author: CHEHARDY, Judge. DALEY, J.,

text:
    Francis THORNING and Kim Thorning v. The STATE of Louisiana Through The DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 06-CA-57.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 28, 2006.

      Robert B. Evans, III, Cesar R. Burgos, Attorneys at Law, New Orleans, Louisiana, for Plaintiffs/Appellants, Francis Thorning and Kim Thorning.
    Charles A. Foti, Jr., Attorney General, Thomas A. McGaw, Assistant Attorney General, New Orleans, Louisiana, for Defendant/Appellee, State of Louisiana Through The Department of Transportation and Development.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   CHEHARDY, Judge.

| j>The plaintiffs appeal a judgment that granted exceptions of insufficient service of process and prescription, dismissing their claims against the defendant with prejudice. We reverse and remand.

Francis Thorning and Kim Thorning are the parents and closest survivors of Nicholas P. Thorning, who died as a result of injuries sustained in an automobile accident on Louisiana Highway 45 on July 31, 2003. The Thornings filed suit against the State of Louisiana, through the Department of Transportation and Development (hereafter “DOTD”), alleging the sole and proximate cause of the accident and injuries was DOTD’s negligence with respect to design, construction, maintenance, and inspection of the highway, among other things. The lawsuit was filed on July 30, 2004 and the plaintiffs requested service on Kathleen Blanco, Governor of the State of Louisiana.

On November 22, 2004, DOTD filed a declinatory exception of insufficiency of service. DOTD asserted that service on the governor was improper because the governor is not the appointed person to receive service on behalf of DOTD. On the same date, DOTD filed an answer.

On April 1, 2006, while the exception of insufficiency of service was pending, DOTD filed a peremptory exception of prescription. DOTD asserted that |3the petition was not served until March 9, 2005 and it had prescribed on its face by that date The accident made the basis for the plaintiffs’ claims occurred on July 31, 2003, more than one year before the date of service of the petition.

At the hearing on the exceptions, the plaintiffs were placed in a position of having to argue, in defense of the exception of prescription, that they had not requested service within the period allowed by La. R.S. 13:5107. Plaintiffs alleged they had good cause for the failure to request service on the attorney general within ninety days. They asserted that the State “acted in bad faith to manipulate the interplay of the statutes and engineer the grounds for dismissal,” as follows:

[T]he State took service, never notified the plaintiff that service was improper, and proceeded to ask the plaintiff for two extensions of time, which put the plaintiff outside the 90 days to re-request service.
Their exception of insufficiency of service cannot be granted because the grounds for sustaining that objection have been remedied. Regardless, service on the Governor would have been proper under the statutes in question. And the exception of prescription cannot be granted because there’s no dismissal pursuant to 13:5107(D)(2), and their opportunity to seek an involuntary dismissal to then create the grounds for the prescription have been waived.
And, last, failing all other arguments, plaintiff has good cause as to why service was not requested within the 90 days.

The trial court granted both the exceptions and dismissed the plaintiffs’ claims. In written reasons for judgment, the trial court held that service upon the governor was invalid, citing La.R.S. 39:1538(4), and that dismissal of the action against the State was required under La.C.C.P. art. 1672 because service had not been requested within the ninety-day time period prescribed by La.C.C.P. art. 1201. The court stated that the plaintiffs easily could have ascertained the proper agent for service of process under La.R.S. 13:5107, and that they did not show good cause for the delay in proper service.

pFinding that correct service was not accomplished within ninety days of commencement of the action, the trial court maintained the exception of prescription. The plaintiffs appeal.

INSUFFICIENCY OF SERVICE

The plaintiffs assert the trial court erred in granting the exception of improper service. They contend, first, that the governor as the chief executive officer may accept service on behalf of the state; alternatively, they argue that when an exception of improper service is granted, the court is required to give the plaintiff an opportunity to cure the alleged defect.

Citation and service thereof are essential in all civil actions except a few specified types; without them all proceedings are absolutely null. La.C.C.P. 1201(A). In claims against the state prosecuted to recover money damages in tort, “process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107.” La.R.S. 39:1538(1), (4).

La.R.S. 13:5107 provides for citation and service in suits against the state as follows, in pertinent part:

A. In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against. [Emphasis added.]

lRIn addition, the statutes governing the Department of Transportation and Development provide, “Service of citation and other process directed to the department shall be made by handing the citation or other process to the secretary or to the undersecretary.” La.R.S. 48:12.

To determine whether service on the governor was proper, we have examined how our state government is organized. The Department of Transportation and Development is part of the executive branch of the state government. La.R.S. 36:4(A)(11). It is not, however, within the office of the governor. Departments and agencies that are within the office of the governor are specifically enumerated in La.R.S. 36:4(B)(1), which also provides that the “powers, duties, functions, and responsibilities” of those designated agencies “are hereby transferred to the office of the governor.” “The governor may allocate within his office the powers, duties, funds, functions, appropriations, response, bilities, and personnel of the agencies within his office, provide for the administration thereof and for the organization of his office.” La.R.S. 36:4(B)(3).

The Department of Transportation and Development, on the other hand, is a separate “body politic and corporate,” by statutory designation. La.R.S. 48:13. The department functions under “the control, management, supervision and direction of the secretar/’ as “provided by Title 36 of the Louisiana Revised Statutes.” La.R.S. 48:13.

With statutory limitations, the department is authorized to perform every act “necessary, convenient or incidental to the exercise of its power and authority, the discharge of its duties, or the performance of its functions.” La.R.S. 48:26. Further, the secretary is the executive officer of the department, La.R.S. 48:51, and “shall exercise all of the functions of the department through the departmental | r,organizations provided for by law and to the extent provided by applicable law. Every lawful act of the secretary performed in his official capacity is the act of the department.” La.R.S. 48:52.

In contrast, the governor is the chief executive officer of the state, and has the power to appoint departmental heads, including the secretary of the Department of Transportation and Development. La. Const. Art. 4 § 5(A), La. Const. Art. 4 § 5(H), and La.R.S. 36:506. However, the laws setting forth the powers of the governor do not give the governor executive power for the twenty departments within the executive branch that are not within the office of the governor. See La.R.S. 36:4.

When the grounds of the objections pleaded in the declinatory exception may be removed by amendment of the petition or other action of the plaintiff, the judgment sustaining the exceptions shall order the plaintiff to remove them within the delay allowed by the court. La.C.C.P. art. 932(A). If the plaintiff fails to comply with an order requiring such removal, the action subject to the exception shall be dismissed. La.C.C.P. art. 932(B).

Accordingly, we agree with the trial court that the governor was not the proper person to receive service on behalf of DOTD. However, the granting of the exception of insufficient service was erroneous because the error had been corrected by the time the exception was heard by the trial court. Because the attorney general was served prior to the hearing on the exception of insufficiency of service of process, the deficiency had been cured and the exception should have been dismissed.

^PRESCRIPTION

Unfortunately for plaintiffs, the trial court combined the granting of the exception of insufficiency of service of process with a ruling that the plaintiffs’ action should be dismissed for failure to request service on the proper party within ninety days pursuant to La. R.S. 13:5107. There was, however, no motion before the court requesting involuntary dismissal of the action for failure to request service within ninety days, as required by La. C.C.P. art. 1672(C).

La.R.S. 13:5107 provides in pertinent part:

D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof. [Emphasis added.]

The contradictory motion mentioned in La.R.S. 13:5107 is a motion for involuntary dismissal pursuant to La.C.C.P. art. 1672(C), which provides:

A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time | ^prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

In Filson v. Windsor Court Hotel, 04-2893, p. 4 (La.6/29/05), 907 So.2d 723, 726-727, the supreme court examined the requirement to request service within ninety days in detail. The court distinguished the motion for involuntary dismissal under La. C.C.P. art. 1672 from the exception of insufficiency of citation or service:

First, an objection to insufficiency of citation or service of process under La. C.C.P. art. 925 “is properly leveled at the form of the citation” and also “focuses on the person to whom citation is delivered or on the manner in which delivery is made.” When a defendant objects to the failure to request service within 90 days, he is not objecting because the service is “insufficient;” rather, it is either non-existent or it is untimely. Where the objection is based on service outside the 90-day time limit of La. C.C.P. art. 1201(C), La. C.C.P. art. 1672(C) specifically provides that the manner for objecting is by filing a motion for involuntary dismissal. While plaintiffs argue that these statutes conflict and are ambiguous, we disagree. Pursuant to general rules of statutory construction, “where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” Clearly, even if Article 925’s reference to “insufficiency” of citation and service of process could be read generally to apply where service was not timely requested, Articles 1201(C) and 1672(C) are specifically directed to eases where service was not requested within 90 days of the commencement of the action, making a motion for involuntary dismissal under 1672(C), and not a declinatory exception, the proper method for objecting to late service. [Citations omitted.]

Thus, pursuant to Filson, the trial court in this case erred in dismissing the action for failure to request service within ninety days, because no motion for involuntary dismissal pursuant to La.C.C.P. art. 1672(C) had been filed. That issue |nwas not properly before the court and the plaintiffs had not been given proper notice of it. See Taylor v. LSU Medical Center, 38,944 (La.App. 2 Cir. 10/14/04), 892 So.2d 581, writ denied, 05-480 (La.5/20/05), 902 So.2d 1049.

Additionally, and more importantly, this Court suspects that the defendant failed to file a motion for involuntary dismissal pursuant to La.C.C.P. art. 1672(C) for a more sinister reason. It is clear that counsel for the state Office of Risk Management received the petition on or before August 19, 2004. It is also clear that the office of the Attorney General received the petition on or before October 15, 2004. Both counsel requested “courtesy” extensions of time within which to file responsive pleadings. Counsel for the plaintiff graciously granted both requests. Counsel for the State, in what appears to be a most calculating fashion, then filed the exception of insufficiency of service of process conveniently after the ninety-day period for service had expired, thereby leading the plaintiff into a trap facilitated by the professional courtesy of plaintiffs counsel.

This Court simply cannot tolerate this manner of ill practice. Counsel for the State manipulated counsel for the plaintiff into granting two courtesy extensions, and then attempted to utilize that courtesy to invoke the fatal provision of La.R.S. 13:5107. We are convinced this deception would have been more easily discovered had the defendant filed the requisite motion for involuntary dismissal pursuant to La.C.C.P. art. 1672; instead, counsel for the defendant attempted to shield the ill practice by filing an exception of prescription based on the plaintiffs apparent failure to serve the proper agency within the requisite prescriptive period of one year. By doing so, the State was able to divert the trial court’s attention from its deceptive conduct, while also depriving the plaintiffs of their ability to prove good cause for failure to serve under La.C.C.P. art 1672 — a fact the |10defendant certainly could not have overcome in a contradictory hearing on this matter.

The plaintiffs contend the trial court erred in granting the exception of prescription because DOTD relied on the plaintiffs’ courtesies in granting informal extensions of time to answer to create a defense that did not previously exist. Further, they argue that that the case has not prescribed because DOTD did not obtain a dismissal pursuant to La.R.S. 13:5107(D)(3) and, therefore, there was an interruption of prescription when suit was filed. •

As discussed in the preceding section of this opinion on insufficiency of service, an exception cannot be substituted for an involuntary motion to dismiss pursuant to La.C.C.P. art. 1672(C). Further, the peremptory exception of prescription is inappropriate to obtain a dismissal based on La.C.C.P. art. 1672(C). See Taylor, supra.

Because the finding of prescription was based on a dismissal that should only have been made upon a proper motion pursuant to La. C.C.P. art. 1672(C), rather than on a declinatory exception, and because the filing of this motion appears calculated to take advantage of the defendant’s deceptive practice in this- case, the trial court erred in granting the exception of prescription.

For the foregoing reasons, the judgment granting the exceptions of insufficiency of service and prescription is reversed. The matter is remanded for further proceedings. The plaintiffs’ costs for this appeal are assessed against the appellee, the State of Louisiana, through the Department of Transportation and Development.

REVERSED AND REMANDED.

DALEY, J., concurs with reasons.

DALEY, J.,

concurring.

|,I agree with the writer’s recommendation to reverse the trial court’s judgment dismissing plaintiffs’ petition but for different reasons than those stated. I believe service on the governor was permissible.

Louisiana Code of Civil Procedure article 1265 provides general service information for service on the state:

Service of citation or other process on any political subdivision, public corporation, or state, parochial or municipal board or commission is made at its office by personal service upon the chief executive officer thereof, or in his absence upon any employee thereof of suitable age and discretion.

The Louisiana Constitution article TV § 5 provides the “governor shall be the chief executive officer of the state.”

R.S. 13:5107 is more specific with reference to service of a suit on a state agency providing:

A. In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, or on any employee in his office above the age of sixteen years, or any other proper officer or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.

| ¡¡While R.S. 13:5107 is more specific than C.C.P. art. 1265, R.S. 13:5107 does not prohibit service as provided in C.C.P. art. 1265.

I reject appellee’s claim that R.S. 39:1538 applies to this matter in its present procedural posture. R.S. 39:1538(4) refers to the procedure for collecting on a claim against the state or a state agency.

For the foregoing reasons, I would reverse the judgment of the trial court.

      . A written acknowledgement from a defendant of receipt of a petition does not satisfy the requirement of a written waiver unless it expressly states that the defendant waives citation and service thereof. Naquin v. Titan Indem. Co., 2000-1585, p. 9 (La.2/21/01), 779 So.2d 704, 710.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    SUCCESSION OF Nita Hill STARK.
    No. 2006-190.
    Court of Appeal of Louisiana, Third Circuit.
    July 5, 2006.

      L. Clayton Burgess, G. Shelly Maturin, II, Lafayette, Louisiana, for Appellants, Ida Marie Stark, individually, and as Independent Executrix of the Estate of William H. Stark, II, Randall Hill Stark, William H. Stark, III, and Lynn Stark Barras.
    Russell J. States, Jr., P. Jody Lavergne, Joel M. Lutz, States, Fontenot, Lavergne & Lutz, Allen L. Smith, Jr., Plauche, Smith & Nieset, Lake Charles, Louisiana, for Appellee, The Nelda C. and H.J. Lutcher Stark Foundation, represented by Walter Riedel III, President and Chief Executive Officer.
    Homer Stark, In Proper Person, c/o Jerry Kacal, Dunn, Kacal, Adams, Pappas, Houston, Texas.
    Rebecca Stark Nugent, In Proper Person, Bryan, Texas.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Iiln this ancillary succession proceeding, the heirs of Nita Hill Stark (heirs) appeal the trial court’s judgment denying their motions for continuance and sustaining the exception of prescription filed on behalf of the Nelda C. and H.J. Lutcher Stark Foundation (Foundation). For the following reasons, we affirm.

FACTS

The historical backdrop of the instant matter spans two states, three prior lawsuits, and more than sixty-four years. The following is an abbreviated discourse of the facts relevant to the issues presented for this court’s consideration.

H.J. Lutcher Stark (Lutcher), a domiciliary of Orange, Texas, died in 1965. He had two sons, William “Bill” H. Stark, II and Homer Stark (Bill and Homer), both adopted with his first wife, Nita Hill Stark (Nita), who died in 1939. Lutcher had no children by his second wife, who also predeceased him. Lutcher then married Nelda C. Stark (Nelda) in 1945 and had no children with her. According to his 1961 will and the estate proceedings in Texas, Lutcher left one million dollars to each of his two sons, Bill and Homer. He left his personal property to Nelda and named her the universal legatee of one-half of his remaining estate. The other half was left to the Nelda C. and H.J. Lutcher Stark Foundation. The bulk of Lutcher Stark’s sizeable estate involved property located in Texas, and his will was probated there in the years following his death. Bill and Homer, received their bequests in 1969 and signed releases acknowledging payment and relinquishing any further claims to their father’s estate.

There being immovable property in Cal-casieu Parish,' Louisiana, in 1972, Nelda filed ancillary succession proceedings in Calcasieu Parish. She asserted ownership by Lutcher’s estate of forty-two acres of land in Calcasieu Parish and numerous ^mineral interests in Calcasieu and Caddo parishes. The Louisiana property was valued at $40,950.00. Nelda alleged that the portion of the Louisiana property required to go to Bill and Homer, as forced heirs, was inoré than fully satisfied by the million-dollar bequests disbursed to them in 1969. She also offered proof of the Foundation’s waiver of its right to claim the Louisiana property. Consequently, Nelda alone was put into possession of all of the Louisiana property owned by Lutcher at the time of his death. In 1982, Nelda filed a petition to amend the detailed descriptive list and judgment of possession in the ancillary succession, having discovered an additional mineral interest owned by Lutcher’s estate in Caddo Parish. The judgment of possession was amended thereby naming Nelda as owner of the newly discovered mineral interest in Cad-do Parish.

In 1988, in the same ancillary succession proceeding filed by Nelda in Calcasieu Parish back in 1972, the heirs claimed that Nelda failed to disclose to the Louisiana court thousands of acres of land owned by Lutcher at the time of his death, as well as numerous mineral leases and other income-producing property located in Louisiana. The heirs prayed for the appointment of Randy Stark (Lutcher’s grandson) as executor of Lutcher’s estate, a detailed descriptive list and final accounting of Louisiana assets from a representative of the Estate of Nelda Stark, possession of all property concealed by Nelda, and collation of any assets advanced to Nelda during Lutcher’s lifetime. The heirs then filed an amended petition seeking to nullify the original and amended judgments of possession. The succession, through its universal legatee, the Nelda C. and H.J. Lutcher Stark Foundation, and the succession’s co-executors, Eunice R. Bencken-stein, Walter Riedel III, and Roy Wingate, filed exceptions to the petition based on res judicata, prescription, no cause of action, and no right of action. The trial court maintained the exceptions of prescription and no |scause or right of action and dismissed the heirs’ suit. This court, in Ancillary Succession of H.J. Lutcher Stark, an unpublished opinion bearing docket number 04-323 (La.App. 3 Cir. 9/29/04), 885 So.2d 59, unit denied, 04-2700 (La.1/7/05), 891 So.2d 680, affirmed the trial court’s ruling dismissing the heirs’ suit.

Bill Stark died in 1979. His heirs and his brother, Homer, filed suit in Texas in 1988, seeking additional money from the Lutcher estate and from the Foundation. They alleged fraud and mismanagement in the handling of Luther’s estate, as well as in the handling of Nita’s estate, and the embezzlement and concealment of assets belonging to the succession. Their claims were ultimately settled in 1991, with Bill’s family and Homer each receiving $2,500,000.00 from the estate and the Foundation. The settlement documents described the compromise as a full and final settlement of any and all claims of fraud, mismanagement, heirship, inheritance rights, and forced heirship against the estate and the executrix.

In 1999, Nelda died. In a Texas suit filed shortly thereafter, Homer and Bill’s heirs contended that following her death, certain employees of the Foundation or Foundation-owned enterprises, such as the Stark Art Museum, approached family members and told them that Nelda had hidden property from them and had instructed them to burn documents evidencing certain assets. Summary judgment was rendered in that lawsuit in favor of Nelda’s estate and the Foundation, with the court upholding the validity of the 1991 settlement and release of any further claims.

On January 24, 2003, Appellants, Ida Marie Stark, individually, and as Independent Executrix of the Estate of William “Bill” H. Stark, II, Randall Hill Stark, William H. Stark, III, and Lynn Stark Barras, filed the instant litigation asserting that “H. J. Lutcher Stark concealed and/or omitted substantial Louisiana assets of the Decedent, Nita Hill Stark, from the rightful heirs.... ” Appellants further alleged that |4the legitime of Bill and Homer Stark had not been satisfied in accordance with Louisiana law. In response, Appellee, the Nelda C. and H.J. Lutcher Stark Foundation, represented by Walter Riedel, III, its Chairman of the Board, filed exceptions of res judicata, prescription and no right of action.

The Foundation’s exceptions were originally set for hearing on April 11, 2005, but were continued and re-fixed for May 23, 2005 at the request of Appellants’ counsel. Appellants also filed a motion for continuance and a motion for contempt which were set for hearing on the same date. The trial court: (1) denied Appellants’ motions for continuance; (2) denied Appellants’ motion for contempt; (3) granted Appellee’s exception of prescription; (4) denied Appellee’s exception of no right of action; and (5) found the exception of res judicata to be moot.

Appellants appeal the denial of the motions for continuance and the granting of the exception of prescription. For the following reasons, we affirm.

ISSUES

The issues presented for our review are:

(1) whether the trial court erred in denying the motions for continuance; and
(2) whether the trial court erred in granting the exception of prescription on the “claims for reduction” against the Foundation.

LAW AND ARGUMENT

Motions For Continuance

As noted above, prior to the date of the hearing, Appellants filed a written motion for continuance asserting that, due to illness, Ida Marie Stark could not attend |Bthe scheduled hearing date. Additionally, at the beginning of the hearing on May 23, 2005, Appellants orally moved for a continuance asserting the inability of Ida Marie Stark, co-executrix of the Succession of Nita Hill Stark, to appear and testify at the hearing due to her hospitalization. The parties stipulated that she was hospitalized and physically unable to attend the hearing.

Appellants assert on appeal that the trial court erred in not granting the motions for continuance due to the inability of Ida Marie Stark to appear at the hearing. In support of their assertion, Appellants cite La.Code Civ. P. art. 1601 and, alternatively, La.Code Civ. P. art. 1602.

Louisiana Code of Civil Procedure Article 1602 sets out the .peremptory grounds for a continuance, providing as follows:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

If the requisite showing is made, the granting of a continuance is mandatory. However, each of the elements must be established before a continuance must be granted, including the “[mjateriality of missing evidence....” Herb’s Machine Shop, Inc. v. John Mecom Co., 426 So.2d 762, 765 (La.App. 3 Cir.), writ denied, 430 So.2d 98 (La.1983) (citing Gallin v. Travelers Ins. Co., 323 So.2d 908 (La.App. 4 Cir.1975), writ denied, 329 So.2d 452 (La.1976)). Additionally, the burden is on the Appellants to prove that the motion for continuance comes within the parameters of the peremptory grounds set forth in La.Code Civ.P. art. 1602. Roberson v. Cities Service Co., 478 So.2d 211 (La.App. 3 Cir.1985).

Appellants contend that Ida Marie Stark was a material witness since she is a co-executrix of the estate. They conclude that her absence, therefore, mandated a | (¡continuance of the hearing date pursuant to La.Code Civ. P. art. 1602. We disagree.

Appellants assert that Ida Marie Stark’s testimony was required to establish that the estate had never been involved in prior litigation and that she, as co-executrix of the estate, had not executed any receipt and release documents and had not been a part of a final judgment. However, the substantive nature of the testimony of Ida Marie Stark sought to be introduced was not pertinent to the exception of prescription. “Evidence is material if the proposition it tends to prove or disprove is a matter in issue.” Matte v. La. Farm, Bureau Cas. Ins. Co., 95-1308, p. 4 (La.App. 3 Cir. 6/12/96), 676 So.2d 713, 715 (quoting State v. Rogers, 553 So.2d 453, 455 (La.1989)). In other words, “[n]o factual showing was made that [her] presence was necessary to resolve this controversy.” Armstrong v. State Farm Fire & Cas. Co., 423 So.2d 79, 81 (La.App. 1 Cir. 1982). Therefore, we find that Appellants failed to establish the requirements for a continuance under La.Code Civ. P. art. 1602.

Additionally, a trial court may grant a motion for continuance on discretionary grounds as set forth in La.Code Civ.P. art. 1601, which provides that “[a] continuance may be granted in any case if there is good ground therefor.” Appellants assert in their appellate brief “that an exception, by definition, is a defense,” and that “Ida Marie Stark, as co-executrix, should have the opportunity to respond to the ‘defenses’ that were raised by the Foundation.” They conclude that this constituted “good ground[s]” under La.Code Civ. P. art. 1601. We disagree.

Appellants acknowledge in their appellate brief that the other co-executrix, Rebecca Stark Nugent, was questioned on the “defenses” raised by the Foundation. However, we find that neither the testimony of co-executrix Rebecca Stark Nugent, nor the proffered testimony of co-executrix Ida Marie Stark, was relevant to the granting or denial of the exception of pre-scription. We, therefore, conclude that ^Appellants likewise failed to establish the requisite “good ground” for a continuance pursuant to La.Code Civ. P. art. 1601.

During the course of the hearing, counsel for Appellants re-urged his motion for continuance due to the absence of Ida Marie Stark. This motion for continuance was based upon Appellants’ inability to introduce evidence that Ida Marie Stark had hired a land man to investigate whether or not certain assets were included in the estate. After the trial court’s denial of a continuance on this issue, counsel for Appellants offered a proffer of what Ida Marie Stark would have testified to had she been present at the hearing. The proffer began with counsel stating that Ida Marie Stark “could testify about how she hired [a land man] and looked into whether or not there were potential assets or mineral interests that could be owed the succession.”

We find that the proffered testimony of Ida Marie Stark would be hearsay testimony and, therefore, inadmissible even if the witness had testified at the hearing. We further note that Appellants failed to call the land man as a witness to testify about his findings, if any, which they could have done. We, therefore, find Appellants argument on this issue to be without merit.

“It is a well-established rule that the trial judge has wide discretion in acting upon a motion for continuance. His ruling will not be disturbed on appeal in the absence of clear showing of abuse of that discretion.” Sauce v. Bussell, 298 So.2d 832, 834 (La.1974); Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424; Taylor v. Sauls, 99-1436 (La.App. 3 Cir. 9/6/00), 772 So.2d 686, writs denied, 00-2802, 00-2805 (La.12/8/00), 776 So.2d 461. Considering the record in its entirety, we find no abuse of discretion in the trial court’s denial of Appellants’ motions for continuance of the May 23, 2005 hearing.

| ¡¿Exception of Prescription

Appellants contend that the trial court erred in granting Appellee’s exception of prescription. We disagree.

Appellants asserted in the trial court, and again in their appellate brief, that the Foundation cannot raise the defense of prescription since the Foundation was not made a party to the lawsuit. We find this argument to be without merit.

Appellants’ petition is entitled “Petition for Appointment of Dative Testamentary Co-Executors and for Recovery of Legi-time.” Notably, paragraph seven of the petition alleges that “[t]he legacy received by Homer Stark and William [“Bill”] H. Stark, II did not satisfy their legitime under Louisiana law.” Additionally, paragraph ten of the petition alleges, “that the legitime of William [“Bill”] H. Stark, II and Homer Stark has not been satisfied in accordance with Louisiana law.”

It is unrefuted that upon the death of H.J. Luther Stark, and in accordance with his testament, the universal legatees of his succession were Nelda, his widow, and the Foundation. Nelda died on December 13, 1999 and, pursuant to her testament, the Foundation was named the universal legatee of her succession. Consequently, the Foundation is the universal successor of Lutcher’s estate and, therefore, it is the only entity from which a reduction may be claimed. Appellee has the legal right to have that justiciable issue resolved. In succession proceedings, heirs, legatees, and creditors often resolve justiciable issues between them by use of motions, exceptions, and rules to show cause without any formal naming of defendants, all under the umbrella of a succession proceeding. Such is the case here. All parties to the justiciable issue were duly notified and given an opportunity to be heard. Procedural due process was satisfied and a decision rendered. Formal naming of a defendant was not necessary considering the facts and circumstances of. this case.

On the substantive merits' of the exception of prescription, Appéllants put forth 1 sno argument supporting their contention that their claim has not prescribed. The record reveals that Nita Hill Stark died October 11, 1939. Her will was first filed for probate in Louisiana on December 12, 1941. The prescriptive period applicable to a suit to reduce a donation mortis causa begins to run from the date the will is filed for probate. In re Andrus, 221 La. 996, 60 So.2d 899 (1952); Kilpatrick v. Kilpatrick, 625 So.2d 222 (La.App. 2 Cir. 1993), writ denied, 631 So.2d 445 (La.1994).

Louisiana Civil Code Article 3497 sets forth the relevant prescriptive period as follows:

Art. 3497. Actions subject to a five year prescription
The following actions are subject to a liberative prescription of five years:
An action for annulment of a testament;
An action' for the reduction of an excessive donation; and
An action for the rescission of a partition and warranty of portions.
This prescription is suspended in favor of minors, during minority.

(Emphasis added).

Appellants filed the present claim for reduction on January 24, 2003. The prescriptive period began to run from December 12,1941, the date Nita Hill Stark’s will was filed for probate. Therefore, the present claim was not filed within the five year prescriptive period set forth in La.Civ. Code art. 3497.

A trial court’s findings of fact regarding an exception of prescription may not be reversed absent manifest error. Dauterive Contractors, Inc. v. Landry & Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242. For the foregoing reasons, we find no manifest error in the trial court’s judgment granting Appellee’s exception of prescription and dismissing Appellants’ claim for reduction.

This court also notes, as did the trial court in its oral reasons for judgment, that the granting of Appellee’s exception of prescription relates solely to Appellants’ |inclaim for reduction. It does not relate to any other claims which Appellants may have in connection with the estate of Nita Hill Stark. Therefore, this matter is remanded to the trial court for further proceedings.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court denying Appellants’ motions for continuance. Further, we affirm the judgment of the trial court granting Appellee’s exception of prescription and its dismissal of the claim for reduction brought by Ida Marie Stark, individually, and as Independent Executrix of the Estate of William “Bill” H. Stark, II, Randall Hill Stark, William H. Stark, III, and Lynn Stark Barras. We remand this matter to the trial court for further proceedings consistent herewith.

Costs of this appeal are assessed against Ida Marie Stark, individually, and as Independent Executrix of the Estate of William H. Stark, II, Randall Hill Stark, William H. Stark, III, and Lynn Stark Barras.

AFFIRMED AND REMANDED.

      . Although this motion for continuance and motion for contempt were not located in the record, the trial court orally rendered judgment on these issues on May 23, 2005, and included same in the written judgment of July 8, 2005. Additionally, the appellate briefs of the parties reference these motions.


text:
    Melissa HORACEK v. Davelyn WATSON, et al.
    No. 06-210.
    Court of Appeal of Louisiana, Third Circuit.
    July 5, 2006.

      Robert G. Nida, Alexandria, Louisiana, for PlaintiffiAppellant, Melissa Horacek.
    Thomas O. Wells, Alexandria, Louisiana, for Defendants/Appellees, Davelyn Watson, individually, and d/b/a Watson Properties, and Carl Watson, individually, and d/b/a Watson Properties.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this suit for damages arising out of a home rental agreement between Plaintiff and Defendants, Plaintiff appeals the district court’s judgment granting Defendants’ exception of res judicata based upon a prior judgment of eviction rendered in city court. For the following reasons, we reverse and remand for further proceedings.

FACTS

In October 2001, Plaintiff, Melissa Hora-cek (Horacek), executed a rental agreement with Davelyn Watson for a home in Alexandria, Louisiana. On June 24, 2002, Davelyn Watson filed a rule to evict Hora-cek in Alexandria City Court. On July 9, 2002, the city court judge rendered judgment in favor of Davelyn Watson and against Melissa Horacek ordering Horacek to vacate the premises and to deliver possession thereof to Davelyn Watson.

On March 21, 2003, Horacek filed the present action in the Ninth Judicial District Court in Rapides Parish against Defendants, Davelyn Watson, individually, and doing business as Watson Properties, and Carl Watson, individually, and doing business as Watson Properties. Horacek alleges in her petition that in May of 2002 she notified Davelyn Watson of her intention to vacate the premises and that they agreed to a pro-rated rental amount for the time her belongings would remain on the rental property after vacating same. Horacek alleges that when she returned to the property to obtain her belongings, she discovered that they had been removed from the premises and discarded. Hora-cek contends that Defendants are the owners of the rental property and that their wrongful seizure of her property constituted tortious conduct, breach of contract, and violated Louisiana law regarding rental agreements and evictions of tenants.

|2The answer of Davelyn Watson and Carl Watson (d/b/a Watson Properties) averred that Carl Watson was the full owner of the rental property and that Da-velyn Watson had no ownership interest in the property as had been alleged. Additionally, Defendants filed a reconventional demand against Horacek wherein they asserted that Horacek had caused damage to the rental property and had abandoned same. Defendants subsequently filed an exception of res judicata asserting that Horacek’s present action was a compulsory reconventional demand which was required to have been asserted by her in the suit for eviction filed in the Alexandria City Court.

The exception of res judicata was heard in the district court on August 15, 2005. After taking the matter under advisement, the district court judge granted the exception of res judicata and dismissed Hora-cek’s claims with prejudice. It is from this judgment that Horacek appeals. For the following reasons, we reverse and remand for further proceedings.

ISSUE

The sole issue presented for our review is whether the district court erred in granting the exception of res judicata.

LAW AND ARGUMENT

Horacek asserts that the district court erred in concluding that her failure to reconvene in the Alexandria City Court warranted the application of the doctrine of res judicata. We agree.

Louisiana Code of Civil Procedure Article 425(A) provides that “[a] party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.” Additionally, by its use of the mandatory language “shall,” La.Code Civ.P. art. 1061(B) requires a “defendant in the principal action” to “assert in a reconventional demand all causes of action that he may have against the | aplaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.” In Walker v. Howell, 04-246, p. 2 (La.App. 3 Cir. 12/15/04), 896 So.2d 110, 112, this court held that “an exception of res judicata is the proper procedural vehicle to enforce the ... mandates [of La.Code Civ.P. art. 425 and La.Code Civ.P. art. 1061] by barring claims that were or could have been litigated in a previous lawsuit.”

Louisiana law applicable to res judicata is embodied in Louisiana Revised Statutes 18:4231, which provides as follows:

§ 4231. Res judicata
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Defendants argued in the district court, and again on appeal, that the doctrine of res judicata precludes the present action by Horacek due to her failure to assert her claim via reconventional demand in the city court proceedings. Despite the procedural constraints preventing such a reconventional demand, the district court agreed with this assertion. The notice of rendition of oral judgment issued by the district court reads, in pertinent part, as follows:

|4The Exception of Res Judicata is granted. [La.Code Civ. P.] art. 1061(B) now provides all claims which arise out of the same transaction shall be brought as a reconventional demand. The fact that the initial action to evict was a summary proceeding and the reconven-tional demand must be brought in an ordinary proceeding does not change the requirement that it indeed be brought. The proper course of action would be to file the reeonventional demand and then have the issues severed by the court. Earhart v. Brown, [97-522, (La.App. 5 Cir. 10/28/97), 702 So.2d 976.]

We disagree with the Earhart decision and find the district court’s reliance on same to be misplaced.

The present claim for damages asserted by Horacek could not have been litigated in the previous lawsuit filed in the Alexandria City Court for two reasons. First, the action filed in the city court was for eviction. Such an action is a summary proceeding instituted by a rule to show cause. La.Code Civ.P. art. 2592; La.Code Civ.P. art. 4731. In contrast, the present suit for damages requires suit by ordinary process. La.Code Civ.P. art. 851. The Louisiana Code of Civil Procedure requires that “[t]he mode of procedure employed in the incidental action shall be the same as that used in the principal action, except as otherwise provided by law.” La. Code Civ. P. art. 1036(B). Accordingly, an attempt by Horacek to assert her present claim for damages in the city court proceedings would have violated La.Code Civ.P. art. 1036(B).

Secondly, the present claim for damages could not have been litigated in the Alexandria City Court due to a lack of jurisdiction. Louisiana Code of Civil Procedure Article 4843(K) grants the City Court of Alexandria jurisdiction over cases “where the amount in dispute, or the value of the property involved, does not exceed thirty-five thousand dollars.” Paragraph eighteen of Horacek’s petition asserts that “her damages [are] greater than $50,000.00,” and paragraph nineteen states that she | ¡/‘desires and is entitled to trial by jury as to all issues herein.”

Being a court of limited jurisdiction, the Alexandria City Court would have been without jurisdiction to resolve the amount allegedly in dispute. Additionally, La. Code Civ.P. art. 4871 states that “[t]here shall be no trial by jury in any case in a ... city court....” Consequently, a trial by jury is prohibited in the Alexandria City Court. Therefore, the present claim is not a claim that could have been litigated in the original proceedings filed in the Alexandria City Court.

As noted above, Appellees argue that despite the procedural constraints preventing Horacek from having the present action litigated in the Alexandria City Court, the proper procedure would have been for Horacek to file her reeonventional demand in the city court, and then to have the court sever her claim for damages and transfer same to the district court pursuant to La.Code Civ.P. art. 4873. This is not required by the Louisiana Code of Civil Procedure.

Appellees’ argument is likewise contrary to the intent of the doctrine of res judicata. Comment (a) to La.R.S. 13:4231 states that the purpose of the doctrine of res judicata “is to foster judicial efficiency and also to protect the defendant from multiple lawsuits.” Similarly, comment (b) to La.R.S. 13:4231 states that “this principle serves the interests of judicial economy....” As this court recognized in Metoyer v. Roy O. Martin, 03-1540, p. 2 (La.App. 3 Cir. 12/1/04), 895 So.2d 552, 564, on rehearing, writ denied, 05-1027 (La.6/3/05), 903 So.2d 467 (quoting Lee v. Twin Bros. Marine Corp., 03-2034, pp. 4-5 (La.App. 1 Cir. 9/17/04), 897 So.2d 35, 37), “[t]he purpose of res judicata is to promote judicial efficiency and final resolution of disputes by preventing needless relitigation.” The judicial efficiency of the doctrine of res judi-cata is neither promoted nor accomplished by requiring Plaintiff in this case to file her claim for damages against Defendants via 1 fireconventional demand in the summary eviction proceedings in the Alexandria City Court. Because the city court lacks jurisdiction over the amount in dispute and cannot accommodate a trial by jury, it is nonsensical to require Plaintiff to file a motion to sever the claims and a motion to transfer her claim to the district court. That would be tantamount to judicial inefficiency as opposed to judicial efficiency.

For the foregoing reasons, we reverse the judgment of the district court granting the exception of res judicata and remand this matter to the district court for further proceedings.

’ Having found that Horacek’s present claim is not barred by the doctrine of res judicata, this court need not address Appellant’s alternative argument that the present action lacks an “identity of parties” as required by Burguieres v. Pollingue, 02-1385 (La.2/25/03) 843 So.2d 1049. However, we do note that Carl Watson was not a party to the eviction proceedings in the Alexandria City court and that the sole plaintiff in that proceeding was Davelyn Watson.

DECREE

For the reasons set forth above, we reverse the judgment of the trial court granting Defendants’ exception of res judi-cata and dismissing Plaintiffs suit with prejudice. This matter is remanded for further proceedings consistent herewith.

Costs of this appeal are assessed against Defendants, Davelyn Watson, individually, and d/b/a Watson Properties, and Carl Watson, individually, and d/b/a Watson Properties.

REVERSED AND REMANDED.


author: THIBODEAUX, Chief Judge. GREMILLION, J., PAINTER, J.,

text:
    John and Klea HEBERT v. RAPIDES PARISH POLICE JURY, et al.
    No. 05-471.
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2006.

      See also 882 So.2d 1125.

      Ronald J. Fiorenza, John D. Ryland, Alexandria, LA, for Defendant/Appellant— State of Louisiana, Department of Transportation and Development.
    Roy S. Halcomb, Jr., Alexandria, LA, for Plaintiffs/Appellees — John and Klea Hebert.
    Robert L. Bussey, Assistant District Attorney — Parish of Rapides, Alexandria, LA, for Defendant/Appellee — Rapides Parish Police Jury.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, GLENN B. GREMILLION, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

11 Plaintiffs, John and Klea Hebert (the Heberts), the parents of a teenager killed in a one-car accident, brought a wrongful death and survival action against the Rap-ides Parish Police Jury (RPPJ) and the State of Louisiana, through the Department of Transportation and Development (DOTD). The RPPJ requested a bench trial; therefore, the trial was bifurcated and the DOTD’s fault was tried to a jury. The jury found that the DOTD and the RPPJ were both 50 percent at fault; however, the trial judge assessed no fault to the DOTD, attributed 60 percent of the fault to the deceased driver, and assessed the remaining 40 percent of fault to the RPPJ. The DOTD and the plaintiffs have appealed. We have undertaken a de novo review of the record in order to harmonize the verdicts. For the reasons set forth, the judgment of the trial court is amended and, as amended, is affirmed.

I.

ISSUES

The DOTD’s Issues

1. Did the trial judge err in admitting into evidence the DOTD inspection reports of the Haines Creek Bridge?
2. Did the trial judge err in failing to include on the verdict form the contractor/construction company that built the Haines Creek Bridge?
3. Did the trial judge err in finding that the DOTD was legally liable for the condition of the Haines Creek Bridge?
4. Did the trial judge err in the methodology used to incorporate its verdict and that of the jury into a single judgment?

|<,The Heberts’ Issue

5. Should the judgment be amended to reflect survival damages in the amount of $34,435.62 rather than $24,453.63?

II.

FACTUAL BACKGROUND

Katie Hebert, the seventeen-year-old daughter of the plaintiffs, was killed in a one-ear accident at approximately 9:00 p.m. on October 15, 1995. She was alone and driving east on Philadelphia Road in Rapides Parish. It is believed that as she entered a deep curve that approaches the Haines Creek Bridge, the right wheels of the vehicle she was driving left the roadway. There was a six-inch to eight-inch drop-off to the shoulder. Upon re-entering the roadway, she apparently lost control of the vehicle and collided with the Haines Creek Bridge railing. The bridge railing was constructed of three-inch pipes that were not bordered by guardrails. One of the pipes pierced Katie’s door, killing her. Prior to the accident, there were no curve warning signs or reduction in speed signs posted in advance of the curve.

Philadelphia Road and the Haines Creek Bridge are part of an “off-system” roadway, owned and maintained by the RPPJ. The bridge was constructed in 1980. Shortly after the construction of the bridge, the DOTD began to perform bridge inspections every two years. In each of its inspection reports, it advised the RPPJ that the bridge was in substandard condition. Prior to Katie’s accident, neither the DOTD nor the RPPJ took any action to remediate those conditions.

The plaintiffs sued for damages the RPPJ, the DOTD, and the contractor that built the bridge, Slocum Construction and/or Slocum Manufacturing (Slocum). Slocum was dismissed from the suit pursuant to La.R.S. 9:2772, because the suit was filed against it more than five years after the peremptive period allowed for doing so. |sThe suit proceeded against the remaining defendants. The Heberts asserted that the absence of guardrails from the bridge was the primary cause of Katie’s death and that both defendants were responsible for this condition. The RPPJ and the DOTD both alleged that Katie’s excessive speed upon entering the curve was the cause of her injuries.

The RPPJ requested a bench trial. The case against the DOTD was tried to a jury. The judge completed the same jury verdict form that was completed by the jury. He found that the RPPJ was 40 percent at fault and that Katie was 60 percent at fault. He did not assess any liability to the DOTD. The jury, on the other hand, found the RPPJ and the DOTD to be equally at fault and assessed each of them with 50 percent liability for the accident. It assessed no fault to Katie. The jury’s verdict form reflected an award for general damages to the Heberts in the amount of $750,000.00 each, a joint award of survival damages for Katie’s pre-death pain and suffering in the amount of $25,000.00, special damages to the plaintiffs in the amount of $43,871.24, for a total damage award of $1,568,871.24. The trial judge’s verdict form reflected an award of $500,000.00 to Mrs. Hebert in general damages, $700,000.00 in general damages to Mr. Hebert, total survival damages in the amount of $100,000.00, and special damages totaling, $80,066.00.

The trial judge rendered a single judgment. In accordance with the separate verdicts rendered by the court and the jury, the DOTD was to pay the Heberts $375,000.00 each in general damages and $24,435.63 jointly, with legal interest on all amounts awarded from the date of judicial demand until paid. The RPPJ was ordered to pay Mrs. Hebert, $200,000.00, to pay Mr. Hebert, $280,000.00, and to pay them, jointly, special damages in the amount of $53,591.50, with legal | interest on all amounts awarded from the date of judicial demand until paid. All court costs were assessed equally to the DOTD and the RPPJ.

The DOTD suspensively appealed the judgment, and the Heberts answered the appeal. The RPPJ has not appealed.

III.

LAW AND DISCUSSION

Admissibility of the Bridge Inspection Reports

The admissibility of the bridge inspection reports prepared by the DOTD was initially the subject of a Motion to Strike filed by the DOTD in the trial court. The DOTD argued that the reports were inadmissible pursuant to 23 U.S.C. § 409. The Heberts argued they were admissible because they were not being compiled for purposes contemplated in the statute. The trial court denied the DOTD’s motion on November 24, 2003, and accepted the reports into evidence. The DOTD filed writs with this court and the supreme court, both of which were denied. As the trial date approached, the DOTD filed a Motion for Protective Order, again seeking to exclude from evidence the bridge inspection reports. The trial court denied the motion on September 20, 2004, and again ruled that 23 U.S.C. § 409 did not apply to the bridge | ¡Inspection reports, because the reports had been compiled and collected for purposes unrelated to the statute. Writs were applied for with this court and the supreme court and both were denied. The DOTD, now on appeal, asks this court to again review the propriety of the admissibility of these reports into evidence during the trial.

This court’s denials of both supervisory writs, in which we expressly stated our findings of no error in the trial court’s rulings, constitute the law of the case. The law of the case doctrine applies to prior rulings of appellate courts and, generally, provides that an appeal court will not reconsider its own rulings of law in the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916 So.2d 347. The application of this doctrine is discretionary and may be inapplicable in cases in which the prior decision “was palpably erroneous or its application would result in manifest injustice.” Id. at 352 (quoting Griggs v. Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, 19, writ denied, 99-385 (La.5/28/99), 735 So.2d 622). In this case, we find no palpable error in the previous ruling of this court. The doctrine of law of the case is applicable; therefore, this assignment of error lacks merit.

Reconciling the Verdicts

Standard of Review

The seminal issue that must be addressed in this appeal is the determination of the appropriate standard of review to be applied to the findings and apportionments of fault rendered as a result of this bifurcated trial. In Thornton v. Moran, 343 So.2d 1065 (La.1977), the supreme court stated that in such cases, the appellate court is to resolve the differences in the factual findings made by the jury with those made by the trial court and render a single opinion based upon the record. | Jd. The supreme court has since acknowledged that this pronouncement has resulted in multiple approaches being instituted by the appellate courts to reconcile such conflicting verdicts, but it has yet to finally resolve the issue. See Davis v. Witt, 02-3102, 02-3110 (La.7/2/03), 851 So.2d 1119.

The first circuit advocates applying the manifest error standard of review initially to each of the fact finders’ findings and apportionments of fault and, if both of the fact finders’ results survive this review for error, then it undertakes a review of the record to determine the most reasonable of the findings in order to reconcile the verdicts. Hussey v. Russell, 04-2377, 04-2378 (La.App. 1 Cir. 3/29/06), 934 So.2d 766, 2006 WL 786538 (citing Cornish v. State, Dep’t of Transp. & Development, 93-0194 (La.App. 1 Cir. 12/1/94), 647 So.2d 1170, writs denied, 95-0547, 95-0574 (La.12/1/94), 654 So.2d 324); see also, Thornton v. Moran, 348 So.2d 79 (La.App. 1 Cir.), writs denied, 350 So.2d 897, 350 So.2d 898, 350 So.2d 900 (La.1977). The first circuit has explained its approach as follows:

[W]e must ... determine whether the findings of fault and apportionment of fault by the trial judge and the jury are reasonable and not manifestly erroneous. In the event that this court finds that the findings of both as to any particular determination are manifestly erroneous, this court is free to evaluate the facts de novo, and after a review of the complete record, make our own findings as to that particular determination. If in initially applying the manifest error test to the findings of the factfinders, this court concludes that a finding by one of the factfinders was manifestly erroneous, but the finding of the other is not, then we are free to disregard the finding of the factfinder that was manifestly erroneous. In other words, we would eliminate the clearly wrong finding and be left with only one reasonable finding.

Hussey, 04-2377, 04-2378 at p. 14, 934 So.2d at 775-76 (quoting Cornish, 647 So.2d at 1178-79). As explained in Thornton, when both verdicts survive this review for error the “review-functional rule,” also referred to as the “reasonable conclusion of fact” rule, is used |7to reconcile any differences in factual findings. This is done by determining which witnesses were more credible in order to decide which fact finder gave the more reasonable measurement to the evidence in reaching its verdict and in order to determine which fact finder gave a more reasonable evaluation to the facts and drew a more reasonable inference from those facts. Thornton, 348 So.2d 79.

The second circuit currently employs this methodology as well. See Hays v. State, 37,229 (La.App. 2 Cir. 9/24/03), 856 So.2d 64, writs denied, 03-3187 (La.2/6/04), 865 So.2d 726, 03-3218 (La.2/6/04), 865 So.2d 729; Eppinette v. City of Monroe, 29,366 (La.App. 2 Cir. 6/20/97), 698 So.2d 658. However, in an earlier decision, Mayo v. Audubon Indemnity Insurance Co., 26,767, 27,862 (La.App. 2 Cir. 1/24/96), 666 So.2d 1290, writ denied, 96-457 (La.4/1/96), 671 So.2d 325, the second circuit held that de novo review was the appropriate standard of appellate review in a bifurcated case in which the judge and jury render inconsistent verdicts. The court relied on, then, Chief Judge Pike Hall’s concurring opinion in Smiley v. Sikes, 543 So.2d 1084 (La.App. 2 Cir.1989), which surveyed the current state of the courts on this issue, as well as a line of fourth circuit cases that have long advocated the application of the de novo standard of review in such situations. Mayo, 666 So.2d 1290. This decision was expressly abrogated by the second circuit, however, in Eppinette, 698 So.2d 658. The court returned to the conclusion that the appellate court should give some deference to the. factual findings of the judge and jury and, if possible, should attempt to harmonize their inconsistent verdicts. Id.

The fourth circuit, as mentioned earlier herein, has held that no deference is to be given to the judge or jury’s inconsistent determinations regarding liability or damages in bifurcated cases, and that the appellate courts should undertake a de novo review of the record to make its own independent findings based on the record. See Madison v. Ernest N. Morial Convention Ctr.-New Orleans, 00-1929, 01-1127 (La.App. 4 Cir. 12/4/02), 834 So.2d 578, writs denied, 03-28, 03-30 (La.6/20/03), 847 So.2d 1241; McCullough v. Reg’l Transit Auth., 593 So.2d 731 (La.App. 4 Cir.), writ denied, 595 So.2d 655 (La.1992).

The fifth circuit has reconciled conflicting verdicts by examining the record and deciding which decision, the judge or the jury’s, is the more reasonable. American Cas. Co. v. Ill. Cent. Gulf R.R. Co., 601 So.2d 712 (La.App. 5 Cir.), writ denied, 604 So.2d 1005 (La.1992)(stating a reliance on this court’s methodology set forth in Succession of Theriot v. S. Pac. Transp. Co., 560 So.2d 861 (La.App. 3 Cir.), writs denied, 565 So.2d 451, 565 So.2d 453, 565 So.2d 454 (La.1990); Felice v. Valleylab, Inc., 520 So.2d 920 (La.App. 3 Cir.1987), unit denied, 522 So.2d 562 (La.1988)). It has expressly rejected the application of the manifest error rule in these cases. Id.

This court has not been uniform in its application of standards of review in these cases. We have stated an acceptance of the first circuit’s approach set forth in Thornton, 348 So.2d 79, which states that where inconsistent findings are reached, an appellate court should resolve those differences and reach a single harmonized decision based on the record as a whole and then adopt the more reasonable decision. See Hatcher v. State, Dep’t of Transp. & Dev., 478 So.2d 774 (La.App. 3 Cir.), unit denied, 479 So.2d 923 (La.1985). More recently, in Hasha v. Calcasieu Parish Police Jury, 94-705 (La.App. 3 Cir. 2/15/95), 651 So.2d 865, units denied, 95-667 (La.4/28/95), 653 So.2d 592, 95-676 (La.4/28/95), 653 So.2d 593 (Thibodeaux, J„ concurring); however, we rejected this approach and relied on certain earlier decisions by our court which found that there is no conflict to be reconciled in a bifurcated trial in which the jury has apportioned fault to a governmental entity, when |9the determination of that fault has been granted to the judge only. Id. (citing Bishop v. Shelter Ins. Co., 461 So.2d 1170 (La.App. 3 Cir.1984), writ denied, 465 So.2d 737 (La.1985); Deville v. Town of Bunkie, 364 So.2d 1378 (La.App. 3 Cir.1978), writ denied, 366 So.2d 564 (La.1979)). It was reasoned that because the governmental entity’s fault was to be tried by judge only, no deference need be given to the jury’s findings or fault apportionment regarding the governmental entity. Hasha, 651 So.2d 865. In such cases, we did not attempt to reconcile the separate liability determinations made by the jury and judge as to the governmental entity but, rather, applied the manifest error standard of review to those adjudications on appeal. Id. However, we found that to the extent the assessment of damages by the separate fact finders is inconsistent, a conflict is created and those conflicting damage awards must be harmonized. Id. As to that determination, we stated that the appellate court is to examine the record to find which damage award is the more reasonable. Id.

Other than the fourth circuit, the standards of review employed by the remaining circuits, including this circuit, are too cumbersome .and unwieldy, to survive objective application. In fact, in some instances the standard used eschews the fact finder’s role in that an appellate court is sometimes compelled to choose between two views which are both considered reasonable. We find that the most practical and legally sound procedure susceptible of uniform application is the de novo standard of review. As was observed in Mayo, 666 So.2d 1290, and as argued in the concurring opinion to this circuit’s decision in Hasha, 651 So.2d 865, the appellate courts’ prior holdings on the proper analytical tool to employ in reconciling these verdicts are, otherwise, inconsistent and confusing.

Further, we find that a reversible error of law is committed when judgments are rendered that do not fully determine the rights of the parties involved, | ^which is the case in bifurcated trials that restrict the separate fact finders’ determinations of liability to certain parties. When appellate courts find that a reversible error of law was committed in the trial court, we are required to redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840, fn. 2 (La.1989).

Accordingly, for this reason, and those set forth above, we will apply the de novo standard of review in this case. The remaining assignments of error of the DOTD and the Heberts’ are rendered moot by this determination.

Liability and Apportionment of Fault

The DOTD and the RPPJ are both public entities whose liability for the condition of the Haines Creek Bridge must be determined by establishing the following elements:

In order to prove liabihty of a public entity based on a defective condition of a bridge or roadway the plaintiff must prove custody or ownership of the defective thing by the public entity; the defect created an unreasonable risk of harm; actual or constructive knowledge of the defect or risk of harm and failure by the public entity to take corrective action within a reasonable time; and causation.

Aetna Cas. & Surety Co. v. State, through Dep’t of Transp. & Dev., 97-0716, 97-0717, p. 5 (La.App. 1 Cir. 4/8/98), 712 So.2d 216, 219, twit denied, 98-1241 (La.7/8/98), 724 So.2d 209. Regarding “off-system” roadways, we have recognized the following:

The state has a duty to maintain a road or bridge or make a road or bridge safe where that road or bridge is included in the state highway system. La.R.S. 48:21; La.R.S. 48:191; and La.R.S. 48:193. Where the road or bridge is not on the state highway system and falls within a parish but outside the corporate limits of any municipality, a duty to maintain the road or bridge falls on the parish.

Sopcjak v. City-Parish Gov’t of Lafayette, 98-240, 98-241, p. 3 (La.App. 3 Cir. 10/28/98), 721 So.2d 537, 539.

In this case, the parties do not contest that the bridge was not a part of the state highway system. However, the Heberts argued that the DOTD assumed liability for the bridge when it commenced regular inspections of the bridge. It was further argued that under La.R.S. 48:35, the DOTD had a legal duty to withhold funds if improvements to public roads failed to conform with the minimum public road and highway safety standards that it was required to establish. Because the DOTD never withheld any funds from the RPPJ, although its inspection reports revealed its knowledge of the absence of guardrails, the Heberts argued that the l iiJDOTD breached its duty and was corn-paratively negligent in the resulting accident and injuries.

The DOTD argues, contrarily, that its only involvement with the bridge was via its bridge inspections, which were carried out solely to comply with 23 U.S.C. § 144, the federal highway bridge replacement and rehabilitation program that requires states to perform inventories of bridges for purposes related to that program. The DOTD additionally contends that the He-berts misapplied La.R.S. 48:35 to the facts of this case and also have misinterpreted La.R.S. 48:35. It argues that the mandate to withhold funds allocated for construction purposes does not apply here because, first, there is no proof that the DOTD participated in funding this project or possessed the funds that could be withheld under the statute. Secondly, it argues that even if the mandate were applicable, under the circumstances of this case, the language cannot be read as a legislative imposition of a legal duty on it to ensure that an “off-system” bridge, such as this, is built or repaired to comply with adopted standards. Aside from the Heberts’ sole reliance on these bridge inspections, which the DOTD claims do not serve as a sufficient basis to find that it assumed or possessed a duty to maintain the bridge, the DOTD contends that any findings of liability against it should be reversed since there is no evidence to support a finding that it acted in any manner to assume a duty to maintain this off-system bridge.

Without addressing whether La.R.S. 48:35 imposes a legal duty on the DOTD in this case, we find that the DOTD assumed a duty to maintain this bridge because it carried out biennial inspections of this nonconforming bridge over a fifteen-year period, participated in the construction of the bridge in 1980, and had constructive and, eventually, actual knowledge that it was built in a non-conforming manner. See Archon v. Union Pac. R.R., et al., 94-2728, 97-2743 (La.7/2/96), 675 So.2d 1055 (finding that the DOTD assumed a duty of upgrading a railroad crossing with active signals when it ordered a site survey and breached that duty when it failed to upgrade the crossing after the survey).

We first note that a former, twenty-two year employee of the DOTD and certified bridge inspector, Jerry Burnamen, testified that if the parish bridge was constructed using either state funds or DOTD funds, a state inspector would have been present during the construction phase of the project. The purpose would be to insure that the bridge would be built under acceptable standards.

The record also contains testimony from Cecil Raggio, who was employed by the RPPJ as its Public Works Director and Parish Engineer from 1977 to 2002, indicating that state funds were used to build the bridge, although he was not certain whether the construction funds were paid directly through the DOTD. He, however, identified at trial a letter that he sent to the DOTD regarding the construction of the bridge. The letter, he averred, contained a DOTD project number that he was required to use when corresponding with the state for reimbursements in connection with the bridge construction project.

Rhett Deselle, the District Maintenance Engineer for the DOTD from 1984 to 2000, testified that state funds could have been used to construct the bridge and, if so, the project would have been assigned a project number. He, testified that the project number identified by Mr. Raggio was similar to the older project numbers that were once used by the DOTD.

Having determined that the DOTD, as well as .the RPPJ, were both legally responsible for the maintenance of the bridge, we now turn to the determination of whether the absence of guardrails created an unreasonably dangerous condition. Regarding the duty of a governmental entity such as a parish 114poIice jury to maintain its highways, roads, and streets, the Louisiana Supreme Court in Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430, 432-33 (La.1975), stated:

A parish police jury, however, is not an insurer of travelers upon its highways, roads and streets. The duty owed is to exercise reasonable care to keep these public ways in such condition that travelers who are prudent and ordinarily careful will not be exposed to injury, day or night. Louisiana’s jurisprudence on the subject is built upon the theory that fault is a prerequisite to responsibility in these cases[, e].g.[,] Goodwyn v. City of Shreveport, 134 La. 820, 64 So. 762 (1914) and Suthon v. City of Houma, 146 So. 515 (La.App.1933).
Although a parish is not an insurer of the safety of travelers on its highways, roads and streets and it must keep these ways reasonably safe, they need not be maintained in perfect condition to render the parish free from liability in damages. Defects which are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Liability will only be imposed when the defect is dangerous or calculated to cause injury. Arata v. Orleans Capitol Stores, 219 La. 1045, 55 So.2d 239 (1951); White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949).
There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? Arata v. Orleans Capitol Stores, supra; cf. Nessen v. City of New Orleans, 134 La. 455, 64 So. 286 (1914); Allen v. Town of Minden, 127 La. 403, 53 So. 666 (1910).

Breshers v. State of La., Dep’t of Transp. & Development, 536 So.2d 733, 737 (La. App. 3 Cir.1988), writs denied, 541 So.2d 854, 541 So.2d 856 (La.1989) (quoting Pickens, 323 So.2d at 432-33).

The evidence and testimony presented at trial showed that the lack of guardrails on the Haines Creek Bridge created a hazardous and dangerous condition. _Ji5Expert witnesses testified that guardrails should have been placed at the ends of the bridge railings, which consisted of heavy-duty, three-inch, drill-stem pipe with unprotected ends, and which are not approved by the highway industry because of the danger they pose. These witnesses also testified that the purpose of guardrails on bridges is to prevent the type of collision and injuries that resulted in this case; however, at the time of construction and over the fifteen years leading up to Katie Hebert’s accident, guardrails were never put in place.

The DOTD’s and the RPPJ’s knowledge of the fact that the bridge did not have guardrails is undisputed. Nevertheless, they both argue that the evidence shows that the speed of Katie’s vehicle and her failure to maintain control of the vehicle caused the accident and injuries. We however find, as did the supreme court in Campbell v. La. Department of Transportation & Development, 94-1052 (La.1/17/95), 648 So.2d 898, that the failure of the accident victim to maintain control of his or her vehicle does not relieve the responsible party of its duty to keep the roadway safe. Moreover, in this case, although the testimony of Katie(s father was that she was an inexperienced driver, the Heberts’ accident reconstructionist and consulting traffic engineer, Duaine T. Evans, testified, that the lack of guardrails and hazard markers at the ends of bridge, as well as the lack of a visible center line on the road, were the major factors that contributed to the accident. He stated that guardrails in advance of a bridge are designed to absorb the energy of a vehicle crash and often prevent the type of death that occurred in this case. He also opined that other deficiencies, such as lack of curve warning signs or speed limit advisory signs and the large drop-off between the shoulder and the road, all contributed to the accident. Regarding Katie’s rate of speed, he stated that it was likely that she did not enter the curve exceeding fifty miles per hour, because she would have run off of the road entirely before reaching the bridge.

|1fiThe DOTD’s expert, Dr. Joseph Blaschke, testified in the fields of traffic engineering, highway design, and accident reconstruction.' He testified that Katie did not apparently lose control of the vehicle until her tires left the roadway, but felt that she was likely traveling faster than fifty miles per hour upon entering the curve. He also testified that the large drop-off to the shoulder of the road, the absence of guardrails, and the condition of the road all contributed to the accident.

Considering all of the evidence, we find that the negligence of Katie in driving the vehicle, and the RPPJ and DOTD’s negligence in failing to reasonably maintain the bridge, particularly the failure to place guardrails on the bridge, combined to cause the accident and resulting death of Katie. In allocating the percentages of fault, we have considered “both the nature of the conduct of each party at fault and the extent of the causal relation between the . conduct and the damages claimed.” Id. at 902 (quoting Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967, 974 (La.1985)). Based on the facts presented, we find that Katie’s negligence likely set the course for the accident to happen, but the extent of the resulting harm to her was a direct result of her vehicle’s impact with the exposed and unguarded pipes of the bridge railing. Accordingly, we find that the RPPJ’s and DOTD’s fault was more substantial than Katie’s and, therefore, allocate 10 percent of the fault to Katie Hebert, 50 percent to the DOTD, and 40 percent to the RPPJ.

General damages are fashioned to compensate for the mental or physical pain or suffering, inconvenience, loss of intellectual gratification, physical enjoyment, or other losses of life which cannot be definitively measured in monetary terms. Cox v. Moore, 01-878 (La.App. 3 Cir. 12/12/01), 805 So.2d 277, writ denied, 02-724 (La.5/31/02), 817 So.2d 94. Katie Hebert was the second oldest of six children. At the time of her death, she was the oldest child living at home. Katie helped significantly with household chores and was a close companion to her siblings. John and Klea [ 17Hebert testified that their family was close-knit; the family ate dinner together every night, attended church together as a family at least three times per week, and visited with the children’s grandparents, aunts, uncles, and cousins, as a family, generally, each Sunday. Holidays and birthdays were family affairs that were celebrated together. They both testified that the sudden loss of Katie left a “hole” in the family such that their usual activities were difficult for them all because her absence was so strongly felt.

Mr. and Mrs. Hebert both suffered from depression that was treated for years with anti-depressant and anti-anxiety medications after Katie’s death. Mrs. Hebert developed physical ailments that were nonexistent prior to Katie’s death and for which she was continuing to receive treatment as of the trial of this matter. Mr. and Mrs. Hebert’s marriage suffered after Katie’s death as well, causing them to separate for awhile, although they sought extensive counseling for their problems. They both testified that the grief and stress associated with the loss of Katie, along with the concern for the welfare of their other children, caused them to withdraw from each other. They suffered a loss of intimacy, suffered a lack of communication, and developed anger issues. All of these were issues that were not present before their daughter’s death. They both suffered difficulties on their jobs after the loss of Katie. Mrs. Hebert testified that she ultimately sought a new teaching position at a different school because of the tensions that developed with the administration over her excessive absences caused by her illnesses, depression and stress problems.

There is no question that the loss suffered by the Heberts as a result of their daughter’s death is immeasurable, and we recognize the significance of their loss. We award Mr. and Mrs. Hebert general damages in the amount of $750,000.00 each, for the wrongful death of Katie.

11sSurvival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976). The determination of survival damages includes consideration of the severity and duration of any pain or any pre-impact fear experienced by the deceased, and other damages sustained by the deceased up to the moment of death. See Mathieu v. State, Dep’t of Transp. & Dev., 598 So.2d 676 (La.App. 3 Cir.), writ denied, 600 So.2d 665 (La.1992); Guillot v. Valley Forge Ins. Co., 99-1044 (La.App. 3 Cir. 12/8/99), 753 So.2d 891. Survival damages are properly awarded if a scintilla of evidence of any pre-death pain or suffering by the victim can be shown. Mathieu, 598 So.2d 676; see also, Sims v. Liberty Mut. Ins. Co., 04-584 (La.App. 3 Cir. 3/2/05), 897 So.2d 834, writ denied, 05-863 (La.5/13/05), 902 So.2d 1030.

In this case, the record reflects that Katie was pinned in her vehicle after the impact, suffered significant injuries, including a broken neck and head injuries. She did not expire, however, until some hours later at the hospital to which she had been air-lifted. We accordingly, award survival damages in the amount of $100,000.00, jointly, to John Hebert and Klea Hebert for the pre-death pain and suffering of Katie.

Finally, we award the following special damages to Mr. and Mrs. Hebert, jointly: past medical and hospital expenses for the treatment of Katie, $13,448.50; funeral and burial expenses, $5,077.00; past and future medical expenses of Mr. and Mrs. Hebert, $25,000.00; total loss of the Heberts’ automobile, $9,850.00; and cost of a rental vehicle, $216.00.

IV.

CONCLUSION

For the foregoing reasons, we reverse and set aside the judgment of the trial court and render judgment, assessing 10 percent fault to Katie Hebert, 40 percent |infault to the Rapides Parish Police Jury, and 50 percent fault to the Louisiana Department of Transportation and Development. John Hebert is awarded $750,000.00, in general damages; Klea Hebert is awarded $750,000.00, in general damages; special damages are awarded jointly to John and Klea Hebert in the amount of $53,591.50. John and Klea Hebert are awarded survival damages in the amount of $100,000.00. Costs of this appeal are assessed to the Department of Transportation and Development in • the amount of $741.50.

AMENDED AND, AS AMENDED, AFFIRMED.

GREMILLION, J., concurs and assigns reasons.

PICKETT, J., concurs in the result for the reasons assigned by Judge GREMILLION.

PAINTER, J., dissents and assigns written reasons.

GREMILLION, J.,

concurs.'

U write to concur with this opinion. I agree with the results in their entirety; however, I do not agree that when there are conflicting opinions between the judge- and jury’s finding in a bifurcated trial that we should conduct a de novo review because it disregards the great deference an appellate court should give to the trier of fact’s finding.

In my opinion, we should use the procedure set forth in McDaniel v. Carenero Lions Club, et al., 05-1013, (La.App. 3 Cir. 7/12/2006), 934 So.2d 945, 2006 WL 1896197.

PAINTER, J.,

dissenting.

| jThis case on appeal was heard by. a five judge panel after two members of the original three judge panel voted to reverse the trial jury and relieve the DOTD of responsibility for the Haines Creek Bridge. I respectfully disagree with the five judge panel majority’s determination that the DOTD was legally responsible for the maintenance of the Haines Creek Bridge. My review of the testimony convinces me that the Plaintiffs failed to carry their burden of proving that the DOTD assumed a duty with regard to the bridge and breached that duty. Further, to impose liability on the DOTD under the circumstances of this case, based only federally mandated inspection, creates a precedent which would potentially make the DOTD liable for the maintenance of every off-system bridge and highway in the state and impose a crushing financial burden on the State.

The majority attempts to show that the DOTD provided funding for the bridge. However, a close review of the testimony of the witnesses shows that it does not support such a conclusion. While Jerry Bernamen did testify that if an off-system bridge was built using State funds, a DOTD inspector would be present, he further testified that he did not know if a DOTD inspector was present when the Haines Creek Bridge was built in 1980, explaining that “this was before we started our bridge program.” Cecil Raggio testified that the DOTD did not participate in building the | ^bridge. Further, while Rag-gio did testify that the bridge was built with State funds, he further stated that he did not mean that the money came from the DOTD, but rather that he believed that the bridge was built with special funding from the Governor’s Office and acknowledged that the Governor’s Office has funds for special projects which are not under the control of the DOTD. While the majority’s citation of Raggio as testifying that the money may not have come directly from the Governor’s Office, suggests that the DOTD somehow indirectly controlled that funding, I find nothing in the record which supports this. Additionally, Raggio stated that the project number was a state project number but admitted that he did not know if it was a DOTD project number and that it could have been from the Governor’s Office.

While Rhett Deselle did testify that State funds could have been used to construct the bridge, he also stated he could find nothing in the records of the DOTD which to show that it had funded the bridge. He testified that if the project had been a DOTD project it would have been given a DOTD project number but that the number found on the Police Jury’s correspondence concerning this bridge was not a DOTD number. With regard to its resemblance to older DOTD numbers he stated only that its configuration — three digits separated by a dash from two digits separated by a dash from three final digits — was the same configuration previously used by the DOTD. He affirmed that the project number of the bridge did not exist in DOTD records. He explained that the Parishes inform the DOTD of changes to bridges to allow the DOTD to maintain an inventory of State bridges. He further explained that the funds could have come from a special fund of the Governor’s Office which is used to replace and repair off-system bridges and that the DOTD has no control of those funds.

laThe only activity of the DOTD with regard to the Haines Creek Bridge which is confirmed by the record is its bi-yearly federally mandated inspection and report. This alone is insufficient to allow this court to impose a duty on the DOTD to maintain the bridge.

Additionally, the Plaintiffs assertion that the DOTD violated its duty, under La.R.S. 48:35, to withhold funds for improvements to public roads which do not conform to minimum safety standards adopted by the DOTD, is without merit. I can find no jurisprudence which imposes liability for personal injury on the DOTD for failure to withhold funds under this statute. Additionally, the language of La. R.S. 48:35 provides for withholding funds allocated for construction purposes during the particular non-conforming construction project.

Accordingly, the record does not support the imposition of liability on the DOTD for the accident made the basis of this suit. Therefore, I respectfully dissent from the majority opinion herein.

      . 23 U.S.C. § 409 states:
      Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

      . Court of Appeal Docket No. CW-03-1759; La. Supreme Court Docket No. 04-CC-0749.

      . Court of Appeal Docket No. CW-04-1273; La. Supreme Court Docket No. 04-CC-2354.

      . When Haines Creek Bridge was built in 1980, La.R.S. 48:35, as amended by 1977 La. Acts No. 291, § 35, read as follows:
      The office of highways of the Department of Transportation and Development shall adopt minimum safety standards with respect to highway design, construction and maintenance. These standards shall correlate with and, so far as possible, conform to the system then current as approved by the American Association of State Highway and Transportation Officials. Hereafter, the state highway system and all public roads, highways and streets under the jurisdiction of any political subdivision of this state shall conform to such safety standards. The chief engineer of the office of highways may designate those highways as listed in R.S. 48:191 on the effective date of this Act for reconstruction or repair at standards which are less than those approved by the American Association of State Highway and Transportation Officials, provided however, that no reconstruction or repair shall be done on any highway under this Part which results in a pavement width of less than eighteen feet, and further provided that all reconstruction or repair done under this Part shall be accomplished within the existing right of way.
      If any such improvements constructed by a political subdivision of this State fail to conform to such standards, payment of any funds allocated to said political subdivision for such construction purposes shall be withheld by the Department of Transportation and Development until such time as the standards established by the department are complied with. These standards shall not apply to maintenance, improvement or blacktopping of existing dead-end alleys, local lanes and other local roads that do not connect traveled throughways.
      (Emphasis added). In 1984, this statute was amended to state that "payment of any funds allocated to the political subdivision for the construction purposes shall be withheld....” 1984 La. Acts No. 625, § 1. Despite subsequent amendments to this statute, this language remains unchanged.