text:
    STATE of Louisiana In the Interest of D.J.C. and H.R.C.
    No. 05-CA-919.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.

      Katherine M. Dowling, Sherry Watters, Bureau of General Counsel, Harahan, Louisiana, for Plaintiff/Appellee.
    Eunice S. Charles, Gretna, Louisiana, for DefendanVAppellant.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2R.C., father of five-year-old D.J.C. and four-year-old H.R.C., appeals from a judgment terminating his parental rights. For reasons that follow, we affirm.

D.J.C. and H.R.C. were taken into State’s custody on September 25, 2003 following accusations of abuse by R.C. The State of Louisiana, Department of Social Services, Officer of Community Services (“OCS”) filed a petition for termination of parental rights on November 23, 2004, seeking to terminate the parental rights of R.C. relative to D.J.C. and H.R.C under La.Ch.C. art. 1015(5). OCS alleges that, pursuant to a court order, the children were placed in the State’s custody on September 25, 2003, and remained in custody for a period of more than one year. OCS further alleges R.C. has made no substantial parental compliance |awith a court-approved case plan for services for the safe return of the children, i.e., R.C.’s failure to comply with the required program of treatment and rehabilitation services, which include a substance abuse assessment and an anger management and domestic violence program; his lack of progress in his anger management and domestic violence program; his lack of insight into the needs of his children and the impact of his behavior on them; his lack of safe housing suitable for his children; his failure to contribute to the court ordered costs of the children’s foster care; his failure to maintain stable employment; his failure to learn the skills necessary to address the children’s needs. Further, the State alleges there is no reasonable expectation of significant improvement in R.C.’s condition or conduct in the near future, despite interventions and considering the children’s ages and their need for a stable and permanent home.

The matter was tried on March 7, 2005 and March 29, 2005. Thereafter, in its judgment dated June 20, 2005, the trial court terminated R.C.’s parental rights, found the children free and eligible for adoption, and granted custody of the children to the Department of Social Services, with an order for the Department to furnish the court with a written plan for permanent placement of the children within ninety days of the judgment. R.C. appeals.

In his appeal,- R.C. asserts OCS has failed to prove by clear and convincing evidence that he has not substantially complied with his case plan. Further, R.C. contends it is not in the best interest of the children that his parental rights be terminated.

At trial, Trina Favorite, the West Jefferson OCS Foster Care Case Manager assigned to this case, testified the children entered foster care on September 25, 2003. Thereafter, a court-approved and ordered case plan was developed for R.C. It initially consisted of the following: R.C. will visit the children; secure a safe and | ¿stable house for the children; maintain monthly contact with OCS and keep them up-to-date as to his housing status and living arrangements; enroll in a substance abuse clinic for screening and cooperate and comply with their treatment recommendations; enroll in the No Abuse Coalition for domestic violence; sign waivers authorizing the substance abuse clinic and the No Abuse Coalition to share information with OCS; participate in random drug/alcohol testing; participate in an Infant Team evaluation and follow their recommendations; and provide the OCS case manager with attendance sheets for participating in group. He was also to be referred to vocational rehabilitation for job training.

Ms. Favorite testified R.C. cooperated with the Infant Team evaluations and the Infant Team subsequently made additional recommendations, which were as follows: R.C. will attend individual therapy twice per month; have an assessment of his cognitive and adaptive functioning as well as a substance abuse assessment; participate in anger management and domestic violence treatment; and attend therapeutic supervised visits at the Infant Team.

Ms. Favorite stated R.C. regularly visited the children; participated in therapeutic supervised visits at the Infant Team; attended individual therapy with a doctor at the Infant Team (Charles Zeanah, M.D.); had one random drug screen, which was negative; and was available for a cognitive and adaptive functioning assessment. However, R.C. failed to complete the No Abuse Coalition program; failed to provide a safe and stable home for his children; failed to make arrangements for OCS to view his current residence to determine if it is suitable for the children; failed to maintain regular contact with OCS, i.e., contacts were sporadic, with OCS initiating them, except for R.C. updating his address; failed to follow the Infant Team’s recommendation to have a substance abuse assessment and participate in anger management and domestic violence treatment; failed to | Bcomplete his work with the Infant Team; failed to pay any financial support for his children; and provided no explanation for his noncompliance.

R.C. testified he has lived in three different houses since the children entered foster care. According to R.C., it is not possible for OCS to view his current residence because the homeowner will not allow it. He further testified he has had a “few” jobs since the children were placed in foster care and is currently unemployed; he has declined vocational rehabilitation assistance and has never paid child support. R.C. stated he understood his case plan required participation in a substance abuse assessment; however, at the assessment he denied using drugs or alcohol and subsequently missed two appointments. He also testified he failed to complete an anger management program. R.C. stated he does attend the Infant Team sessions “fairly often,” though he was late for some of them because of being delayed by work.

Ms. Favorite further testified the agency has determined it would be in the best interest of the children to be freed for adoption. She stated H.R.C. is doing well in her placement and her foster parents want to adopt her; D.J.C.’s foster parents are undecided about adoption, but are not ruling it out. Ms. Favorite testified D.J.C. has had no reported problems at home, but is having intermittent problems at school, e.g., aggressive behavior with children and not listening to the teacher’s directives.

H.R.C.’s foster mother, Yvonne Sando-vol, testified H.R.C. is doing well in her potential adoptive placement, though she has exhibited a fascination with guns and has had some sexual acting out with Ms. Sandovol’s other children. Ms. Sandovol stated she brought this behavior to the attention of OCS, and therapy is being considered.

| ^Valerie Wadja Johnston, a clinical psy: ehologist with Tulane University Infant Team testified that as the primary clinician in this case she coordinated and provided services to R.C. and the children, which included various assessments and evaluations. She stated R.C. missed some and was late for a few of his appointments, but was present for the majority of them. Ms. Johnston testified that in therapy R.C. was unable to identify any way in which he could improve as a parent. He also refused to accept responsibility for the children entering foster care and had difficulty keeping the children safe. Ms. Johnston stated that, based on R.C.’s participation in individual therapy and therapeutic visitation, it became increasingly clear to the Infant Team he was not going to respond to the services they were providing. She testified it is the Infant Team’s determination that R.C. is currently incapable of safely parenting the children.

Ms. Johnston further testified both children have special needs. She stated as H.R.C. develops her language skills, her topics of discussion have become more violent; the plan is to refer her to therapy. Ms. Johnston testified D.J.C. requires speech and language services, individual therapy one to two times a week, and psychiatric services; also, he is on medication for his unusually aggressive behavior at school and play. Ms. Johnston stated the Infant Team does not typically place children on medication, but D.J.C.’s aggression has been extreme, including some sexual acting out.

Ms. Johnston stated D.J.C. needs a parent who is able to provide for his safety, first and foremost. She testified D.J.C. has attempted to run into the street in front of cars, saying he wants to go to heaven to see his mother, so he needs a parent who is extremely vigilant. She further stated D.J.C.’s parent must be consistent and very organized; must follow numerous intervention techniques; must insure D.J.C. takes his medication at appropriate times; and must speak with |7D.J.C.’s psychiatrist on a weekly basis. In general, D.J.C. needs consistency, predictability, and stability, i.e., not a lot of moving from house to house and a stable daily routine. Ms. Johnston opined if D.J.C. fails to get what he needs, he will become increasingly unable to regulate his emotions. His behavior will become more aggressive, including acting out sexually, and he will have more and more difficulty focusing and learning.

Ms. Johnston further testified exposure to domestic violence, whether as a victim or a witness, would pose a risk to the children, especially in light of D.J.C.’s acting out. It would be difficult for him to maintain himself emotionally in a household where there is the added disruption of violence. Ms. Johnston stated being parented by someone who does not recognize or is unable to meet their special needs, would put the children at an increased risk for psychopathology. She testified D.J.C. is already demonstrating psychopathology, and would be at risk for future hospitalization, juvenile delinquency, substance abuse, and domestic violence if his special needs were not met.

George M. Morlier testified R.C. was a member of one of his No Abuse Coalition domestic violence groups. Mr. Morlier’s prognosis for R.C. in the program was limited or poor because he was so “concrete” in his thinking. Mr. Morlier explained R.C. works by very specific instructions, so if the situation varies he may not always know what to do and revert to impulsive behavior. He further stated R.C. did not complete the program.

Anna Smyke, coordinator of the foster care team at Jefferson Parish Infant Team testified she supervises the children’s visits with R.C. She described R.C. as a “good playmate” with the children who was often not able to pick up the children’s needs and cues during the visits. Overall, Ms. Smyke did not see | improvement in R.C.’s ability to help the children regulate their behavior during visits with R.C.

Charles Zeanah, M.D., Director of Child and Adolescent Psychiatry at Tulane University, testified at trial. As director of the Infant Team, he participated in formulating the recommendations and treatment plan for the family in this case. He also met individually with R.C. for almost a year. Dr. Zeanah testified R.C. very faithfully attended therapy, but made no progress and failed to benefit from it. According to Dr. Zeanah, R.C. does not believe he did anything wrong and does not see the need to change. Consequently, Dr. Zea-nah does not see the situation improving in the foreseeable future. He explained, “I guess the fundamental problem is if you don’t see yourself as needing to change, ah, then you don’t have any motivation to change. And there’s no reason to believe that you will change.” Dr. Zeanah testified the current risk of harm to the children, if returned to R.C., would be comparable to the day they came into care. Consequently, in his opinion it would be in the best interest of the children to be freed for adoption.

An appellate court reviews a trial court’s findings as to whether parental rights should be terminated according to the manifest error standard. In re State ex rel. D.C.P., 05-212 (La.App. 5 Cir. 10/6/05), 916 So.2d 1206.

In termination of parental rights cases, there are two private interests involved: the parent’s natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children and the child’s profound interest in terminating parental rights which prevent adoption and hamper the establishment of secure, stable, long-term, and continuous relationships found in a home with proper parental care. State ex rel. L.B. v. G.B.B., 02-1715 (La.12/4/02), 831 So.2d 918, 921. In balancing these two interests, the courts of this state have consistently found the interests of the child to be paramount over those ) aof the parents. Id. Accordingly, the focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. State ex rel. J.A., 99-2905 (La.1/12/00), 752 So.2d 806, 811.

The Supreme Court of Louisiana stated:

Title X of the Children’s Code governs the involuntary termination of parental rights. La. Ch.Code art. 1015 provides the statutory grounds by which a court may involuntarily terminate the rights and privileges of parents. In addition, La. Ch.Code art. 1035 provides the petitioner “bears the burden of establishing each element of a ground for termination of parental rights by clear and convincing evidence.” Essentially, termination of parental rights is a two prong inquiry. First, the State, by clear and convincing evidence, must establish at least one ground for termination under article 1015. Second, only after a finding that at least one of the enumerated grounds set forth in La. Ch.Code art. 1015 is satisfied, the trial court must determine whether the termination is in the best interest of the child.

State ex rel. L.B. v. G.B.B., 02-1715 (La.12/4/02), 831 So.2d 918, 922 (citations omitted).

In the present case, OCS is seeking to terminate R.C.’s parental rights under ground (5) of La.Ch.C. art. 1015, which provides in pertinent part:

La.Ch.C. art. 1015(5) provides:

The grounds for termination of parental rights are:
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The evidence and testimony introduced at trial establishes the children were removed from R.C.’s custody more than a year ago and that during that time R.C. Imhas not substantially complied with his case plan. Ms. Favorite from OCS testified R.C. failed to comply with his case plan, as follows: R.C. failed to pay any financial support for his children or provide a safe and stable home for them; failed to maintain regular contact with OCS; failed to complete the No Abuse Coalition program; and failed to follow the Infant Team’s recommendation to have a substance abuse assessment and participate in anger management and domestic violence treatment. Additionally, R.C. testified he has lived in three different homes, held multiple jobs, and failed to pay any child support since his children were taken into care. He further testified he refused vocational rehabilitation, though he is currently unemployed, and failed to complete a substance abuse assessment and an anger management program.

The evidence and testimony at trial further establishes that, despite earlier intervention, there is no reasonable expectation of significant improvement in R.C.’s condition or conduct in the near future, considering the children’s ages and their need for a safe, stable, and permanent home. Ms. Johnston testified it became increasingly clear to the Infant Team that R.C. was not going to respond to the services that they were providing and it was their determination that R.C. is incapable of safely parenting the children, who have special needs. Mr. Morlier’s prognosis for R.C.’s success in his group program was limited or poor. Ms. Smyke testified she did not see improvement in R.C.’s ability to help the children regulate their behavior during visits with R.C. Additionally, Dr. Zeanah testified R.C. made no progress in therapy and failed to benefit from it. Dr. Zeanah opined that the risk of harm to the children if returned to R.C. remained the same as the day they were taken into care. Further, the record indicates that this matter involves livery young children who have been in care since September 25, 2003, a considerable portion of their young lives.

Therefore, we find that the trial court did not err when it found that the State established by clear and convincing evidence each element of a ground for termination of parental rights.

After a finding that at least one of the grounds set forth in La.Ch.C. art. 1015 has been established by clear and convincing evidence, the trial court must then determine whether termination of parental rights is in the best interest of the child. State ex rel. L.B. v. G.B.B., 02-1715 (La.12/4/02), 831 So.2d 918, 922.

Based on our review of the entire record, including testimony by R.C.’s individual therapist opining it is in the best interest of the children that R.C.’s parental rights be terminated, we find that a termination of R.C.’s parental rights is in the best interest of D.J.C. and H.R.C.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

      . The mother of said children died on January 11, 2003 after being struck by a motor vehicle.

      . The record indicates R.C. was arrested on September 17, 2003 and charged with cruelty to a juvenile and aggravated battery of an adult female. Allegedly on September 16, 2003, then three-year-old D.J.C., wanted his father's attention and began climbing on him. R.C. allegedly became aggravated and slapped the child across his face causing injury to the child's lower lip. The record also indicates R.C. subsequently withdrew his plea of not guilty and entered a plea of guilty to La. R.S. 14:93(F)(III), Cruelty to Juveniles.

      . H.R.C.’s date of birth is listed as November 17, 2001 and DJ.C.’s date of birth is listed as August 29, 2000.


source: Caselaw Access Project

license: Public Domain

text:
    Donna ZERINGUE Wife of/and Ray Zeringue v. O’BRIEN TRANSPORT, INC., et al.
    No. 05-CA-760.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.

      Erin P. Shea, Scott P. Shea, Metairie, Louisiana, for PlaintifftAppellant.
    George P. Hebbler, Jr., Pamela B. Gautier, Metairie, Louisiana, for Defendant/Appellee.
    Steven M. Lozes, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

^Plaintiffs, Donna and Ray Zeringue, appeal a judgment that granted a defense motion for summary judgment. For reasons that follow, we affirm.

Plaintiff, Ray Zeringue, who is an employee of Quality Distribution, Inc. (Quality), was installing a satellite tracking system on a trailer attached to a hauling rig in the course and scope of his employment with Quality when he fell from the rig and was injured. He qualified for, and has received, workers’ compensation benefits as a result of the accident.

Subsequently, Mr. Zeringue filed an action to recover damages against several defendants including O’Brien Transport, Inc. (O’Brien) owner of the trailer, and Jermaine Rouselle, d/b/a J.R. Trucking Company (Rouselle), the owner of the rig hauling the trailer. Henry Wolfe, an employee of Rouselle, whom plaintiff asserted was the driver of the truck at the time of the accident, was also named as a defendant.

| ^Defendant, Rouselle, filed a motion for summary judgment in which he maintains that the plaintiffs’ suit is barred by the exclusivity of the Louisiana Workers’ Compensation Law. In support of the motion, Rouselle asserts that he entered into a contract with Quality prior to the accident in which Quality leased Mr. Rouselle’s truck with an agreement that Mr. Rouselle would operate the truck for Quality. Therefore, Mr. Rouselle is the statutory employee of Quality, and a co-worker of plaintiff, a fact which precludes plaintiffs’ tort suit against him. Attached to the motion is an “independent contractor agreement” between Quality and Rou-selle.

In opposition to the motion, the plaintiffs concede that a valid contract existed between Quality and Rouselle. Further, plaintiffs admit that Quality is an authorized carrier, subjected to the provisions of 49 U.S.C. 13901 & 13902, 49 C.F.R. 376.2(a). However, plaintiffs argue the specific language of the lease agreement excludes Jermaine Rouselle from the classification of an employee of Quality by making him an independent contractor. Therefore, plaintiffs argue Mr. Rouselle and Mr. Zeringue are not co-workers.

After hearing on the matter, the trial court rendered judgment granting the defense motion for summary judgment, prompting this appeal. The transcript of the hearing shows that the trial court was persuaded by Rouselle’s argument that the contract must be interpreted pursuant to controlling federal law.

A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Summary judgments are now favored in the law and the rules should be liberally applied. The summary judgment procedure shall be construed to ^accomplish the ends of just, speedy, and inexpensive determination of allowable actions. La. C.C.P. art. 966; Mitchell v. Dillard Dept. Stores, Inc., 00-328 (La.App. 5 Cir. 10/18/00), 772 So.2d 733. Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Haley v. Roberts, 02-30 (La.App. 5 Cir. 5/29/02), 820 So.2d 1114, 1116. When the “dispositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law,” the court must grant a motion for summary judgment. La.C.C.P. art. 966(B)

In the matter before us, the parties agree that a valid contract exists between Quality and Rouselle and that Quality is authorized carrier, subject to the provisions of 49 U.S.C. 13901 & 13902, 49 C.F.R. 376.2(a). It is also undisputed that leases between regulated carriers and owner-operators are subject to federal law. Turner v. Miller Transporters, Inc., 02-2278 (La.App. 1 Cir. 6/27/03), 852 So.2d 478, amended, 02-2278 (La. 1 Cir. 2/23/04), 876 So.2d 848, unit denied, 04-762 (La.5/21/04), 874 So.2d 174, writ denied, 04-804 (La.5/21/04), 874 So.2d 177.

Because the common practice of leasing equipment by a carrier operating in interstate commerce often led to abuses that presented a threat to the public and the trucking industry, Congress amended the Interstate Commerce Act, giving the ICC the power to regulate non-owned equipment by interstate carriers. 49 U.S.C.A. § 304(e)(1956). As explained in White v. Excalibur Insurance Co., (5th Cir.1979), 599 F.2d 50, certiorari denied, 444 U.S. 965, 100 S.Ct. 452, 62 L.Ed.2d 377 (1979).

Motor carriers had attempted to immunize themselves from the negligence of the drivers who operated their vehicles by making them all nominally “independent contractors.” See generally Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 1975, 423 U.S. 28, 96 S.Ct. 229, 46 L.Ed.2d 169; American Trucking Associations, Inc. v. United States, 1953, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337; Alford v. Major, 7 Cir.1972, 470 F.2d 132. In order to be certain that the public would be protected from the torts of these frequently insolvent operators, Congress in 1956 adopted amendments to the Interstate Motor Common Carrier Act requiring a motor carrier to assume “full direction and control” of leased vehicles. Because the carrier now has both a legal right and duty to control vehicles operated for its benefit, the employees of the vehicle-lessor are deemed statutory employees of the lessee-carrier to the extent necessary to insure the carrier’s responsibility for the public safety just as if the lessee-carrier were the owner of the vehicles. Simmons v. King, 5 Cir.1973, 478 F.2d 857, 867.
(Some citations and footnotes omitted)
Id. 599 F.2d at 52-53

49 C.F.R. § 376.12, which is applicable to the lease in question, provides in pertinent part:

(c) Exclusive possession and responsibilities.
(1) The lease shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.
(2) Provision may be made in the lease for considering the authorized carrier lessee as the owner of the equipment for the purpose of subleasing it under these regulations to other authorized carriers during the lease.

The policy underlying the applicable federal law was to impose on lessee-carriers responsibility for the operation of leased vehicles. The lease between Rouselle and Quality reflects that policy. Clause 17 of the contract between the parties reads in pertinent part as follows;

CARRIER’S RESPONSIBILITIES
b.) Exclusive possession and Responsibility (19 CFR 376.12(c)): The Equipment shall be for CARRIER’S exclusive possession, control, and use for the duration of this Agreement. CARRIER shall assume completer responsibility for the operation of the Equipment, as required by the Federal Highway Administration. This subparagraph is set forth solely to conform with Federal Highway Administration regulations and shall not be used for any other purposes including any ^attempt to classify INDEPENDENT CONTRACTOR as an employee of CARRIER.

Because of the grant of the legal right and duty over leased vehicles to the carrier, the employees of the lessor/vehicle owners are deemed statutory employees of the lessee/carrier under federal law. White v. Excalibur Insurance Company, 599 F.2d 50, 52, and cases cited therein. As explained in White, 599 F.2d at 53;

The statutory employee status created by federal law may affect employer-employees relationships under otherwise controlling state statutes where direction and control of the worker by the federally regulated employer are central to the regulatory program.

Thus, under the general rule of federal law, Rouselle is a statutory employee of Quality.

However, that fact does not end our inquiry. The analysis of law in White and related cases involves factual situations quite different from the one in the matter before this Court. In White, the plaintiff was killed in a collision while riding in a vehicle leased to an ICC carrier. Plaintiff and a fellow driver were taking turns driving, and when the accident occurred, plaintiff was asleep in the passenger seat. His mother filed suit for wrongful death. The White court ruled that she was barred from seeking any remedy against the carrier’s insurer, except for workers’ compensation. The court found that Mrs. White had no right of recovery in tort against the carrier under federal law because her son was not a member of the public for whom the statute was enacted. It concluded that fellow employees were outside the scope of the protection intended by the federal law. White, 599 F.2d at 52.

We find the White case distinguishable. As explained in White, “Congress wished to impose on lessee-carriers responsibility for the operation of leased vehicles ‘as if they were the owners of such vehicles.’ ” Id. 599 F.2d at 54. In the instant matter, plaintiffs allegations in the petition do not involve the allegations |7of negligent driving of the rig; but rather the negligent maintenance of the rig. Quality was put into exclusive possession, with full responsibility for operation of the rig by virtue of the lease. Further, by the design of the federal law Quality is solely responsible for the rig “as if it were the owner.”

La. C.C. art. 2317 provides that “(w)e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” Garde, a French concept, is defined in Louisiana law as the obligation imposed by law on the proprietor of a thing, or on one who avails himself of it, to prevent it from causing damage to others; the fault of a person thus liable is based upon one’s failure to prevent the person or thing from causing unreasonable injury to others. Leaman v. Continental Casualty Co., et al, 00-0292 (La.App 4 Cir. 9/26/01) 798 So.2d 285, 289. As explained by the Louisiana Supreme Court,

.whether the law imposes a duty of garde upon a party is a factual inquiry based upon the determination of (1) what benefit the party received from the thing, and (2) what kind of direction and control the party had over it.
Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991)

There is no dispute over which party had garde. The federal law, as well as the contract between the parties clearly shows that Quality had exclusive use and responsibility for the rig. Further, in brief to this Court, plaintiff states,

There is no dispute that Jermaine Rou-selle granted Quality the use of this equipment for a specified period for use in the regulated transportation of property in exchange for compensation. Further, Quality had exclusive possession, control and use of Mr. Rouselle’s equipment and had assumed complete responsibility for the equipment.

Plaintiffs argument is that the dispute arises from that portion of the contact which characterizes Mr. Rouselle as an “independent contractor.”

18Under Louisiana law “a contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished.” La.C.C. art.1906. No further interpretation of the contract may be made in search of the parties’ intent when the words of a contract are clear and explicit and lead to no absurd consequences. La. C.C. art.2046. Words in a contract are given their generally prevailing meaning, unless they are words of art or technical terms. Fonseca v. Pelican Pub. Co., Inc., 05-571 (La.App. 5 Cir. 1/31/06) 921 So.2d 1126.

Plaintiff argues the lease agreement refers to Rouselle as a independent contractor, making him not an employee of Quality, therefore subjecting him to a third party suit in tort not precluded by the exclusivity of the Workers’ Compensation law. We believe this argument fails to take into account the factual circumstances of the case. Plaintiff, an employee of Quality was injured in the course and scope of his employment while working on a piece of equipment leased to Quality. In the lease agreement Quality had “exclusive possession, control and use of the equipment,” and it assumed “complete responsibility for the operation of the equipment,” meeting the requirement of garde under Louisiana law. The clear meaning of the relevant clause in the contract is to conform to the federal regulations putting Quality in possession of the rig “as if it were the owner,” and giving Quality garde under Louisiana law.

Simply put, a Quality employee was injured while working on a piece of Quality Equipment, for which Quality assumed responsibility. Even assuming the rig had a fault which caused plaintiffs’ injuries, the responsibility for that fault was assumed by Quality under the contract and by design of federal law. Accordingly, we find plaintiff has no remedy against a third party in tort.

I flFor the forgoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Rouselle’s insurer, Connecticut Indemnity Company, also filed a motion for summary jud'gment.


author: JOAN BERNARD ARMSTRONG, Chief Judge. BELSOME, J.,

text:
    AWC, INC. v. CSF CONSTRUCTION, INC.
    No. 2005-CA-0865.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 26, 2006.

      Travis B. Wilkinson, Kantrow, Spaht, Weaver & Blitzer A PLC, Baton Rouge, Counsel for Plaintiff/Appellant.
    . W. Eric Lundin, III, Belle Chasse, Counsel for Defendani/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

pThe plaintiff-appellant, AWC, Inc., appeals a judgment dismissing its claim against the defendant-appellee, CSF Construction, Inc., for sales tax allegedly due in connection with a sale by AWC to CSF.

AWC alleges in its petition that it has remitted the sales tax. to the collector of revenue and that CSF refuses to pay the sales tax which is due. CSF’s position is that the price quoted by AWC was inclusive of sales tax. AWC contends otherwise. While the parties cannot agree on what they agreed to as who should bear the cost of paying the sales taxes, neither party contends that this disagreement rises to the level of a vice of consent sufficient to warrant undoing the sale.

In support of its conclusion that “the evidence in this matter indicates that the price negotiated by the Parties included sales tax,” the trial court in its written reasons for judgment states that:

The purchase order issued by the purchaser indicates that they contemplated that sales tax would be the responsibility of the seller — AWC, and AWC remitted the sales tax due on the purchase to the Department of Revenue.

| aHowever, the fact that the seller remits the sales tax to the collector of revenue is customary practice — it is not evidence that it has agreed to assume the cost of that tax. In other words, when one purchases something it is customary for the seller to remit the tax. It is such a fact of everyday life that this Court may take judicial notice of the fact that it is the seller and not the purchaser who customarily remits the sales tax.

McNamara v. Ventech Equipment, Inc., 613 So.2d 176 (La.App. 1 Cir.1992), does not imply “that if the seller does not withhold and collect the sales tax due the state cannot compel the seller to remit the tax.” La. R.S. 47:303 A(l) states that the sales tax “shall be collectible from ... [the dealer]...” “Dealer” is defined broadly in La. R.S. 47:301(4) to include sellers of tangible personal property, including the items sold by AWC to CSF in the instant case. The Sales tax statutes, La. R.S. 47:301 et seq., state clearly and unambiguously that it is the responsibility of the seller to remit the taxes and this obligation exists regardless of whether the seller collects the taxes from the purchaser. The seller’s obligation to remit the taxes is separate from the purchaser’s obligation to pay the tax. In other words, the seller must remit the tax to the State even in those instances where the purchaser fails in its obligation to pay the tax to the seller. Thus, the legal requirement that the seller remit the tax is not predicated upon it first having collected the tax from the purchaser.

Therefore, we agree with AWC that the fact that it remitted the sales tax to the state was not an acknowledgement by AWC that it had agreed to assume the cost of the tax as between it and CSF. But it also does not mean that CSF agreed to pay the tax, either. It is irrelevant to the proof of either party’s case.

|sOne of the main documents in the record is the price quote for certain electrical equipment that AWC furnished to CSF. It makes no mention of sales tax. Mr. David Honeycutt, the Chief Financial Officer of AWC, testified that: “It is standard in the industry not to include sales taxes.”

CSF argues that when the price quote from AWC employed the language, “[t]he price below is lump sum,” it meant that the price was inclusive of sales tax. However, La. C.C. art. 2458 indicates that a “lump” sale refers to the sale of multiple items such as occurred in the instant case. There is no authority to suggest that the use of the term “lump sum” intended any reference to sales taxes.

AWC argues that the purpose of the quoted price was “not to collect payment but simply to negotiate what the price would be.” AWC makes the point that: “No negotiation is needed for the amount of sales tax, as it is set as a percentage of the sale price by law.” AWC sums up this line of argument by urging that:

[CJommon practice supports that a quoted price does not include sales tax.... For example, when a consumer purchases items at a grocery store, restaurant, or car dealership, etc., the price that is quoted for those items does not include sales tax. It is understood that sales tax is due in addition to the “sticker price.”

If there were no other evidence in the record we would find AWC’s argument persuasive. However, CSF counters that in response to AWC’s price quote it issued two “Purchase Orders,” one dated 2-06-03 and the other dated April 24, 2003. The face of both Purchase Orders clearly state in upper case letters:

THIS PURCHASE ORDER SUBJECT TO TERMS AND CONDITIONS ON REVERSE.

|4Both Purchase Orders contain the identical language on the reverse, including paragraph #21 shifting the responsibility for the payment of the sales tax to the seller, AWC:

Seller shall be responsible for payment of all applicable federal, state and local taxes resulting from all work performed or materials supplied by Seller including any subcontractors to Seller under this order, including but not limited to sales and use taxes, as well as for an[y] ad valorem taxes applicable to property used by Seller in performance of the order.

As the sale was confected in response to one or both of these Purchase Orders, paragraph #21 would ordinarily be dis-positive of the case and we could easily affirm the trial court based on finding that while the common practice is for the purchaser to pay the sales tax on top of the quoted price, in this instance the parties elected to vary that practice by contract as they are free to do. La. C.C. art.1971. However, AWC counters that the only Purchase Order it received was a faxed copy of the April 24, 2003 purchase order, and that when CSF faxed them the Purchase Order, they faxed only the front page. They did not fax the reverse page containing paragraph # 21 shifting the sales tax burden to AWC. The fax cover sheet shows that only the cover sheet and the front page of the April 24, 2003, Purchase Order were faxed by CSF to AWC. CSF does not deny this.

AWC had no record of ever having received the Purchase Order dated 2-06-03, fax or otherwise. Jack Comeaux, the president of CSF, testified that he sent hard copies of both Purchase Orders to AWC but had no way of knowing if they were ever received. He also testified that a copy of the front page of the 2-06-03 was faxed to AWC. Later in his testimony he responded affirmatively when asked if he “faxed over just the front page of the purchase order,” but he did not specify which purchase order. He never specifically testified to having faxed over the | ¡^Purchase Order of April 24, 2003. However, as noted previously, the plaintiff acknowledges having received the faxed front page of the April 24, 2003 Purchase Order. The fax cover sheet confirms that only two pages were faxed, i.e., the fax cover sheet and the front page of the Purchase Order.

The written reasons state that AWC acknowledged receiving a faxed copy of the front page of the Purchase Order, presumably referring to the April 24, 2003 Purchase Order as it is the only one AWC acknowledged having received, but no reference is made in the written reasons to the April 24, 2003 Purchase Order. The only Purchase Order specifically referred to by date in the trial court’s written reasons is the February 6, 2003 Purchase Order. The written reasons refer to the “Purchase Order” in the singular only. No mention is made in the written reasons of the fact that the record contains copies of Purchase Orders bearing two different dates.

■ AWC denied ever having received any form of the 2-06-03 Purchase Order fax or otherwise. CSF contends that it sent AWC a hard copy showing paragraph # 21 on the reverse. AWC says it has no record of having received such a hard copy. However, for reasons hereinafter set forth we find that it makes no difference whether AWC ever received a hard copy of either Purchase Order.

The record copies of both Purchase Orders have signature lines for the signatures of representatives of both CSF and AWC, but there are no signatures. However, even if we assume that AWC never received the Purchase Order dated 2-06-03, in whole or in part, in any form, fax or otherwise, and that the only Purchase Order document it received was the faxed front page of the April 24, 2003 Purchase Order it acknowledges receiving, it does not change the outcome of this case. The receipt by AWC of the fax of front page of the Purchase Order of | (April 24, 2003 which refers to terms and conditions on the reverse is sufficient to put AWC on notice that there was a reverse page containing terms and conditions.

AWC does not argue that paragraph # 21 was not part of the original reverse of the Purchase Order — only that the reverse side of the Purchase Order was not transmitted with the fax. AWC should have inquired as to the nature of the terms and conditions referred to bn the face of the document that it acknowledges having received by fax.

AWC sent an invoice to CSF dated 6/25/2003 which showed a line due of $7,203.00 for sales tax. It also included a freight charge of $2,500.00. CSF paid the entire invoice amount of $92,393.00 including the freight charge, less the $7,203.00 charge for taxes, in spite of the fact that freight was not included in the Purchase Order figure. Because CSF paid the freight charges, despite the fact that they did not appear on either of CSF’s Purchase Orders, AWC contends that CSF should be equally bound to pay the sales tax which also did not appear on the Purchase Order. However, this can be explained by the fact that there was no clause on the reverse of the CSF purchase order regarding the responsibility for payment of shipping charges, i.e., there was no clause concerning shipping costs comparable to paragraph #21 which shifted the sales tax burden from CSF to AWC. Therefore, the payment by CSF of shipping charges is not evidence that it agreed to pay sales taxes.

The Purchase Order clearly makes reference to terms and conditions to be found on the back of the document. L & A Contracting Co., Inc. v. Ram Indus. Coatings, Inc., 99-0354, p. 18 (La.App. 1 Cir. 6/23/00), 762 So.2d 1223, 1234, sets forth the relevant general rule of contract law:

|7As a general rule of contract law, separate documents may be incorporated into a contract by attachment or reference thereto. Russellville Steel Co., Inc. v. A & R Excavating, Inc., 624 So.2d 11, 13 (La.App. 5th Cir.1993).

Therefore, it is accepted practice to incorporate by reference additional terms not shown on the face of the document. In Action Finance Corp. v. Nichols, 180 So.2d 81, 82 (La.App. 2 Cir.1965), the court was faced with a document containing language legally identical to that found on the face of the Purchase Order in the instant case:

The buyer agrees that the terms and conditions on the reverse side hereof are hereby expressly incorporated herein by reference and constitute a part of this contract.

The court interpreted this language as follows:

Moreover, if it may be said that the recitals on the reverse side of the instrument from that on which the signatures appear constitutes a separate document, the jurisprudence is clear that documents may be incorporated in contracts by attachment or reference thereto. Indeed, this practice has been so universal that it has apparently seldom been drawn into question. The rule has been applied to covenants running with land, specifications in building contracts, and various other matters not contained on the face of contracts themselves.

M, at 83.

It is clear from these cases that the reference on the face of the Purchase Order to conditions to be found on the reverse is accepted practice and sufficient to put AWC on notice that CSF intended to incorporate terms and conditions into the Purchase Order in addition to those shown on the face of the document. It then became incumbent upon AWC to inquire further as to the nature of those terms and conditions, including paragraph # 21 shifting the burden of paying the sales tax from CSF to AWC. Therefore, we conclude that as between the parties, CSF could | seasonably expect AWC to inquire a's to the nature of the terms intended to appear on the reverse if it had any questions concerning the reference to the reverse of the document, and the burden was on AWC to do so. Accordingly, we hold that AWC is bound by the terms and conditions referred to on the reverse of the Purchase Order, including paragraph # 21 shifting the burden of paying the sales taxes to AWC.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

BELSOME, J., concurs in the result.

BELSOME, J.,

Concurs in the Result.

| iThis case should not stand for the proposition that when the purchaser is the unsophisticated party, there is a duty to examine terms not physically attached to the agreement. The two parties in this case were similarly situated businesses, and neither was substantially more sophisticated than the other regarding business matters. We have not created a duty on a purchaser to examine terms that were not physically attached to the agreement to sell. However, there was evidence in the record to establish that AWC actually received the terms contained in paragraph # 21. Therefore, I concur.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Ralph SLAUGHTER, Secretary of the Department of Revenue and Taxation v. ARCO CHEMICAL COMPANY.
    No. 2005-CA-0657.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 26, 2006.

      John J. Weiler, Paul Damian Rees, John J. Steger IV, Weiler & Rees, LLC, Mande-ville, Counsel for Plaintiff/Appellant.
    Robert W. Nuzum, Baker Donelson Bearman Caldwell & Berkowitz, PC, New Orleans, Counsel for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MAX N. TOBIAS Jr.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff-appellant, Ralph Slaughter, Secretary of the Department of Revenue and Taxation, State of Louisiana (hereinafter referred to as “the State”), appeals a judgment in favor of the defendant-appellee, ARCO Chemical Company , dismissing the State’s claim for attorney’s fees on the grounds of abandonment for three years non-prosecution. We affirm.

On December 23, 1994, the State filed a petition to collect taxes in the sum of $399,846.28, together with interest, against ARCO, alleging that ARCO owed corporate income taxes for 1987-1990 and corporate franchise taxes for the years 1988-1991. On February 29, 1996, ARCO filed an answer denying any tax liability and claiming entitlement to a refund. The State asks for attorney’s fees only on this appeal, taking the position that the underlying tax issues have been resolved to its satisfaction.

The State in its brief concedes that the case was abandoned for three years non-prosecution:

[A]s of October 11, 2002, the action was abandoned by operation of law. See La.Code Civ. Proc. art. 561. [Emphasis added.]

| ¡¡.However, the State argues that subsequent to the expiration of the three-year period:

... ARCO settled the principal action on October 10, 2003, almost one year after the case was abandoned, ARCO acknowledged the action, waived its right to plead abandonment, and • the abandonment period began to run anew.

Here the State is referring to the fact that almost a year after the three-year abandonment period had run, it sent ARCO a cheek dated “10/10/03” in the amount of $152,094.26, along with a cover letter and annexed schedule. The State contends that ARCO’s negotiation of the check dated 10/10/03 constituted a settlement, acknowledgment and waiver of ARCO’s right to plead the previously accrued abandonment, thereby starting the three-year period running anew.

Incorporated into the letter by reference was an annexed schedule showing, according to the State’s calculations, that ARCO had overpaid its taxes in some years ánd underpaid in others, but that the bottom line net effect was that when the referenced years were aggregated it was determined that ARCO overpaid by $152,094.26. The cover letter references corporation income tax for the period “December 31, 1987 through December 31, 1997” and corporation franchise tax for the period “December 31, 1988 through December 31, 1999.” Thus, the letter and check encompassed more than twice as many years as were involved in this litigation.

However, the State alleges that, according to the schedule annexed to the letter, if only the years that were the subject of this litigation were considered, there would be a net amount due to the State and that, therefore, ARCO by negotiating the check from the State, was somehow making a payment to the State 13for those years. The State expresses this argument in its Reply Brief in the following manner:

[ARCO’s] payment of the additional taxes via the settlement check # 003407 dated October, 10, 2003, or, as [ARCO] prefers to refer to it, the refund cheek, constituted an acknowledgement that was sufficient to interrupt not only the abandonment period, but prescription.

Based on this reasoning, when the State sent ARCO the check for $152,094.26, it somehow constituted a payment from ARCO to the State rather than the other way around. From this the State concludes that pursuant to La. R.S. 47:1512 it is entitled to collect attorney’s fees on the net amount allegedly “paid” by ARCO, which fails to take into account the fact that the State paid ARCO a substantial refund based on the State’s own calculations; or as the trial court characterized the State’s position on the merits:

THE COURT:
.... All I’m saying is, the basis for coming in here, the statute says when you owe me taxes, I’ve got a right to collect attorney’s fees because I had to go hire somebody....
And I’m saying to you, I don’t think you are owed any attorney’s fees unless you can show me that they owed you any money when you did the audit.
Your department does the audit and comes up, and you take the money that they pay and you go give them some money back.

The trial court took the very reasonable position that no attorney’s fees are due the State when it sends the taxpayer, in this case ARCO, a refund in recognition of the fact that the taxpayer has overpaid its taxes.

|4But the State also contends that ARCO’s negotiation of the check constituted a settlement of this litigation. This in turn constituted a step in the prosecution of the case and, therefore, an acknowl-edgement of the action, thereby resurrecting the previously abandoned suit and starting the three-year period anew. In spite of the fact that the three-year period of abandonment under La. C.C.P. art. 561 is effective without formality, in effect, self-operative, the jurisprudence allows for the waiver of an abandonment already accrued under certain circumstances. “Unlike a plaintiff whose post-abandonment actions cannot serve to revive an abandoned action, a defendant’s post-abandonment actions can serve to waive his right to plead abandonment.” Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 15 (La.5/15/01), 785 So.2d 779, 789.

Both parties make numerous references to Clark in their briefs. The Supreme Court in Clark explained that “abandonment” is a prescription based concept:

Historical Background of Abandonment — Step in the Defense and Waiver
Abandonment is both historically and theoretically a form of liberative prescription that exists independent from the prescription that governs the underlying substantive claim. Given its historical roots, abandonment unsurprisingly has been construed as subject to prescription-based exceptions, one of which is the waiver exception based on acknowledgment.
Insofar as Article 561 recognized that a step made by the defendant in defense of the action results in an interruption of abandonment, it changed the prior law. The prior law addressed directly only a plaintiffs step in the prosecution; a defendant’s step in the defense was | Saddressed indirectly through the jurisprudential waiver exception.
The prior law of abandonment was found in La. C.C. art. 3519 (1870), which was located in the section of the code addressing causes which interrupt prescription; it read:
If the plaintiff in this case, after having made his demand, abandons, voluntarily dismisses, or fails to prosecute it at the trial, the interruption is considered as having never happened.
Whenever the plaintiff having made his demand shall at any time before obtaining final judgment allow five years to elapse without having taken any steps in the prosecution thereof, he shall be considered as having abandoned the same. La. C.C. art. 3519 (1870)(as amended by Acts 1898, No. 107) (emphasis supplied). Significantly, the prescription concept of acknowledgment, which formed the basis for the waiver exception to abandonment, was set forth in the article following abandonment, La. C.C. art. 3520 (1870), which read: “[pjrescription ceases likewise to run whenever the debtor, or possessor, makes acknowledgment of the right of the person whose title they prescribed.”
In 1960, the procedural rules were removed from the Civil Code and transferred to the Code of Civil Procedure; former C.C. art. 3519 was transferred to La. C. Civ. P. art. 561. As to the waiver exception, Article 561 differed from former C.C. art. 3519 in two respects: (1) it expressly declared that abandonment is self-operative; and (2) it provided “that a failure by the parties to take any steps in the prosecution or defense of the suit leads to abandonment,” and thus made no distinction as to which party must take a step. Chevron Oil Co. v. Traigle, 436 So.2d 530, 533 (La.1983). The latter change was construed as codifying the defense-oriented waiver exception as a step in the defense. Melancon v. Continental Casualty Co., 307 So.2d 308, 312 (La.1975).

Clark, supra, pp. 11-13, 785 So.2d at 787-788.

The thrust of this discussion in Clark is that abandonment is a form of liberative prescription and as such it may be waived on the grounds of | ^acknowledgement. The Clark court emphasized the prescription nature of abandonment by referring to it again later in the opinion:

The historical and theoretical nature of abandonment as a species of prescription renders it appropriate to consider prescriptive principles in analyzing res nova abandonment issues....

Id, p. 19, 785 So.2d at 791.

The defendant’s acknowledgement in Clark was a pre-abandonment acknowl-edgement, but the Clark opinion contains strong dicta that an acknowledgement by the defendant which occurs after the running of the three-year period will revive the claim. This Court notes that if abandonment is truly a species of prescription, then the analogy does not apply to post-abandonment revival, as what little jurisprudence there is indicates that acknowl-edgement must occur prior to the running of the prescription in order to interrupt it. Burdin v. Burdin, 171 La. 7, 129 So. 651 (1930); Succession of Slaughter, 108 La. 492, 32 So. 379 (1902); Goss v. Goss, 95-1406, p. 4 (La.App. 3 Cir. 5/8/96), 673 So.2d 1366; Beatty v. Vining, 147 So.2d 37 (La. App. 2 Cir.1962).

Thus, where prescription is concerned, timing is critical. There is a vast difference between what will start the prescriptive period running anew depending on whether the actions of the debtor occur before or after the prescriptive period has run.

In Burdin v. Burdin, supra, the Supreme Court made it clear that a mere acknowledgement will not suffice to revive a prescribed claim:

It is not necessary for us to decide whether an acknowledgment of a debt so as to renounce an acquired prescription can be made to a third person out of the presence of the creditor, because a mere acknowledgment is not sufficient for the purpose, even if accompanied by payment on account of the debt. There must be a new |7promise made to pay the debt in order to nullify an accrued prescription. Succession of Slaughter, 108 La. 492, 32 So. 379, 58 L.R.A. 408; Weil v. Jacobs’ Estate, 111 La. 357, 35 So. 599; Manders v. Irwin, 118 La. 1048, 43 So. 698. See, also, Civ.Code, art. 2278, par. 4 (as amended by Act No. 121 of 1886, p. 219). A mere inspection of defendant’s letter, the language of which we have hereinabove quoted, discloses that no promise whatever was made by the writer to pay the debt due plaintiff.

Id., 129 So. at 655.

After a claim has prescribed, one may acknowledge a debt, and even pay part of it, without renouncing the prescription acquired on it. Succession of Slaughter, 108 La. 492, 32 So. 379 (La.1902). The Supreme Court explained in Lima v. Schmidt, 595 So.2d 624, 631-632 (La.1992), that once prescription has run acknowledgment is no longer applicable; the applicable doctrine is.then “renunciation”:

Acknowledgment and renunciation differ in both substance and legal effect. Substantively, acknowledgment is the recognition of the creditor’s right or obligation that halts the progress of prescription before it has run its course; renunciation is the technical term designating the abandonment of rights derived from prescription that has accrued. Official Comment (c) to LSA-C.C. Art. 3449; Comment, Interruption of Prescription by Acknowledgment in Louisiana, 14 Tul.L.Rev. 430 (1940). In legal effect, acknowledgment interrupts prescription and erases the time that has accrued, with prescription recommencing anew from the date of interruption; renunciation obliterates the effect of prescription that has run. Because of these differences, renunciation is subject to more stringent requirements than acknowledgment. Comment, Prescription and Peremption — The 1982 Revision of the Louisiana Civil Code, 58 Tul.L.Rev. 593, 611 (1983).
Our courts have consistently held that renunciation must be “clear, direct, and absolute and manifested by words or actions of the party in whose favor prescription has run.” Queen v. W. & W. Clarklift, Inc., 537 So.2d 1214 (La.App. 4th Cir.1989); Bordelon’s, Inc. v. Littell, 490 So.2d 779 (La.App. 3rd Cir.1986); McPherson v. Roy, |s390 So.2d 543 (La.App. 3rd Cir.1980), writ denied, 396 So.2d 910 (La.1981). According to civil tradition, renunciation is a unilateral act requiring neither acceptance by the other party, nor requiring any formality. Official Comment (d) to LSA-C.C. Art. 3449. According to the Louisiana jurisprudence, renunciation requires a new promise to pay the debt, as “[a] new obligation binding on the debtor is created when a promise to pay is made after prescription has accrued.” Bordelon, 490 So.2d at 781. By “promise” here is meant a “ ‘pledge to another to do or not to do something specified; narrowly, a declaration which gives to the person to whom it is made the right to expect or to claim the performance or forbearance of a specified act.’ ” Id. (quoting Succession of Aurianne, 219 La. 701, 53 So.2d 901 (1951)).
As indicated above, a lesser showing is required to establish an acknowledgment.

Id., 595 So.2d 624, 631-632 (La.1992).

Thus, if we were to treat abandonment as a form of prescription, then we must consider “renunciation” to be the truly correlative analogous concept. Renunciation requires a much higher standard than that of mere acknowledgement. A renunciation of prescription is an abandonment of the right derived from prescription that has accrued and is subject to stringent proof requirements. Bridges v. X Communications, Inc., 03—441, p. 11 (La.App. 5 Cir. 11/12/03), 861 So.2d 592, 599, citing Lima, supra. As far back as 1845, the Supreme Court explained in Courtebray v. Rils, 9 Rob. 511 (La.1845), that renunciation of a prescription already accrued, being in the nature of the renewal of an obligation, must be specifically proven, and although it may be made tacitly, it must result from a fact which gives a presumption of the relinquishment of the right acquired by prescription ... and such fact must be necessarily and strongly connected with the debt which the party intended to revive. Geiger v. State ex rel. Dept. of Health and Hosp., 01-2206, p. 10 (La.4/12/02), 815 So.2d 80, 86.

| nEven if we were, for purposes of argument only, to find that the check and cover letter constituted an acknowledgement by ARCO, the facts still fail to meet the higher standard required for “renunciation,” as there is no language in either the check or the cover letter that could be construed as a new promise to pay by ARCO or a new promise to litigate. In fact, none of the language in either the check or cover letter comes from ARCO— it all comes from the State.

This stands in stark contrast to the pronouncements in Clark concerning abandonment, which favor the State’s position by implicitly deviating from the view that abandonment is a form of prescription. Whereas Clark begins its analysis by positing that abandonment is “both historically and theoretically a form of liberative prescription,” it seems to shift later in the opinion to the position (contrary to the principles of prescription) that, for purposes of abandonment, the timing of the acknowledgement is irrelevant:

The timing of a defendant’s conduct cannot logically be construed as altering its character insofar as whether it is sufficient to constitute a waiver of the right to plead abandonment. Logic dictates that the same standard for determining if action of the defendant results in waiver and thereby an interruption of abandonment should apply regardless of whether the conduct occurred before or after the abandonment period elapsed.
Id., p. 15, 785 So.2d at 789.

Following this reasoning, a mere ac-knowledgement post-abandonment would be sufficient to revive the State’s claim, in spite of the fact that the jurisprudence is clear that the same would not be true were the issue one of liberative prescription. Therefore, we will examine in greater depth the State’s contention that ARCO agreed to a settlement constituting an ac-knowledgement.

|inThe State contends that the letter and check negotiated by ARCO constitute more than a mere acknowledgement, arguing that the documents constitute a settlement with an admission of liability which in turn constitutes an acknowledgement sufficient to revive a claim already abandoned, citing Crain v. Pletka, pp. 6-7 (La.App. 2 Cir. 1/23/02), 806 So.2d 950, 954. However, the facts and documentation in Crain bear no resemblance to those of the instant case. Furthermore, the Crain court held that there was no ac-knowledgement, only an unaccepted offer of settlement. In any event, we share the trial court’s view that ARCO can hardly be said to have acknowledged a debt to the State merely by having accepted a check from the State.

The check was accompanied by a cover letter signed by Terri DuCote, Tax Audit Specialist, and approved by Deborah Underwood, Assistant Director of the Louisiana Department of Revenue. There is no language on the check indicating that it is intended as a settlement. There is no reference in the cover letter or on the check to this litigation. There is no release language in either the letter or the check.

We note that the letter and the check in the instant case contrast markedly with the letter and check found by this Court to constitute a settlement in Pierre v. Bank, 00-2729 (La.App. 4 Cir. 11/21/01), 801 So.2d 1213.

In Pierre the defendants sent the plaintiff a letter that stated their desire to “settle all liabilities” and further requested a “release of further liability.” The check contained the notation, “Full release ....” In holding that the combination of the letter and check in Pierre constituted a settlement, this Court stated that:

In The language of the letter sent by [the defendants] clearly explains their intent to settle with Ms. Pierre. The letter preceded and made clear the purpose for which the check was tendered, i.e. to pay the contractors and suppliers as well as make restitution to Ms. Pierre. On the face of the check were written the words “full release for work...” Thus, the object of the contract was to settle.

Id., 00-2729, p. 5, 802 So.2d at 1216.

There was nothing in either the letter or the check from the State in the instant case containing any of the operative terms (or their equivalents) such as “settle” or “settlement,” “release,” “compromise,” “payment in full,” etc.

If we assume, for purposes of argument only, that the letter and check were somehow intended as a settlement or compromise, it is still impossible to determine what the parties intended to settle and compromise. Therefore, it would not be a valid settlement:

However, “[t]ransaetions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.” La. Civ.Code Ann. art. 3073 (emphasis added). In determining the parties’ intent, the court generally may not consider extrinsic evidence, but must look only to the four comers of the agreement. La. Civ.Code Ann. art. 1848; Fascio v. Lee, 94-1149, p. 3 (La.App. 4th Cir.2/23/95), 650 So.2d 1236, 1237-38. Thus, compromise agreements extend only to those matters which the parties expressly intend to settle. Condoll v. Johns-Manville Sale Corp., 448 So.2d 169 (La.App. 5th Cir.1984).

Landrum v. Board of Com’rs of the Orleans Levee Dist., 95-1591, pp. 5-6 (La. App. 4 Cir. 11/27/96), 685 So.2d 382, 388.

|1?.Thus, if we accept, for purposes of argument, the State’s contention that the letter and check constitute a settlement in spite of the absence any language to that effect, then the most reasonable thing to do would be to also assume that the settlement was intended to be a settlement in full which would in turn include the claim the State now makes for attorney’s fees.

The cover letter states that:

Enclosed is your client’s refund check in the amount of $152,094.26 for the income and franchise tax periods listed above....
This amount is the result of a field audit examination and revisions to the field audit examination performed by the Tax Audit Specialist. Should you have any questions concerning this matter, please do not hesitate to call.

Whether one refers to it as “transaction,” “compromise” or “settlement” the agreement must be in writing or “recited in open court and capable of being transcribed from the record of the proceeding.” La. C.C. art. 3071. The State does not contend that the settlement was recited in open court. Its only basis for arguing that a settlement exists is the above mentioned cover letter and check.

The cover letter indicates only that the State determined that money was due ARCO and, therefore, remitted that amount. The acceptance of a payment is not sufficient to constitute a settlement. A settlement and a payment are two distinct things. Compton v. St. Paul Fire & Marine Ins. Co., 01-386, p. 4 (La.App. 3 Cir. 10/3/01), 796 So.2d 896, 899.

ARCO also relies on the following statement by the trial court at the hearing in support of its argument that a settlement occurred:

Specifically, the Court notes that during this period the plaintiff and the defendant settled their main demand.

11sHowever, this statement must be put into context with the immediately preceding sentence:

However, the plaintiff asserts that the defendant’s actions within that three-year period constitute a waiver of the abandonment.

First we note that the State’s alleged settlement occurred on October 10, 2003, more than three years after the filing by the State of its Reconventional Demand on October 11, 1999. The State in its brief admits that the October 11, 1999 filing of its Reconventional Demand was the last step in the prosecution on the record. Therefore, by the State’s own admission, the trial Court’s statement that a settlement occurred during the three-year period is not correct. Likewise, if the trial court’s statement that a settlement occurred were intended in the technical sense, it would be error as a matter of law as the requisite elements of a settlement are not present, as noted above.

On the other hand,' the trial court is correct in its subsequent statement that:

[T]he fact that the defendants accepted a check, refund check, is not inconsistent with the defendant’s position, which has been that it owed no taxes to the State of Louisiana. Therefore, it cannot be construed as an acknowledgement by the defendant.

In reaching its result the trial court also correctly distinguished the case of Clark v. State Farm Mut. Auto. Ins. Co., supra. In Clark, the defendant insurance company made an unconditional tender offer to the plaintiff. The Supreme Court held this to be an acknowledgement sufficient to interrupt the three-year period. The Supreme Court also noted that informal settlement negotiations have uniformly been held to be insufficient to constitute a step in the prosecution for purposes of interrupting abandonment. Id., p. 16, 785 So.2d at 790. The State |14concedes this point. The Clark opinion makes a point of explaining that the unconditional tender was not the same as a settlement.

In the instant case, the State made an unconditional tender of the check to ARCO. It made no demands of ARCO. It cannot be said that in accepting the check that included no reference to this litigation ARCO was in any way acknowledging the State’s claim. Thus, the record reveals no facts in the instant case that are comparable to those considered by the Supreme Court in discussing acknowledgement in Clark, supra:

In determining whether a waiver of the right to assert abandonment occurred, the jurisprudence has recognized the appropriateness of considering the qualitative effect of the defendant’s conduct. Equity dictates recognizing the tender as an acknowledgment and thus within the waiver exception, which results in an interruption of abandonment and a recommencement of the abandonment period from the date of the tender. To place itself in a position where its post-trial exposure for penalties and attorney’s fees is limited and thereby protecting its own interest, defendant made a tender to plaintiff. It would be inequitable to allow defendant to obtain that protection, yet to disallow plaintiff to invoke the tender as a basis for avoiding dismissal on abandonment. This result is consistent with the policy considerations underlying abandonment that require any doubt be construed in favor of maintaining a plaintiffs action.

Id., pp. 20-22, 785 So.2d at 792-793.

The State also cited Odessa House v. Goss, 453 So.2d 299 (La.App. 2 Cir.1984). In Odessa House, the defendant’s insurer made statements and payments acknowledging liability. In the instant case, ARCO made no statements or payments acknowledging liability. The facts of Odessa House bear no relationship to those of the instant case.

h RWhile Theriot v. State, Dept of Transp. & Dev., 01-1420 (La.App. 1 Cir. 9/25/01), 809 So.2d 279, 282, says that abandonment may be waived by acknowl-edgement, the question before the court was whether an answer filed by one co-defendant prior to the running of the three-year abandonment period constitutes a waiver of abandonment good as to all other defendants. Therefore, the facts in Theriot are inapplicable to the instant case.

Lima v. Schmidt, supra, discusses acknowledgment but not in the context of abandonment, only in the context of the interruption of prescription. In discussing payment as a form of acknowledgement, it is clear from Lima that a payment by a debtor might constitute an acknowledgement, but that a mere acknowledgement is inadequate to revive a claim once prescription has already run. In the instant case it was the State and not ARCO that made the payment. The State has conceded that once the abandonment period has run, no action by the plaintiff can revive the claim.

The State additionally complains that the trial court erred in not allowing it to put on admissible evidence necessary and relevant to the proving of its claim. The State especially complains that its counsel was not allowed to testify concerning the existence of a settlement constituting an acknowledgement by ARCO sufficient to waive abandonment.

We have reviewed the record and find that the State has not preserved this objection for review on appeal. While the State’s counsel initially argued that he should be allowed to testify and presented the trial court with reasons in support of his position and some indication of what his testimony would show, when the trial judge made her final ruling disallowing counsel’s testimony, counsel did not object and |1fidid not proffer his testimony. The record clearly shows that he acquiesced in the trial court’s ruling:

THE COURT:
Whatever evidence you want to present, it just can’t come out of your mouth.
MR. WEILER:
All right.

Similarly, in Grusich v. Grusich, 447 So.2d 93, 96 (La.App. 4 Cir.1984), the trial court ruled that an attorney for one of the parties could not testify on his client’s behalf and this Court ruled when that attorney said “All right,” that he thereby “acquiesced in the ruling of the trial court,” and the issue was not preserved on appeal.

The State also attempted to call Mr. Mike Pierson, described as a representative of the Department of Revenue to testify. The State does not assign this ruling as error and makes no mention of Mr. Pierson in its briefs. There is nothing in the record to indicate that the State attempted to proffer any other evidence in support of its contention that the check to ARCO was a settlement check.

The record reflects that what the State seeks to prove by the testimony or other evidence it argues should have been allowed in by the trial court, is that if one focuses only on certain years covered by the audit there would be a net due the State. But that requires one to look at only a part of the audit. When the audit is considered as a whole, ARCO indisputably overpaid its taxes and was found to be due a substantial refund.

117The State also argues that ARCO submitted certain discovery responses on June 13, 2003, which constituted an acknowledgment and a step in the prosecution, thereby reviving the State’s claim and starting the three-year period running anew. However, the purported discovery responses from ARCO referred to in the State’s briefs do not appear in the record, and they were not proffered by the State. Therefore, they cannot be considered by this Court.

The State makes the further argument in its Reply Brief, that ARCO “waived its right to plead abandonment by filing a ‘Memorandum in Opposition to the Department’s Rule to Show Cause.’ ” ARCO filed this Memorandum in Opposition, obviously out of an excess of caution, at the same time that it filed its motion to dismiss on the grounds of abandonment. Once a party has formally raised the issue of abandonment, the fact that that party may, out of an excess of caution, respond to actions taken by the opposing party that warrant a response or opposition should the claim of abandonment prove unsuccessful, will not serve to revive an abandoned claim. See In re Succession of Wright, 37,670, p. 6 (La.App. 2 Cir. 9/24/03), 855 So.2d 926, 929-930. For example, in the instant case the State filed a “Motion and Order Declaring ARCO Chemical Company’s Memorandum in Opposition to Motion for Rule to Show Cause for Award of Attorney’s Fees as Filed Untimely and for Order Denying Oral Argument and that Court Will Not Consider the Untimely Filed Memorandum.” In other words, the effect of the State’s argument was that ARCO waived its motion for dismissal for abandonment by opposing the State’s rule to show cause. We disagree.

|1sThe adoption of the State’s argument would place defendants in the untenable and unreasonable position of waiving abandonment should they oppose some action such as the rule to show cause filed by the State in the instant case, or, alternatively, refrain from opposing the plaintiffs action and risk losing the right to do so in the event that the Court should rule against the abandonment. La. C.C. art. 561 does not envision putting a defendant in jeopardy of waiving an abandonment already accrued and moved for but not yet ruled on, by requiring him to forego at his peril the filing of responsive pleadings or taking other appropriate defensive actions pending the ruling on his motion for dismissal. Such actions by a defendant who has moved for dismissal should not be characterized as expressing an intention inconsistent with that of abandonment.

This is analogous to La. C.C.P. art. 928 and Bickham v. Sub Sea International Inc., 617 So.2d 483 (La.1998), which held that filing a declinatory exception of improper venue in the same pleading with the answer does not under La. C.C.P. art. 928 waive that exception, and that a general appearance subsequent to filing an exception of improper venue, e.g., the filing of discovery requests, does not waive the pending exception. See Editor’s Notes to La. C.C.P. art. 928.

Thus, the policy considerations invoked in the instant ease when a party has formally moved for dismissal are very different from those considered by the Supreme Court in Chevron Oil Co. v. Traigle, 436 So.2d 530, 534-535 (La.1983) where the defendant submitted the case for decision after the abandonment period had run:

Article 561, therefore, explicitly addresses the question of pre-abandonment waiver; however its silence concerning post-abandonment waiver could either be construed as: (1) a conscious limitation of the right of abandonment to pre-abandonment actions, (2) legislative | ¶ recognition of the jurisprudentially created doctrine of waiver in all of its forms, (3) codification of the pre-aban-donment doctrine of waiver, with post-abandonment waiver left to the discretion of the courts; or (4) mere inadvertence in failing to recognize the potential for post-abandonment waiver.
Without passing on the validity of the Melancon dicta for any action by the defendant short of submission of the case for decision, we conclude that submission of an abandoned case for decision effects a waiver of the right to have the suit dismissed because of want of prosecution under article 561 of the Code of Civil Procedure. The concept of abandonment is not punitive in nature. The notion is one which is designed to discourage vexatious, harras-ing or frivolous suits by preventing the plaintiff from allowing such suits to linger indefinitely. Moreover, the threat of abandonment serves to hasten all suits to judgment. Once a case is submitted, its disposition is out of the hands of the parties, and nothing is gained by penalizing them for what they have failed to do before that point. Cf. Bryant v. Travelers, Insurance Co., 288 So.2d 606 (La.1974); Butch v. Straughan, 397 So.2d 38 (La.App. 2d Cir.), writ denied, 401 So.2d 976 (La.1981); Succession of Moody, 306 So.2d 869 (La. App. 1st Cir.1974), writ denied 310 So.2d 639 (La.1975); Lopez v. Southern Natural Gas Co., 287 So.2d 211 (La.App. 4th Cir.1973); Motors Insurance Corp. v. Howell, 266 So.2d 240 (La.App. 2d Cir. 1972); Burke v. State Farm Mutual Auto. Insurance Co., 234 So.2d 432 (La.App. 1st Cir.1970). Nothing is served by allowing the defendant to have a case submitted for judgment declared abandoned. If our goal is to encourage the hasty resolution of disputes, it would be anomalous for us to hold that this goal is somehow advanced by the dismissal of suits that are ready for resolution. Had the legislature intended such a paradox under article 561, it could have so explicitly stated. Without such a statement, we reject this interpretation and its result.

CONCLUSION

By joining in a motion for summary judgment and submitting the cause for a decision, the defendant has waived his right to have these cases dismissed for want of prosecution under article 561 of the Code of Civil Procedure. We recognize that article 561 is self-operating; however, it does not allow a defendant to have a case dismissed when the parties have agreed that it is | gpready for resolution, and that it should be decided upon the merits.

Id.

The problem is that while the La. C.C.P. art. 561 rule that a case is abandoned after three years for non-prosecution seems straightforward and self-executing on its face, the jurisprudence has carved out so many exceptions that a party has no way to be sure of the court’s application of that rule to the facts of a particular case. Because the question of abandonment is fraught with so much uncertainty, a party cannot reasonably ignore actions taken by the opposing party that could have material consequences should the court decide against abandonment. Once a party has expressed its intentions clearly by moving for a decree of abandonment, that party should be permitted to protect its interests in the litigation pending the entry of the formal order of dismissal. ARCO’s position in this case can best be characterized as follows: ARCO believes the case to be abandoned, but in the event that the court decides otherwise, it will defend its interests. This is clearly distinguishable from the situation in which a party takes an action inconsistent with abandonment prior to having formally moved for dismissal based on abandonment.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . It appears that subsequent to the filing of this suit, ARCO underwent a name change and a merger and is now known as Lyondell Chemical Company. We will continue to employ the name ARCO for purposes of these proceedings.

      . We note that the cover letter from the State also refers to it as a "refund check.”

      . Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 12 (La.5/15/01), 785 So.2d 779, 788.

      . Id., p. 11, 785 So.2d at 787.

      . Id., 00-2729, p. 2, 801 So.2d at 1214.

      . Id., 00-2729, p. 3, 801 So.2d at 1215.

      . Id., 00-2729, p. 3, 801 So.2d at 1215.

      . The emphasis is original to this quotation.

      . Emphasis added.

      . The Supreme Court in Clark, supra, 00-3010, p. 14, 785 So.2d at 789, fn. 15, lists several examples of waiver of accrued abandonment, including "provoking or responding to discovery.”

      . This refers to the State’s rule to show cause whereby it asserted its claim for the attorney’s fees that are the subject of this appeal.

      . See cases cited in Chevron, 436 So.2d at 534, giving examples of what actions by a defendant might revive a case after the expiration of the abandonment period has already run. '


author: CARAWAY, J.

text:
    Mary Ann CRUM, et al., Plaintiffs-Appellants v. STATE of Louisiana, et al., Defendants-Appellees.
    No. 41,059-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 17, 2006.

      Broussard, Bolton, Halcomb, & Vizzier, by Roy S. Halcomb, Jr., Alexandria, for Appellants.
    Charles C. Foti, Jr., Attorney General, Jerald L. Perlman, Assistant Attorney General, for Appellees.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

| ,This is a lawsuit against the State of Louisiana and the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College through Louisiana State University Health Sciences Center at Shreveport (“LSUHSC”), seeking damages for the death of a patient. Plaintiffs’ suit in district court alleged that LSUHSC caused the death by negligently performing a blood transfusion on the patient and by subsequently providing him with substandard medical care. Plaintiffs’ claims had not been heard by a medical review panel prior to the filing of the lawsuit. The district court concluded that the plaintiffs’ allegations of wrongdoing sounded in medical malpractice and were premature until considered by a medical review panel. Plaintiffs appeal from the judgment dismissing their tort action. We affirm.

Facts

According to the petition, Earnest Crum (“Crum”) was admitted to the LSUHSC hospital in Shreveport on February 17, 2004, for a carotid arteriogram procedure. The procedure was performed the next day, after which Crum had a blood transfusion. Plaintiffs, the children of Crum, allege that he thereafter began to have severe complications from the transfusion that led to his transfer to intensive care and subsequent death on February 21, 2004. According to the petition, Crum’s injuries and death were caused by:

a. Failing to type and cross match Crum’s blood before giving him the blood transfusion in question;
lab. Failing to timely and properly type and cross match Crum’s blood before giving him the blood transfusion in question;
c. Failing to perform the testing necessary to discover that the donor blood given Crum was positive for the presence of JKA antigen and that Crum’s blood was positive for the presence of JKA antibody;
d. Failing to correctly report the type and cross match testing of Crum’s blood and the donor blood given Crum;
e. Giving Crum a blood transfusion using donor blood with JKA antigen which was incompatible with Crum’s blood;
f. Failing to timely discover and treat Crum for the transfusion reaction;
g. Failing to timely obtain and give Crum blood after the transfusion reaction;
h. Failing to act with that degree of care required of a reasonably prudent health care provider with similar skills and education and faced with similar circumstances so as to avoid the kind of injuries suffered by Crum; and,
i. Failing to possess and / or properly exercise the degree of care ordinarily possessed and exercised by health care providers practicing within the same medical specialty and / or practicing in a similar community or local (sic) and under similar circumstances.

Simultaneously with the filing of this tort action in district court, plaintiffs also initiated a medical review panel proceeding against the defendants, making the same allegations of wrongdoing by the hospital. This record does not show that the review panel process has concluded, and clearly the process had only just begun when the lawsuit was filed.

In the district court, the defendants filed exceptions of prematurity and lack of subject matter jurisdiction. The defendants urged that the tort action in district court was premature until the case had been considered by a medical review panel. After considering the arguments of counsel | aregarding the exceptions, the court concluded that the action was premature and dismissed the case without prejudice. Plaintiffs now appeal.

Discussion

From the pleadings and explanations of counsel, the blood that Crum received was not contaminated with a virus or any other inherently deleterious substance. Instead, the alleged cause of Crum’s initial injury was his transfusion with blood containing the JKA antigen, a blood component that was incompatible with Crum’s blood. Admittedly, blood containing the JKA antigen is compatible with the blood of many other patients in the general population whose blood does not contain JKA antibodies. Like the screening for blood compatibility which must occur to match a donor’s blood type (e.g., A-positive or B-negative) with that of the patient, the screening process also routinely considers the appropriate match regarding the JKA antigen. That evaluation process allegedly failed in this case.

Defendants herein are the state and a state hospital, so the applicable law is the Medical Liability for State Services Act (“MLSSA”), La. R.S. 40:1299.39, et seq., and not the Medical Malpractice Act (“MMA”), La. R.S. 40:1299.41, et seq. In relevant part, La. R.S. 40:1299.39.1(A)(l)(a) provides:

All malpractice claims against the state, its agencies, or other persons covered by this Part ... shall be reviewed by a state medical review panel established as provided in this Section....

Additionally, La. R.S. 40:1299.39.1(B)(l)(a)(i) provides as follows:

No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any court before |4the claimant’s complaint has been presented to a state medical review panel established pursuant to this Section.

These provisions thus require that a litigant present his medical malpractice complaint against the state and state agency to a medical review panel prior to proceeding in district court with a medical malpractice claim. See Derouen v. State, Dept. of Health and Hospitals, 98-1201 (La.App. 3d Cir.2/3/99), 736 So.2d 890. In the absence thereof, the exception of prematurity will be granted.

The definition of “malpractice” in the MLSSA has been changed several times over the life of the statute. See, Vernon v. E.A. Conway Hospital, 33,105 (La.App. 2d Cir.4/5/00), 756 So.2d 1249, writ denied, 00-1302 (La.6/16/00), 765 So.2d 342. The MLSSA’s definition under section 40:1299.39(A)(4) presently lists the definition as follows:

“Malpractice” means the failure to exercise the reasonable standard of care specified and required by Subsection B of this Section, in the provision of health care, when such failure proximately causes injury to a patient, as provided in Subsection B of this Section.

“Health care” is defined in La. R.S. 40:1299.39(A)(6) as:

“Health care” means any act or treatment which was performed or furnished or which should have been performed or furnished by any person covered by this Part for, to, or on behalf of, a patient during the medical care, treatment or confinement of the patient.

|fiThe definition of malpractice in the MLSSA differs from the definition in the MMA, which is found in La. R.S. 40:1299.41(A)(8):

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

(Emphasis added.) Under the MMA definition for malpractice, with its provision for defects in blood, the jurisprudence has required such claims to be presented to a medical review panel. Johnson v. Glenwood Regional Medical Center, 38,614 (La.App. 2d Cir.6/23/04), 877 So.2d 241; Webre v. Hospital Service District. No. 1, 00-0926 (La.App. 1st Cir.6/22/01), 798 So.2d 176; DeBlanc v. Touro Infirmary, 96-1965 (La.App. 4th Cir.12/27/96), 686 So.2d 1015; Sonnier v. Opelousas General Hosp., 95-1560 (La.App. 3d Cir.5/8/96), 688 So.2d 1040; Landry v. Ochsner Foundation Med. Center, 95-883 (La.App. 5th Cir.2/27/96), 671 So.2d 24.

As reviewed in Vernon, supra, the MLSSA definition of malpractice in the 1970’s also once covered all legal responsibility arising from defects in blood. As originally enacted by 1976 La. Acts 66, § 1, the MLSSA defined malpractice as “any tort or breach of contract based on health care or professional services rendered or which should have been rendered to a patient by a person covered by this Part.” By 1976 La. Acts 660, this definition was amended to include “such legal responsibility of a health care | (¡provider arising from defects in blood. ...” (Emphasis added). However, 1978 La. Acts 611, § 1 deleted any reference to blood and redefined malpractice as “any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient.”

Because of this legislative history for the MLSSA and, in particular, the deletion of the coverage for defective blood from the malpractice definition in 1978, plaintiffs now argue that this case falls outside the MLSSA and its requirement of review by a medical review panel. Plaintiffs rely on the holdings in Vernon, supra and Doe v. Medical Center of Louisiana, 612 So.2d 1050 (La.App. 4th Cir.1993), writ denied, 613 So.2d 1005 (La.1993). Those cases involved claims of patients injured by blood that was inherently defective due to contamination with a virus. The patients successfully argued that the legal responsibility for the improper screening of that defective blood was not included within the definition of malpraeticé in the MLSSA and thus the state was not entitled to a medical review panel prior to the commencement of a lawsuit in district court.

A review of the history of Louisiana law and jurisprudence shows that in 1976, when Act 660 amended the MLSSA’s definition of malpractice to include the providing of defective blood, a hospital could be held liable under the strict tort product liability theory. DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981). DeBattista dealt with blood infected by the hepatitis virus and found it “defective, i.e., unreasonably 17dangerous to normal use. The risks involved in receiving a transfusion of blood in this condition are certainly greater than a reasonable consumer would expect.” Id. at 31. With this understanding of the meaning of defective blood at the time of the 1976 and 1978 amendments to the MLSSA, the blood in question would never have been considered defective because it could serve the needs of many patients whose blood would not react to the JKA antigen. It was not dangerous for normal use. The only damage brought about by this blood resulted because of the alleged negligent employment of its use for a patient whose blood was incompatible. Therefore, like the trial court, we hold that the alleged failure to properly type Crum’s blood for transfusion presents a health care question rather than a case of defective blood products, such as blood infected with the HIV virus.

In Coleman v. Deno, 01-1517, 01-1521 (La.1/25/02), 813 So.2d 303, the supreme court, applying the MMA, considered the following factors in determining whether a particular act constituted malpractice or an ordinary tort action:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached,
(3) whether the pertinent act or omission involved assessment of the patient’s condition,
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform, |s(5) whether the injury would have occurred if the patient had not sought treatment, and,
(6) whether the tort alleged was intentional.

Applying these factors by analogy for an understanding of “malpractice” and “health care” under the MLSSA, the allegations in this case fall within the category of malpractice. The alleged failure of the provider to fully type Crum’s blood is an allegation of the dereliction of professional skill. Expert medical evidence will be required to determine whether the alleged failure to type the patient’s blood led to his injury and death. Plaintiffs alleged that the provider failed to assess Crum’s condition both prior to the transfusion (by failing to type his blood) and afterwards (by failing to timely discover and treat Crum for the transfusion reaction). The alleged injuries were within the scope of the health care relationship, and the transfusion reaction would not have occurred had Crum not sought treatment. Thus, under the Coleman analysis, the suit presents medical malpractice claims.

Conclusion

Accordingly, with the MLSSA and its medical review process applicable in this case, the judgment of the trial court granting the exception of prematurity is hereby affirmed at appellants’ cost.

AFFIRMED.

      . La. R.S. 40:1299.39(B) provides, in part:
      (B)(1) The standard of reasonable care specified and required by this Section is as follows: The standard of care specified and required by this Section for licensed physicians and dentists shall be the same as that required to be proven with respect to them under the provisions of La. R.S. 9:2794.

      . The present definition of malpractice was added by 1988 La. Acts 786, § 1.