to the 1st Circuit Court of Appeal from the judgment of July 26, 2005.

After a careful review of the record before this Court, we agree with the judgment of the district court. Considering the foregoing, and in accordance with the Uniform Courts of Appeal Rules 2-16.2(A) (4), (5), and (6), the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: McClendon, j.

text:
    STATE of Louisiana v. Dale Dwayne CRAIG.
    No. 2005 KA 2323.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 25, 2006.
    Hon. Doug Moreau, District Attorney By Kory J. Tauzin, Assistant District Attorney, Baton Rouge, Counsel for Appellee State of Louisiana.
    John M. Landis, New Orleans, Counsel for DefendanVAppellant Dale Dwayne Craig.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McClendon, j.

[gDefendant, Dale Dwayne Craig, was charged by grand jury indictment with one count of first degree murder, a violation of LSA-R.S. 14:30, and pled not guilty. The jury found him guilty as charged by unanimous verdict. Subsequently, during the penalty phase, the jury found the existence of the following statutory aggravating circumstances: at the time of the killing, defendant was engaged in the perpetration of aggravated kidnapping; at the time of the killing, defendant was engaged in the perpetration of armed robbery; and the offense was committed in an especially heinous, atrocious or cruel manner. By unanimous verdict, the jury recommended that defendant be sentenced to death. Defendant was sentenced to death by lethal injection.

The Louisiana Supreme Court affirmed defendant’s conviction and sentence. State v. Craig, 95-2499, p. 20 (La.5/20/97), 699 So.2d 865, 876. Thereafter, the United States Supreme Court denied defendant’s petition for certiorari. Craig v. Louisiana, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). However, following the decision in Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 1200, 161 L.Ed.2d 1 (2005), wherein the Supreme Court determined that “[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed[,]” defendant moved for resentencing “to life in prison without benefit of probation, parole, or suspension of sentence.” The motion was granted, the death sentence was set aside, and defendant was resentenced to life imprisonment at hard labor | ¡^without benefit of parole, probation, or suspension of sentence. Defendant then moved for reconsideration of sentence, but the motion was denied. He now appeals, designating as his one assignment of error, the trial court’s refusal to reconsider his sentence. We affirm.

FACTS

The facts of the offense were set forth in detail by the Louisiana Supreme Court upon review of defendant’s conviction and original sentence. See Craig, 95-2499 at pp. 2-5, 699 So.2d at 866-68. However, for purposes of this appeal, we briefly set forth the essential facts of this case.

On September 14, 1992, defendant and three accomplices abducted the victim, Kipp Gullet, a freshman at Louisiana State University, at gunpoint from the parking lot of Kirby Smith Dormitory on the Baton Rouge campus of the university. The victim cried and begged for mercy as defendant and his accomplices drove the victim around in his truck. Defendant expressed his decision to kill the victim, but appeared to acquiesce to the suggestions of his accomplices to beat the victim unconscious, rather than kill him. After driving to a secluded construction site, defendant and James Lavigne marched the victim at gunpoint out to a grassy area. Lavigne used the butt of his gun to strike the victim in the head, causing the victim to fall to the ground. Lavigne then walked away. While the victim lay on the ground in a fetal position, the defendant knelt at his side and fired three bullets into his head, killing him. Defendant threatened to kill his accomplices if they said “one f—ing word.” He also asked them if the group should kill anyone else while they were at it, but answered his own question by responding, “No, the game warden might get pissed.”

^EXCESSIVE SENTENCE

In his sole assignment of error, defendant contends the trial court erred in denying the defense motion to reconsider sentence because the sentence violated the United States and Louisiana Constitutions. He argues the sentence violates U.S. Const, amend. VIII, applicable to the states pursuant to U.S. Const, amend. XIV, and that “[t]he principles underlying the decision in Roper v. Simmons, bolstered by continuing scientific research and the great weight of international law, point to the illegality of the juvenile life without parole sentence under the Eighth Amendment.”

Defendant also contends that the sentence violates the supremacy clause, U.S. Const, art. VI, cl. 2. He argues that the United States became a party to the International Covenant on Civil and Political Rights (ICCPR) on September 8, 1992, and, under the ICCPR, criminal trials of juveniles shall be such as will take into account their age and the desirability of promoting their rehabilitation.

Defendant further asserts that the sentence violates La. Const, art. I, § 20 for the same reasons it violates U.S. Const, amend. VIII.

Upon invalidation of a provision of statutory capital punishment, the appropriate sentence to be imposed upon a conviction for first degree murder is the most severe penalty established by the legislature for criminal homicide at the time of the offense. State v. Tyler, 342 So.2d 574, 577-78(La.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). In this matter, the penalty for first degree murder at the time of the offense was death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the determination of the jury. LSA-R.S. 14:30(C).

1 .imposition of a mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence does not violate U.S. Const, amend VIII. See State v. Lucas, 99-1524, p. 17 (La.App. 1 Cir. 5/12/00), 762 So.2d 717, 728 (“It is well settled that the mandatory imposition of a sentence of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence for second degree murder does not constitute cruel and unusual punishment.”)

Further, Roper does not support defendant’s position. The court in Roper rejected the imposition of the death penalty on juvenile offenders under eighteen years of age. The decision addressed only the constitutionality of the death penalty on juvenile offenders under eighteen years of age and did not address the constitutionality of a life term for juvenile offenders under eighteen years of age. In fact, the court in Roper affirmed defendant’s sentence of “life imprisonment without eligibility for probation, parole, or release except by act of the Governor.” Roper, 543 U.S. at 560, 125 S.Ct. at 1189-90.

In attacking the sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence as violative of the ICCPR and the supremacy clause, defendant relies upon United States v. Duarte-Acero, 208 F.3d 1282 (11th Cir.2000). In that decision, the court noted that on September 8, 1992, the United States, following the advice and consent of the Senate, became a party to the ICCPR, at which time the treaty became, coexistent with the United States Constitution and federal statutes, the supreme law of the land. Duarte-Acero, 208 F.3d at 1284.

Initially, it should be noted that the court in Roper discussed the ICCPR in reaching the decision in that case. Roper, 543 U.S. at 567, 125 S.Ct. at 1194. Thereafter, the court affirmed the defendant’s sentence of [/‘life imprisonment without eligibility for probation, parole, or release except by act of the Governor.” Roper, 543 U.S. at 560, 125 S.Ct. at 1189-90. The argument that the decision stands for the proposition that a life-without-benefits sentence for a defendant who committed a crime before reaching the age of eighteen years violates either the ICCPR or the supremacy clause, ignores the result reached in the case. Further, even in regard to the ICCPR, art. 6, par. 5, prohibiting capital punishment for crimes committed by persons under eighteen years of age, the United States Senate only ratified the ICCPR with the proviso:

[T]he United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.
[T]he United States declares that the provisions of Articles 1 through 27 of the [ICCPR] are not self-executing.

138 Cong. Rec. S4783-84 (statement of presiding officer of resolution of ratification). See Beazley v. Johnson, 242 F.3d 248, 264 (5th Cir.), cert. denied, 534 U.S. 945, 122 S.Ct. 329, 151 L.Ed.2d 243 (2001).

We do, however, recognize that Article I, § 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light 17of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868, pp. 10-11 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La.10/5/01), 798 So.2d 962.

In State v. Dorthey, 623 So.2d 1276, 1280-81 (La.1993), the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounts to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he is duty bound to reduce the sentence to one that would not be constitutionally excessive.

However, the holding in Dorthey was made only after, and in light of, express recognition by the court that, “the determination and definition of acts which are punishable as crimes is purely a legislative function. It is the Legislature’s prerogative to determine the length of the sentence imposed for crimes classified as felonies. Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional.” Dorthey, 623 So.2d at 1278 (citations omitted).

In State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, the Louisiana Supreme Court reexamined the issue of when Dor-they permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. The court held that to rebut the presumption that the |Rmandatory minimum sentence was constitutional, the defendant had to “clearly and convincingly” show that:

[he] is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

Johnson, 97-1906 at p. 8, 709 So.2d at 676.

We are also guided by two post-Roper decisions involving a capital sentence imposed upon a defendant for a murder committed when he was seventeen years old. In State v. Wilson, 03-1229 (La.3/30/05), 899 So.2d 551, the court held, “Based on [Roper], the defendant’s death sentence must be vacated and this case remanded to the district court with instructions to resentenee the defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” (Emphasis added). Following remand to the trial court for imposition of the life-without-benefits sentence, the defense argued, inter alia, a sentence below the mandatory life term was warranted due to the mitigating factor of the defendant’s youth. State v. Wilson, 40,-767, p. 30 (La.App. 2 Cir. 8/23/06), 938 So.2d 1111, 1146. The trial court found the argument unpersuasive and imposed a life sentence upon the defendant. Id. The sentence was affirmed on appeal, with the court setting forth reasons we find equally applicable in the instant case:

The jury and the trial court had the best opportunity to observe this defendant and it was their opinion that a sentence of death was appropriate for this defendant. Given the mindless brutality of this incident, the life-without-benefits sentence is not grossly disproportionate to the crime.

Wilson, 40,767 at p. 32, 938 So.2d at 1147.

In the instant case, there was no reason for the trial court to deviate from the mandatory sentence of life imprisonment at hard labor without |9benefít of parole, probation, or suspension of sentence. Defendant failed to clearly and convincingly show that because of unusual circumstances he was a victim of the legislature’s failure to assign sentences that were meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. The sentence imposed was not unconstitutionally excessive and was not grossly disproportionate to the severity of the offense. Further, we specifically reject the argument that a sentence of life without the benefit of parole, probation, or suspension of sentence, of a defendant who was seventeen years of age at the time of the commission of the offense, is a per se violation of the prohibition against the imposition of excessive punishment.

This assignment of error is without merit.

SENTENCE AFFIRMED.

      . Zebbie Berthelot, James Conrad Lavigne, and Roy Maurer were also charged by the same indictment with the same offense.

      . Defendant was approximately one week shy of his eighteenth birthday at the time of the offense.

      . The sentencing review principles espoused in Dorthey were not restricted in application to the mandatory minimum penalties provided by LSA-R.S. 15:529.1. See State v. Fobbs, 99-1024 (La.9/24/99), 744 So.2d 1274, 1275 (per curiam); State v. Davis, 94-2332, pp. 11-12 (La.App. 1 Cir. 12/15/95), 666 So.2d 400, 407-08, writ denied, 96-0127 (La.4/19/96), 671 So.2d 925.


author: DENNIS R. BAGNERIS, SR, Judge, Ad Hoc.

text:
    FARMCO, INC. v. Brian WILSON, Assessor for the Parish of East Baton Rouge and Elmer B. Litchfield, Sheriff and Tax Collector for the Parish of East Baton Rouge.
    No. 2005 CA 2132.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 25, 2006.
    Rehearing Denied Dec. 28, 2006.

      Kenneth L. Blanchard, Plaquemine, for PlaintiffiAppellee, Donald T. Boudreaux.
    Brian Eddington, Baton Rouge, for Defendant/Appellant, Assessor for Parish of East Baton Rouge.
    Leu Ann Greco, Baton Rouge, for Defendant/Appellant Elmer B. Litchfield, Sheriff of East Baton Rouge.
    Court composed of Judge DENNIS R. BAGNERIS, Judge MICHAEL E. KIRBY, and Judge ROLAND L. BELSOME serving as judges ad hoc by special appointment of the Louisiana Supreme Court.
   DENNIS R. BAGNERIS, SR, Judge, Ad Hoc.

| fin this mandamus proceeding, Farmco, Inc., “Farmco” brought suit to compel Brian Wilson, ‘Wilson” the Assessor for the Parish of East Baton Rouge, to enumerate, list and assess all tax properties purchased by it, and to pro-rate the tax assessment based on the percentage of interest it purchased. From a trial court judgment ordering Wilson to make the assessments as requested, Wilson appeals. Farmco filed an answer to appeal requesting that the judgment appealed from be modified so as to apply retrospectively and prospectively to properties purchased by both Farmco and all similarly situated persons. For the following reasons, we amend in part and affirm as amended.

FACTS

Because this was a summary proceeding, we hereby adopt the fact-findings as recited by the trial judge in his written reasons for judgment:

In the 2004 tax sale, Farmco, Inc. purchased 53 tax sale properties for unpaid valorem taxes. Tax Deeds were recorded June 25, 2004. In the subsequently filed tax roll the Assessor did not enumerate, list and assess the percentage that Farmco purchased at the 2004 tax sale. Relying on the information provided by the Assessor, the Sheriff mailed bills for 100% of the taxes due instead of the lessor percentages purchased by Farmco and the original owners were also taxed 100% of the taxes due for the same properties. Farmco tendered the percentage of the amount owed corresponding to the percentage purchased at the tax sale. Because the entire amount was not tendered, the tax director noticed Farmco that 100% of the property would be sold if one of the billed parties did not tender the amount due. However, delinquent notices were sent out to the original tax debtor only. Subsequently, the properties were sold for unpaid taxes at the 2005 tax sale. Such sales constitute a cloud on Farm-co’s partial interest acquired at the 2004 tax sale.
The Sheriff argued that its office should not be directed to do what the Assessor’s office should have done. In response, the court found that the appropriate remedy is not a writ of mandamus and that there is no statutory mandate as to the 12Sheriff. The appropriate remedy is to contest the bill and appeal to the appropriate authority.

DISCUSSION

On appeal, Wilson assigns the following assignments of error: (1) that the trial court erred in entering mandamus directing the Assessor for East Baton Rouge to “enumerate, list and assess” all future properties purchased by Farmco for the tax year in which the tax sale occurred; (2)the trial court erred in entering mandamus directing the Assessor for East Baton Rouge to pro-rate the assessment of property based on the percentage of interest purchased by Farmco at tax sale; and (3) the trial court erred in failing to consider whether other remedies were available to Farmco and whether the delays occasioned by the use of such other remedy would cause injustice.

The issues presented in this appeal involve questions of law. Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. Louisiana Municipal Association v. State, 2004-0227, p. 35 (La.1/19/05), 893 So.2d 809, 836. When a trial court commits an error of law, the reviewing court is not subject to the manifest error standard and can make an independent determination of the facts from the record on appeal. Arabie Bros. Trucking Co. v. Gautreaux, 2003-0120, p. 7 (La.App. 1 Cir. 8/4/04), 880 So.2d 932, 938.

The issue for this Court to address is whether the trial court properly issued a writ of mandamus directing the Tax Assessor for East Baton Rouge to enumerate, list and assess all tax properties purchased by Farmco at the 2004 and 2005 tax sales on the 2005 tax roll and subsequent tax rolls, when the interest purchased by Farmco is less than 100%.

|3La. R.S. 47:2193 states as follow:

From the date of recording a tax deed to property, all taxes thereon shall after that date, be assessed to and paid by the purchaser, until the property, or any part thereof, be redeemed. If redeemed, in whole or in part, the person redeeming shall pay all taxes assessed upon the property redeemed, subsequent to the tax sale.

Under this statute, the legislators have made it clear that once property has been seized and sold for failure to pay taxes, and the deed has been recorded, it is mandatory that the property be assessed in the name of the tax purchaser. See Brady v. Slay, 460 So.2d 732 (La.App. 3 Cir. 12/12/84) (where the Court found that the parish tax assessor is required under La. R.S. 47:2193 to enter property, seized and sold for failure to pay taxes, on tax rolls in name of tax sale purchaser after recordation.) Accordingly, we find no error in the trial court directing Wilson “to enumerate, list and assess all future properties purchased by Farmco, Inc. at Tax Sales in this parish—whether 100% or any lesser percent is purchased—on the tax roll for the immediately following year after the tax year for which the property has been sold for unpaid taxes, and to pro-rate the assessment based on the percentage of interest purchased by Farmco, Inc.”

In its answer to appeal, Farmco argues that the trial court erred when it restricted its ruling to include only properties purchased by it at future tax sales and did not include the properties purchased by it at the 2004 and 2005 tax sales. For the following reasons, we find merit in this assignment of error.

Farmco filed this instant writ of mada-mus after it was put on notice that the 2005 tax roll did not enumerate, list and assess the percentage that it purchased at the 2004 tax sale and that the properties were sold for unpaid taxes at the 2005 tax sale. Thus, the relief sought by Farmco in its petition was to direct Wilson to enumerate, list and assess the percentage that it purchased at the 2004 and 2005 tax sales on the roll for 2006 taxes and to pro-rate the assessments based on the |4percentage of interest purchased. After hearing arguments of counsel, the trial judge agreed with Farmco’s position and granted the writ of mandamus. Specifically, the trial judge stated in his reasons for judgment that “a writ of mandamus should be issued to Brian Wilson, Tax Assessor of East Baton Rouge Parish directing him to enumerate, list and assess all tax 'properties purchased by Farmco at the 2004 and 2005 tax sale and on the 2005 tax roll whether 100% or any lesser percentage was purchased and to do the same for any future properties purchased by Farmco, Inc.” (emphasis added) Accordingly, we hereby modify the trial court judgment so as to include the properties in the Parish of East Baton Rouge purchased by Farmco at the 2004-2005 tax sales.

However, we find no merit in Farmco’s argument that the trial court improperly restricted its ruling to include only properties purchased by Farmco and did not include properties purchased by other persons or entities at the 2004 and 2005 tax sales and properties to be purchased at future tax sales by other persons or entities. Farmco is the only plaintiff in this proceeding and it does not have standing to bring a claim on behalf of other persons or entities not joined in the action. As stated in La.C.C.P. art. 681, “... an action can be brought only by a person having a real and actual interest which he asserts.” Thus, we find that the judgment

properly restricts its ruling to include only properties purchased by Farmco.

Accordingly, we hereby amend the judgment of the trial court to include the properties purchased by Farmco at the 2004 and 2005 tax sales and we affirm the judgment of the trial court as amended.

AMENDED IN PART AND AFFIRMED AS AMENDED.


author: LANIER, J.

text:
    J. Robert WOOLEY, as Acting Commissioner of Insurance for the State of Louisiana v. AMCARE HEALTH PLANS OF LOUISIANA, INC.
    No. 2005 CW 2025.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 25, 2006.

      Joseph E. Cullens, Jr., Baton Rouge, Guy M. Hohmann, Austin, TX, Kimberly S. Morgan, Edward J. Walters, Jr., Baton Rouge, Sue Buser, Gonzales, Jonathan C. Augustine, Baton Rouge, Counsel for Plaintiff — Appellee J. Robert Wooley, as Acting Commissioner of Insurance and Liquidator of AmCare Health Plans of Louisiana, Inc.
    James C. Percy, David M. Kerth, Baton Rouge, Robert B. Bieck, Jr., New Orleans, Counsel for Defendant — Appellant Health-Net, Inc.
    Joseph J. McKernan, Baton Rouge, Counsel for Plaintiff — Appellee Jean Johnson as Texas Special Deputy Receiver.
    David M. Latham, Keary L. Everitt, New Orleans, Counsel for Plaintiff — Ap-pellee Louisiana Department of Insurance.
    Gary P. Koederitz, Baton Rouge, Counsel for Defendant — Appellee BestCare, Inc.
    Wendell Clark, Baton Rouge, Counsel for Defendant — Appellee Thomas S. Luck-singer, Michael D. Nadler and Stephen J. Nazarenus.
    Claude F. Reynaud, Jr., Baton Rouge, Counsel for Defendant — Appellee Pros-kauer Rose, L.L.P. and Stuart L. Rosow.
    Harry J. Philips, Jr., Baton Rouge, Counsel for Defendant — Appellee William Galtney, Jr. and Michael K. Jhin.
    Mary Olive Pierson, V. Thomas Clark, Jr., Baton Rouge, Counsel for Defendant— Appellee PriceWaterhouseCoopers, L.L.C.
    Robert J. Burns, Jr., Baton Rouge, David H. Topol, Washington, D.C., Counsel for Defendant — Appellee Greenwich Insurance Company.
    George B. Hall, Jr., New Orleans, Mer-ril Hirsh, Washington, D.C., Kelsey Kor-nick Funes, Baton Rouge, Counsel for Defendant — Appellee Executive Risk Management and Executive Risk Specialty Ins. Co.
    David L. Guerry, Baton Rouge, Counsel for Defendant — Appellee Scott Westbrook.
    William C. Kaufman, III, Baton Rouge, Counsel for Defendant — Appellee M. Lee Pearce.
    Dominique J. Sam, Michael Charles Guy, Baton Rouge, Counsel for Amicus Curiae Charles C. Foti, Jr., Atty. Gen., On Behalf of the Commissioner of Insurance-Liquidator of AmCare Health Plans of Louisiana, Inc.
    Before: CIACCIO, LANIER and CLAIBORNE, JJ.

      . The Hon. Philip C. Ciaccio, Judge (retired), the Hon. Walter I. Lanier, Jr., Judge (retired), and the Hon. Ian W. Claiborne, Judge (retired), are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

   LANIER, J.

| ¿Defendant, Health Net, Ine., seeks appellate review of the overruling of its decli-natory exception raising the objection of improper venue. For the following reasons, we affirm.

GENERAL PROCEDURAL FACTS

AmCare Health Plans of Texas, Inc. (AmCare-TX), was a health maintenance organization (HMO) licensed by and operating in Texas. Foundation Health Corp. and/or Foundation Health System, now known as Health Net, Inc. (Health Net), owned AmCare-TX, along with similar licensed HMOs in Louisiana, AmCare Health Plans of Louisiana, Inc. (AmCare-LA), and Oklahoma, AmCare Health Plans of Oklahoma, Inc. (AmCare-OK). Health Net considered the three HMOs a financial liability and sold the HMOs to Thomas S. Lucksinger and others (collectively Luck-singer). Health Net retained a minority ownership interest in the HMOs. The HMOs eventually were ruled insolvent by the three respective state regulators.

Multiple lawsuits were filed in Louisiana and Texas by the receivers against various defendants, including Lucksinger, Price-WaterhouseCoopers (PWC) and Health Net. The lawsuits alleged mismanagement of the HMOs and accounting negligence and sought enforcement of guarantees made by Health Net regarding the HMOs’ solvency. The allegations were amended to include charges of contract fraud and tort gross negligence by Health Net, Luck-singer, PWC and others. The trial court subsequently consolidated the three suits filed in Louisiana by J. Robert Wooley, Louisiana Commissioner of Insurance as Liquidator for AmCare-LA. The Texas receiver then intervened in the Louisiana proceedings against Health Net. The Texas | Breceiver’s allegations against Health Net included claims of fraud and conspiracy to defraud in connection with the sale, operation and management of the HMOs. Health Net responded by filing a declina-tory exception raising the objection of improper venue asserting that under Texas law the exclusive venue for the Texas receiver’s action was in Texas and, thus, venue was improper in Louisiana. The trial court overruled Health Net’s exception and Health Net took this appeal.

APPEAL OR SUPERVISORY WRIT: THE RETROACTIVE EFFECT OF ACT 205 OF 2005

Procedural Facts

On May 24, 2005, the district court judge signed a judgment that, in part, overruled Health Net’s declinatory exception raising the objection of improper venue. Health Net filed a motion for a de-volutive appeal. The district court judge refused to grant an appeal and ordered Health Net to seek a supervisory writ. Health Net reurged its request for an appeal, and on June 1, 2005, the district court judge signed an order for a devolu-tive appeal. This appeal was lodged with this Court on September 29, 2005. The order of appeal was correctly granted. '

During this time period La. C.C.P. art. 2083 A provided, in pertinent part, that “[a]n appeal may be taken ... from an interlocutory judgment which may cause irreparable injury.” Contemporary jurisprudence held that, although the overruling of a declinatory exception raising the objection of improper venue was an interlocutory judgment, if it may cause irrepa-rabie injury it was an appealable judgment. La. C.C.P. art. 1841; Price v. Roy O. Martin Lumber Co., 2004-0227, p. 6, n. 2 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, 821, n. 2, writ denied, 2005-1390 (La.1/27/06), 922 So.2d 543; Revision Comments — 2005(a) and (b) for Act 205.

| Act 205 of 2005

Article 2083 was amended by 2005 La. Act 205 to provide that “[a]n interlocutory judgment is appealable only when expressly provided by law.” No law has been found that expressly provides for an appeal in this case at the present time.

Effective Date of Act 205

Section 2 of Act 205 provides that “[tjhis Act shall become effective on January 1, 2006.” (Emphasis added.)

The effective date of all laws is provided for in La. Const, art. Ill, § 19 as follows:

All laws enacted during a regular session of the legislature shall take effect on August fifteenth of the calendar year in which the regular session is held and all laws enacted during an extraordinary session of the legislature shall take effect on the sixtieth day of the final adjournment of the extraordinary session in which they were enacted. All laws shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date. (Emphasis added.)

In Section 2 of Act 205 the legislature exercised its constitutional power to fix a “later effective date”. The fixing of an effective date determines when the prospective effect of a law commences. As will be hereinafter shown, this does not equate to a “legislative expression” of ret-roactivity. The words prospective and retroactive have antithetical meanings. Although all laws have an effective date (are prospective), all laws are not retroactive.

Retroactive Effect of Act 205

The legislature is free, within constitutional confines, to give its enactments retroactive effect. A court must defer to the legislature’s intent when determining whether a statute should be applied retroactively. Retroactive application of new legislation is constitutionally permissible 17only if it does not result in impairment of the obligations of contracts or in divestiture of vested rights. U.S. Const, amend. XIV, § 1 (due process and equal protection); U.S. Const, art. I, § 10(1) (ex post facto law or law impairing the obligations of a contract); La. Const, art. I, § 2 (due process); La. Const, art. 23 (ex post facto law or law impairing the obligations of a contract); Morial v. Smith & Wesson Corp., 2000-1132, pp. 11-13 (La.4/3/01), 785 So.2d 1, 9-11, cert. denied, 534 U.S. 951, 122 S.Ct. 346, 151 L.Ed.2d 262 (2001).

In determining whether a law may be applied retroactively, courts are guided by La. C.C. art. 6 which provides as follows:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

See also La. R.S. 1:2.

Article 6 requires a two-step inquiry: (1) did the legislature express its intent regarding retrospective or prospective application, and (2) if not, is the law substantive, procedural or interpretive. Substantive laws establish new rules, rights and duties or change existing ones. Procedural laws prescribe a method (remedy) for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretive laws merely establish the meaning the interpreted law had from the time of its enactment. Segura v. Frank, 93-1271, pp. 9-12 (La.1/14/94), 630 So.2d 714, 720-23, cert. denied sub nom., Allstate Ins. Co. v. Louisiana Ins. Guar. Ass’n, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887. See also Manuel v. Louisiana Sheriff’s Risk Mgmt. Fund, 95-0406, pp. 8-9 (La.11/27/95), 664 So.2d 81, 85-86.

IsFinally, an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered. Segura, 630 So.2d at 725. See also Cheron v. LCS Corrections Serv. Inc., 2004-0703, p. 8 (La.1/19/05), 891 So.2d 1250, 1257-58.

The first inquiry to be made pursuant to the Segura methodology for determining retroactivity is did the legislature express its intent regarding retrospective application? A review of Act 205 shows that it does not contain a “legislative expression” that it applies retroactively. As previously indicated, the legislative expression of an effective date does not legislate retroactivity. Accordingly, we must proceed to the second Segura inquiry to determine whether Act 205 is substantive, procedural, or interpretive.

Is the Act 205 Amendment Substantive, Procedural or Interpretive?

Act 205 is not interpretive because it is clear and unambiguous in stating that “[a]n interlocutory judgment is appealable only when expressly provided by law.” Act 205 amends the law; it does not interpret it. Thus, the final question is whether Act 205 is substantive or procedural.

Pursuant to Segura, a substantive law is one that establishes new rules, rights and duties or changes existing ones, and a procedural law prescribes a method for enforcing a substantive right and relates to the form of the proceeding or the operation of the law. Simply stated, did Act 205 effect a change in substance (right, obligation, or duty) or a change in procedure (remedy)?

|9Act 205 amended La. C.C.P. art.2083, which is found in the Code of Civil Procedure. Act 205 changed the appealability of an interlocutory judgment. An interlocutory judgment is “[a] judgment that does not determine the merits but only preliminary matters in the course of the action.” La. C.C.P. art. 1841. The merits of an action are the substantive rights and obligations of the parties which are decided only by a final judgment. La. C.C.P. art. 1841. Preliminary matters in the course of an action are procedural matters. Thus, it has been said that substance includes all rules that determine the legal relations that courts must adjudicate, whereas, procedure relates to the process by which the facts are made known to the courts. H. Goodrich, Handbook of the Conflict of Laws, § 80, p. 143, n. 3 (4th ed.1964). A venue law is procedural so long as it does not make a change in the substantive law. Lejano v. K.S. Bandak, 97-0388 (La.12/12/97), 705 So.2d 158, 165-66, cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998). The amendment to Article 2083 effected a procedural change in the law.

Finally, the practical effect of Act 205 shows why it is a procedural law and not a subtantive law. La. Const, art. V, § 5 (Louisiana Supreme Court) and La. Const, art. V, § 10 (Courts of Appeal) provide for the appellate review of civil cases. This appellate review may be accomplished by an appeal or a supervisory writ. Prior to Act 205, interlocutory judgments that may cause irreparable injury were reviewable by either procedure. These judgments are still reviewable by either procedure. Even though an interlocutory judgment is not immediately ap-pealable now, it can still be reviewed when an unrestricted appeal is taken from a final judgment; in such an appeal, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the Imfinal judgment. Judson v. Davis, 2004-1699, p. 8 (La.App. 1 Cir. 6/29/05), 916 So.2d 1106, 1112, writ denied, 2005-1998 (La.2/10/06), 924 So.2d 167; ANR Pipeline Co. v. Louisiana Tax Comm’n, 2001-2594, p. 10, n. 5 (La.App. 1 Cir. 3/20/02), 815 So.2d 178, 186, affirmed and remanded, 2002-1479 (La.7/2/03), 851 So.2d 1145. Thus, the effect of Act 205 is to change the point in time the interlocutory judgment can be reviewed on appeal; it does not repeal the review by appeal. Act 205 does not affect the validity of the defendant’s claim that the venue is improper.

Finally, it is well settled that there is no vested right in any given mode of procedure. Sawicki v. KJS Stavanger Prince, 2001-0528, pp. 7-8 (La.12/7/01), 802 So.2d 598, 604-05, and the cases cited therein.

Act 205 is a procedural law and, pursuant to La. C.C. art. 6, applies retroactively.

Although this appeal was properly granted before the effective date of Act 205, it is no longer valid. On its effective date Act 205 became prospective and retroactive. As previously indicated, an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of the decision; the retroactive new law applies even though it requires reversal of the trial court order that was correct at the time it was rendered. This appeal is dismissed without prejudice.

However, because the merits of this issue deserve a swift and certain resolution, we will exercise our supervisory jurisdiction and grant a writ of certiorari to review the venue issue. Stelluto v. Stelluto, 2005-0074, p. 7 (La.6/29/05), 914 So.2d 34, 39; State ex rel, Dep’t of Social Services v. Howard, 2003-2865, p. 2, n. 1 (La.App. 1 Cir. 12/30/04), 898 So.2d 443, 444, n. I.

VENUE

Health Net asserts that since delinquency proceedings against AmCare-TX were instituted by the Texas receiver and are pending in Travis County, Texas, Travis County is the exclusive venue for all actions brought by the receiver for AmCare-TX, and Louisiana’s Nineteenth Judicial District Court for the Parish of East Baton Rouge is not a proper venue. Further, Health Net asserts that where statutory law provides the only proper venue, that venue is non-waivable and is jurisdictional. Because the Texas statute vests exclusive venue in a particular court, Health Net asserts only the statutorily authorized court has subject matter jurisdiction. Moreover, Health Net asserts that the Texas statutory jurisdictional venue provisions do not provide for venue in a Louisiana court, and therefore, the trial court in this case is without subject matter jurisdiction.

What is Venue?

Venue means the parish where an action or proceeding may properly be brcmght and tried under the rules regulating the subject. La. C.C.P. art. 41. The three consolidated actions herein were brought and tried in the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge. Venue designates a place or places where an action shall be filed. Whether venue is proper is a question of law for which a de novo review is conducted by an appellate court. Novelaire Tech., L.L.C. v. Harrison, 2006-94, p. 5 (La.App. 5 Cir. 7/25/06), 939 So.2d 437, 440, and the cases cited therein.

haVemte for the Main Demands

Part XVI of the Louisiana Insurance Code is entitled “REHABILITATION, LIQUIDATION, CONSERVATION, DISSOLUTION, AND ADMINISTRATIVE SUPERVISION” and is found in La. R.S. 22:732 et seq. La. R.S. 22:732.3 A entitled ‘Venue” provides as follows:

An action under this Part brought by the commissioner of insurance, in that capacity, or as conservator, rehabilitator, or liquidator may be brought in the Nineteenth Judicial District Court for the parish of East Baton Rouge or any court where venue is proper under any other provision of law.

The venue is proper for the three main demands filed by the Louisiana Insurance Commissioner in the Nineteenth Judicial District Court for the Parish of East Baton Rouge.

The Objection of Improper Venue

The objection of improper venue is a defense that may be raised through the declinatory exception. La. C.C.P. art. 925 A(4). The function of the declinatory exception is to decline the jurisdiction of a court. La. C.C.P. art. 923. Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties and to grant the relief to which they are entitled. La. C.C.P. art. 1; see generally F. Maraist and H. Lemmon, 1 La. Civil Law Treatise, Civil Procedure, §§ 3.1-3.8 and 6.5, pp. 30-49 and 110-11 (1999).

It has been held that venue and jurisdiction are separate and distinct legal concepts and that they are closely related but are not synonymous. Garcia v. Poseidon Shipping Co., Ltd., 99-0322, p. 5 (La.App. 4 Cir. 10/6/99), 746 So.2d 633, 636, writ denied, 99-3182 (La.1/28/00), 753 So.2d 203; 77 Am.Jur.2d Venue, § 1, p. 608 (1997). See also Ponthieux v. Lindsay, 216 So.2d 407, 413-14 (La.App. 3 Cir.1968) (on second 113rehearing), and the authorities cited therein, affirmed, 254 La. 647, 226 So.2d 482 (1969). Further, jurisdiction has been described as “a term with multiple meanings.” Jurado v. Brashear, 2000-1306, p. 3 (La.3/19/01), 782 So.2d 575, 577.

Jurisdiction

There are many types of jurisdiction. It does not appear that venue is closely related to jurisdiction over (1) the person, (2) property or (3) status. La. C.C.P. arts. 6, 8 and 10. However, it does appear that venue is closely related to original and territorial jurisdiction.

Original jurisdiction is jurisdiction in the first instance and specifies the adjudicative tribunal in which the initial adjudication is made. Wooley v. State Farm Fire & Cas. Ins. Co., 2004-0882, p. 24 (La.1/19/05), 893 So.2d 746, 764. Louisiana Constitution article V, § 16(A)(1) provides that, “[e]xcept as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters.” (Emphasis added.) The Nineteenth Judicial District Court has original jurisdiction herein because these cases are civil actions and there is no Louisiana constitutional provision stating otherwise.

All district courts in Louisiana have territorial jurisdiction over at least one parish. See La. Const, art. V, § 14. For venue to be proper, the court in which an action is brought and tried must have territorial jurisdiction over the parish (or other area) designated as a proper venue. Because venue designates a place (parish or other physical area) wherein an action must be filed, it appears that it is most closely related to territorial jurisdiction. The | uterritorial jurisdiction of the Nineteenth Judicial District Court is the Parish of East Baton Rouge. La. R.S. 13:477(19).

Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. As previously indicated, pursuant to La. Const, art. V. § 16(A)(1) district courts “have original jurisdiction of all civil ... matters.” (Emphasis added.) Civil matters generally are considered to be those subject matters that have been traditionally adjudicated by district courts. Madison v. Ward, 2000-2842, p. 9 (La.App. 1 Cir. 7/3/02), 825 So.2d 1245, 1253. In Black’s Law DICTIONARY 767 (7th ed.1979) subject matter jurisdiction is defined as follows:

Power of a particular court to hear the type of ease that is then before it...; Term refers to jurisdiction of court over class of cases to which particular case belongs...; jurisdiction over nature of the cause of action or relief sought ...; or the amount for which a court of limited jurisdiction is authorized to enter judgment. (Emphasis added.)

See also 21 C.J.S. Courts § 10, p. 18 (1990).

Civil matters are a class of cases. The intervention of AmCare-TX asserts causes of action in contract and tort. These are subject matters that traditionally are adjudicated by district courts in Louisiana and, thus, are civil matters. These matters are substantive matters pertaining to rights, duties and obligations. Venue is a procedural matter unrelated to substantive causes of action. Subject matter jurisdiction in one state does not preclude such jurisdiction from being valid in another state or in a federal court. A & L Energy, Inc. v. Pegasus Group, 2000-3255, p. 12 (La.6/29/01), 791 So.2d 1266, 1275, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001); ACG Mediaworks, L.L.C. v. Ford, 2003-0975, p. 5 (La. App. 5 Cir. 3/30/04), 870 So.2d 1097, 1101; de Nunez v. Bartels, 97-1384, pp. 8-10 (La.App. 1 Cir. 9/9/98), 727 So.2d 463, 467-68; Everest Reinsurance Co. v. Howard, 950 S.W.2d 800, 803 (Tex.App.—Austin 1997), review denied (1/16/98).

Pursuant to the Louisiana Constitution, the Nineteenth Judicial District Court has subject matter jurisdiction over this action. The appellant’s assertion to the contrary is without merit.

Louisiana Venue Law for the AmCare-TX Intervention

An intervention is an incidental action that may be filed in an ordinary proceeding and is provided for in Louisiana Code of Civil Procedure article 1091 et seq. Article 1091 provides as follows:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant (emphasis added).

Louisiana Code of Civil Procedure article 1094 provides, “[a]n intervener cannot object to the form of the action, to the venue, or to any defects and informalities personal to the original parties.” (Emphasis added.) Louisiana Code of Civil Procedure article 1034 provides as follows:

A defendant in an incidental action may plead any of the exceptions available to a defendant in a principal action, and may raise any of the objections enumerated in Articles 925 through 927, except that an objection of improper venue may not be urged if the principal action has been instituted in the proper venue. Exceptions pleaded by the defendant in an incidental action shall be subject to all of the provisions of Articles 924 through 934.
[1i;A party to an incidental action may plead any of the written motions available to a party to a principal action, subject to the provisions of Articles 961 through 969 (emphasis added).

Official Revision Comment (b) — 1960 for Article 1034 provides as follows:

The rule enunciated in the first sentence of this article that the defendant in an incidental action may urge all procedural objections available to a defendant in the principal action, except that improper venue may not be urged if the principal action is instituted in the proper venue, is simply declaratory of civilian theories of incidental actions. If the principal action is filed in the proper venue, then that cov/rt has ancillary jurisdiction to entertain jurisdiction over the defendant in the incidental action, even though the venue might have been improper had the incidental action been instituted as a separate suit. This is axiomatic, otherwise the venue of all incidental actions ivould be improper if instituted against a nonresident defendant. On this point, see Art. 384 Code of Practice of 1870 (emphasis added).

See also F. Maraist and H. Lemmon, supra, § 7.3, pp. 168-71.

The Texas Venue Law

At the time these actions were instituted, Texas’ provisions governing the insur-anee industry, found at V.A.T.S. Insurance Code article 1.10 et seq., provided as follows:

New Lawsuits. The court of competent jurisdiction of the county in which delinquency proceedings are pending under this Article shall have exclusive venue to hear and determine all actions or proceedings instituted after the commencement of delinquency proceedings by or against the insurer or receiver.

V.A.T.S. Insurance Code article 21.28, § 4(h).

A delinquency proceeding was defined as “any proceeding commenced in any court of this State against an insurer for the purpose of | ^liquidating, rehabilitating, reorganizing, or conserving such insurer.” V.A.T.S. Ins.Code art. 21.28, § 1(b). V.A.T.S. Insurance Code article 21.28, § 4(i) states: “Venue. Exclusive venue of delinquency proceedings shall be in Travis County, Texas.”

CONFLICT OF LAWS: WHICH VENUE STATUTE APPLIES?

When an action is filed in a state asserting that a cause of action accrued in another state, the applicable state law is determined by whether the issue involved is a matter of substance (right) or a matter of procedure (remedy). The substantive rights of the parties are determined by the law of the state where the cause of action arose; matters of procedure are determined by the law of the forum, i.e., the place where the action is filed. The court of the forum, subject to the limitations of the federal constitution, determines whether the question involved is one of substance or procedure. Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108 S.Ct. 2117, 2122, 100 L.Ed.2d 743 (1988); Williams v. Petroleum Helicopters, Inc., 234 So.2d 522, 523 (La.App. 3 Cir.1970), application denied, 256 La. 371, 236 So.2d 501 (La.1970); Penny v. Powell, 162 Tex. 497, 499, 347 S.W.2d 601, 602-03 (Tex.1961); Hill v. Perel, 923 S.W.2d 636, 639 (Tex.App.— Houston 1995); H. Goodrich, supra, §§ 80-81, pp. 142-44; 16 Am.Jur.2d Conflict of Laws § 127, p. 142 (1998). Louisiana law on the conflict of laws applies. La. C.C. art. 3517.

Substantive laws establish or change substantive rules, rights and duties; procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Segura, 630 So.2d at 723; Madison, 825 So.2d at 1254. See also H. Goodrich, supra, § 80, p. 143, n. 3.

l1RAs previously indicated, venue “means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject.” La. C.C.P. art. 41. The place where an action is filed and tried does not change the substantive rights of the parties that are litigated. Venue prescribes part of the method for enforcing the substantive rights of the parties. Venue is a procedural issue and the law of Louisiana prevails herein over the law of Texas on the issue of venue. American Dredging Co. v. Miller, 510 U.S. 443, 443 and 453-57,114 S.Ct. 981, 983 and 988-90, 127 L.Ed.2d 285 (1994); Sawicki, 802 So.2d at 600 and 603-04; Lejano, 705 So.2d at 165 and 166; Bristol-Myers Squibb Co. v. Goldston, 957 S.W.2d 671, 673 (Tex.App. — Fort Worth 1997), review denied (5/8/98); Brooks v. Texas Employers Ins. Ass’n, 358 S.W.2d 412, 415 (Tex.App.—Houston 1962); Kerr Constr., Inc. v. Peters Contracting, Inc., 767 So.2d 610, 612 (Fla.App. 5 Dist.2000); 15A C.J.S. Conflict of Laws §§ 96-97, pp. 292-96 (2002).

The venue herein is proper. We find no error in the trial court’s ruling.

DECREE

For the foregoing reasons, the appeal herein is dismissed without prejudice. The supervisory writ is denied on the merits and the judgment of the trial court is affirmed.

APPEAL DISMISSED; WRIT DENIED; JUDGMENT AFFIRMED.

      . All three HMOs were operated by AmCare Management, Inc. (AmCare-MGT), a management company in Texas.

      . See Augman v. City of Morgan City, 2004-1746 (La.App. 1 Cir. 9/23/05), 914 So.2d 583 {decided before the effective date of Act 205).

      . In the present case, the motion for appeal was filed within the 30-day delay applicable to supervisory writs contained in Uniform Rules — Court of Appeal, Rule 4-3 and, thus, an application for supervisory writs would have been timely.

      . Original jurisdiction is distinguishable from appellate and supervisory jurisdiction. La. Const, art. V, § 10(A).

      . Other courts having original jurisdiction may, or may not, have parish-wide territorial jurisdiction. La. Const, art. V, §§ 15(A) and 18; La. C.C.P. arts. 4851 and 4916.

      . The venue provisions of Article 1034 do not supercede a mandatory Louisiana venue statute such as La. R.S. 13:510(B) pertaining to suits against political subdivisions of the State. See Foltner v. James, 2000-2352, pp. 1-2 (La.App. 4 Cir. 1/17/01), 779 So.2d 57, 58, writ denied, 2001-0426 (La.4/12/01), 793 So.2d 159; Service Master Action Cleaning, Inc. v. Clovis Hendry Ind., Inc., 98-2109, p. 4 (La.App. 1 Cir. 2/2/99), 753 So.2d 264, 266; Cohen v. Landry, 548 So.2d 115, 116 (La.App. 4 Cir. 1989). There is no mandatory Louisiana venue statute applicable herein and, as previously indicated, La. R.S. 22:732.3 A controls in Louisiana.

      . Article 21.28 has subsequently been repealed. It was replaced with provisions now contained in V.A.T.S. Insurance Code article 21A.001 et seq. However, pursuant to the express provisions of the enacting legislation, the law in effect at the time of institution of the suit controls. Because these suits were filed before the repeal of article 21.28, the prior law controls.