author: KUHN, J.

text:
    Michael A. DRAPCHO v. Suzanne Parke DRAPCHO.
    No. 2005 CA 0003.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.
    Writ Denied May 5, 2006.

      Margaret H. Kern, Covington, Counsel for Plaintiff/Appellee Michael A. Drapcho.
    Frank P. Tranehina, Jr., Mark J. Mansfield, Covington, Counsel for Defendant/Appellant Suzanne Parke Drapcho.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   KUHN, J.

| ¡>Defendant-in-ruIe/appeIlant, Suzanne Parke Drapcho (“Dr.Parke”) appeals the trial court’s judgment that ordered her to reimburse plaintiff-in-rule/appellee, Michael A. Drapcho (“Dr.Drapcho”), for tuition and registration expenses he paid to enroll their minor children in a- private school. The judgment ordered Dr. Parke to pay the amount of $6,245.00, together with interest from August 29, 2001, the date Dr. Drapcho filed a show cause rule seeking recovery of these expenses. We affirm that part of the judgment ordering Dr. Parke to pay the amount of $6,245,00, but we amend the judgment with respect to the interest award.

I. FACTUAL AND PROCEDURAL BACKGROUND

While Dr. Drapcho and Dr. Parke were married, two children were born of their marriage. The children attended a private school, and when the parties divorced in January 2000, they agreed that each would pay a specified percentage share of their children’s private school tuition/registration expenses. In accordance with this agreement, Dr. Drapcho paid to the school his percentage share of the children’s tuition/registration expenses for the 2001-2002 school term, which amounted to $6845.00. According to Dr. Drapcho, after he made this payment, Dr. Parke unilaterally decided to enroll the children in a public school. On August 29, 2001, Dr. Drapcho filed a rule, pursuant to which he sought to maintain the children in the private school, or in the alternative, reimbursement from Dr. Parke for the tuition/registration expenses already paid to the school.

.' On October 4, 2001, the parties entered ■into a stipulation and consent judgment wherein they stipulated that the children would attend the public school, and that “[Dr. Drapcho] shall continue to attempt to obtain a refund of the ^registration and tuition expenses paid in connection with enrollment of the minor children in [the private school] for the 2001-2002 school year.” The consent judgment further provided’ that “[Dr. Parke] shall reimburse [Dr. Drapcho] for registration and tuition expenses not refunded by [the private school]. The reimbursement payment shall be due by [Dr. Parke] to [Dr. Drap-cho] at the time of the partition of their former community.”

Thereafter, the parties participated in mediation before partitioning their community property assets and debts. During the mediation process, the parties addressed other outstanding reimbursement claims. Dr. Parke testified that she had asserted reimbursement claims for the contribution of her separate funds used to acquire the former community home and for certain community funds used to pay Dr. Drapcho’s student loans, which apparently were -incurred prior to the parties’ marriage. Dr. Drapcho also asserted a claim for reimbursement ■ based on Dr. Parke’s occupancy of the former community home during the parties’ separation.

On December 21, 2001, the parties signed a consent judgment of partition of community property. Therein, the parties specified the respective properties and debts that had been allocated to each party. The consent judgment also stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties specifically waive any and all claims for reimbursement and/or accounting from each other.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties acknowledge that each has paid certain community debts and each waives any further reimbursement from the other for the payment of these community debts.

|4On March 5, 2004, Dr. Drapcho filed a show cause rule, wherein he asserted that the private school had refunded him only $600.00 of the total sum that he had paid for the tuition/registration expenses. He further set forth that although Dr. Parke had been ordered to pay the balance of the funds at the time of the partition of their former community, despite his repeated amicable demands, she had refused to pay him. Dr. Drapcho alleged that based on this refusal to pay, Dr. Parke was in contempt of the court’s October 2001 order.

Following a June 23, 2004 hearing on the rule, the trial court signed an August 6, 2004 judgment ordering that an executo-ry judgment issue against Dr. Parke in the amount of $6,245.00, together with interest from August 29, 2001, with such sum payable on or before thirty days from the hearing date. Dr. Parke has suspensively appealed this judgment, alleging that the trial court erred in: 1) holding that the December 21, 2001 consent judgment did not waive all reimbursement claims between the parties; 2) taking judicial notice of the judgment calling for reimbursement and, consequently, shifting the burden of proof to Dr. Parke; 3) not granting a new trial; and 4) charging Dr. Parke interest retroactive to August 29, 2001.

II. ANALYSIS

Louisiana Civil Code article 3071 defines a compromise as “an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.” Louisiana Civil Code article 3078 declares the effect of a compromise, providing that a compromise has the legal efficacy of a judgment, possessing “a | sforce equal to the authority of things adjudged.” Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 747.

A compromise is a written contract. La. C.C. art. 3071; Brown v. Drillers, Inc., 630 So.2d at 748. As such, the compromise instrument is the law between the parties, which must be interpreted according to the parties’ true intent, and is governed by the same general rules of construction applicable to contracts. Id.

Louisiana Civil Code article 2046 sets forth a general rule of construction, providing, “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” Louisiana Civil Code article 3073 sets forth a supplementary rule of construction that governs the interpretation of the operative language and the determination of the scope of a compromise agreement. Brown v. Drillers, Inc., 630 So.2d at 748. Transactions or compromise agreements regulate only the differences that appear clearly to be comprehended in them by the intention of the parties, whether it is explained in a general or particular manner, unless it is the necessary consequence of what is expressed. They do not extend to differences that the parties never intended to include in them. La. C.C. art. 3073.

Accordingly, in determining those matters the parties intended to settle, we must consider the contract as a whole and in light of attending events and circumstances. Ortego v. State, Dep’t of Transp. and Dev., 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1363. When a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle. Id., 96-1322 at p. 7, 689 So.2d at 1363-64.

In Brown v. Drillers, Inc., the Supreme Court addressed when it is appropriate to consider extrinsic evidence in construing the intent of the parties to a compromise agreement:

The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument. Louisiana courts, however, have crafted a special exception to the extrinsic evidence rule for compromise agreements based on an in pari materia reading of LSA-C.C. Art. 3073’s provision that a compromise extends only to those differences the parties’ clearly comprehended and LSA-C.C. Art. 3079’s provision that an error as to the subject matter in dispute is a ground to rescind a compromise. Moak v. American Automobile Ins. Co., 242 La. 160, 134 So.2d 911 (1961).
Moak, supra stands for the proposition that when a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle. Following Moak, a long line of jurisprudence holds that a general release will not necessarily bar recovery for those aspects of a claim not intended by the parties to be covered by the release. Under that jurisprudential rule, the parties to a release instrument are permitted to raise a factual issue as to whether unequivocal language in the instrument was intended to be unequivocal.
Louisiana courts, however, have tempered that jurisprudential rule, recognizing that absent some substantiating evidence of mistaken intent, no reason exists to look beyond the four corners of the- instrument to ascertain intent. Utilizing a case-by-case, factual analysis, Louisiana courts have limited the rule’s application to cases in which substantiating evidence is presented establishing either (1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim. When the factual circumstances surrounding the execution of the release instrument do not fall within either of the above categories, Louisiana . courts, applying LSA-C.C. Art.2046’s general rule of construction, have not hesitated to confine their analysis to the four corners of the instrument. W/hen, as in that instance, a contract can be construed from the four comers of the instrument without looking to extrinsic ^evidence, the question of contractual 'interpretation is answered as a matter of law ....

Brown v. Drillers, Inc., 630 So.2d 748-50. (Some citations omitted.)

A. Scope of the December 21, 2001 “Consent Judgment of Partition of Community Property”

In the instant matter, Dr. Parke does not challenge the validity of or seek to rescind either the October 4, 2001 stipulation and consent judgment or the December 21, 2001 consent judgment of partition of community property. Rather, she asserts that when she and Dr. Drapcho agreed that she would pay the tuition/registration reimbursement at the time of the community property partition, their agreement converted the reimbursement debt from a child support obligation to a community property obligation. Based on the terms of the December 2001 consent judgment, which provided for the waiver of “any and all claims for reimbursement and/or accounting from each other,” she argues that Dr. Drapcho waived or released her obligation to reimburse him for the tuition/registration expense as part of the community property partition. Thus, she claims that the December 2001 agreement clearly and unambiguously waived her prior obligation.

Based on our examination of the language of the two compromise agreements, we find no merit in Dr. Parke’s contentions. The mere fact that the parties agreed that Dr. Parke would reimburse Dr. Drapcho for the tuition/registration expense at the same time that the parties finalized their community property settlement did not transform the nature of the obligation. Neither the initial obligation to pay the tuition/registration expenses nor the obligation to reimburse those expenses was a community debt; neither obligation arose until long after the community had been terminated. Thus, we find no error | sin the trial court’s conclusions that in executing the December 2001 agreement, the parties intended to compromise only the reimbursement claims that related to the community and that Dr. Parke’s obligation to reimburse the tuition/registration expense was not a claim related to the parties’ former community.

Even if we consider parole evidence regarding the intent of the parties, we find that Dr. Parke offered no substantiating evidence of mistaken intent; she did not testify that she was mistaken as to what she was signing, and she did not relate that she did not fully understand the nature of any rights she released or that she did not intend to release certain aspects of her claim. She merely testified that she thought the effect of what she signed was that Dr. Drapcho released her from her obligation to reimburse him for the private school tuition/registration expense. Dr. Drapcho also testified during the hearing. He explained that he did not intend to compromise Dr. Parke’s obligation to reimburse him for the tuition/registration expense; he intended only to compromise reimbursement claims that pertained to the parties’ community property.

Based on the testimony presented, the trial court found that Dr. Parke failed to prove that, upon executing the December 2001 consent judgment, both parties clearly comprehended a compromise of Dr. Parke’s obligation to reimburse Dr. Drap-cho for the children’s tuition/registration expense. This obligation had already been reduced to a final judgment in the October 2001 consent judgment, and the December 2001 judgment, which effected a separation of the parties’ community assets and debts, neither referenced the earlier consent judgment nor 1 (¡specifically referenced Dr. Parke’s non-community obligation. The trial court's finding as to the intent of the parties in entering into a compromise agreement is a finding of fact that will not be disturbed by an appellate court in the absence of manifest error. Angelo and Son, Inc. v. Rapides Bank & Trust Co. in Alexandria, 95-992, p. 6 (La.App. 3d Cir.4/10/96), 671 So.2d 1283, 1286, writs denied, 96-1173, 96-1204 (La.6/21/96), 675 So.2d 1083. Based on the facts of the present case, we find no manifest error in the trial court’s finding regarding the parties’ intent.

Although Dr. Parke complains that the trial court took judicial notice of the October 2001 consent judgment, we recognize that the judgment was included in the trial record and that Dr. Parke concedes its existence and does not challenge its validity. Dr. Parke’s actual complaint is that once the trial court considered the terms of the October 2001 consent judgment, it shifted the burden of proof to her. She asserts this was error.

In its reasons for judgment, the trial court stated:

As to the burden of proving the initial entitlement to the reimbursement for the tuition, that burden falls, of course, upon Dr. Drapcho. He has carried that burden, simply by the introduction of the matters for which the Court will take judicial notice, that being the judgment calling for that reimbursement. The burden then shifts to Dr. Parke to prove that, in some fashion, that money was satisfied from the consent judgment of partition of community property, dat-. ed December 21, ’01.
Certainly, that [October 2001] judgment is not specifically referenced in the consent judgment. Whether accidentally or by design, depends, of course, upon whose testimony is accepted regarding that. That being said, since that burden of proof falls to Dr. |inParke, she has failed to carry that burden of proof in connection with that issue.

As the plaintiff-in-rule, Dr. Drap-cho had the initial burden of establishing his entitlement to reimbursement; Dr. Drapcho established his entitlement based on the terms of the October 2001 consent judgment alone. In defending Dr. Drap-cho’s claim, Dr. Parke argued that the December 2001 consent judgment compromised her obligation to pay the tuition/registration expense. In essence, she urged that the terms of the December 2001 consent judgment operated to waive or release her prior obligation. The party asserting a release of an obligation bears the burden of proof on the validity and scope of the release. See Brown v. Drillers, Inc., 93-1019 at p. 6, 630 So.2d at 747. Accordingly, we find no error in the trial court’s determinations regarding the burden of proof.

B. New Trial

Dr. Parke filed a motion for new trial, urging that the trial court’s judgment was contrary to the law and evidence. She further • sought to introduce the testimony of the mediator who had worked with the parties between the dates of the two consent judgments. Specifically, Dr. Parke sought to introduce testimony from the mediator regarding what the parties had discussed in relation to Dr. Parke’s obligation to reimburse the tuition/registration expenses.,

The standard of review of a denial of a motion for new trial, whether on peremptory or discretionary grounds, is that of abuse of discretion. Rao v. Rao, 05-0059, p. 7 (La.App. 1st Cir.11/4/05>, 927 So.2d 356. Based on our analysis of the merits of this case, the trial court’s judgment was not contrary to the law and the evidence. Thus, Dr. Parke was not entitled to a new trial on that h peremptory basis (see La. C.C.P. art. 1972(1)), and the trial court did not abuse its discretion in denying her motion for new trial in that respect. Although Dr. .Parke also urges that a new trial should have been ordered to allow her to introduce the mediator’s testimony, she failed to establish any newly discovered evidence that she could not have discovered with due diligence prior to the hearing. See La. C.C.P. art. 1972(2). Moreover, we find no abuse of discretion in the trial court’s denial of a new trial on discretionary grounds. See La. C.C.P. art. 1973.

C. Interest Award

Dr. Parke challenges the trial court’s award of interest on the $6,245.00 award from the date of judicial demand, August 29, 2001. She asserts that Dr. Drapcho did not receive the $600 refund from the school until August 2002, and that until that time, the parties did not know how much Dr. Drapcho was entitled to recover. She contends that she should not be obligated to pay interest for the time period between August 2001 and August 2002. Further, she argues that Dr. Drapcho did not establish when he made formal demand for the tuition/registration expense reimbursement.

Louisiana Civil Code article 2000 states, “When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due .... ” According to the terms of the October 4, 2001 judgment, the parties agreed the tuition/registration reimbursement was due “at the time of the. partition of their former community.” When a term for the performance of an obligation is either fixed, or is clearly determinable by the circumstances, the obligor is put in default by the mere arrival of that term. La. C.C. art. 1990. Thus, once the parties partitioned their | ^community property, Dr. Drapcho did not have to take any action to place Dr. Parke in- default. The partition of the former community occurred on December 21, 2001, when the parties executed the second consent judgment. At that time, Dr. Parke was obligated to pay Dr. Drap-cho the unrefunded tuition/registration expenses.

We acknowledge that Dr. Drapcho had not yet received the $600 refund from the school as of December 21, 2001. However, the terms of the October 4, 2001 consent judgment required Dr. Parke to reimburse Dr. Drapcho for the tuition/registration expenses not refunded by the private school. As of the date of the partition, the unre-funded amount was actually more than the amount sought by Dr. Drapcho in his 2004 show cause rule. The fact that the trial court’s August 6, 2004 judgment reflected the private school’s $600 refund to Dr. Drapcho has no bearing on the simple fact that Dr. Parke had the use of the money to which Dr. Drapcho was entitled since December 21, 2001. The later determination by the trial court of the “amount” due under the terms of the October 2001 consent judgment relates back'to the earlier due date to allow for precise calculation of the amount of interest actually due to make Dr. Drapcho whole. See Sharbono v. Steve Lang & Son Loggers, 97-0100, p. 6 (La.7/1/97), 696 So.2d 1382, 1386. Accordingly, we amend the judgment to provide that interest is due on the sum of $6,245.00 from December 21, 2001, rather than August 29, 2001.

III. CONCLUSION

Based on the above reasons, we amend that portion of the judgment addressing interest to provide that interest is due on the $6,245.00 award from the Pódate of December 21, 2001. In all other respects the judgment is affirmed. Each party is to pay one-half of the appeal costs.

AMENDED IN PART AND, AS AMENDED, AFFIRMED.

GUIDRY, J., concurs.

      . The October 4, 2001 consent judgment was a final judgment as between the parties. Gui-dry v. Sothern, 98-1152, p. 4 (La.App. 1st Cir.5/14/99), 734 So.2d 928, 931.


source: Caselaw Access Project

author: DOWNING, J.

license: Public Domain

text:
    Ashli RICHARDSON, Karl M. Beattie and Bobbie G. O’Bryan, Jr. v. Bobby Gerald LOTT, Jr., Bobby Gerald Lott, Sr., State Farm Mutual Automobile Ins. Co. and Terrebonne Parish Consolidated Government.
    No. 2004 CA 2770.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.
    Writ Denied March 5, 2006.
    William P. Crews, Jr., Natchitoches, William S. Watkins, Houma, Counsel for Plaintiff/Appellant Ashli Richardson.

      Gregory Schwab, Houma, Counsel for Defendant/Appellee State Farm Mutual Automobile Ins.
    Howard B. Kaplan, Metairie, Counsel for Defendant/Appellee USF & G.
    John D. Schoonenberg, Houma, Counsel for Defendant/Appellee Terrebonne Parish Consolidated Government.
    Before: CARTER, C.J., DOWNING and MCDONALD, JJ.
   DOWNING, J.

IgThe issue on appeal is whether Terre-bonne Parish Consolidated Government (Terrebonne) had validly waived underin-sured/uninsured (UM) coverage prior to an accident where a City of Houma police officer, Ashli Richardson, was injured by an underinsured motorist. The trial court ruled that Terrebonne validly rejected UM coverage on its policies with United States Fidelity & Guaranty Company (USF & G). The court also ruled that Terrebonne was not responsible for the first $250,000.00 in damages under its self-insured retention (SIR) limit. Richardson appealed the judgment; for the following reasons we affirm the trial court judgment.

FACTS AND PROCEDURAL HISTORY

The facts of this case can be found in Richardson v. Lott, 03-0189, p.p. 2-4 (La.App. 1 Cir. 11/7/03) 868 So.2d 64, 67,68, writ denied, 03-3324 (La.2/13/04), 867 So.2d 707, where this court concluded that the UM rejection form signed October 20, 1998, was not valid because it did not comply with the form statutorily prescribed in LSA-R.S. 22:1406D(l)(a)(ii), effective September 6, 1998. The matter was remanded to the trial court for further proceedings regarding the validity and continuing effect of earlier UM rejection forms.

On May 14, 2004, USF & G filed a motion for summary judgment, but this time relying on a UM selection/rejection form signed by Barry Bonvillain, Terre-bonne Parish President, dated April 10, 1997, for USF & G policy # 30025433901. The policy was effective from January 1, 1997 to January 1, 1999, and the 1997 rejection form was in compliance with the law at the time the policy was issued. Based on the 1997 rejection form, the trial | scourt ruled that there was no UM coverage available to Richardson and that Ter-rebonne was not responsible for the first $250,000.00 under the SIR limits of the USF & G policy, because there was no obligation for a self-insured entity to provide UM coverage on its vehicles. The claims against USF & G and Terrebonne were dismissed. Richardson appealed.

DISCUSSION

Effective September 6, 1998, LSA-R.S. 22:1406(D)(l)(a)(ii) was amended as follows:

A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage. Any form executed prior to the effective date of this Act shall be valid only until the policy renewal date; thereafter, the rejection, selection of lower limits, or selection of economic-only coverage shall be on a form prescribed by the commissioner as provided in this Subsection. (Emphasis added).

The resolution of this case turns on whether the USF & G policy (# DRE30032504700) issued for the policy period July 1,1998 to January 1, 2000, was a continuation of an unexpired policy issued for a policy period January 1, 1997 to January 1, 1999. A renewal or substitute policy does not require a new UM rejection form., A new policy signed after September 6, 1998, requires a UM rejection form in compliance with the above statute.

Richardson argues that the policy at issue beginning July 1, 1998 could not be a renewal because a renewal can only occur at the end of the prior unexpired policy. Richardson cites LSA-R.S. 22:636.1A(5), which defines a “renewal” as one issued “at the end of the policy period.” She argues that since this new policy began before the end of the previous policy Rperiod and extended beyond the prior policy period it cannot be categorized as a renewal. She further argues that the agent, J & H Marsh & McLennan, noted in a letter to Terrebonne that the policy issued from January 1, 1997 to January 1, 1999 was being cancelled and rewritten.

We disagree with Richardson’s contention that the issuance of any policy other than a renewal triggers the necessity of a new UM rejection form. Louisiana recognizes “substitute” policies. This court, in Wilkinson v. Louisiana Indemnity/Patterson insurance, 96-0447, p. 11 (La.App. 1 Cir. 11/8/96) 682 So.2d 1296, 1302, defined substitute policies to include situations where there had been coverage and an agreement is made for different coverage. The Wilkinson court stated that where there had been a valid rejection of UM coverage for the previously issued policy, no new UM rejection form is necessary because the prior rejection form is also valid for the substitute policy. Id. 96-0447, p. 10, at p. 1301. Here, as in Wilkinson, there is a previously issued policy with a prior rejection form that was valid at the time it was signed.

In determining whether a substitute policy requires a new UM selection form, we utilize the “material change” test. Lewis v. Lenard, 29,529, pp. 5-6 (La.App. 2 Cir. 5/7/97), 694 So.2d 574, 578. The determinant question is whether the change in the policy is material to the initial selection or waiver of UM coverage and, thus, triggers the need to execute a new selection/rejection UM waiver. Id.

The USF & G policy #30025433901, issued January 1, 1997, was amended to add coverage for mosquito control sprayers. Applying the test of materiality, we conclude under the particular facts of this case, that amending a policy to add pesticide/herbicide coverage is not material to the Isimtial selection/rejection waiver of UM coverage in the policy. Therefore, the re-issued policy did not require the issuance of a new UM seleetion/rejection form.

Richardson’s contention that the agents considered the policy issued July 1, 1998, to be a cancellation and re-issuance rather than a renewal is without merit. The agent’s referral to the policy as being can-celled and reissued, in its July 2, 1998 memo to Terrebonne, was an unfortunate use of language. However, by operation of law, when there is coverage in a prior policy, and an agreement is made for a different coverage that does not materially affect the UM portion of the policy, the reissued policy is a “substitution” rather than a “new” policy and no new UM selection/rejection is necessary. Lewis, 29,529, at p. 3, 694 So.2d at 576. Further, there is no evidence in the record that the policy issued January 1, 1997 was cancelled. In fact the replacement policy itself, issued July 1, 1998, clearly states that it is a “Renewal policy.”

We note that Richardson’s actual assignment of error states that the trial court erred in holding that it was irrelevant as to whether USF & G was the continuous insurer of Terrebonne from 1992 to the date of the accident in 1998. However, the policy preceding the substitute policy, issued by the | fisame insurer, had a valid UM selection/rejection form. The only two policies in question are the ones issued by USF & G in 1997 and 1998, and a valid UM rejection was signed by Barry Bonvil-lain before the effective date that the new UM rejection form was required.

Accordingly, we conclude that the UM rejection form signed by Barry Bonvillain on April 10, 1997, was a valid rejection of UM coverage and continued being a valid UM rejection at least until the substitution policy expired on January 1, 2000, at 12:01 A.M. Therefore, the second assignment of error is without merit.

Richardson alleges in her first assignment of error that the trial court was manifestly erroneous in holding that Danny Domangue had implied authority to sign the UM rejection forms prior to the one at issue on behalf of Terrebonne.

Since we have concluded that the policy issued July 1, 1998 was a substitute policy for the policy issued January 1, 1997, we pretermit the issue of Domangue’s apparent authority or lack thereof. Although Domangue signed the UM rejections in 1995 and 1996, those policies are not at issue and we make no determination as to whether he had or did not have the apparent authority to do so.

We conclude that Barry Bonvillain had direct authority to sign all UM selection/rejection forms and did sign a valid UM waiver in 1997 that extended to the substitute policy issued July 1, 1998. Therefore, the first assignment of error is without merit.

Richardson alleges in her final assignment of error that the trial court erred in ignoring the self-insured retained (SIR) limit of $250,000.00. • She |7argues that Terrebonne is entitled to a full credit for all worker’s compensation benefits paid the plaintiff which may approximate the SIR; thereafter that she is entitled, under the law, to prosecute her claims for UM benefits against USF & G.

We have determined however, that no UM coverage is available to this claimant since the rejection/selection waiver signed by Barry Bonvillain was valid. Therefore, there is nothing for a credit to be calculated against. Terrebonne has been a self-insured entity since 1992. The law does not require self-insured entities to provide itself with UM coverage. LSA-R.S. 82:1041; LSA-R.S. 32:1042; LSA-32:851. See also Tybussek v. Wong, 96-1981 (La.App. 4 Cir. 2/26/97) 690 So.2d 225. Therefore, no provisions of law or contract exist that provide a remedy to this plaintiff for UM coverage.

Thus, the trial court was not manifestly erroneous in “ignoring” Terrebonne’s SIR. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the trial court judgment granting the United States Fidelity & Guaranty Company and Terrebonne Parish Consolidated Government motions for summary judgment. Costs of this appeal are assessed against plaintiffiappellant, Ashli Richardson.

AFFIRMED

      . On July 23, 2004, Terrebonne filed a motion for summary judgment to determine the parish's exposure in the event of a valid waiver of UM coverage.

      . This policy replaced the USF & G policy # 30025433900 that expired January 1, 1997.

      .This statute was re-designated LSA-R.S. 22:680 by Acts 2003, No. 456, Sec. 3; however, the validity of a UM waiver, rejection, or selection is determined by the law in effect at the time the waiver is executed. See Roger v. Estate of Moulton, 513 So.2d 1126, 1131-32 (La.1987).

      . See former LSA-R.S. 22:1406(D)(l)(a)(i).

      . We note that the rejection form signed by Barry Bonvillain on 10/20/98 would have been valid had it been signed prior to 9/6/98, the effective date of the statute.

      .Endorsement UG50130195 added "Pesticide or Herbicide Applicator Coverage.”

      . Principles of law consistent with this opinion and the material change test were codified by Acts 1999, No. 732 Sec. 1, and re-designated LSA-R.S. 22:680(1)(a)(ii) reads as follows:
      The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create a new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

      .
      Policy No.: DRE30032504700
      Renewal of: DRE30025433901

      . On March 11, 1992. Terrebonne gave its parish president, Bariy Bonvillain, authorization to reject UM on all of its policies.


author: PETTIGREW, J.

text:
    Rose Marie FAGAN v. Michelle LEBLANC, D.D.S., Sue LeBlanc, D.D.S.
    No. 2004 CA 2743.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Thomas J. Hogan, Jr., Hammond, for Plaintiff-Appellant Rose Marie Fagan.
    John A. Stewart, New Orleans, for Defendant-Appellee Michelle LeBlanc, D.D.S.
    J. Michael Daly, Jr., New Orleans, for Defendant-Appellee Sue LeBlanc, D.D.S.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|?In this case, Rose Marie Fagan challenges the trial court’s judgment granting-summary judgment in favor of Dr. Michelle LeBlanc and dismissing, with prejudice, her claim for damages. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mrs. Fagan began treating with Dr. Michelle’s mother, Dr. Sue LeBlanc, in 1988 and was diagnosed with Type III periodontal disease. According to the record, Mrs. Fagan refused to seek further treatment from a periodontal disease specialist as recommended by Dr. Sue. Mrs. Fagan’s condition had not improved by the time she was seen by Dr. Michelle on January 28, 1998. Although Dr. Michelle recommended a comprehensive treatment plan for Mrs. Fagan at that time, Mrs. Fagan opted for emergency care only and was treated by Dr. Michelle on a limited basis over the next several months.

In August 1998, Mrs. Fagan agreed to a comprehensive treatment plan, which Dr. Michelle performed over the next nine months. This treatment included the removal of all remaining teeth, with the exception of two teeth in the upper jaw and two in the lower jaw to be used as anchors for dentures. The final “zest” attachments were placed in Mrs. Fagan’s remaining teeth and in her dentures in April 1999. However, over the next several months, Mrs. Fagan apparently failed to practice good oral hygiene, causing her four remaining teeth to deteriorate and become severely decayed. By October 2000, Mrs. Fagan was advised that her “zest” attachments had “extensive recurrent decay ... that only fluoride and good oral hygiene could prevent.” It was at that time that Mrs. Fagan requested a referral to an oral surgeon for implants.

According to the record, Mrs. Fagan’s attorney referred her to Dr. Cecil Fruge, a general dentist. Dr. Fruge saw Mrs. Fa-gan on March 9, 2001, at which time Mrs. Fagan complained that her dentures were loose. Noting severe decay in Mrs. Fa-gan’s four remaining teeth, Dr. Fruge opined that the teeth were not salvageable. Dr. Fruge agreed that good oral hygiene would have prevented the decay he saw in Mrs. Fagan’s teeth. When asked about Mrs. Fagan’s dentures, Dr. Fruge acknowledged that the dentures | ¡¿were made adequately and the placement of the posts in Mrs. Fagan’s teeth looked adequate.

Dr. Fruge referred Mrs. Fagan to Dr. Michael Maginnis, a general dentist with a specialty in prosthodontics. Dr. Maginnis saw Mrs. Fagan on April 16, 2001, and concluded that the decay in her four remaining teeth were causing the dentures to fit improperly because they were not providing the support needed for the dentures. Dr. Maginnis indicated that Mrs. Fagan’s four remaining teeth needed to be extracted and that she would need to be fitted for new dentures with implants at a cost of approximately $10,000.00. Dr. Maginnis opined that the procedure of using Mrs. Fagan’s four remaining teeth as anchors for the “zest” attachments was a “very acceptable technique.”

Alleging that her treatment by Drs. Sue and Michelle was substandard and that they failed to inform her of the risks associated with the treatment, Mrs. Fagan filed a complaint with the Patient Compensation Fund. On May 21, 2003, a medical review panel unanimously opined that the evidence did not support a finding that either Dr. Sue or Dr. Michelle had violated the standard of care for their specialty. The panel further found that educational brochures and clinical notes amply explained and supported the fact that Mrs. Fagan was advised of the risks and benefits of the procedure so that a reasonable person having that information would have made an informed decision.

Despite the panel’s finding, Mrs. Fagan filed a petition for damages on June 26, 2003, naming Drs. Sue and Michelle as defendants. Mrs. Fagan alleged negligence and/or breaches of duty by the defendants in the following non-exclusive ways: (1) failure to disclose the risks and hazards involved in the procedures performed by defendants; (2) failure to obtain plaintiffs informed consent prior to performing the procedures; and (3) failure to act within the degree of care and skill possessed by practitioners in the community.

|4In response to Mrs. Fagan’s petition for damages, Dr. Michelle filed an answer generally denying the allegations contained therein. Thereafter, on April 20, 2004, Dr. Michelle filed a motion for summary judgment alleging that there was no genuine issue of material fact and that she was entitled to judgment as a matter of law. Noting the absence of evidence in the record that would indicate she was negligent and/or committed malpractice in her treatment of Mrs. Fagan, Dr. Michelle asserted that Mrs. Fagan had failed to adequately support her claims, by way of required expert testimony, and that summary judgment was warranted. Attached to her motion for summary judgment were the following exhibits: (1) Dr. Michelle’s deposition; (2) the affidavit of the attorney who chaired the medical review panel along with the opinions of the medical review panel and its written reasons; (3) the affidavit of one of the members of the medical review panel; (4) the deposition of Dr. Fruge; (5) the deposition of Dr. Mag-innis; and (6) Mrs. Fagan’s answers to the interrogatories propounded by Dr. Michelle. Mrs. Fagan failed to file an opposition to Dr. Michelle’s motion for summary judgment.

Dr. Michelle’s motion for summary judgment proceeded to hearing on June 21, 2004. After hearing arguments from the parties and considering the law and evidence in the record, the court granted summary judgment, dismissing, with prejudice, Mrs. Fagan’s claim for damages. A judgment in accordance with the court’s findings was signed on June 25, 2004. It is from this judgment that Mrs. Fagan filed the instant appeal, arguing that the court erred in granting summary judgment in favor of Dr. Michelle.

| r,SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (LaApp. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be | (¡seen only in light of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

The elements a plaintiff in a medical malpractice action is required to establish are statutorily defined as follows: (1) “The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances;”® “That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill;” and (3) “That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” La. R.S. 9:2794(A). Summarizing, the plaintiff must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries resulting therefrom. Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233.

To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Lefort v. Venable, 93-2545, p. 4 (La.App. 1 Cir. 6/28/96), 676 So.2d 218, 220. Although the jurisprudence has recognized exceptions in instances of obvious negligence, these exceptions are limited to “instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can.” Pfiffner, 94-0924 at 9, 643 So.2d at 1234; see also Coleman v. Deno, 2001-1517, p. 20 (La.1/25/02), 813 So.2d 303, 317. The jurisprudence has thus recognized that “an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.” Williams v. Metro Home Health Care Agency, Inc., 2002-0534, p. 5 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228. Moreover, the jurisprudence has held that this requirement of producing expert medical testimony is especially apt when the defendants have filed summary judgment motions and supported such motions with expert opinion evidence 17that their treatment met the applicable standard of care. Lee v. Wall, 31,468, p. 4, (La.App. 2 Cir. 1/20/99), 726 So.2d 1044, 1046-47.

DISCUSSION

The only expert evidence in the record before us is the deposition testimony of Drs. Fruge and Maginnis, both of whom saw Mrs. Fagan after her treatment with Drs. Sue and Michelle. Neither Dr. Fruge nor Dr. Maginnis found any want of care on the part of either Dr. Sue or Dr. Michelle. Rather, they both testified that the decay they observed in Mrs. Fagan’s teeth was caused by her failure to practice good oral hygiene. ' Moreover, the three members of the medical review panel who considered the complaint filed by Mrs. Fa-gan with the Patient’s Compensation Fund concluded that Drs. Sue and Michelle complied with the applicable standard of care, informed Mrs. Fagan of the risks associated with her treatment, and obtained her consent for the treatment rendered to her. Following our exhaustive review of the record and based on the facts and circumstances of this case, we conclude that Dr. Michelle carried her burden of proof on the motion for summary judgment. In order to defeat the motion for summary judgment filed by Dr. Michelle, Mrs. Fa-gan was required to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial, i.e., that Dr. Michelle breached the applicable standard of care. As previously indicated, Mrs. Fagan filed no opposition to Dr. Michelle’s motion for summary judgment. Additionally, there is no evidence in the record to support Mrs. Fagan’s claim that Dr. Michelle breached the applicable standard of care she owed to Mrs. Fagan. Further, the evidence reveals that Dr. Michelle adequately explained the risks associated with treatment to Mrs. Fagan and that Mrs. Fagan made an informed decision to go forward with the treatment. Accordingly, Mrs. Fagan failed to meet her burden of proof. -There was no genuine issue of material fact remaining as to Dr. Michelle’s liability, and summary judgment in her .favor was appropriate.

| ^CONCLUSION

For the above and foregoing reasons, we find no error in the trial court’s ruling granting Dr. Michelle LeBlanc’s motion for summary judgment and dismissing Mrs. Fagan’s suit. Thus, we affirm the judgment below and assess all costs associated with this appeal against Mrs. Fagan.

AFFIRMED.

      . Mrs. Fagan has separately appealed the trial court’s judgment granting summary judgment in favor of Dr. Sue LeBlanc. See our published decision in Fagan v. LeBlanc, 2005-1845 (La.App. 1 Cir.), 928 So.2d 576, 2006 WL 305901 ("Fagan I”), also decided this same date.

      . We note that on April 12, 2004, Mrs. Fagan filed an opposition to the motion for summary judgment filed by Dr. Sue on March 8, 2004. Attached to Mrs. Fagan's opposition was a document entitled "Possible Complications of Common Surgical Procedures,” which outlines risks, as defined by the Louisiana Medical Disclosure Panel, that are required to be disclosed by physicians to patients. Mrs. Fa-gan's opposition and accompanying material appears in the instant record as well as in the appeal record in the companion case, Fagan I. Nonetheless, even if we were to consider the opposition filed by Mrs. Fagan in Fagan I in the instant case, our decision herein that summary judgment in favor of Dr. Michelle was warranted would remain the same.

      . Mrs. Fagan filed identical briefs in this appeal and in Fagan I, assigning four specifications of error. However, three of the four errors assigned pertain solely to the appeal of the summary judgment in favor of Dr. Sue and, thus, will not be addressed in this appeal.


text:
    Rose Marie FAGAN v. Michelle LEBLANC, D.D.S., Sue Leblanc, D.D.S.
    No. 2005 CA 1845.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Thomas J. Hogan, Jr., Hammond, for Plaintiff-Appellant Rose Marie Fagan.
    John A. Stewart, New Orleans, for Defendant-Appellee Michelle Leblanc, D.D.S.
    J. Michael Daly, Jr., New Orleans, for Defendant-Appellee Sue Leblanc, D.D.S.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

[¡¡In this case, Rose Marie Fagan challenges the trial court’s judgment granting summary judgment in favor of Dr. Sue LeBlanc and dismissing her claim for damages.

FACTS AND PROCEDURAL HISTORY

Mrs. Fagan began treating with Dr. Sue in 1988 and was diagnosed with Type III periodontal disease. According to the record, Mrs. Fagan refused to seek further treatment from a periodontal disease specialist as recommended by Dr. Sue. Mrs. Fagan’s condition had not improved by the time she was seen by Dr. Michelle Le-Blanc (Dr. Sue’s daughter) on January 28, 1998. Although Dr. Michelle recommended a comprehensive treatment plan for Mrs. Fagan at that time, Mrs. Fagan opted for emergency care only and was treated by Dr. Michelle on a limited basis over the next several months.

In August 1998, Mrs. Fagan agreed to a comprehensive treatment plan, which Dr. Michelle performed over the next nine months. This treatment included the removal of all remaining teeth, with the exception of two teeth in the upper jaw and two in the lower jaw to be used as anchors for dentures. The final “zest” attachments were placed in Mrs. Fagan’s remaining teeth and in her dentures in April 1999. However, over the next several months, Mrs. Fagan apparently failed to practice good oral hygiene, causing her four remaining teeth to deteriorate and become severely decayed. By October 2000, Mrs. Fagan was advised that her “zest” attachments had “extensive recurrent decay ... that only fluoride and good oral hygiene could prevent.” It was at that time that Mrs. Fagan requested a referral to an oral surgeon for implants.

According to the record, Mrs. Fagan’s attorney referred her to Dr. Cecil Fruge, a general dentist. Dr. Fruge saw Mrs. Fa-gan on March 9, 2001, at which time Mrs. Fagan complained that her dentures were loose. Noting severe decay in Mrs. Fa-gan’s four remaining teeth, Dr. Fruge opined that the teeth were not salvageable. Dr. Fruge agreed that good oral hygiene would have prevented the decay he saw in Mrs. Fagan’s teeth. When asked about Mrs. Fagan’s dentures, Dr. Fruge acknowledged that the dentures were made adequately and the placement of the posts in Mrs. Fagan’s teeth looked adequate.

|sDr. Fruge referred Mrs. Fagan to Dr. Michael Maginnis, a general dentist with a specialty in prosthodontics. Dr. Maginnis saw Mrs. Fagan on April 16, 2001, and concluded that the decay in her four remaining teeth were causing the dentures to fit improperly because they were not providing the support needed for the dentures. Dr. Maginnis indicated that Mrs. Fagan’s four remaining teeth needed to be extracted and that she would need to be fitted for new dentures with implants at a cost of approximately $10,000.00. Dr. Maginnis opined that the procedure of using Mrs. Fagan’s four remaining teeth as anchors for the “zest” attachments was & “very acceptable technique.”

Alleging that her treatment by Drs. Sue and Michelle was substandard and that they failed to inform her of the risks associated with the treatment, Mrs. Fagan filed a complaint with the Patient Compensation Fund. On May 21, 2003, a medical review panel unanimously opined that the evidence did not support a finding that either Dr. Sue or Dr. Michelle had violated the standard of care for their specialty. The panel further found that educational brochures and clinical notes amply explained and supported the fact that Mrs. Fagan was advised of the risks and benefits of the procedure so that a reasonable person having that information would have made an informed decision.

Despite the panel’s finding, Mrs. Fagan filed a petition for damages on June 26, 2003, naming Drs. Sue and Michelle as defendants. Mrs. Fagan alleged negligence and/or breaches of duty by the defendants in the following non-exclusive ways: (1) failure to disclose the risks and hazards involved in the procedures performed by defendants; (2) failure to obtain plaintiff’s informed consent prior to performing the procedures; and (3) failure to act within the degree of care and skill possessed by practitioners in the community.

In response to Mrs. Fagan’s petition for damages. Dr. Sue filed an answer generally denying the allegations contained therein and an exception raising the objection of no cause of action. Thereafter, on March 8, 2004, Dr. Sue filed a motion for summary judgment alleging that there was no genuine issue of material fact and that she was |4entitled to judgment as a matter of law. Dr. Sue argued that without expert testimony, Mrs. Fagan could not carry the burden of proof in her medical malpractice claim. As support for her motion, Dr. Sue relied on the opinion of the medical review panel and the panel’s written reasons for same. Mrs. Fagan filed an opposition to Dr. Sue’s motion for summary judgment, alleging that Drs. Sue and Michelle breached the applicable standard of care by performing a medical procedure on her without obtaining her informed consent for same. Attached to Mrs. Fagan’s opposition was a document entitled “Possible Complications of Common Surgical Procedures,” which outlines risks, as defined by the Louisiana Medical Disclosure Panel, that are required to be disclosed by physicians to patients.

Dr. Sue’s motion for summary judgment proceeded to hearing on April 12, 2004. After hearing arguments from the parties, the court took the matter under advisement and, according to the minutes, gave “counsel [for Dr. Sue] (15) days to file response.” Thereafter, on April 30, 2004, the court granted Dr. Sue’s motion for summary judgment, dismissing Mrs. Fa-gan’s claim for damages. However, although the court correctly referenced Dr. Sue as “Dr. Sue LeBlanc” in its reasons for judgment, the court erroneously named “Sue C. Clark, D.D.S.” in the April 30, 2004 judgment.

On May 12, 2004, Mrs. Fagan filed a motion for new trial on the summary judgment granted in favor of Sue C. Clark, D.D.S., arguing, among other things, that the | ¡judgment was wrong as a matter of law as it was rendered in favor of a person that was not a party to the litigation. Mrs. Fagan noted that perhaps the court intended that the judgment be in favor of Dr. Sue C. LeBlanc, as she was a party to the litigation and had filed the motion for summary judgment. Subsequently, Dr. Sue filed a motion to amend the judgment, asking the court to amend the judgment pursuant to La.Code Civ. P. art.1951 to reflect her proper name.

According to the record, the motion for new trial and the motion to amend were set for hearing on August 2, 2004, at which time, by consent of the parties, the hearing on both motions was continued to October 25, 2004. Thereafter, on August 19, 2004, the trial court filed an amended judgment in favor of Dr. Sue, granting her motion for summary judgment and dismissing Mrs. Fagan’s claim for damages. On September 3, 2004, Mrs. Fagan filed a motion for appeal from the August 19, 2004 judgment. When the motion for new trial and motion to amend came before the court for hearing on October 25, 2004, the record reflects that a bench conference was held, after which time Mrs. Fagan’s counsel noted that “due to the fact that there have been two judgments filed and signed by [the trial court] and a motion for an appeal has been filed the motion for new trial is moot.”

It is from the August 19, 2004 judgment that Mrs. Fagan has filed the instant appeal. Mrs. Fagan maintains that trial cdurt’s judgment was wrong as a matter of law and requests that this court reverse the judgment below and remand the case for a trial on the merits. Mrs. Fagan argues the court erred (1) in granting' summary judgment in favor of Dr. Sue and (2) in signing the August 19, 2004 amended judgment in favor of Dr. Sue, a judgment that Mrs. Fagan asserts is an absolute nullity.

| NUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine' issue of material fact. Johnson v. Evan Hall Sugar Coop., Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (LaApp. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

Summary judgments are reviewed on appeal de novo. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La. App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. Because it is . the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in plight of the substantive law applicable to this case. Walker v. Phi Beta Sigma Fraternity (RHO Chapter), 96-2345, p. 6 (La.App. 1 Cir. 12/29/97), 706 So.2d 525, 528.

The elements a plaintiff in a medical malpractice action is required to establish are statutorily defined as follows: (1) “The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances;” (2) “That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill;” and (3) “That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.” La. R.S. 9:2794(A). Summarizing, the plaintiff must establish the standard of care applicable to the doctor, a violation by the doctor of that standard of care, and a causal connection between the doctor’s alleged negligence and the plaintiffs injuries resulting therefrom. Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233.

To meet this burden of proof, the plaintiff generally is required to produce expert medical testimony. Lefort v. Venable, 93-2545, p. 4 (La.App. 1 Cir. 6/28/96), 676 So.2d 218, 220. Although the jurisprudence has recognized exceptions in instances of obvious negligence, these exceptions are limited to “instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can.” Pfiffner, 94-0924 at 9, 643 So.2d at 1234; see also Coleman v. Deno, 2001-1517, p. 20 (La.1/25/02), 813 So.2d 303, 317. The jurisprudence has thus recognized that “an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.” Williams v. Metro Home Health Care Agency, Inc., 2002-0534, p. 5 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228. Moreover, the jurisprudence has held that this requirement of producing expert medical testimony is especially apt when the defendants have filed summary judgment motions and supported such motions with expert opinion evidence |sthat their treatment met the applicable standard of care. Lee v. Wall, 31,468, p. 4, (La.App. 2 Cir. 1/20/99), 726 So.2d 1044, 1046-47.

As previously indicated, the medical review panel concluded that Drs. Sue and Michelle complied with the applicable standard of care, informed Mrs. Fagan of the risks associated with her treatment, and obtained her consent for the treatment rendered to her. Accordingly, by presenting this evidence, Dr. Sue successfully shifted the burden to Mrs. Fagan. In order to defeat the motion for summary judgment filed by Dr. Sue, Mrs. Fagan was required to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden of proof at trial, i.e., that Dr. Sue breached the applicable standard of care. The only evidence submitted by Mrs. Fagan in opposition to Dr. Sue’s motion for summary judgment was a document entitled “Possible Complications of Common Surgical Procedures,” which outlines risks, as defined by the Louisiana Medical Disclosure Panel, that are required to be disclosed by physicians to patients.

In granting summary judgment in favor of Dr. Sue, the trial court considered the law and evidence in the record and made the following conclusions regarding same:

It is obvious that Plaintiff would have to produce expert testimony in support of her claim that Mover’s treatment fell below the applicable standard of care.... Plaintiff does not seriously contest this aspect of the case, but, in argument, relies more heavily upon her contention of lack of informed consent.

As per R.S. 40:1299.40, the disclosure requirements for dental treatment rendered by dentist not performing oral or maxillofacial surgery in a hospital is governed exclusively by the provisions of R.S. 40:1299.131.[T]hat statute provides that “informed consent” involves advising the patient of a listed category of possible side effect[s] to the procedure, the only one of which argued herein is “disfiguring scars”, allowing the patient the opportunity to ask questions with regard to the proposed procedure and possible side effects, and the dentist’s reasonable responses to these inquiries.

This statute further provides that a patient legally challenging proper informed consent has the burden of proving that the dentist failed to disclose the risk of the same listed possible side effects (including disfiguring scars), that the undisclosed risk did occur, and that a reasonably prudent person in the patient’s position would not have undergone the procedure had he been properly informed. The decision in [Britt v. Taylor, 37,378 (La.App. 2 Cir. 8/20/03), 852 So.2d 1128] held that a patient must define the existence and nature of the risk as well as the likelihood of its occurT rence, which requires “some” expert testimony, and a causal connection between the failure to disclose the material risk and the damage to the patient.

IflA fair reading of Plaintiffs petition indicates that her primary concern seems to be her concern that she underwent a procedure at some cost, which

did not rectify her dental problems, resulting in the need for additional, expensive dental procedures. Without expert testimony, it would be impossible to conclude whether the initial procedure was advisable from a dental standpoint, or whether the proposed second procedure was necessitated by any failure to meet the standard of care in performing the initial procedure. As to lack of informed consent, there is no expert testimony to causally connect any failure to disclose with any damages resulting to Plaintiff. In this regard, the Court notes that there was no evidence in the form of affidavits, deposition testimony, or otherwise to substantiate Plaintiffs claim that she suffered disfiguring scars resulting from the dental procedure, or that Mover herein even performed any surgical, dental procedures which caused the alleged scarring.

On appeal, Mrs. Fagan argues that contrary to the trial court’s conclusions, “there was ‘some’ expert testimony in the record concerning the existence and nature of the risk in the form of the regulations adopted by the Medical Disclosure Panel.” She maintains that she “had sufficient ‘expert testimony’ in the form of the risks enumerated by the Louisiana Medical Disclosure Panel to establish the existence of the risk complained of and the likelihood of its occurrence to survive summary judgment.” Having thoroughly reviewed the record before us, we disagree with Mrs. Fagan’s arguments. There is absolutely no evidence in the record that Dr. Sue breached the applicable standard of care she owed to Mrs. Fagan. Moreover, the evidence reveals that Dr. Sue adequately explained the nature of the risk associated with the treatment and the likelihood of its occurrence and that Mrs. Fa-gan made an informed decision to undergo the treatment. Thus, there was no genuine issue of material fact remaining as to Dr. Sue’s liability. Summary judgment in her favor was warranted.

AMENDMENT OF ORIGINAL JUDGMENT

With regard to the August 19, 2004 judgment signed by the trial court, Mrs. Fagan argues on appeal that because the court had no authority to sign a second judgment, the judgment is an absolute nullity and must be stricken from the record. Mrs. Fagan goes even further and asserts that the original judgment in favor of Sue Clark, D.D.S. should be reinstated. Based on the unique facts and circumstances of this case, we find this argument to be incredulous. While we acknowledge the procedural quagmire that this | incase presents, it would be a grave injustice to permit the original judgment to stand as written.

Pursuant to La.Code Civ. P. art. 1951, “A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.” Thus, a judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment. Tunstall v. Stierwald, 2001-1765, p. 4 (La.2/26/02), 809 So.2d 916, 920. Changing the name of a party cast in judgment is a substantive change. Harvey v. Traylor, 96-1321, p. 5 (La.App. 4 Cir. 2/5/97), 688 So.2d 1324, 1329, writ denied, 97-0587 (La.4/18/97), 692 So.2d 454. A final judgment may be substantively amended by the trial court only upon the filing and granting of a motion for new trial. Thibodeaux v. Paradigm, Ins. Co., 96-0375, p. 4 (La.App. 1 Cir. 2/20/98), 709 So.2d 830, 832, writ denied, 98-1114 (La.6/5/98), 720 So.2d 685.

In the instant case, the parties recognized the error in the judgment and took action to have the judgment corrected. Mrs. Fagan moved for a new trial and Dr. Sue filed a motion to amend. However, before the motions were ever argued, the trial court signed’ the amended judgment making the necessary correction. Moreover, at argument before this court, counsel for all parties acknowledged the error and conceded that it was obviously the trial court’s intent to render judgment in favor of Sue LeBlanc, not “Sue C. Clark, D.D.S.” Although the error in the judgment at issue may have appeared obvious to the parties and the court (as it does to this court as well), procedurally, the judgment should not have been amended until after the trial court granted Mrs. Fagan’s motion for a new trial and held a contradictory hearing. La.Code Civ. P. arts. 1971-1977; State ex rel. Dept. of Soc. Serv. V. A.P., 2002-2372, p. 8 (La.App. 1 Cir. 6/20/03), 858 So.2d 498, 503.

InWhile the usual remedy of an appellate court in such a case is to vacate the amended judgment and reinstate the original judgment, this case will not be resolved in such a manner. To reinstate the original judgment as rendered would be to allow a judgment to stand in favor of a non-party, i.e., “Sue C. Clark, D.D.S.” Tunstall, 2001-1765 at 6, 809 So.2d at 920. Pursuant to La.Code Civ. P. art. 2164, an appellate court may “render any judgment which is just, legal and proper upon the record on appeal.” The record before us is complete and we deem it just, legal and proper not only to vacate the amended judgment and reinstate the original judgment, but also to revise the original judgment to reflect that Sue LeBlanc, D.D.S. is the proper party defendant.

CONCLUSION

For the above and foregoing reasons, we find no error in the trial court’s ruling granting summary judgment and dismissing Mrs. Fagan’s suit. However, the trial court erred in signing the amended judgment without first granting Mrs. Fagan’s motion for new trial and holding a contradictory hearing. Thus, we vacate the August 19, 2004 judgment. The judgment of April 30, 2004 is reinstated, amended, and affirmed as follows: “This matter was before the Court on motion for summary judgment filed by Defendant, Sue Le-Blanc, D.D.S.... IT IS ORDERED, ADJUDGED AND DECREED, that the motion for summary judgment be granted, and, accordingly, that there be judgment rendered herein in favor of Defendant, Sue LeBlanc, D.D.S., and against Plaintiff, Rose Marie Fagan, dismissing Plaintiffs demands as to this Defendant, at Plaintiffs costs.” All costs associated with this appeal are assessed against Mrs. Fagan.

JUDGMENT OF AUGUST 19, 2004, VACATED; JUDGMENT OF APRIL 30, 2004, REINSTATED, AMENDED, AND AS AMENDED, AFFIRMED.

GUIDRY, J., concurs in the result.

      . Mrs. Fagan has separately appealed the trial court’s judgment granting summary judgment in favor of Dr. Michelle LeBlanc. See our published decision in Fagan v. LeBlanc, 2004-2743, 928 So.2d 571 (La.App. 1 Cir.) ("Fagan II”), also decided this same date.

      . We acknowledge that the copy of the opinion of the medical review panel attached to Dr. Sue's motion for summary judgment was an uncertified copy and not properly supported by either the deposition or affidavit of any of the medical doctors who served on the panel. Thus, it did not fall within any of the categories set forth in La.Code Civ. P. arts. 966 and 967 as evidence properly considered on a motion for summary judgment. Simmons v. Berry, 98-0660, pp. 7-8 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, 916. Nonetheless, we are mindful of our inherent authority and mandate to render "any judgment which is just, legal, and proper upon the record on appeal.” La.Code Civ. P. art. 2164. The record in the instant case, which is, for the most part, identical to the record lodged with this court in Fagan II, includes a copy of the motion for summary judgment filed by Dr. Michelle in Fagan II along with the exhibits submitted by Dr. Michelle in support of her motion, all of which were in proper evidentia-ry form and reviewed by this court in considering Dr. Michelle's motion for summary judgment. Included in Dr. Michelle's exhibits was a copy of the panel's opinion, which was , authenticated by its attachment to the affidavit of Dr. Edwin L. Kopfler, a member of the medical review panel that considered Mrs. Fagan’s complaint of malpractice against Drs. Sue and Michelle. Moreover, on June 14, 2004, Dr. Sue filed a motion to supplement the record with the trial court, which was subsequently granted, asking that she be allowed to file affidavits from members of the medical review panel attesting to the accuracy of the opinion of the medical review panel and reiterating that the panel concluded there was no breach of the applicable standard of care by Dr. Sue. Accordingly, we will exercise our authority under Article 2164 and, in the interest of justice, consider the opinion of the medical review panel in our review of the summary judgment rendered in favor of Dr. Sue.

      . We note that the instant record contains no such ''response.” Moreover, although Mrs. Fagari assigns error to the trial court’s decision to allow Dr. Sue to "supplement her motion for summary judgment,” Mrs. Fagan failed to brief this assignment of error. Thus, we consider said argument abandoned and will not address the issue herein. See Uniform Rules — Courts of Appeal, Rule 2-12.4.

      . Mrs. Fagan filed identical briefs in this appeal and in Fagan II, assigning four specifications of error. As previously noted, Mrs. Fa-gan assigned error to the trial court's decision to allow Dr. Sue to "supplement her motion for summary judgment” but abandoned her argument regarding this issue when she failed to brief the assignment of error. See Uniform Rules — Courts of Appeal, Rule 2-12.4. The fourth assignment of error raised by Mrs. Fagan pertains to the summary judgment rendered in favor of Dr. Michelle, which was addressed by this court in Fagan II.

      . Although Mrs. Fagan’s motion for new trial acknowledged that the judgment was in error, she did not technically consent to a substantive amendment of the judgment naming Dr. Sue LeBlanc. See Villaume v. Villaume, 363 So.2d 448, 451 (La. 1978) (recognizing no need for a timely application for a new trial or a timely appeal to effect a substantive change in the judgment where both parties consented to the substantive amendment of the original judgment).


text:
    Walter P. REED as District Attorney for the 22nd Judicial District, State of Louisiana and St. Tammany Parish Fire Protection District No. 1 v. Charles ABNEY, Diana Aucoin and Cheryl Aucoin.
    No. 2004 CA 1928.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      Troy G. Ingram, Slidell, Henry D.H. Olinde, Baton Rouge, Counsel for Plaintiffs/Appellants Walter P. Reed as District Attorney for the 22nd Judicial District, State of Louisiana and St. Tammany Parish Fire Protection District No. 1.
    Lanny R. Zatzkis, Karen D. McCarthy, Yvette A. D’Aunoy, Andrew N. Lee, New Orleans, Counsel for Defendants/Appellees Charles Abney & Cheryl Aucoin and Diana Aucoin.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

| gWalter P. Reed, as District Attorney for the Louisiana 22nd Judicial District, and the St. Tammany Parish Fire Protection District, appeals a judgment granting exceptions of prescription in favor of defendants/appellees, Charles Abney, Cheryl Aucoin, and Diana Aucoin. For the following reasons, we affirm in part, reverse in part and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

In 1999, the defendants, who are administrative employees of the St. Tammany Fire Protection District (District), became eligible to join the Firefighters’ Retirement System (FRS). However, before they could join, the FRS required a payment of actuarially-determined accrued liability in the total amount of $146,055.07. The chairman of the board of commissioners of the District and Charles Abney, who was the chief administrative officer, cosigned a check in this amount, which was paid to the FRS.

Reed subsequently instituted suit claiming the defendants committed misfeasance. He asserted that the defendants were obligated to return large sums of money paid into the FRS on their behalf on the basis that they caused the expenditure of these public funds by “scheme, enterprise, deception and otherwise.” In response, Ab-ney and Cheryl Aucoin filed exceptions of no right of action, no cause of action and prescription. Diana Aucoin filed exceptions of improper venue, prescription, vagueness, and “no right and/or cause of action.”

At the hearing on the exceptions, the trial court ruled only on the exceptions of prescription, finding that Reed’s claims had prescribed, and pretermitting ruling on the other exceptions. The trial court entered judgment accordingly.

|sReed now appeals asserting two assignments of error as follows:

(1) The Trial Court erred in holding that the one year prescriptive period set forth in La. C.C. Art. 3492 applied and not the ten year prescriptive period set forth in LSA-R.S. 42:1461.
(2) The Trial Court erred in holding that the cause of action asserted by petitioners under La. Const. Art. VII, Sect. 14 is governed by a one year prescriptive period, or in the alternative that La. Const. Art. VII, Sect. 14 did not apply to the facts of this case.

DISCUSSION

Prescription under La. R.S. k2:1⅛61

The trial court found that the ten-year prescription specifically provided in La. R.S. 42:1461 did not apply because there was no evidence that the named defendants misappropriated funds or illegally took funds without authority. In looking to the merits of Reed’s petition, the trial court erred. All that must be considered on a peremptory exception raising the objection of prescription is whether there is sufficient evidence to show that the alleged time period has run under the requirements of the particular code article involved. The court cannot make a determination on the merits of the case. Bass v. Laporte, 95-0867, p. 3 n. 6 (La.App. 1 Cir. 4/4/96) 672 So.2d 1121, 1122 n. 6, writ granted in part, judgment set aside by, 96-1651 (La.10/25/96), 681 So.2d 344, citing Montgomery v. Breaux, 297 So.2d 185, 187 (La.1974).

Reed did not specifically plead a violation of La. R.S. 42:1461 in his petition. Even so, in reviewing whether the alleged ten-year time period has run under the requirements of La. R.S. 42:1461, we observe that ten years have not yet elapsed since December 1999. Accordingly, any claim that may exist under La. R.S. 42:1461 could not have yet prescribed. Therefore, we will reverse the judgment of the trial court insofar as it ruled that Reed’s claims under La. R.S. 42:1461 have prescribed. We do not comment here on whether a cause of action exists under this statute, whether the defendants might ultimately prevail on motion for summary judgment, or on any other matter or exception.

Prescription under La. Const. Art. VII, § U

In ruling that Reed’s -claims under La. Const. Art. VII, § 14 'had prescribed, the trial court found that “the contributions made in the present case are expressly exempted from the constitutional prohibition on donations of public funds for private use, and the ten-year prescriptive period of La. Const. Art. VII, § 14 does not apply.” The trial court declared the exemption based on La. Const. Art. VII, § 14(B)(2), which exempts contribution of public funds to pension programs for the benefit of public |semployees. It is alleged and undisputed that the funds were paid into the FRS. The trial court erred in finding prescription on this basis.

Since ten years have not yet passed, any claim made under. La. Const. Art. VII, § 14 has not yet prescribed. See Bass, 95-0867 at p. 3 n. 6, 672 So.2d at 1122 n. 6. Therefore, we reverse the judgment of the trial court insofar as it ruled that Reed’s claims under La. Const. Art. VII, .§ 14 have prescribed. Again we do not comment here on whether a cause of action exists under this statute, whether the defendants might ultimately .prevail on motion for summary judgment, or on any other matter or exception.

Prescription under La. C.C. art. 3192

Insofar as Reed asserts claims for conversion under general tort theory, we agree with the trial court that these claims are prescribed. Under La. C.C. art. 3492, the period for liberative prescription in delictual actions is one year. The trial court was not erroneous in finding that such claims had prescribed on the face of the petition and that Reed failed to prove that the one-year prescriptive period had been suspended. We will affirm the judgment of the trial court insofar as it ruled that Reed’s claims for conversion under general tort theory have prescribed.

Other exceptions

Based on its rulings on prescription, the trial court dismissed the defendants’ remaining exceptions without prejudice. Because of our disposition above, we reverse this judgment of the trial court and remand for further proceedings.

Normally, where legal errors interdict the fact-finding process and the record is otherwise complete, an appellate court should then conduct a de novo review of the record in rendering its decision. Price v. Roy O. Martin Lumber Co., 04-0227, p. 11 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, 824. | f;Here, however, the record is incomplete since the trial court pretermitted ruling on the remaining exceptions. The defendants are entitled to trials on their exceptions of no right of action, improper venue, and vagueness. La. C.C.P. arts. 929-934. Because the trial court has not yet considered all of the exceptions, we decline consideration of the exception of no cause of action.

DECREE

For the foregoing reasons, we affirm the trial court judgment in part wherein it rules that the general tort claims for conversion have prescribed. We reverse in part the judgment of the trial court wherein it rules that Reed’s claims under La. R.S. 42:1461 and La. Const. Art. VII, § 14 have prescribed. We also reverse the portion of the judgment wherein the trial court dismisses the remaining exceptions filed by the defendants. We remand for further proceedings consistent with this opinion. Costs are assessed equally between appellants and appellees in the amount of $180.13 each.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

GAIDRY, J., concurs.

      . La. R.S. 42:1461 provides in pertinent part as follows:
      § 1461. Public property; personal obligations of officials, employees, and custodians; actions; prescription A. Officials, whether elected or appointed and whether compensated or not, and employees of any "public entity”, which, for purposes of this Section shall mean and include any department, division, office, board, agency, commission, or other organizational unit of any of the three branches of state government or of any parish, municipality, school board or district, court of limited jurisdiction, or other political subdivision or district, or the office of any sheriff, district attorney, coroner, or clerk of court, by the act of accepting such office or employment assume a personal obligation not to misappropriate, misapply, convert, misuse, or otherwise wrongfully take any funds, property, or other thing of value belonging to or under the custody or control of the public entity in which they hold office or are employed.

      C. The breach of an obligation established under this Section gives rise to an action in favor of the public entity for the recovery of any such funds, property, or other things of value and for any other damages resulting from the breach. This action is prescribed by ten years, reckoning from the date on which the breach occurred. (Emphasis added.)

      . La. Const. Art. VII, § 14 provides in pertinent part as follows:
      Section 14. (A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private....
      (B) Authorized Uses. Nothing in this Section shall prevent (1) the use of public funds for programs of social welfare for the aid and support of the needy; (2) contributions of public funds to pension and insurance programs for the benefit of public employees [.]

      . La. Const. Art. VII, § 14 does not specifically state a prescriptive period. However, the ten-year prescriptive period found in La. C.C. art. 3499 applying to personal actions not otherwise provided by legislation pertains here.


author:
DOWNING, J.
      GAIDRY, J.,

text:
    Ernest L. COOK and Carolyn Cook v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF STATE POLICE And Michael Arton.
    No. 2005 CA 0475.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 10, 2006.

      T. Taylor Townsend, Natchitoches, Counsel for PlaintifflAppellant Ernest L. Cook.
    Anne E. Watson, Opelousas, Counsel for PlaintifflAppellee Carolyn Cook.
    Julius W. Grubbs, Jr., New Iberia, Counsel for Appellee State of Louisiana, Department of Public Safety & Corrections, Office of State Police and Michael Arton.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

|?This matter arises from a lawsuit against a Louisiana State Police trooper for allegedly using excessive force when arresting a driver suspected of driving while intoxicated. The Louisiana State Police, the trooper’s employer, was also sued. For the following reasons we affirm the judgment rendered in accordance with the jury verdict that dismissed plaintiffs action.

FACTS AND PROCEDURAL HISTORY

Plaintiff-appellant, Ernest L. Cook, was stopped for suspicion of driving while intoxicated as he and his wife were returning from the Shrimp and Petroleum Festival in Morgan City. Louisiana State Trooper Michael Arton conducted the stop. After Cook failed a field sobriety test, Arton arrested him. Cook was handcuffed behind his back and transported to the Ber-wick Police Station. After parking at the station, but before going inside the building, an altercation arose. Arton subdued Cook with a technique known as an “arm bar takedown.” Cook was injured in the process. He was taken by ambulance to a Morgan City hospital where he was treated and kept overnight.

Cook made a formal complaint to the Louisiana State Police about Arton’s conduct. The Internal Affairs section investigated the complaint but concluded there was insufficient evidence to substantiate the accusations.

Subsequently, Arton was arrested for criminal misconduct, unrelated to Cook’s incident. Arton later pleaded guilty to two felony charges. His employment with the state police was terminated.

Cook filed suit for damages against Ar-ton and the Louisiana Department of Public Safety and Corrections, Office of State Police laCcollectively, Arton) asserting that excessive force was used in his arrest and detention in violation of his civil rights and rights to due process.

A jury trial ensued from April 5 — April 9, 2004. The jury found that Arton did not intentionally or recklessly use excessive force against Cook. Judgment was signed April 19, 2004. From that judgment Cook appealed alleging the following assignments of error:

1. The trial court erred in not allowing plaintiff, to introduce evidence that Michael Arton was not credible; specifically, that Arton failed a polygraph test administered to him as part of an investigation into the theft of Governor Mike Foster’s fishing rods, and then lied in his deposition denying he ever failed a polygraph test.
2. The trial court erred in not allowing plaintiff to question defendant’s expert, Sergeant Charles Dupuy, with regard to Arton’s character for truthfulness when Sgt. Dupuy admitted he considered the credibility of both Arton and Cook when giving his opinions at the trial.
3. The jury erred in finding that plaintiff did not prove his case in proving that Arton used excessive force in arresting/detaining Cook.

DISCUSSION

Admissibility of Evidence Regarding Polygraph Results

Arton was terminated from his employment with the State Police. During discovery, Cook learned that several months before his DWI arrest, Arton was reprimanded regarding some missing fishing tackle belonging to Governor Murphy “Mike” Foster to whom he was assigned at the time. Further inquiries into the personnel records disclosed that Arton failed a polygraph, tested positive for marijuana, and had been convicted on two felony counts. Cook also discovered that Arton denied in deposition that he failed the polygraph.

During a motion in limine hearing, the trial court ruled that Arton’s convictions would be admissible but the results of the polygraph test and testimony concerning the criminal incidents were inadmissible. The trial |4court reasoned that evidence concerning the thefts was inadmissible because the thefts were unrelated to Cook’s lawsuit. The court also stated that the drug test results would not be admitted unless there was some evidence that Arton smoked marijuana immediately prior to Cook’s arrest.

Cook contends that the trial court erred in not allowing this evidence to be presented to the jury. Specifically, Cook wanted the trial court to admit evidence that Ar-ton failed the polygraph test and later lied under oath by claiming to have passed it. Cook first argues that LSA-C.E. art. 618 authorizes the admissibility of extrinsic evidence of prior inconsistent statements after the witness has been given the opportunity to admit the fact and has failed to do so. Cook next argues that LSA-C.E. art. 607(C) authorizes impeachment by questioning a witness concerning the prior inconsistent statements, in this case, saying that he passed the polygraph.

Polygraph evidence is not admissible in civil trials. It is well settled that the results of polygraph examinations are inadmissible in criminal trials. Hines v. Arkansas Louisiana Gas Company, 613 So.2d 646 (La.App. 2 Cir.1993). The exclusion of polygraph evidence in civil trials has consistently been upheld in both state and federal jurisdictions, and we find no authority to allow this evidence to be admitted. See Rebouche v. Anderson, 505 So.2d 808 (La.2 Cir.1987); Manale v. Department of Police, 376 So.2d 607 (La.App. 4 Cir.1979); Barrel of Fun, Inc. v. State Farm Fire & Casualty, 739 F.2d 1028, 1031 (5th Cir.1984).

State v. Catanese, 368 So.2d 975 (La. 1979), is a landmark decision regarding the introduction of polygraph evidence. The Catanese court’s fundamental concern was that the trier of fact is apt to give almost Inconclusive weight to the polygraph expert’s opinion. Id. at 981. The court warned that the use of polygraph evidence is generally outweighed heavily by its accompanying dangers, such as possible prejudice. Id. at 983. Because of the potentially decisive character of polygraph evidence, the court set forth a number of factors that must first be met before it will consider whether the results may be admitted. The court did not specifically rule on the admission of polygraph evidence in civil cases because that issue was not before them.

Here, we are directly confronted with the admissibility of polygraph evidence in this civil litigation, although in an indirect context. And for the same reasons that the Catanese court excluded polygraph results in criminal trials, we rule that they are also inadmissible civil trials. Therefore, the trial court did not err in excluding all evidence regarding Arton’s polygraph results, including whether he took the test and whether he passed or failed it.

We recognize that Cook is not requesting that Arton’s polygraph test results be admitted as evidence. Rather, under the guise of a prior inconsistent statement, Cook seeks to introduce evidence that Ar-ton took the test, did not pass it, and then said that he did. Cook cannot get through the back door what he cannot properly get through the front door. ' However, as stated above the evidence is inadmissible and the trial court did not err in excluding it.

Further, Cook apparently believes that Arton’s disciplinary record will show Ar-ton’s propensity for untruthfulness and general lack of character. However, pursuant to LSA-C.E. article 404(B), evidence of other crimes or misconduct is inadmissible to prove the character of a person in order to show that he acted in conformity therewith.

| fiHere, the trial court did not err in concluding that Arton’s polygraph test results were inadmissible because they are inadmissible in civil trials. Further, the trial court did not err in concluding that the evidence of his other criminal behavior was inadmissible as the acts were irrelevant to Cook’s case. Thus, the trial court did not abuse its discretion in declining to admit this evidence.

This assignment of error is without merit.

Attacking Defendant’s Truthfulness, Character, and Credibility Through The Expert

Cook alleges in his second assignment of error that the court erred in not allowing Sergeant Charles Dupuy, defendant’s expert witness in the field police defensive tactics, to answer questions about Arton’s character. Specifically, Cook alleges that it was legal error for the trial court to exclude his questions regarding Arton’s polygraph results and whether the expert was aware of'Arton’s prior criminal activities.

Cook maintains that these questions should have been allowed because Sgt. Du-puy admittedly based his expert opinion upon both Cook’s and Arton’s credibility. Cook, citing State v. Berry, 94-249 (La. App. 5 Cir. 10/25/94), 645 So.2d 757, argues that LSA-C.E. art. 607 authorizes a party to examine the witness concerning any matter having a reasonable tendency to disprove the truthfulness of his testimony.

However, as discussed above, polygraph evidence, including the result, is inadmissible. We therefore conclude that the trial court did not err in not disallowing this line of questioning. Accordingly, this assignment of error is without merit.

17Manifest Error

Cook alleges in the final assignment of error that the jury erred by concluding he did not prove that the officer used excessive force when making the arrest. Cook contends that being slammed to the pavement and then kicked and jerked up by the handcuffs was unnecessary and excessive force by any standard. He argues that this is especially true when he is a 62-year-old man weighing 145 pounds and Arton is a 5'10" 31-year old weighing 190 pounds. Cook maintains that this was especially unnecessary treatment when he was already handcuffed and only trying to reach a small pocketknife in his front pocket to turn over to the police.

Contradictory evidence was introduced at trial regarding Cook’s arrest and altercation with Arton. Arton testified that Cook said that he had a knife in his front pocket but refused to allow Arton to remove it. He further testified that when he tried to reach the knife, Cook spun around so Arton was forced to use some pressure to maintain control. Arton testified that when he attempted to slowly lower Cook to the ground, Cook continued to struggle and the side of Cook’s face struck the pavement. Cook began to bleed heavily. Arton testified that Cook’s wife walked up about that time and commented that the excessive bleeding was probably due to the blood-thinning medication he had been taking.

Evidence was also presented that Cook’s blood alcohol concentration was more than twice the legal limit for driving but he continued to maintain that he only had “a couple” of beers. The ambulance technician also testified that Cook appeared drunk and was uncooperative while being transported to the hospital in Morgan City.

It is well settled that the factfinder’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon | ^review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). While an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, the issue to be resolved by a reviewing court is not whether the factfin-der was right or wrong, but whether the factfinder’s conclusion was a reasonable one and supported by the evidence. Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). After a careful review of the record, we conclude that the jury did not err in finding in favor of the defendants. Accordingly, the third assignment of error is without merit.

DECREE

For reasons hereinabove set forth, the judgment of the trial court is affirmed and the costs of this appeal are assessed against the plaintiff-appellant, Ernest L. Cook.

AFFIRMED.

GAIDRY, J., concurs with reasons.

CARTER, C.J., concurs for reasons assigned by GAIDRY, J.

GAIDRY, J.,

concurring.

1 ¶While I agree with the result expressed in the majority opinion, I differ as to the proper rationale for that result. I write separately to state that I do not join in the establishment of any “bright line” rule against the admission of polygraph evidence in civil cases simply on the precedent of State v. Catanese, 368 So.2d 975 (La.1979). There is simply no need to do so. The better approach is that taken by this court in Franklin v. Franklin, 05-1814 (La.App. 1st Cir.12/22/05), 928 So.2d 90. Regardless of the purported purpose for introduction of the proffered evidence, it must still meet the evidentiary standards of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret, 628 So.2d 1116 (La.1993), as any use of the prior polygraph test for impeachment presupposes its scientific accuracy and the accuracy of its interpretation. No such evidentiary showing was made here. The evidence was clearly inadmissible on that basis. I respectfully concur.

      . Cook's arrest took place Saturday, September 2, 2000 at 11:16 p.m.

      . Arton's arrest took place September 15, 2000; on December 13, 2000 he pled guilty.

      . In administrative hearings the rules of evidence are more relaxed and hearing officers have been given the discretion to admit evidence that would otherwise be inadmissible. Evans v. DeRidder Mun. Fire, 01-2466, p. 5 (La.4/3/02) 815 So.2d 61, 66. The Evans court decision specifically stated that they made no ruling on whether a polygraph was admissible in a civil trial outside of the context of a Civil Service Board hearing. Id. at fn. 3. -