text:
    In re Robert M. ROMERO.
    No. 2006-B-2296.
    Supreme Court of Louisiana.
    Oct. 13, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent neglected his client’s legal matter, failed to communicate with his client, and failed to timely refund costs paid in advance. This misconduct occurred in the same time frame as the misconduct forming the basis of respondent’s earlier disciplinary matter. Prior to the filing of new formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Robert Mark Romero, Louisiana Bar Roll number 11440, be adjudged guilty of additional violations which warrant discipline and which may be considered in the event he applies for reinstatement from his suspension in In re: Romero, 04-3087 (La.4/29/05), 900 So.2d 819, after becoming eligible to do so. See Louisiana State Bar Ass’n v. Chatelain, 573 So.2d 470 (La.1991).

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


source: Caselaw Access Project

author: WEIMER, Justice.

license: Public Domain

text:
    Dr. Willie John JOSEPH, III, Dr. Michelle T. Brumfield, and St. Mary Anesthesia Associates, Inc. v. HOSPITAL SERVICE DISTRICT NO. 2 OF the PARISH OF ST. MARY, State of Louisiana, Our Lady of the Lake Hospital, Inc., Melvin Bourgeois, M.D., James Broussard, John Guarisco, Sharon Howell, Y. George Ramirez, Clifford M. Broussard, National Union Fire Insurance Company of Louisiana and Louisiana Hospital Association Malpractice and General Liability Trust.

    No. 2005-C-2364.
    Supreme Court of Louisiana.
    Oct. 15, 2006.

      Leake & Andersson, Peirce A. Hammond, II, George D. Fagan, New Orleans, for applicant.
    Breazeale, Sachse & Wilson, Scott N. Hensgens, Lauren M. Smith, Christine Lipsey, Baton Rouge, Biggs, Supple, Cre-maldi & Curet, James B. Supple, Russel J. Cremaldi, Franklin, Nicholas F. LaRocea, Jr., Morgan City, Benjamin L. Guelfo, for respondent.

      . Retired Judge Moon Landrieu, sitting ad hoc for Justice Chet D. Traylor, recused.

   WEIMER, Justice.

LWe are called upon to determine whether a contract between a hospital and a medical corporation provides a stipulation for a third party (also referred to as a stipulation pour autrui) in the form of benefits for individual doctors affiliated with the medical corporation. This matter is before the court on defendants’ exceptions of no right of action, which contend the doctors are not third party beneficiaries of the contract. The trial court granted defendants’ exceptions and dismissed the plaintiff doctors’ claims with prejudice. The court of appeal reversed and defendants filed an application for writ of certio-rari. For reasons that follow, we reinstate the judgment of the trial court finding the contract at issue does not create a stipulation pour autrui in favor of the plaintiff doctors. Consequently, the doctors have no right of action.

FACTS AND PROCEDURAL BACKGROUND

On December 13, 1990, Hospital Service District No. 2 of the Parish of St. Mary (Hospital), operator of Lakewood Medical Center, entered into a contract with St. Mary Anesthesia Associates, Inc. (SMAA) for the purpose of obtaining general anesthesia services for the hospital’s patients. The contract was signed by Raymond J. Rowell, chief operating officer of the Hospital, and Willie J. Joseph, III, M.D., president of SMAA. The contract provided for automatic annual renewal unless terminated by the Hospital for cause as defined in the contract or by SMAA giving no less than 60 days notice prior to the end of the original term or any renewal period.

In November 2000, then chief operating officer of the Hospital, Clifford M. Brous-sard, advised SMAA that the contact would terminate within 30 days from the date of the letter because the contract was not in the Hospital’s best interest.

Dr. Willie John Joseph, III, Dr. Michelle T. Brumfield, and SMAA filed suit on August 19, 2003, naming as defendants the Hospital, Our Lady of the Lake Hospital, Inc., Melvin Bourgeois, M.D., James Broussard, John Guarisco, Sharon Howell, Y. George Ramirez, Clifford M. Broussard, National Union Fire Insurance Company of Louisiana, and Louisiana Hospital Association Malpractice and General Liability Trust.

Alleging breach of contract, the petitioners sought damages, including, but not limited to, past and future loss of earnings, costs of relocation and “moral damages,” mental anguish, grief and anxiety on behalf of the doctors, and future loss of earnings on behalf of SMAA. Pursuant to a provision contained in the contract, plaintiffs also sought attorney fees in connection with this litigation.

| ¡¡Defendants filed exceptions of no right of action regarding the claims asserted by the doctors contending that SMAA was the only party with a real and actual interest in the contract and the doctors had no individual right to sue for a corporate loss. The doctors argued the contract expressed an intent to stipulate a benefit in favor of the doctors and that this benefit was a material consideration for the contract.

At the hearing on the exceptions before the trial court, the contract in question was introduced into evidence following which counsel argued their respective contentions. Defendants argued the contract is clear and unambiguous, thus parol evidence is not admissible to determine the intent of the parties. Plaintiffs agreed the contract is unambiguous, but contended it clearly contemplated third party beneficiaries.

Following argument, the trial court ruled the contract did not contain a stipulation pour autrui on behalf of the doctors and the contract was between the Hospital and SMAA. The doctors were allowed to proffer evidence regarding the intent of the contracting parties. Judgment was signed granting the peremptory exceptions of no right of action filed on behalf of the defendants, dismissing the doctors’ claims with prejudice and casting them with all costs of the proceedings. The doctors appealed.

The court of appeal found the contract as a whole clearly manifested an express intent to benefit Dr. Joseph. Relying on the legal principles that stipulations pour autrui are favored and can be made for an undetermined person, the court found the contract also manifested an intent to benefit Dr. Brumfield. The court of appeal reversed the judgment of the trial court. Joseph v. Hospital Service District No. 2 of the Parish of St. Mary, 04-0781 (La.App. 1 Cir. 8/3/05), 923 So.2d 27.

| ¿The court of appeal agreed that the contractual obligations of the parties are clear and unambiguous. Thus, the question to be resolved is whether the contract clearly manifested an intent to stipulate a benefit for a third person. The court of appeal rejected the hospital’s argument that the stipulation itself must be in writing to be valid and questioned the validity of the statement in Fontenot v. Marquette Casualty Co., 258 La. 671, 247 So.2d 572 (1971), requiring a stipulation pour autrui to be in writing. The focus of the court’s concern involved the following statement in Fontenot: “In Louisiana contracts for the benefit of others, or the stipulation pour autrui, must be in writing and clearly express that intent.” Fontenot, 247 So.2d at 579. The Fontenot court cited former Civil Code articles 1890 and 1902 as authority for the statement.

Defendants, National Union Fire Insurance Company of Louisiana and Hospital Service District No. 2 of the Parish of St. Mary, applied for writ of certiorari which this court granted. Joseph v. Hospital Service District No. 2 of the Parish of St. Mary, 05-2364, 05-2427 (La.4/24/06), 926 So.2d 527.

DISCUSSION

An exception of no right of action is a threshold procedural device used to terminate a suit brought by a person who has no legally recognized right to enforce the right asserted. Unless otherwise provided by law, an action can only be brought by a person having a real and actual interest in the matter asserted. LSA-C.C.P. art. 681. An exception of no right of action is a peremptory exception designed to test whether plaintiff has a real and actual interest in the action. LSA-C.C.P. art. 927(A)(5). The function of the exception is to determine whether plaintiff belongs | sto the class of persons to whom the law grants the cause of action asserted. Industrial Companies, Inc. v. Durbin, 02-0665, p. 11 (La.1/28/03), 837 So.2d 1207, 1216; Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015, p. 4 (La.11/30/94), 646 So.2d 885, 888. Evidence is admissible on the trial of the exception of no right of action to support or controvert any of the objections pleaded. LSA-C.C.P. art. 931.

Collectively, the defendants contend the claims set forth in this case belong to SMAA, not the doctors/employees, thus the exception of no right of action is proper. Defendants also argue the decision of the court of appeal conflicts with this court’s decision in Fontenot, as well as decisions from other appellate courts and should be overturned. They claim the stipulation pour autrui must be in writing and, thus an oral stipulation pour autrui is unenforceable.

It is plaintiffs’ position that the court of appeal was correct in its interpretation of the Fontenot decision. Fontenot involved a reinsuring agreement which is statutorily required to be in writing. Plaintiffs assert the statement in Fontenot requiring a stipulation pour autrui to be in writing is merely dicta. In this case, plaintiffs argue the benefits they were to receive were clearly contemplated by the parties to the contract and were not merely incidental. They assert the court of appeal decision is correct and should be affirmed.

|(;At the hearing on the exceptions, defendants introduced a copy of the contract dated December 13, 1990. The contract, an anesthesia service agreement, was executed by and between the Hospital and SMAA. Dr. Joseph signed the contract on behalf of SMAA, but not in his individual capacity. Dr. Brumfield is not mentioned in the contract. In the contract, SMAA was referred to as the “Contractor.” The Hospital agreed to retain the Contractor to exclusively provide anesthesia services. The Hospital agreed to provide facilities, equipment, and supplies necessary and proper for the administration of anesthesia to its patients. Additionally, the Hospital agreed to recognize Dr. Joseph as a “medical specialist” providing services on behalf of the Contractor. The Hospital also agreed to recognize any employee of the Contractor (any duly licensed and qualified physician trained in delivery of anesthesia services and licensed to practice in Louisiana) as a “medical specialist” on behalf of the Contractor, SMAA.

The contract further provided that the Contractor may from time to time retain the services of other physician specialists who were to comply with all of the terms and conditions of the agreement.

The contract specifically provided that the Contractor was an “independent contractor” and clearly stated there was no intent to create an employer/employee relationship, a joint venture relationship, or lease or landlord/tenant relationship. The agreement was to be binding on the Hospital and Contractors, their successors and assigns.

Because the plaintiff doctors were not parties to the contract, they can only avail themselves of the benefit of the Hospital/SMAA contract if they are third party beneficiaries. LSA-C.C. art. 1978 provides:

17A contracting party may stipulate a benefit for a third person called a third party beneficiary.
Once the third party has manifested his intention to avail himself of the benefit, the parties may not dissolve the contract by mutual consent without the beneficiary’s agreement.

The Revision Comments indicate this article reproduces the substance of LSA-C.C. arts. 1890 and 1902 and the law was not changed. Under Louisiana law, such a contract for the benefit of a third party is commonly referred to as a “stipulation pour autrui.” Paul v. Louisiana State Employees’ Group Benefit Program, 99-0897, p. 5 (La.App. 1 Cir. 5/12/00), 762 So.2d 136, 140.

Under Roman law, a stipulation for a third party was unenforceable, despite the fact that the word “stipulation” comes from the Roman stipulatio. Nevertheless, the French and Louisiana Codes set to rest any contention that a third party could not recover on a contract merely because he was not a party to the contract. See discussion by Professor J. Denson Smith of the historical development of this doctrine in his article Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui at 11 Tul. L.Rev. 18, 18-28 (1936). Although the current Article 1978 had its underpinnings in the French Civil Code, the term “stipulation pour autrui ” was not employed in the Louisiana Civil Code. Professor Smith, however, called the term a “well established part of our legal language.” Smith, 11 Tul. L.Rev. at 23. The term remains a part of our legal language today.

There has been a codal provision in Louisiana recognizing a stipulation for a third party since 1808. See Article 21 of the Louisiana Civil Code of 1808; see also Art. 1890, La. C.C. Comp. Ed., in 16 West’s LSA-C.C. pp. 1076-1077 (1972).

1SA true third party beneficiary is never a party to the contract in question; he is never a promisee. Smith, 11 Tul. L.Rev. at 33. The promisee is the stipulator and the promise runs to him and is merely in favor of the third party. Id.

The Louisiana Civil Code recognizes that a third party beneficiary contract can exist, but provides few governing rules. See LSA-C.C. arts. 1978-1982. The code provides no analytic framework for determining whether a third party beneficiary contract exists. Professor Smith acknowledges that a determination of the circumstances under which a stipulation pour autrui will exist is the “primary question” in any given case. Smith, 11 Tul. L.Rev. at 24. Thus, the code has left to the jurisprudence the obligation to develop the analysis to determine when a third party beneficiary contract exists on a case by case basis. Each contract must be evaluated on its own terms and conditions in order to determine if the contract stipulates a benefit for a third person.

Our study of the jurisprudence has revealed three criteria for determining whether contracting parties have provided a benefit for a third party: 1) the 19stipulation for a third party is manifestly clear; 2) there is certainty as to the benefit provided the third party; and 3) the benefit is not a mere incident of the contract between the promisor and the prom-isee. In applying these criteria, we ultimately rely on the words of Article 1978 that the contract must “stipulate a benefit for a third person.”

The most basic requirement of a stipulation pour autrui is that the contract manifest a clear intention to benefit the third party; absent such a clear manifestation, a party claiming to be a third party beneficiary cannot meet his burden of proof. Paul, 99-0897 at 7-8, 762 So.2d at 141-142; see also, Doucet v. National Maintenance Corporation, 01-1100, pp. 6-7 (La.App. 1 Cir. 6/21/02), 822 So.2d 60, 66. A stipulation pour autrui is never presumed. The party claiming the benefit bears the burden of proof. See LSA-C.C. art. 1831; see also Paul, 99-0897 at 5, 762 So.2d at 140.

The second factor, certainty as to the benefit provided, is a corollary of the requirement of a manifestly clear stipulation. “To create a legal obligation enforceable by the beneficiary there must be certainty as to the benefit to accrue to the beneficiary.” Berry v. Berry, 371 So.2d 1346, 1347 (La.App. 1 Cir.), writ denied, 373 So.2d 511 (1979).

In connection with the third requirement that the benefit cannot be a mere incident of the contract, we find pertinent the discussion of “incidental benefits” by Professor Smith, 11 Tul. L.Rev. at 28: “[N]ot every promise, performance of which may be advantageous to a third person, will create in him an actionable right. The |inproblem is to separate the cases where an advantage has been stipulated from those where the advantage relied upon is merely an incident of the contract between the parties.” Illustrative is City of Shreveport v. Gulf Oil Corporation, 431 F.Supp. 1 (W.D.La.1975), aff'd, 551 F.2d 93 (5th Cir.1977). The city brought an action against the oil company alleging that the oil company failed to provide over 670,000 gallons of gasoline to the city pursuant to a contract existing between the oil company and the State of Louisiana, thereby damaging the city. The court found the oil company/state contract provided “some benefit” to the city: in a time of serious inflation and energy shortage, Shreveport could purchase its fuel needs at a modest cost when compared to the market price. However, “[t]he contract was not made to obtain discharge of any legal obligation owed by the State to Shreveport.... Furthermore, the advantage which would accrue to the City would not beneficially affect the State.” Thus, the advantage to the city was “an easily seen ... incidental benefit to the City” (Id. at 1210), which did not support a finding of third party beneficiary.

In Allen & Currey Mfg. Co. v. Shreveport Waterworks Co., 113 La. 1091, 37 So. 980 (1905), a water company entered into a contract with the city to furnish water and maintain hydrants in good repair. The plaintiff sued the water company for damages sustained as a result of the loss of its building due to fire because of an alleged breach of the water company’s obligation to maintain the hydrants. The supreme court held that the plaintiff had no right of action. The contract was between the city and the water company. The plaintiff, as an inhabitant of the city, was an Inincidental beneficiary and as such had no right of action. See discussion in Smith, 11 Tul. L.Rev. at 50.

In this matter, the court of appeal found administration of anesthesia service to the hospital’s patients was the object of the contract and concluded that SMAA, as a juridical person only, was incapable of rendering such service. The court of appeal noted there was no allegation of breach of fiduciary trust and the damages alleged were personal to the doctors. The court of appeal found the contract clearly manifested an express intent to benefit Dr. Joseph and also manifested an intent to benefit Dr. Brumfield.

We disagree. Following a thorough review of the provisions of the contract, we also conclude the contract is unambiguous. However, we find there are no provisions included in the contract which establish a stipulation for the doctors in a manifestly clear manner. We find no certainty as to the benefit provided the doctors. We find any benefit to the doctors a mere incident of the contract between the Hospital and SMAA.

Ultimately, we find there is no benefit in the contract flowing directly to the doctors such that a benefit was stipulated in their favor. While the contract imposed ^J^certain obligations on the doctors regarding their qualifications, there was no benefit provided in the contract directly to the doctors that they could demand from the Hospital. The doctors were not to be paid by the Hospital. The doctors were not hired by the Hospital. The doctors had no right to demand employment by the Hospital. In fact, the contract specifically provided there was no intent to create an employer/employee relationship between the parties. Based on our review of the contract, there is no obligation owed by the Hospital to the individual doctors which will be discharged by performance of the contract because the contract provides no direct benefit to the doctors.

While the doctors can perform the services to satisfy the contractual obligations of the corporation, there are no direct benefits flowing to the plaintiff doctors. Simply stated, in the absence of a direct benefit conferred by the contract, the doctors cannot be third party beneficiaries pursuant to LSA-C.C. art. 1978.

A person may derive a benefit from a contract to which he is not a party without being a third party beneficiary. In this case, any benefit created by the contract in favor of the doctors was only incidental to their employment with SMAA.

The doctors contend that they benefitted from the contract because the Hospital granted them the exclusive right to provide anesthesiology services. However, a review of the contract establishes it is SMAA as the Contractor which is granted the exclusive right to provide anesthesia services. The contract provides: “HOSPITAL hereby EXCLUSIVELY retains CONTRACTOR, and CONTRACTOR hereby accepts such retention, to make available anesthesia services and to provide such other services in accordance with this agreement.” Thus, SMAA is specifically and clearly granted the exclusive right to provide anesthesia services. Additionally, the contract provides SMAA can “from time to time retain the services of other physician [ ^SPECIALISTS,” further indicating it is not the plaintiff doctors which have exclusivity, but rather SMAA. Based on this clause, physicians other than the plaintiff doctors could provide services on behalf of SMAA. As such, the contract does not provide the plaintiff doctors the exclusive right to provide anesthesia services at the hospital.

The contract goes on to recognize, not only Dr. Joseph, but any employee of SMAA as a medical specialist for the purpose of providing anesthesia services. However, that recognition merely establishes how the obligations of the contract are to be discharged by SMAA and does not, in a manifestly clear fashion, confer a benefit on the doctors as third parties. The doctors further contend they were afforded exclusivity because the contract would be terminated if, among other reasons, Dr. Joseph’s license to practice medicine were suspended, revoked, or terminated. However, the termination provision does not confer a benefit. Rather, this provision merely recognizes conditions which serve to terminate the contract. Regardless, the language from the contract, quoted above, establishes that the exclusivity provision of the contract is in favor of SMAA and not the individual doctors.

Not every breach of a contract with a corporation provides a cause of action to the employees or shareholders of that corporation. In essence, the court of appeal decision created an implied right of action for employees of juridical entities to contest any contract between the employing corporation and another entity if any benefit flowed to the employee. In Scaffidi and Chetta Entertainment v. University of New Orleans Foundation, 04-1046 (La.App. 5 Cir. 2/15/05), 898 So.2d 491, writ denied, 05-0748 (La.5/6/05), 901 So.2d 1102, Scaffidi and Chetta established a corporation which entered into a contract with the University of New 1 uOrleans Foundation. The court denied the personal claims of shareholders Scaffidi and Chetta finding they were not third party beneficiaries of the contract. The court further found the cause of action belonged solely to the corporation. This decision reflects an appropriate reluctance to find a stipulation pour autrui in favor of each shareholder or officer or employee of a juridical person. Once established, the separate nature of the corporate existence must be respected.

The doctors urge us to ignore the corporate status of SMAA because a medical corporation can only act through a physician. We refuse to do so. As a legal fiction, all corporations act through individuals. Dr. Joseph chose to establish a medical corporation. This separate juridical entity cannot be disregarded. See LSA-C.C. art. 24. The breach of contract claim is a claim to be asserted by the corporation, not the employees, officers or shareholders of the corporation.

Finally, we agree that the court of appeal was correct to question the requirement of a writing to establish a stipulation pour autrui. The statement in Fontenot indicating that contracts for the benefit of others must be in writing was dicta. The Fontenot court cited former Civil Code articles 1890 and 1902 for that proposition. Review of the former articles, as well as current articles related to a third |1fiparty beneficiary contract (See Articles 1978-1982), indicates there is no statutory requirement that the stipulation pour autrui be in writing.

We note the statement in Fontenot that a stipulation pour autrui must be in writing was criticized by Judge Covington in his dissent in Berry, 371 So.2d at 1352-1353, and in Katherine Shaw Spaht & H. Alston Johnson, III, The Work of the Appellate Courts for the 1975-1976 Term-Obligations, 37 La. L.Rev. 332, 346-347 (1977), which he cited.

Although the appellate court correctly found it unnecessary for a stipulation pour autrui to be in writing, these parties contracted that their entire agreement must be in writing. The contract provides: “This Agreement contains the entire understanding of the parties and shall be modified only by an instrument in writing signed on behalf of each party hereto.” Thus, these parties contractually limited themselves to a written contract.

CONCLUSION

For the foregoing reasons, the decision of the court of appeal is reversed and the judgment rendered by the district court granting defendants exceptions of no right of action is reinstated.

REVERSED. JUDGMENT GRANTING EXCEPTION REINSTATED.

JOHNSON, J., concurs in result.

      . A judgment granting the peremptory exception of prescription filed on behalf of defendants against plaintiffs arid dismissing the cause of action in tort (including the intentional interference with contract and the denial of due process rights) asserted on behalf of plaintiffs was signed on July 7, 2004.

      . The substance of these articles was reproduced in LSA-C.C. art. 1978 when the Civil Code was amended in 1984. 1984 La. Acts No. 331 § 1, effective Jan. 1, 1985.

      . Reinsurance is a contract by which one insurance company agrees to indemnify another in whole or in part against loss or liability which the latter has incurred under a separate contract as insurer of a third party. Fontenot, 247 So.2d at 575. Reinsurance indemnifies the insurer for a loss which is actually sustained. In Fontenot, an insured of one insurance company filed suit claiming the contract of reinsurance between his insurer and another company contained a stipulation pour autrui inuring to his benefit. The court held the contract was governed by the insurance code and the contract of reinsurance did not create any right of action in third parties directly against the reinsurer. Fontenot, 247 So.2d at 581.

      . Black’s Law Dictionary 1427 (7th ed.1999), refers to stipulation pour autrui as a French civil law term meaning a stipulation "for other persons."

      . In Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347 (1969), this court utilized the factors proposed by Professor J. Denson Smith to be considered in deciding whether an advantage for a third person has been provided by a contract between others. We recognize Professor Smith’s test is an analytical tool to determine whether a stipulation pour-autrui has been established-not a definitive analysis.
      In a study of the history, legislation, and jurisprudence which formed the doctrine of stipulations in favor of third persons, Professor Smith enumerated the following factors as being important in deciding whether the contract provides a benefit for a third person:
      (1) The existence of a legal relationship between the promisee and the third person involving an obligation owed by the promis-ee to the beneficiary which performance of the promise will discharge; (2) the existence of a factual relationship between the promisee and the third person, where (a) there is-a possibility of future liability either personal or real on the part of the promisee to the beneficiary against which performance of the promisee [sic] will protect the former; (b) securing an advantage for the third person may beneficially affect the promisee in a material way; (c) there are ties of kinship or other circumstances indicating that a benefit by way of gratuity was intended. See Smith, Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui, 11 Tul.L.Rev. 18, 58 (1936).

        Andrepont, 231 So.2d at 350-351.

      . LSA-C.C. art. 1831 provides, in part:
      A party who demands performance of an obligation must prove the existence of the contract.

      . The Restatement of the Law of Contracts distinguishes intended beneficiaries who have legal rights from incidental beneficiaries who have no legal rights to enforce the contract. Restatement (Second) of Contracts, Introductory Note to Chapter 14 at 439 and § 302 (1979).

      . In a footnote the court noted the fact that SMAA was a corporation was not relevant to a decision in this matter.

      . We note one exception which is not at issue in this litigation. The contract does contain a stipulation pour autrui in the section of the contract addressing recruitment. The Hospital agreed to pay relocation costs incurred by a second physician specialist moving to Morgan City. Thus, although the contract did provide a stipulation pour autrui for the benefit of a doctor to be recruited by SMAA in the form of reimbursement of relocation costs, that benefit was manifestly clear, and outlined in the recruitment provision of the contract addressing relocation costs. The contract could have included additional benefits to inure to the doctors; however, it did not do so in a manifestly clear manner. Nevertheless, after a review of the record and as acknowledged at oral argument, that provision is not at issue.

      . See also Joe Conte Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 95-1630, (La.App. 4 Cir. 2/12/97) 689 So.2d 650, writ denied, 97-0659 (La.4/25/97) 692 So.2d 1090, where the court affirmed the trial court judgment granting an exception of no right of action ruling that shareholders and officers of a corporation and a guarantor of corporate obligations had no right to recover for acts committed against or causing damage to a corporation. Only the corporation can sue for breach of a contract to which the corporation is a party.

      . LSA-C.C. art. 24 provides:
      There are two kinds of persons: natural persons and juridical persons.
      A natural person is a human being. A juridical person is an entity to which the law attributes personality, such as a corporation or a partnership. The personality of a juridical person is distinct from that of its members.

      .There is no general requirement that stipulations pour autrui be in writing. However, if the contract must be in writing (See e.g., LSA-C.C. arts. 1536 and 2440. See also LSA-C.C. art.1832.), then the stipulation pour autrui must also be in writing.


author: PER CURIAM.

text:
    Delbert W. BUSH, et al. v. NATIONAL HEALTH CARE OF LEESVILLE, et al.
    No. 2005-C-2477.
    Supreme Court of Louisiana.
    Oct. 17, 2006.
    Blue Williams, Robert I. Baudouin, Kurt S. Blankenship, Mandeville, for Applicant.
    Dunahoe Law Firm, Otis E. Dunahoe, Jr., for Respondent.
   PER CURIAM.

hAt issue in this medical malpractice claim is whether this court’s holding in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, applies retroactively. For the reasons assigned, we conclude it does and therefore reverse the judgment of the court of appeal which denied defendant’s exception of prescription.

UNDERLYING FACTS AND PROCEDURAL HISTORY

On July 8, 1996, Daniel Bush, then a minor, began experiencing severe pain in his abdomen. Daniel’s father took him to the emergency room at Byrd Regional Hospital in Leesville, Louisiana. At the hospital, Daniel was examined by Dr. Celeste Lujan-Baez, who diagnosed him as suffering from a possible testicular torsion and ordered additional tests. Dr. Lujan-Baez found the tests to be inconclusive. Daniel was ultimately transferred to St. Francis Cabrini Hospital in Alexandria. By that time, his testicle was no longer viable and had to be removed.

On July 8, 1997, Daniel’s parents, individually and on behalf of Daniel, filed a medical malpractice suit in 30th Judicial District Court for the Parish of Vernon against Dr. Lujan-Baez and National Health Care of Leesville, Inc., d/b/a Byrd Regional Hospital (“Byrd”). The petition alleges Dr. Lujan-Baez unnecessarily delayed the decision to transfer Daniel to an appropriate hospital for surgery which caused the loss 12of his testicle.

On September 23, 1997, more than one year after the alleged malpractice, plaintiffs filed a medical malpractice complaint with the Patients’ Compensation Fund (“PCF”). In that complaint, they requested that a medical review panel be convened to review the malpractice claims against Dr. Lujan-Baez.

In February 1999, Dr. Lujan-Baez filed an exception of prematurity in the district court proceedings. She asserted that she was a qualified health care provider under Louisiana Medical Malpractice Act. Therefore, she contended the suit was premature until proceedings before the medical review panel were concluded. On April 21, 1999, prior to a hearing on the exception, plaintiffs voluntarily dismissed their suit against Dr. Lujan-Baez without prejudice, but maintained their action against Byrd.

On January 10, 2000, the medical review panel issued its opinion, finding that Dr. Lujan-Baez did not breach the applicable standard of care. Thereafter, on February 24, 2000, plaintiffs filed the instant suit against Dr. Lujan-Baez in the district cdurt.

Subsequently, Dr. Lujan filed an exception of prescription. The trial court denied the exception, reasoning the initial suit filed timely on July 8, 1997 against Byrd Regional Hospital interrupted the prescription as to the claim against Dr. Lujan-Baez, because she was a potential joint or solidary obligor with Byrd.

Thereafter, Byrd filed a motion for summary judgment, arguing plaintiffs failed to produce any evidence demonstrating negligence on its part. The trial court conducted a hearing on the motion. By written judgment dated July 25, 2001, the trial court granted the motion dismissing plaintiffs’ suit against _ Byrd with prejudice. Plaintiffs did not appeal this judgment, and it is now final.

Thereafter, the suit proceeded to a bench trial. At the conclusion of trial, the | ¡¡trial court found Dr. Lujan-Baez breached the standard of care by delaying the transfer which caused Daniel Bush to lose the chance of saving the testicle. Accordingly, the trial court rendered judgment in favor of plaintiffs and awarded them $50,000 in damages.

Dr. Lujan-Baez appealed the judgment of the trial court and filed an exception of prescription with the court of appeal. In support of her exception, Dr. Lujan-Baez relied on LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, for the proposition that plaintiffs’ initial suit filed in district court on July 8, 1997 was premature as to her and did not interrupt prescription for the malpractice complaint. In addition, Dr. Lujan-Baez asserted that since Byrd was dismissed from the suit, she was no longer a solidary or joint obligor with it; therefore, prescription was not interrupted under this ground either.

The court of appeal denied Dr. Lujan-Baez’s exception of prescription and affirmed the trial court judgment on liability and damages finding that the “medical testimony supported the conclusion that Dr. Lujan-Baez did not act quickly enough to get Daniel the help he needed to save his testicle.” As to prescription, the court of appeal first noted that at the time plaintiffs filed the initial suit in the district court on July 8, 1997, this court had not rendered its opinion in LeBreton. Rather, the court of appeal found the prevailing jurisprudence in the Third Circuit at the time was reflected by Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3rd Cir.1985), which held that filing a suit in district court against a qualified health care provider interrupts the prescription for filing a medical malpractice complaint with the medical review panel. The court recognized that in 1998, while the instant claim |4was pending before the medical review panel, this court issued its opinion in LeBreton, overruling Hernandez. The court of appeal acknowledged that applying the LeBreton’s interpretation, plaintiffs’ claim would be prescribed due to their failure to file the malpractice complaint with the medical panel within one year from the alleged malpractice. Nonetheless, the court of appeal reasoned that applying LeBreton retroactively to the instant case would be “patently unfair” to parties who relied on prior “settled jurisprudence” that allowed interruption of prescription by filing suit in district court prior to a request for medical review panel. Accordingly, the court of appeal declined to apply LeBreton as it would affect plaintiffs’ pre-existing vested right in their claim. Bush v. National Health Care of Leesville, 05-337 (La.App. 3rd Cir.11/2/05), 923 So.2d 150.

Upon Dr. Lujan-Baez’s application, we granted certiorari to consider the correctness of that decision. Bush v. National Health Care of Leesville, 05-2477 (La.4/24/06), 926 So.2d 528.

DISCUSSION

It is undisputed that plaintiffs’ September 23, 1997 medical malpractice complaint was filed with the PCF more than one year from July 8, 1996, the date of the alleged malpractice. Although plaintiffs’ July 8,1997 lawsuit was filed in the district court within one year of the alleged malpractice, our opinion in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, makes it clear that the filing of a lawsuit against a qualified health care provider prior to review by the medical review panel is prohibited. In LeBreton, we explained:

[I]t is evident that the Louisiana Medical Malpractice Act took cognizance of the need to suspend prescription and fully protects plaintiffs who would otherwise suffer the detrimental effect of li-berative prescription. Because the | .¡Medical Malpractice Act prohibits the filing of a medical malpractice claim against a qualified health care provider prior to panel review, the act specifies that the filing of a request for review before a panel suspends prescription. La.R.S. 40:1299.47(A)(2)(a). Moreover, as provided by statute, the filing of the complaint prevents prescription from lapsing during the pendency of the review process and further suspends prescription from the time of filing until ninety-days following notification to the claimant or his attorney of the panel opinion. Id. After reviewing these special provisions, it is clear that the legislature has equitably provided for suspension to aid the plaintiff in the medical malpractice arena who is prevented by law from the outset from filing suit against the qualified health care provider.
Thus, considering the doctrinal underpinnings for the existence of the rules of suspension, it is evident that there is no need for the general rules of interruption of prescription to combine with suspension to synergistically benefit the plaintiff, [footnote omitted].

Plaintiffs’ primarily argue that it would be unfair to apply that LeBreton’s holding retroactively to the instant case. In support, they contend that at the time they filed their district court suit in 1997, the weight of the appellate jurisprudence, as exemplified by Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3rd Cir.1985) indicated that a district court suit could serve to interrupt prescription in a medical malpractice case. It was not until July 8, 1998 (coincidentally one year exactly after plaintiffs filed their July 8, 1997 lawsuit) that LeBreton explicitly rejected the reasoning of Hernandez.

In Norton v. Crescent City Ice Mfg. Co., 178 La. 135, 150 So. 855 (1933), this court held that as a general rule, a court decision “operates both prospectively and retrospectively, except that it will not be permitted to disturb vested rights.” The court restated that principle in Succession of Clivens, 426 So.2d 585, 594 (La.1982), in which it held “[gjenerally, unless a decision specifies otherwise, it is given both | firetrospective and prospective effect.” Nonetheless, Clivens recognized that “states are free to limit the retroactivity of their civil decisional law.” Id. (citing Sunburst Oil & Refining Co. v. Great Northern Railway, 91 Mont. 216, 7 P.2d 927 (1932), affirmed, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360 (1932)).

In Lovell v. Lovell, 378 So.2d 418 (La.1979), we set forth the considerations in determining whether a decision should be limited to prospective application only. In Lovell, we addressed the constitutionality of La. Civ.Code art. 160, which at the time imposed alimony obligations on the husband only. After we declared the article unconstitutional, we turned to a discussion of whether our decision should be given retroactive effect. In making this determination, we set forth a three-part inquiry:

In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied nonretroac-tively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

Applying this test, we concluded that our decision should not be given retroactive effect:

Upon consideration of each of these factors, we conclude that our decision should not be applied retroactively. Our decision establishes a new principle of law by overruling clear past precedent on which litigants have relied. Innumerable divorced persons, both those paying and receiving alimony, have relied on the constitutionality of art. 160. Loyacano v. Loyacano, [358 So.2d 304 (La.1978)] upholding the constitutionality of this statute, was decided by this court as recently as last year. Moreover, retrospective application would undermine the objectives of art. 160. Finally, substantial inequity would result if prior judgments awarding alimony were declared invalid. It might well require new litigation in each case |7under the amended article in order to afford continued alimony payments. Also, it would subject divorced wives to suits by their former husbands seeking repayment of alimony paid by husbands under art. 160 prior to its amendment. Where a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the “injustice or hardship” by a holding of nonretroactivity. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

Unlike Lovell, nothing in our opinion in LeBreton expressly limited that holding to prospective application only. To the contrary, the fact that we applied our holding in LeBreton to dismiss the case then before us demonstrates we intended for our holding to apply retroactively. Moreover, an analysis of the Lovell factors supports the conclusion that there is no basis not to apply LeBreton retroactively.

The first Lovell factor focuses on whether the decision establishes a new principle of law by overruling “clear past precedent on which litigants have relied.” In LeBreton, we acknowledged that the lower courts relied on Hernandez. However, we determined such reliance was misplaced because Hernandez was not correctly reasoned:

Accordingly, we find that the holding of Hernandez v. Lafayette Bone & Joint Clinic, 467 So.2d 113 (La.App. 3 Cir.1985) is not supportable, since it does not take into consideration the special rules formulated specifically for medical malpractice claims and is, therefore, overruled. Having so found, we further determine that the lower courts in the present case erred as a matter of law in finding that plaintiffs prematurely filed law suit could be simultaneously utilized with the special medical malpractice legislation to defeat the defendants’ peremptory exception of prescription.

The second Lovell factor addresses whether retroactive application would further or retard the operation of the rule in question. It is obvious that the purpose behind our holding in LeBreton would be furthered by retroactive application, because LeBreton eliminated a potential abuse under the Hernandez line of reasoning:

|sWe further find that our ruling also serves the judicial system by eliminating an advantage which Hernandez granted to those litigants who failed to follow the proper procedural sequence in medical malpractice litigation. As applied by Hernandez, those litigants who did not first submit their claim to a medical malpractice review panel as provided in La.R.S. 40:1299.47(B)(1)(a)(i) before filing suit in district court benefitted from their error by receiving an additional year after suspension had run within which to file their suit. Under our ruling herein, this anachronistic benefit exists no longer.

The third factor of the Lovell test addresses the inequity resulting from retroactive application. As noted, LeBreton eliminated the inequity existing under Hernandez by closing a “loophole” which allowed some plaintiffs additional time to file their suit. The equity of placing all litigants on the same footing outweighed any inequity to those plaintiffs whose suits might have prescribed due to their failure to follow proper procedures.

Considering these factors, we see no reason why LeBreton’s interpretation of the existing law should not be given both retroactive and prospective effect. Applying LeBreton to the instant case, it is undisputed that plaintiffs claim against Dr. Lujan-Baez is prescribed. Accordingly, we must reverse the judgment of the court of appeal and grant Dr. Lujan-Baez’s exception of prescription.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed. The exception of prescription filed by Dr. Lu-jan-Baez is sustained, and plaintiffs’ suit 19against Dr. Lujan-Baez is hereby dismissed with prejudice. All costs in this court are assessed against plaintiffs.

JOHNSON, J., concurs.

      . Byrd was not a qualified health care provider; therefore, plaintiffs were not required to submit their claims against this defendant to a medical review panel.

      . La.Code Civ. P. art. 2163 provides that "[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.”

      . Plaintiffs also urges us to revisit the merits of our holding in LeBreton. We decline to do so.

      . Plaintiffs contend that retroactive application of LeBreton disturbs their pre-existing vested rights to assert their claim. There is clearly no merit to this argument. Unlike a legislative enactment, LeBreton did not make new law, but simply corrected a judicial misinterpretation of the existing law. See Sherman v. Touro Infirmary, 00-1365 (La.App. Cir. 10/30/02), 832 So.2d 334, writ denied, 02-2897 (La.2/7/03), 836 So.2d 102 (holding that retroactive application of LeBreton does not divest plaintiffs of any constitutionally protected interest because "LeBreton did not make new law but merely interpreted [an] unchanging statute”).


text:
    In re James A. NORRIS, Jr.
    No. 2006-B-0671.
    Supreme Court of Louisiana.
    Oct. 17, 2006.

      Charles B. Plattsmier, Baton Rouge, for Applicant.
    Schiff Law Corporation, Leslie J. Schiff, Opelousas, James A. Norris, Jr., for Respondent.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

PER CURIAM.

| ¶ This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, James A. Norris, Jr., an attorney licensed to practice law in Louisiana but currently on interim suspension pursuant to our order in In re: Norris, 99-0768 (La.5/7/99), 733 So.2d 610.

UNDERLYING FACTS

In 1989, respondent was the district attorney for Ouachita and Morehouse Parishes and was also a partner in the West Monroe law firm of Norris, Johnson & Placke. In June 1989, without prior notification to his partners, respondent withdrew $525,977.81 of the partnership’s funds on deposit at various banking institutions. He used some of the funds to pay off loans to the partnership and kept the remaining funds as his asserted one-third share of the partnership. In August 1989, the law firm (hereinafter referred to as “J & P”) filed suit against respondent in the Fourth Judicial District Court, Parish of Ouachita, seeking an accounting, restoration of the disbursed funds, and damages.

In January 1994, while the litigation was still ongoing, respondent began to borrow heavily from his relatives and a local bank; in exchange, he granted mortgages on virtually all of his known assets, which had previously been | ¡.unencumbered. Respondent deposited the loan proceeds into his personal checking account. In February 1994, respondent withdrew from the account the sum of $500,000, all in $100 bills, and placed the cash in a bank safety deposit box. On September 30, 1994, the trial court issued written reasons for judgment awarding more than $800,000 to J & P for respondent’s conversion of partnership funds.

Thereafter, J & P began efforts to collect the judgment in its favor. During judgment debtor proceedings in December 1994, respondent testified under oath that after the trial court rendered its reasons for judgment, he removed the $500,000 in cash from his safety deposit box and “spent” all of it. When asked what the money was spent on, respondent testified that he could “go back and look at records” to detail “exactly what I’ve done with what monies.” No such records were ever produced.

In January 1995, J & P initiated an involuntary bankruptcy proceeding against respondent. On four occasions during that proceeding, respondent testified under oath that he had burned the $500,000 he withdrew from the bank safety deposit box. Specifically, respondent testified that the day after he learned of the state court judgment against him, he went to the bank and removed the currency from the safety deposit box, placed it in his briefcase, and took it home, where he doused the $100 bills with gasoline and burned them in a metal trash barrel in his back yard. Respondent also explained that he had used the term “spent” during the judgment debtor examination in an attempt to convey that the $500,000 in currency was “gone” or “burned.” The bankruptcy court rejected respondent’s testimony as a fabrication and ordered respondent to turn over the cash to the' bankruptcy trustee.

^Respondent failed or refused to comply with the turnover order, and as a result, the bankruptcy court recommended that he be held in contempt. On January 31, 1996, the district court adopted the bankruptcy court’s recommendation, adjudged respondent in civil contempt of court, and ordered that he be incarcerated until he produced the funds. Respondent appealed the contempt order to the United States Fifth Circuit Court of Appeals, which affirmed in an unpublished per cu-riam opinion.

In February 1997, a federal grand jury returned an indictment charging respondent with four felony counts of making false declarations under oath, in violation of 18 U.S.C. § 1623. Each count related to an instance during the bankruptcy proceeding in which respondent testified under oath that he had burned $500,000 in cash. Following a jury trial, respondent was unanimously convicted on all four perjury counts. In June 1999, respondent was sentenced to serve 33 months in prison, followed by three years of supervised release. The United States Fifth Circuit Court of Appeals subsequently affirmed respondent’s conviction and sentence. United States v. Norris, 217 F.3d 262 (5th Cir.2000).

DISCIPLINARY PROCEEDINGS

On March 29, 1996, the ODC filed one count of formal charges against respondent, alleging that his conduct violated Rules 3.3(a)(1) (a lawyer shall not knowingly make a false statement of material fact or law to a tribunal), 3.3(a)(4) (a lawyer shall not offer evidence known to be false), 3.4(b) (a lawyer shall not falsify evidence), 3.4(c) (a lawyer shall not knowingly disobey an obligation under the rules of a tribunal), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) U(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct. Respondent answered the formal charges and denied any misconduct.

Following respondent’s perjury conviction, the ODC supplemented and amended the formal charges to allege respondent’s commission of a criminal act, in violation of Rule 8.4(b) of the Rules of Professional Conduct. Respondent answered the amended formal charges and acknowledged his conviction, and pursuant to Supreme Court Rule XIX, § 19, he requested that the disciplinary proceeding be stayed until such time as all appeals from his conviction had been concluded. After respondent’s conviction became final, he requested a further continuance of the disciplinary proceeding until he was released from the federal penitentiary. This request was granted by the hearing committee chair over the ODC’s objection.

On May 14, 2002, the ODC filed a “Notice of Intent to Seek Permanent Disbarment.” In that notice, the ODC asserted that permanent disbarment is appropriate in this case, considering that respondent’s misconduct involves serious conversion of funds, fraud, and perjury.

Hearing Committee Recommendation

This matter finally proceeded to a formal hearing after respondent was released from federal prison in December 2002. Considering the evidence and testimony presented at the hearing, and finding there is no dispute as to the civil contempt order and respondent’s criminal conviction for perjury, the hearing committee concluded | ¿that respondent violated Rules 3.3(a)(1), 3.3(a)(4), 3.4(b), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. The committee determined that respondent violated a duty owed to the legal system, a factor which it acknowledged weighs heavily in favor of permanent disbarment. The committee further determined that respondent’s conduct caused harm or potential harm to others. His failure to truthfully testify to both the bankruptcy court and in civil proceedings caused economic hardship to his former law partners “through the delay of proceedings and inability to have a money judgment satisfied.” Moreover, the crime of perjury causes potential injury to the entire legal profession, particularly when committed by attorneys who are sworn to uphold the law and who are officers of the court. As to respondent’s mental state at the time of the offense, the committee observed that respondent’s behavior was “bizarre” but noted that he offered no medical evidence to suggest that an impaired mental state caused him to lie under oath. The committee determined that the baseline sanction for respondent’s conduct is disbarment.

As aggravating factors, the committee recognized respondent’s dishonest or selfish motive, a pattern of misconduct, multiple offenses, refusal to acknowledge the wrongful nature of the conduct, substantial experience in the practice of law (admitted 1970), and indifference to making restitution. In mitigation, the committee acknowledged the absence of a prior disciplinary record, personal and emotional problems (the personal and emotional problems in question were not specified but the committee found these “resulted in the underlying conduct”), a cooperative attitude toward the proceedings, good character and reputation, and the imposition of other penalties or sanctions.

Finding great weight should be applied to the mitigating factors, particularly the “punishment already received by the respondent” in connection with his criminal | ^conviction, the committee recommended that respondent be suspended from the practice of law for three years. Two members of the committee recommended that the suspension be applied prospectively from the effective date of the court’s order imposing discipline, while the third member recommended that the suspension be applied retroactively to the date of respondent’s interim suspension.

Both respondent and the ODC filed objections to the hearing committee’s recommendation. The ODC objected to the leniency of the sanction recommended by the committee, urging that permanent disbarment is appropriate. In his objection, respondent asserted that the three-year suspension recommended by the committee should commence as of the date of his interim suspension, not on the effective date of the final order of discipline.

Disciplinary Board Recommendation

After reviewing the record of this matter, the disciplinary board accepted the hearing committee’s factual findings and determined that respondent violated Rules 3.3(a)(1), 3.3(a)(4), 3.4(b), 3.4(c), 8.4(a), 8.4(b), 8.4(c), and 8.4(d) of the Rules of Professional Conduct. The board found that respondent violated duties owed to the public, the legal system, and as a professional. As the committee noted, an attorney who commits the crime of perjury causes injury not only to the public but also to the entire profession and to the judicial system. The board also agreed with the committee that disbarment is the baseline sanction for respondent’s misconduct.

The board adopted the aggravating and mitigating factors found by the committee, with the exception of the mitigating factor of personal and emotional problems, which the board determined does not apply in this ease. The board acknowledged that the record contains evidence that respondent suffered personal |7problems subsequent to the misconduct, such as the break-up of his marriage, but noted that there is no evidence that any personal problems caused or contributed to the misconduct. Therefore, the board rejected this factor.

Under the circumstances of this case, the board gave more weight to the aggravating factors than did the hearing committee. The board found that respondent has not in any way been rehabilitated by the significant term of imprisonment which he served as a result of the contempt order and the perjury conviction. Respondent has absolutely refused to acknowledge the wrongfulness of his misconduct, utterly lacks remorse, and is completely unwilling to make restitution. Respondent clearly perjured himself in the bankruptcy proceedings in order to avoid making restitution to his former law partners, as ordered under the terms of a civil judgment. He has shown no remorse for these acts.

Considering the substantial aggravating factors present, the board found that a downward deviation from the baseline sanction of disbarment is not warranted. Further, because respondent’s conduct falls squarely under Guideline 2 (intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury) of the permanent disbarment guidelines, the board turned to a discussion of the sanction of permanent disbarment.

The board noted that in the past, this court has not hesitated to permanently disbar lawyers who have engaged in criminal conduct, particularly when the conduct involved the corruption of the judicial process. See, e.g., In re: Laudumiey & Mann, 03-0234 (La.6/27/03), 849 So.2d 515 (conviction of obstruction of justice in connection with the lawyers’ knowing and intentional attempts to influence the testimony of two grand jury witnesses); In re: Pinkston, 02-3251, 02-3252 (La.5/20/03), 852 So.2d 966 (lawyer deliberately misrepresented facts to the court in an ^effort to obtain a more lenient sentence for his client); In re: Harris, 03-0212 (La.5/9/03), 847 So.2d 1185 (lawyer manufactured evidence and presented perjured testimony in a disciplinary matter); and In re: Lynch, 02-2275 (La.1/24/03), 840 So.2d 508 (conviction of subornation of perjury and conspiracy to obstruct justice in connection with a child pornography investigation). Likewise, respondent’s perjury conviction demonstrates that he lacks the moral fitness to retain a license to practice law. Furthermore, his steadfast refusal to acknowledge the wrongfulness of his conduct leads to the inescapable conclusion that he should be permanently disbarred.

Based on this reasoning, the board recommended respondent be permanently disbarred. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

Respondent filed an objection to the disciplinary board’s recommendation. Accordingly, the case was docketed for oral argument pursuant to Supreme Court Rule XIX, § 11(G)(1)(b).

DISCUSSION

Bar disciplinary matters come within the original jurisdiction of this court. La. Const. art. V, § 5(B). When the disciplinary proceedings involve an attorney who has been convicted of a crime, the conviction is conclusive evidence of guilt and the sole issue presented is whether respondent’s crimes warrant discipline, and if so, the extent thereof. Supreme Court Rule XIX, § 19(E); In re: Boudreau, 02-0007 (La.4/12/02), 815 So.2d 76; Louisiana State Bar Ass’n v. Wilkinson, 562 So.2d 902 (La.1990).

In the instant case, respondent stands convicted of four counts of perjury. This crime is a felony under federal law and clearly warrants serious discipline. Therefore, | sthe only remaining issue is the appropriate sanction for respondent’s misconduct. The resolution of that issue depends upon the seriousness of the offense, the circumstances of the offense, and the extent of the aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Perez, 550 So.2d 188 (La.1989).

Respondent does not dispute that the applicable baseline sanction for his misconduct is disbarment under both the ABA’s Standards for Imposing Lawyer Sanctions and the prior jurisprudence. Nevertheless, respondent argues that the mitigating factors present justify a substantial downward deviation from disbarment to a three-year suspension. We recognize that several mitigating factors are supported by the record, including the absence of prior disciplinary offenses, respondent’s prior good character and reputation, and the imposition of other penalties or sanctions in the criminal case. Nevertheless, these mitigating factors pale in comparison to the aggravating factors present, particularly respondent’s indifference to making restitution and his unwillingness to acknowledge that his conduct was in any way wrong. We also note respondent’s dishonest or selfish motive, the pattern of misconduct, the multiple offenses, and his substantial experience in the practice of law. Considering all these circumstances, we find no justification for imposing any sanction less than disbarment.

In contrast to respondent’s argument that a substantial downward deviation from the baseline is warranted in this case, the ODC contends that respondent’s conduct is so egregious that permanent disbarment should be imposed. The disciplinary board agreed, finding that Guideline 2 of the permanent disbarment | mguidelines (intentional corruption of the judicial process, including but not limited to bribery, perjury, and subornation of perjury) is applicable.

Respondent committed perjury on four separate occasions in an effort to avoid satisfying a civil judgment owed to his former law partners. His conduct reflects nothing less than a willful attempt to subvert the judicial process to his own ends. We cannot and will not condone conduct by an attorney that is so plainly calculated to frustrate the administration of justice.

We are convinced that respondent lacks the good moral character and moral fitness necessary to practice law in this state. In the face of such indisputable evidence of a fundamental lack of moral fitness, we can conceive of no circumstance under which we would grant readmission to respondent. Accordingly, he must be permanently disbarred.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record, briefs, and oral argument, it is ordered that the name of James A. Norris, Jr., Louisiana Bar Roll number 2206, be stricken from the roll of attorneys and that his license to practice law in the State of Louisiana be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is further ordered that respondent be permanently prohibited from being readmitted to the practice of law in this state. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

       Retired Judge Robert J. Klees, assigned as Justice ad hoc, sitting for Associate Justice Chet D. Traylor, recused.

      . The trial court’s judgment was subsequently affirmed on appeal in an unpublished decision. Johnson & Placke v. Norris, 27,476 (La.App. 2nd Cir.11/8/95), 665 So.2d 183, writ denied, 95-2856 (La.2/2/96), 666 So.2d 1098.

      . Respondent was incarcerated from March 7, 1996 until March 19, 1997 in connection with the civil contempt. Every month during his incarceration, respondent was brought before the bankruptcy court and asked to reveal the location of the cash and thereby lift the contempt order. On each occasion, respondent maintained that he had burned the money. Respondent remained imprisoned until the date of his arraignment for the perjury offenses discussed infra.

      . The formal charges filed in 1996 also alleged that respondent violated Rule 3.4(a) (a lawyer shall not unlawfully destroy a document or other material having potential evi-dentiary value) of the Rules of Professional Conduct; however, this charge was withdrawn by the ODC during the formal hearing.

      . The disciplinary board correctly rejected the mitigating factor of personal and emotional problems. Respondent's personal problems — including the break-up of his marriage in 1998 and the death of his mother in 1999— all arose years after the misconduct at issue in this case. There is absolutely no evidence that any personal or emotional problem caused or contributed to respondent's misconduct.


author: VICTORY, J.

text:
    LONDON TOWNE CONDOMINIUM HOMEOWNER’S ASSOCIATION v. LONDON TOWNE COMPANY, et al.
    No. 2006-CC-401.
    Supreme Court of Louisiana.
    Oct. 17, 2006.

      The Steeg Law Firm, Charles L. Stern, Jr., Alan M. Cohen, New Orleans, for applicant.
    Fred L. Herman, Thomas J. Barbera, Daniel W. Nodurft, New Orleans, for respondent.
   VICTORY, J.

LWe granted this writ application to resolve a split among the circuits as to the correct interpretation of Louisiana Civil Code Article 2041, which provides the prescriptive and peremptive periods for bringing a revocatory action. After reviewing the record and the applicable law, we reverse the judgment of the court of appeal and hold that, where the obligee seeks to annul an act of the obligor, the relevant date for prescriptive purposes is the date the obligee knew or should have known of the act, and that the date of recordation of the act does not, standing alone, commence the running of prescription.

FACTS AND PROCEDURAL HISTORY

On August 28, 2001, the London Towne Homeowner’s Association (the “Association”) filed suit against the London Towne Condominiums (the “LTC”) in the 24th Judicial District Court to collect amounts due for association dues and for defects in the condominiums (the “Lawsuit”). On May 24, 2004, the 24th Judicial District Court signed a judgment in favor of the Association and against LTC in the principal amount of $281,899.16, plus legal interest, expert witness fees and attorney’s fees. LTC did not appeal the judgment, which has not been satisfied.

| .¿On August 19, 2000, LTC acquired Unit 9 of 1201 Chartres Street in New Orleans for $202,000.00. On February 1, 2002, after the Lawsuit was filed, but prior to the entry of judgment against LTC, LTC executed an Act of Sale by which it purportedly sold the property to Millennium Group I, LLC (“Millennium”) for $202,000.00. The February 1, 2002, Act of Sale was recorded in the Orleans Parish conveyance records on February 19, 2002.

The Association alleges that shortly after obtaining its judgment against LTC, the Association learned of the 2002 transfer of the Chartres Street property. Believing that the transfer was part of a scheme to place LTC’s assets out of the reach of its creditors, the Association filed a Petition for Declaratory Judgment in Orleans Parish on November 18, 2004, challenging the transfer under both the revocatory action and simulation articles of the Civil Code, and seeking to have the transfer adjudged either an absolute or relative nullity. On June 2, 2005, Millennium filed peremptory exceptions of no cause of action and no right of action in response to the action in simulation and a peremptory exception of prescription in response to the revocatory action. Millennium argued that the Association’s revoca-tory action was prescribed on its face under La. C.C. art.2041 because it was filed more than one year after the date the document evidencing the transfer was recorded.

By judgment dated July 13, 2005, the trial court denied Millennium’s exceptions. LTC sought supervisory review of the denial of its exception of prescription. The court of appeal granted LTC’s writ and reversed the judgment of the trial court, holding that “Millennium met its burden of proof to show that the 13Association’s revo-catory action had prescribed, since over a year has passed from the date on which the Association received constructive notice of the sale,” which the court of appeal ruled was the date the Act of Sale was recorded. London Towne Condominium Homeowner’s Association v. London Towne Company, et al., 05-1243 (La.App. 4 Cir. 1/18/06). We granted this writ application to resolve a split in the circuits as to commencement of prescription of a re-vocatory action under La. C.C. art.2041. London Towne Condominium Homeowner’s Association v. London Towne Company, et al., 06-0401 (La.5/5/06), 927 So.2d 298.

DISCUSSION

Louisiana Civil Code articles 2036-2043 provide the rules applicable to the revoca-tory action, pursuant to which “[a]n obli-gee has a right to annul an act of the obligor, or the result of a failure to act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor’s insolvency.” La. C.C. art.2036. These code articles dictate the type of relief to which an obligee is entitled and the procedures which must be followed in a revocatory action. Civil Code article 142041 provides as follows:

The action of the obligee must be brought -within one year from the time he learned or should have learned of the act, or the result of the failure to act, of the obligor that the obligee seeks to annul, but never after three years from the date of that act or result.

When prescription is raised by peremptory exception, with evidence being introduced at the hearing on the exception, the trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. Under the manifest error standard of review, a factual finding cannot be set aside unless the appellate courts finds that it is manifestly erroneous or clearly wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) | Bfind that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

In reversing the judgment of the trial court, the court of appeal relied on its prior holding in Allied Shipyard, Inc. v. Edgett, 03-1315 (La.App. 4 Cir. 2/11/04), 868 So.2d 189, writ granted, 04-0503 (La.4/23/04), 870 So.2d 281 (case settled after writ grant). Allied Shipyard held that prescription under La. C.C. art.2041 begins to run when the obligee-creditor knew or should have known of the donation which they alleged created or increased the insolvency of the debtor, which is when the donation sought to be set aside was recorded in the public record. 868 So.2d at 192. Based on Allied Shipyard, the court of appeal held:

La. C.C. art.2041 dearly provides for constructive notice to trigger the running of prescription based on its express provision that a revocatory action shall be brought within one year from the time the creditor learned or should have learned of the act. Although the Association argues and the trial court reasoned that prescription should not commence until the Association learned that it had been damaged by the transfer, we find nothing in the record supporting an alternative date from which the Association claims that prescription should have run. Millennium met its burden of proof to show that the Association’s revocatory action had prescribed, since over a year has passed from the date on which the Association received constructive notice of the sale.

London Towne Condominium Homeowner’s Ass’n, 95-1243, p. 3.

The court in Allied Shipyard made clear its disagreement with the view of the Third Circuit, which has held that prescription does not begin to run until the creditor has constructive knowledge of the damage caused by the act which increases the | fiinsolvency of the debtor, rather than the date of the act itself. First Federal Savings & Loan Ass’n of Lake Charles v. Jones, 620 So.2d 408 (La.App. 3 Cir.), writ denied, 629 So.2d 347 (La.1993); Jeme, Inc. v. Gold Coast Carpets, Inc., 94-182 (La.App. 3 Cir. 10/5/94), 643 So.2d 898. The Third Circuit reasoned in First Federal that “before First Federal could exercise its right to the revocatory action, it first had to be able to prove that it had been damaged by its debtor’s actions.” 620 So.2d at 411. Thus, “[t]he trial court’s reliance on the recordation date of the trust instrument in the public records as the date prescription began to run was clearly misplaced.” Id.

The First Circuit has reached yet another conclusion as to the interpretation of La. C.C. art.2041. In Parish Nat. Bank v. Wilks, 04-1439 (La.App. 1 Cir. 8/3/05), 923 So.2d 8, 15, a case with essentially the same facts for prescription purposes as the case sub judice, the court “decline[d] to find that the time of the filing of the act of donation in the conveyance records was the date when [the creditor] knew or should have known of the act of donation, so as to commence the prescriptive period on its revocatory action.” In so holding, the First Circuit correctly relied on our holding in Phillips v. Parker, 483 So.2d 972 (La.1986), which explained the public records doctrine as follows:

The fundamental principle of the law of registry is that any sale, mortgage, privilege, contract or judgment affecting immovable property, which is required to be recorded, is utterly null and void as to third persons unless recorded. When the law of recordation applies, an interest in immovable property is effective against third persons only if it is recorded; if the interest is not recorded, it is not effective against third persons, even if the third person knows of the claim....
Thus, the law of registry does not create rights in a positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded. The essence of the public records doctrine is that recordation is an essential element for the effectiveness of a 17right, and it is important to distinguish between effectiveness of a right against third persons and knowledge of a right by third persons. An unrecorded interest is not effective against anyone (except the parties). A recorded interest, however, is effective both against those third persons who have knowledge and those who do not have knowledge of the presence of the interest in the public records. From the standpoint of the operation of the public records doctrine, knowledge is an irrelevant consideration. Any theory of constructive knowledge which imputes knowledge of the contents of the public records to third persons forms.no part of the public records doctrine. (Emphasis added.)

Phillips, 483 So.2d at 975-76 (footnotes and citations omitted). Thus, based on our holding in Phillips, the court of appeal in Parish Nat. Bank held:

Since the public records doctrine allows the parties to rely on the absence of documents in the public records and does not impute knowledge of the contents of the public records to third persons, the public records doctrine cannot be used to charge an obligee (creditor) with constructive knowledge of documents in the public records for purposes of determining whether he knew or should have known of the act so as to commence the prescriptive period under La. C.C. art.2041.

Parish Nat. Bank, supra at p. 15. In that case, because the defendant’s motion for summary judgment was supported only by the recordation of the donation in the public records on March 4, 2002, and the plaintiff admitted in its petition that it learned of the donation on January 16, 2003, the court held that prescription began to run on January 16, 2003. Id.

We have consistently held that the starting point in interpreting any statute is the language of the statute itself. Touch-ard v. Williams, 617 So.2d 885, 888 (La.1993); Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/97), 694 So.2d 184, 186. In reading the clear language of La. C.C. art.2041, it is evident that there are two possible prescriptive dates and one per-emptive date for bringing a revocatory action. An action must be brought: (1) within one year from the time the obligee learned or should have learned of the act of the obligor that the obligee seeks to annul; (2) within one year from the time the obligee learned or should have learned of the result |sof the failure to act of the obligor that the obligee seeks to annul; or (3) never after three years from the date of the act or the result of the failure to act.

In this case, what we have is an act, i.e., the sale of Unit 9 of 1201 Chartres Street in New Orleans, that the obligee seeks to annul. La. C.C. art.2041 clearly states that under these circumstances, the relevant date is one year from the time the obligee learned or should have learned of the act. The result of the act, or the harm caused as a result of the act, is not a relevant consideration because a result is only significant when there has been a failure to act.

Therefore, where an obligee is seeking to annul an act of an obligor, the relevant date is when the obligee learned or should have learned of the act. Granted, an obligee only has the right to bring an action to annul an act “that causes or increases the obligor’s insolvency.” La. C.C. art.2036. However, according to the clear language of La. C.C. art.2041, prescription begins to run from the date the obligee learned or should have learned of the act, not the date the obligee knows the act has caused or increased the obligor’s insolvency. While this may, in theory, result in a cause of action prescribing before the obligee has the right to bring the action, we do not believe this was contrary to the intent of the legislature, as they have cut off the right to file a revocatory action by setting a peremptive period, regardless of | athe obligee’s knowledge or lack thereof, three years from the date of the act or the result. As we held in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, 1296, in interpreting the legal malpractice prescriptive and peremptive period under La. R.S. 9:5605, “while the terms of the ... statute of limitations statute may be unfair in that a person’s claim may be extinguished before he realizes the full extent of his damages, the enactment of such a statute of limitations is exclusively a legislative prerogative.” Just as in Reeder, the legislature has clearly stated the terms of this prescriptive/peremptive statute of limitations and we are bound to interpret it as written.

Thus, the remaining issue is whether the date of recordation in the public records ipso facto constitutes constructive notice to the obligee of the act itself. Based on our explanation of the public records doctrine in Philips v. Parker, supra, we reject that legal conclusion. As we stated in Philips, “[a]ny theory of constructive knowledge which imputes knowledge of the contents of the public records to third persons forms no part of the public records doctrine.” 483 So.2d at 975-76. Therefore, recordation in the public records does not constitute constructive notice to third parties under La. C.C. art.2041.

In light of the above, we need to determine if the trial court was manifestly erroneous in denying Millennium’s exception of prescription. A party urging an exception of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Cichirillo v. Avondale Indus., Inc., 04-2894 (La.11/29/05), 917 So.2d 424, 428. Although evidence may be introduced to support or controvert any objection pleaded, in the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. Id. If prescription is evident on the fact of the pleadings, the burden 1 inshifts to the plaintiff to show the action has not prescribed. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 508. As our holding indicates, the date of recordation does not, standing alone, prove actual or constructive knowledge of the act. Constructive knowledge sufficient to trigger the running of prescription exists when a party has sufficient information or notice to excite inquiry regarding a possible claim. Id. at 510-11. Such information or knowledge as ought to reasonably put the victim on notice is sufficient to start the running of prescription. Id. The date upon which an obligee learned or should have learned of the act is a factual determination to be made by the trial court considering all the facts and circumstances of the case.

In its petition, the Association alleged in its Second Supplemental and Amended Petition for Declaratory Judgment that “[t]he Act of Sale was recorded on February 19, 2002 under Instrument No. 231488, and a copy of said act is attached hereto as Exhibit B.” Millennium did not introduce any evidence in the trial court to prove actual or constructive knowledge of the transfer. Instead, it relied on the Association’s statement in its petition that the transfer was recorded on February 19, 2002 as proof that the revocatory action has prescribed. However, as we have held today that the date of recordation does not provide constructive notice of the transfer, that statement in the petition does not prove that the Association learned or should have learned of the transfer on that date. Therefore, the burden of proof did not shift to the Association, but instead remained with Millennium; thus it was incumbent upon ^Millennium to introduce such evidence at the trial of its exception. Millennium failed to do so; therefore, it failed to satisfy its burden of proof.

CONCLUSION

Under the clear wording of La. C.C. art.2041, prescription on a revocatory action begins to run from (1) the time the obligee learned or should have learned of the act of the obligor that the obligee seeks to annul, or (2) the time the obligee learned or should have learned of the result of the failure to act of the obligor that the obligee seeks to annul. However, in all cases, a revocatory action is perempted three years from the date of the act or the result of the failure to act. The date the obligee learned or should have learned of the act or the result of the failure to act is determined by considering all the relevant facts and circumstances of the particular case. Where the obligee is seeking to annul an act of the obligor, the act of recordation in the public records, does not, standing alone, provide constructive knowledge of the act. In this case, Millennium bore the burden of proving that one year had passed since the Association learned or should have learned of the transfer of the Chartres Street property. Because the only evidence it presented in support of its exception was the date of recordation of the transfer, it did not carry its burden of proof.

DECREE

For the reasons stated above, the judgment of the court of appeal is reversed and the trial court judgment is reinstated.

REVERSED.

      . In support of its claims, the Association alleged that the transfer by LTC to Millennium was made for less then the amount stated in the Act of Sale or for no consideration at all, that the parties to the transfer intended for different effects to flow from the transaction than those stated in the Act of Sale or for the transaction to produce no effects between them, and that the transfer caused or increased LTC's insolvency. The Association also alleged that the purported transfer was made to place the Chartres Street property beyond the reach of LTC's creditors.

      . "An obligor is insolvent when the total of his liabilities exceeds the total of his fairly appraised assets.” La. C.C. art.2037.

      .La. C.C. art.2038 provides:
      An obligee may annul an onerous contract made by the obligor with a person who knew or should have known that the contract would cause or increase the obli-gor's insolvency. In that case, the person is entitled to recover what he gave in return only to the extent that it has inured to the benefit of the obligor's creditors.
      An obligee may annul an onerous contract made by the obligor with a person who did not know that the contract would cause or increase the obligor's insolvency, but in that case that person is entitled to recover as much as he gave to the obligor. That lack of knowledge is presumed when that person has given at least four-fifths of the value of the thing obtained in return from the obligor.
      La. C.C. art.2039 provides:
      An obligee may attack a gratuitous contract made by the obligor whether or not the other party knew that the contract would cause or increase the obligor's insolvency.
      La. C.C. art.2040 provides:
      An obligee may not annul a contract made by the obligor in the regular course of his business.
      La. C.C. art.2042 provides:
      In an action to annul either his obligor's act, or the result of his obligor’s failure to act, the obligee must join the obligor and the third persons involved in that act or failure to act.
      A third person joined in the action may plead discussion of the obligor’s assets.
      La. C.C. art.2043 provides:
      If an obligee establishes his right to annul his obligor's act, or the result of his obli-gor’s failure to act, that act or result shall be annulled only to the extent that it affects the obligee's right.

      . "The expression, '... the result of a failure to act of the obligor’ contemplates situations in which an obligor becomes insolvent, or his insolvency increases, because of his failure to act, or when the obligor fails to defend himself in a lawsuit, and the resulting judgment creates or increases his insolvency.” La. C.C. art.2036, Official Revisions Comment (e) (1984).

      . The Revision Comments to this article state:
      (a) This Article is new. As "insolvency” is substituted from "fraud” as the criterion for availability of the revocatory action, the prescriptive period should be one year from the day the obligee learned of the harm. Otherwise, a devious obligor could prejudice his obligee’s claim and conceal his actions for a year, thereby escaping liability altogether.
      La. C.C. art.2041, 1984 Revision Comments (a). In light of the clear wording of the statute, which provides a different commencement date depending on whether the obligee is seeking to annul an act of the obligee or the result of a failure to act on the part of the obligee, we reject the Comment's blanket statement that "the prescriptive period should be one year from the day the obligee learned of the harm.” Clearly, this is not true where the obligee is seeking to annul an act of the obligor. As clearly expressed by the legislature, prescription begins to run in that case when the obligee learned or should have learned of the act.

      . The date of recordation may be a relevant consideration if, based on the facts and circumstances of the case, the obligee knew or should have known of the recordation. Further, if it is found that the obligee knew about the recordation, the date he found out about the recordation would commence the running of prescription. Thus, while the date of re-cordation is not the determinative factor in ascertaining the commencement of prescription, it may be a relevant factor depending upon the facts and circumstances of the case. One example of an act that would provide constructive notice where an transfer has been recorded would be a judgment debtor examination where the creditor learns of the debtor's property but fails to investigate whether it has been transferred to a third party.