author: MICHAEL E. KIRBY, Judge. ARMSTRONG, C.J.,

text:
    Rejohnna Brown MITCHELL v. Harolyn BRADFORD, Jackie Blouin, Annastasia Harden, Yvonne White, Carla Campbell, Sharon Morton. Rejohnna Brown Mitchell v. Gretchen Bradford. Rejohnna Brown Mitchell v. Marian Madison.
    Nos. 2006-CA-1496, 2006-CA-1497, 2006-CA-1519.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.
    Rejohnna B. Mitchell, Jackson, MS, for Plaintiff/Appellee.
    Rickey R. Hudson, Monroe, LA, for Defendants/Appellants.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

hThe Defendants/Appellants appeal the granting of a default judgment in appel-lee’s favor concerning attorney’s fees. We vacate the Default Judgment for failure to make a prima facie case and remand.

STATEMENT OF THE FACTS

On or about March 29, 2000, appellants made an initial office visit to appellee regarding their personal injury claims against the makers of the diet drug Phen-fen, manufactured by American Home Products. Appellants subsequently signed a Contingency Agreement with appellee on November 2, 2000, which in paragraph one states: “In the event that attorney is able to affect a settlement or the claim and/or claims without the necessity of filing suit, the attorney is to receive as compensation for his services ... 40% of whatever amount is collected.” Paragraph five states: “Expenses are to be the responsibility of the client and are to be deducted from the client’s portion of any and all monies recovered.” While nine clients signed the retainer agreement, only the eight named clients have filed this appeal. The eight named clients hereinafter will be collectively referred to as the “Phen-fen clients.”

IgFrom October 27, 2000 until December 5, 2000, appellee secured medical records and prescription records for the Phen-fen clients, which indicated their ingestion of the diet drug and the resulting medical damages. In January 2001, appellee associated with the law firm of Grenfell, Sledge & Stevens, L.L.C. (hereinafter referred to as “Grenfell”) located in Jackson, Mississippi. The record indicates that Grenfell sent a letter to appellee requesting her to have the Phen-fen clients sign and return a confidential release, indemnity, assignment and settlement disclosure forms. Appellee subsequently met with all of the Phen-fen clients and had them sign the Fen-Phen releases which she. returned to Grenfell in Mississippi. The Phen-fen releases show the clients’ choice to waive their right to pursue their cases before a judge or jury in favor of allowing the outcome to be determined by a court-appointed Special Master. The signed Phen-fen releases were then forwarded by Gren-fell to the law firms of. Michael T. Gallagher and Tim K. Goss, both located in Dallas, Texas. The signed Phen-fen releases were then submitted to the Special Master on behalf of appellee and the Phen-fen clients.

From January through July 2001 appel-lee made arrangements for each client to have an echocardiogram test. Appellee forwarded the test results to the Special Master.

In response to the signed Phen-fen releases, a settlement offer and check from the Settlement Fund made out to Marian Madison for $322,000 was mailed to Gren-fell. Grenfell then forwarded the settlement offer to appellee on August 16, 2001. This offer was rejected by Mrs. Madison after consultation with the appellee. Ap-pellee also informed Grenfell at the same time that she was rejecting all of the settlements for her clients which had been obtained by Grenfell. There were disagreements that ensued between appellee and Grenfell in August and |3September 2001. Each of the Phen-fen clients had been offered a settlement of $72,264, with the exception of Mrs. Madison, who was to receive $322,000. Grenfell returned a letter to appellee confirming the rejection of the settlement offers and cited Mississippi case law which entitled them to an attorney fees lien. This was done following a letter that appellee sent to Grenfell on September 6, 2001 instructing them that appellee was terminating her association with them.

Approximately 18 months later, appellee communicated with Dan Homolka, an attorney from Minnesota, who then filed a civil suit on behalf of the Phen-fen clients in Minnesota’s 4th Judicial District Court for Hennepin County (Case No. 03-4147) in March 2003. The case was dismissed without prejudice when American Home Products Corp. produced evidence of the releases from appellants and proof that their claims were still pending in the Diet Drug Settlement Fund.

The professional relationship between appellee and Grenfell continued to deteriorate, resulting in appellee filing a lawsuit against Grenfell in First Judicial District Court of Hinds County, Mississippi on March 31, 2004. Appellee sued for release of her clients’ claims and alleged conversion and breach of contract. In response to this lawsuit, Grenfell filed a complaint for declaratory judgment against the ap-pellee in Hinds County (No. G-2004-531) on April 2, 2004. In this suit, Grenfell requested that the court enter an order finding the Phen-fen contractual agreement and settlement/releases signed by the Phen-fen clients be enforced and requiring payment of damages and the disbursement of the settlement proceedings. As a result, a consent order was entered interpleading One Hundred, Thirty-Five Thousand and Eighty-Six Dollars ($135,-086) with the funds being held in the registry of the Mississippi Chancery Court until further orders of that court.

|4On November 9, 2004 the eight Phen-fen clients who are parties to this appeal filed a motion to intervene in the Mississippi declaratory judgment action, alleging their contingency fee contract agreement with appellee was unenforceable. The Phen-fen clients allege that their relationship with appellee terminated on August 6, 2003 due to appellee’s breach of the contingency fee contract and/or appellee’s failure to notify them in a timely manner when their settlement proceeds became available. To this date, appellee appears to be representing appellants in the aforementioned litigation against Grenfell that is still pending in the Hinds County, Mississippi First Judicial District Circuit Court. With respect to the still-pending declaratory judgment/interpleader action, the appel-lee subsequently urged a successful motion which resulted in the Mississippi Chancery Court granting a Motion to Dismiss for Lack of Subject Matter Jurisdiction. The Mississippi Court ordered the transfer of the entire file of Civil Action No. G-2004-531 to the Civil District Court for the Parish of Orleans, Louisiana on November 26, 2006.

PROCEDURAL HISTORY

Appellee filed a petition on July 16, 2004 in Civil District Court for the Parish of Orleans (No. 2004-10350, Division “F”) for debt owed on her contingency fee contracts with the Phen-fen clients. Appellee filed a motion for preliminary default judgment against the Phen-fen clients on April 25, 2006. The Orleans Parish Civil District Court granted the preliminary default judgment against the Phen-fen clients on September 6, 2006, due to their failure to file an answer or other responsive pleadings in a timely manner. The default judgments were as follows: Harolyn M. Bradforde, $131,000.00; Jackie Blun, $30,905.60; Yvonne White, $131,000.00; Sharon Morton, $30,905.60; Annastasia Harden, $148,000.00; Carla | ¡¡Campbell, $30,905.60; Gretchen Bradford, $131,000.00; Marian B. Madison, $131,-00.00.

Pursuant to Louisiana Code of Civil Procedure articles 2083 and 2121, appellants filed notice of appeal to be taken from the allegedly defective default judgment entered into the trial court record of this matter.

ASSIGNMENTS OF ERROR

Appellants have assigned two errors on the part of the trial court. First, it is alleged that the court committed error in granting the default judgment in an amount that exceeds the demand prayed for in the petition and that also exceeds the damage proven by competent and admissible evidence. Secondly, they contend the court below erred in granting the default judgment after appellee failed to sufficiently establish a prima facie case in support of her demands as required pursuant to La. C.C.P. art. 1702(A) and the controlling case law.

LEGAL ANALYSIS

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P art. 1702(A); see also Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993). When the demand is based on a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. La. C.C.P. art. 1702(B)(1). Aprima facie case is established when the plaintiff proves the essential allegations of the petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Discover Bank v. Peters, 38,366 (La.App. 2 Cir. 4/14/04), 870 So.2d 602; Zahn v. Hibernia Nat. Bank, 94-204 (La.App. 5 Cir. 11/16/94), 646 So.2d 1149; Morris v. Southern American Ins. Co., 550 So.2d 828 (La.App. 2d Cir.1989).

The evidence submitted by appellee with her petition lacks sufficiency for establishing a prima facie case in support of her demands. In the trial record there is a Diet Drugs II Qualified Settlement Fund Release and Distribution Sheet which lists one of the appellants, Marian Madison as represented by both Grenfell and Mitchell as attorneys. In addition, the settlement offer is as follows: $322,000.000 total gross settlement, less attorney fee of $128,800.00, less expense of $135.12, for a net amount to the client of $193,064.88. Appellee purports to prove that the appellant received a settlement award which would be subject to some claim pursuant to the contingency fee contracts at issue. This evidence is insufficient because first, the document signed by Marion Madison clearly indicates she rejected the offer. Secondly, the record contains only a copy of the front of the check made out to Marion Madison and dated August 8, 2001. Thirdly, Mr. Cothern’s letter dated October 1, 2003, indicates the check for $193,064.88 was sent to Grenfell in 2001 but that the check never cleared the Diet drugs II account. Fourthly, even if the settlement was later accepted (for which no evidence exists in the record), the settlement clearly indicates that the attorney’s fees ($128,800.00) had been deducted from the final settlement amount before the check was tendered to the appellant Ms. Madison. Appellee fails to present evidence that any of the appellants received a settlement that included the attorneys’ fees for which she is petitioning. In addition, the only evidence regarding a settlement is in regard to Ms. Madison; no evidence of settlement funds dispersed to the other clients is available in the record. The record did not contain sufficient competent evidence 17in terms of the appellants receiving settlement funds that included attorneys’ fees for which the appellee sought in the default judgment. Appel-lee’s letter of November 5, 2003 to Michael Gallagher only provides hearsay evidence of settlements for the Phen-fen clients, which were rejected by the appellee. In addition, appellee sought significantly higher settlement amounts in the same letter. Appellee failed to produce an authentic disbursement sheet proving the existence and precise amount of any settlement funds allegedly obtained by any of the other Phen-fen clients.

At the confirmation hearing appel-lee offered no more pertinent evidence regarding the disbursement of funds other than that stated in paragraph nine of her petition: “On information and belief that disbursement of the funds subject to the settlement agreement was made to your defendants on or about June 13, 2004.” Appellee’s assertion that the appellants received a disbursement is not sufficient evidence to establish the elements of a prima facie case. A plaintiff who knows of a writing that is the principal basis for her claims must produce it when it is the best evidence of the facts at issue. See Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875, 878 (La.1972).

Additionally, appellants argue that the trial court failed to make the required inquiry to determine the reasonableness of the amount of attorneys fees awarded to appellee in the instant case. There is merit to this argument. Appellee sought the assistance of counsel from Grenfell, Sledge & Stevens, POLLC, located in Jackson, Mississippi to procure a successful settlement for her clients. However, appellee made no mention of the then pending and on-going declaratory judgment/interpleader litigation in Mississippi involving inter alia, the appellee and out-of-state attorneys regarding attorney fees for settlement of the Phen-fen |sclients. Appellee also failed to inform the court that when she filed the instant action, Grenfell et al. had already asserted a lien on the same Fen-Phen settlement proceeds that are at issue in the instant case. Appellee did not attempt to prove that the attorney’s fees she demanded in her petition were reasonable and/or that she earned the legal fees at issue herein, in light of the fact that appellants at some point discharged her and hired new counsel before final settlement of their cases.

Louisiana courts have given great deference to clients in choosing their attorney for representation. “The existence of an attorney-client relationship turns largely on the client’s subjective belief that it exists.” La. State Bar Asss’n v. Bosworth, 481 So.2d 567, 571 (La.1986), citing Matter of McGlothlen, 99 Wash.2d 515, 663 P.2d 1330 (1983). “The appointment of an attorney is a mandate revocable at the client’s will.” Sanders v. Federal Apartments Ltd. Partnership, 31,562, p. 4 (La.App. 2 Cir 2/24/99), 733 So.2d 45, 47, citing Keene v. Reggie, 96-740 (La.App. 3 Cir. 10/22/97), 701 So.2d 720. The second circuit even held that a client had discharged his initial attorney while the discharged attorney remained the attorney of record. Johnson v. Insurance Co. of North America, 27,847 (La.App. 2 Cir. 1/24/96), 666 So.2d 1286.

The Phen-fen clients allege that their relationship with appellee terminated on August 6, 2003 due to appellee’s breach of the contingency fee contract and/or appel-lee’s failure to notify them in a timely manner when their settlement proceeds became available. The trial record in the appellee’s communication log indicates that on April 29, 2004 she received a letter from Grenfell stating she was no longer representing the appellants in this appeal. While the appellants and appellee differ on the exact date of dismissal, both agree that at some point the appellants no longer wanted to be represented by the appellee.

|9In a similar situation, the Louisiana Supreme Court in Saucier examined a case in which a client discharged his attorney before the case was settled. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978). The discharged attorney had been retained under a contingency fee contract. The client then retained a second attorney under a second contingency fee contract. The Court held that only one fee should be paid by the client and that fee was to be divided between the two attorneys on a quantum meruit basis. Subsequent to the Saucier decision, courts reasoned, in accordance with Rule 1.5(a) of the Rules of Professional Conduct, the following factors are to be examined to determine the amount of an attorney’s recovery:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) whether the fee is fixed or contingent.

In Smith v. Westside Transit Lines, Inc., this court held that, under a quantum meruit analysis, the court should consider a number of factors when an attorney discharged for cause seeks compensation for services rendered. 313 So.2d 371, 376 (La.App. 4th Cir.1975). The court noted that quantum meruit means “as much as he deserves;” therefore the fact finder should look to the ultimate results obtained, the benefit to the case for each task undertaken by the attorney, and the |inquality and effectiveness of the services performed by both the discharged and subsequent counsel. The number of hours an attorney has spent on the matter is not dispositive of the fee due to that attorney. Id. at 378.

We find that the appellants discharged the appellee and that the appellee became aware that she was discharged at least by April 29, 2004. We also find that subsequent to this dismissal the appellants’ new counsel negotiated a satisfactory settlement of the drug claims. Applying the standard under Saucier, the attorneys’ fees should be divided under a quantum meruit standard. While the appellee represented the appellants for a significant period of time (November 2000 through April 2004) and contributed many hours representing these clients, we also recognize that the appellants’ new counsel used their expertise and experience to effectuate a successful settlement for the appellants. Under the standard in Smith and under the factors from the Rules of Professional Conduct, the division of fees cannot be limited to the number of hours spent by an attorney on a case. While the appellee invested a significant amount of time in representing the appellants, it is clear that the expertise and experience of Grenfell was required for the settlement of these cases. While the appellee would be entitled to a portion of the attorneys’ fees, she is not entitled to 100% of the attorneys’ fees under the Saucier standard.

In the aforementioned Saucier case, the Louisiana Supreme Court remanded the matter back to the trial court and ordered the trial court to require the second attorney be joined as an indispensable party for a full and proper adjudication of the matter. The court said both attorneys should be accorded the opportunity to establish his right to receive an appropriate apportionment of the one contingent fee owed by the client. Saucier at 119. Appellee failed to candidly identify the |n attorneys with a competing claim to the attorney’s fees at issue in this appeal. Appellee also failed to inform the court of the existence of the still pending contingency fee dispute litigation in Mississippi between the appellants, appellee and Grenfell et al, involving the same alleged settlement proceeds that are in dispute in this case.

We find that the trial court committed manifest error in granting appellee a default judgment for the full 40% contingency fee plus expenses, without joining the necessary parties of Grenfell et al. and without applying the quantum meruit standard for an equitable division of attorneys’ fees. We also find that the record did not contain sufficient competent evidence of the amount of funds disbursed to each appellant, from which the appellee seeks her share of the attorneys’ fees.

Accordingly, we vacate the judgment confirming the default and remand to the lower court for further proceedings consistent with this opinion.

JUDGMENT VACATED AND REMANDED

ARMSTRONG, C.J., concurs.

ARMSTRONG, C.J.,

concurring.

U respectfully concur in the result reached by the majority.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Chad Anthony MIRE v. Lacinda Michelle Stewart MIRE.
    No. 06-511.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 27, 2006.
    Gary J. Ortego, Attorney at Law, Ville Platte, LA, for Plaintiff/Appellee, Chad Anthony Mire.
    Susan Ford Fiser, Attorney at Law, Alexandria, LA, for Defendant/Appellant, Lacinda Michelle Stewart Mire.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

L Lacinda Michelle Stewart Mire appeals the dismissal of her petition for the supplemental partition of community property following her divorce from Chad Anthony Mire. For the reasons assigned, we affirm in part, vacate in part, and remand.

The parties were married in 1988, separated in January of 2003, and divorced in December of 2003. According to the testimony, the family home was sold in July of 2003. On December 22, 2003, the court issued an “order of visitation plan and partition of property” pursuant to an agreement reached by the parties. The vaguely worded and incomplete partition included the following division of property: to Chad, the truck, boat, trailer, lawn mower, four-wheeler, “certain personal items,” and one-half of his 401K plan; to Michelle, the Suburban, computer, printer, scanner, “all items presently in the home,” and one-half of Chad’s 401K plan. No other property, debts, or financial accounts were included in the partition, nor was any mention made concerning the proceeds of the sale of the family home.

In 2005, Michelle petitioned the court for a supplemental partition of the community. At issue in this appeal are two items Michelle contends were inadvertently omitted from the original partition: the remaining amount on a $24,300.00 debt to Michelle’s father for the down payment on a home purchased by the couple in 2001, and her share of a deferred compensation plan held by Chad’s employer on his behalf which was paid out in 2004 and 2005.

With regard to the $12,000.00 balance owed to Michelle’s father, Chad admitted at trial his knowledge of the debt and the couple’s ongoing payments with community funds during their marriage. The court found, however, that because the house was not included in the original partition, presumably because of plans to sell it, the parties must have “intended a separate handling” of their financial obligations [^associated with the house. Accordingly, at the time of the hearing on the supplemental partition in 2005, the court concluded the debt to Michelle’s father was no longer a community obligation.

Similarly, the trial court also denied the partition of funds received by Chad from the payout of his deferred compensation plan. Noting that both parties testified as to their knowledge of the deferred compensation plan, the court inferred by analogy their intent to partition all community property in the original partition agreement. The court explained:

In testimony before the court, [Michelle] admitted that she was aware of the deferred compensation payments or accounts at the time of the partition agreement. It would appear logical, then, that, as with the family home, this item was omitted for a reason. This appears especially true in light of the inclusion of the 401K plan in the partition and the fact that [Michelle] had signed Chad’s employment contract, thereby acknowledging knowledge of its contents.
By analogy, since both parties were aware of their complete financial picture, including presently claimed items of deferred compensation, and the Stewart loan at the time of the partition, the conclusion must be reached that the parties intended a separate handling of their affairs, as with the family home, and, therefore, intended the partition to settle all community property.

In this appeal, Chad urges this court to affirm the trial court’s ruling based on Michelle’s admitted knowledge of the funds included in the deferred compensation plan. He argues that she is precluded from revisiting the previous judicial partition. Conversely, Michelle argues that the deferred compensation funds and the debt to her father were inadvertently omitted from the original partition and are properly subject to supplemental partition as prayed for.

In Corley v. Baden, 00-1407, p. 2 (La.App. 3 Cir. 2/28/01), 781 So.2d 768, 770, writ denied, 01-0853 (La.5/25/01), 793 So.2d 163, this court held that the |sparties to a partition agreement do not forfeit any interest each may have in certain community property not included in the settlement:

[W]hile the parties certainly waived the right to recalculate or reapportion community property listed in the settlement, they did not forfeit any interest each may have in community property not included in the settlement.
In Moreau v. Moreau, 457 So.2d 1285 (La.App. 3 Cir.1984), this court allowed a supplemental partition of a husband’s military retirement benefits which had been intentionally omitted from the community property settlement due to a mutual mistake of the parties. Likewise, in Succession of Tucker, 445 So.2d 510 (La.App. 3 Cir.), writ denied, 447 So.2d 1077 (La.1984), this court was presented with similar waiver language as in the instant case. We held:
LSA-C.C. art. 1308 provides that an action of partition lies between all persons who hold property in common. LSA-C.C. art. 1401 provides that the mere omission of a thing from the partition is not ground for rescission, but simply for a supplementary partition. The plaintiff here asks for nothing more than a supplementary partition of a community asset omitted from the original community property settlement through mutual oversight. ... We do not interpret the clause in the partition agreement as a waiver of the plaintiffs right to seek a supplemental partition of an omitted asset which was never considered by the parties at the time of the original agreement. Therefore, the plaintiff has the right to ask for a supplemental partition under C.C. art. 1401.

445 So.2d at 513.

Article 807 of the Louisiana Civil Code provides that “[a]ny co-owner has a right to demand partition of a thing held in indivisión.” Regarding community property, the jurisprudence of this state holds that “Community property which is not disposed of by a community property settlement agreement remains owned in indi-visión by the parties. Rollison v. Rollison, 541 So.2d 375 (La.App. 2 Cir.1989).” Heggins v. Heggins, 590 So.2d 647, 649 (La.App. 3 Cir.1991), writ denied, 592 So.2d 1300 (La.1992). Furthermore, in a holding specifically affirmed by the supreme court, the fifth circuit stated: “[T]he law is clear that where there is no | ¿transfer of rights in the partition document, an asset remains owned in indivisión by the parties.” Hare v. Hodgins, 567 So.2d 670, 672 (La.App. 5 Cir.1990), aff'd in part, rev’d in part on other grounds, 586 So.2d 118 (La.1991). See also, Terrebonne v. Theriot, 94-1632 (La.App. 1 Cir. 6/23/95), 657 So.2d 1358, writ denied, 95-2249 (La.11/27/95), 663 So.2d 743. Even when an original partition does explicitly purport to be a full and final property settlement between the spouses, the courts have allowed supplemental partitions of omitted assets when the facts and intent of the parties warrant it. Day v. Day, 02-0431 (La.App. 1 Cir. 5/28/03), 858 So.2d 483, writ denied, 03-1845 (La.11/7/03), 857 So.2d 492, citing Hare and Faucheux v. Faucheux, 97-1369 (La.App. 4 Cir. 1/28/98), 706 So.2d 654, writ denied, 98-0482 (La.4/9/98), 717 So.2d 1146. Finally, in LeBlanc v. LeBlanc, 05-212, p. 5 (La.App. 3 Cir. 11/2/05), 915 So.2d 966, 969, this court held that “inadequate partition or no partition at all permits the parties to continue as co-owners as to any undivided property.” (Emphasis added.)

“Inadequate” is certainly an apt description of the partition at issue before us. Consequently, we must review the facts to determine if Chad and Michelle intended to partition the community debts arising from the purchase of their home and Chad’s deferred compensation funds.

Upon review of the record, we find the evidence regarding the sale of the family home and extinguishment of the debts associated therewith to be equivocal. The sale itself was not documented in this record. While there was testimony indicating the home was sold prior to the divorce, the trial court’s reasons do not state that the house was previously sold at the time of the original partition. Furthermore, while both parties admit the debt to Michelle’s father, the unsecured loan was not in writing and evidence regarding payments made on the loan was incomplete, as Mr. | .¡Stewart’s ledger was not admitted into evidence. In addition to Michelle’s contention that her father is still owed $12,000.00, Chad testified that the mortgage payoff amount listed in the closing documents at the time of the sale was incorrect; consequently, he took out a loan subsequent to the partition to pay it off and is using separate funds to repay that loan. Given these competing considerations, we find the trial court properly denied Michelle’s request to partition the debt to her father. The dismissal of that portion of Michelle’s petition is affirmed.

Turning now to the deferred compensation plan, we question the trial court’s analogy between those funds and the sale of the family home, which had presumably already been sold. The deferred compensation plan was omitted from the original partition. There is nothing in the language of the partition indicating an intent to include those funds, nor is there a category of unspecified items which could encompass those funds. While both parties were aware of its existence, there is no convincing evidence as to whether it was considered by the parties or their attorneys, much less the court, in the original partition. Nevertheless, at the hearing on the supplemental partition, the trial court found the deferred compensation funds were “omitted for a reason” and that the parties “intended a separate handling of their affairs.”

The record is totally devoid of any evidence to support this factual conclusion. The trial court was convinced from the testimony of the witnesses that the parties intended to partition the entire community at the time of the divorce in 2003, but this finding has no factual basis in the record. For instance, if the evidence indicated that the deferred compensation plan was simply forgotten, then a supplementary partition could be allowed as the parties did not restrict themselves from subsequently dividing additional community assets. Conversely, if a side agreement revealed an intent to | ¿finalize litigation, or if the facts show a intent to offset debts assumed by Chad, then Michelle would have no basis to support her prayer for a supplemental partition. The trial court’s assumptions have left this court in the difficult position of having to guess at the grounds for the decision rendered below.

Because we cannot glean from the record the parties’ specific intention regarding the proceeds of the deferred compensation plan, we must remand for the taking of evidence on this point. If the evidence reveals that the parties intended the proceeds to be given in full to Chad to equalize other property given to Michelle, or other debts assumed by Chad, then Michelle is not entitled to judgment in her favor. However, if the deferred compensation funds were simply forgotten and inadvertently omitted from the original partition, then those funds must now be partitioned, and the trial court must calculate the precise amount owed to Michelle.

Accordingly, that portion of the trial court’s judgment dismissing Michelle’s claim for a partition of the funds dispersed from Chad’s deferred compensation plan must be vacated and the matter remanded for the taking of further evidence.

For the above and foregoing reasons, the judgment of the trial court is affirmed in part, vacated in part, and remanded. Costs of the appeal are assessed equally to the parties.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Shelton J. RAYFORD, et al. v. NATIONAL RAILROAD PASSENGER CORPORATION, et al.
    No. 2005-C-1273.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 2007.
    William J. Billeaud, Benjamin B. Saunders, Davis Saunders, PLC, Mandeville, Louisiana, for Plaintiffs/ Respondents, Shelton J. Rayford and Janice A. Dzerve.
    Kyle L. Gideon, Davidson, Meaux, Son-nier & McElligott, Lafayette, Louisiana, and Brent A. Talbot, Chaffe McCall LLC, New Orleans, Louisiana, for Defendant/Relator, The National Railroad Passenger Corporation.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS JR., and Judge DAVID S. GORBATY).
   ON REMAND FROM THE SUPREME COURT OF LOUISIANA

JOAN BERNARD ARMSTRONG, Chief Judge.

| t This matter comes before this Court pursuant to the remand order of the Louisiana Supreme Court for briefing, argument and full opinion. 2006-CC-0230 (La.4/24/06). This matter first came before this Court pursuant to a joint application of the relators, National Railroad Passenger Corporation (“Amtrak”) and the Burlington Northern and Santa Fe Railway (“BNSF”) invoking this Court’s supervisory jurisdiction to review the judgment of the trial court denying the relators’ exception of nonjoinder of a party . However, while BNSF’s name appeared jointly with that of Amtrak on the original application to this Court, no arguments were made therein regarding BNSF’s interest, if any, in the writ. For example, in the original joint application the prejudice this Court was asked to remedy was described as follows:

Trying this lawsuit without Iberia Parish as a party will deprive AMTRAK of its right to obtain complete contribution in the event AMTRAK is found liable to plaintiff and will result in AMTRAK being subject to inconsistent verdicts on its claim for contribution.

|gThe application does not contend that any prejudice will inure to the interests of BNSF. Similarly, in Amtrak and BNSF’s joint “Reply to Plaintiffs’ Response,” the only grievance expressed is:

Because Ayers, supra, is to be applied, as explained in the original writ application, AMTRAK’s right to obtain contribution against Iberia Parish could be prejudicially impacted should this case proceed to trial without Iberia Parish as a party. [Boldface added.]

Once again no prejudice is alleged regarding the interests of BNSF.

This Court denied the writ application in an unpublished writ disposition. 2005-C-1273 (La.App. 4 Cir. 12/29/05).

Only Amtrak sought writs from the Supreme Court of Louisiana. BNSF was not even a nominal party to the writ application to the Supreme Court. The writ disposition from the Supreme Court resulting in the remand order referred at the beginning of this opinion referenced Amtrak only and included no reference to BNSF. All pleadings filed by the relator as a result of the remand to this Court have been filed in the name of Amtrak only. BNSF has made no appearance before this Court in connection with this remand. Again, the relator argues of potential prejudice only to Amtrak should proceedings against it be allowed to proceed in the absence of Iberia Parish. No suggestion is made that such proceedings would have any adverse impact on BNSF.

Based on the foregoing, we find that regardless of whatever interest BNSF may have intended to assert when this matter first came before this Court, and we detect none, BNSF has long since abandoned its participation in this writ application. Therefore, the only relator which this Court recognizes at this stage of the proceedings is Amtrak. Other than Amtrak and the plaintiffs, no other parties to this litigation have expressed any interest in these writ proceedings.

UPlaintiffs are Shelton J. Rayford, a railroad engineer and resident of Orleans Parish , and Janice A. Dzerve, a railroad conductor and resident of Jefferson Parish, who claim damages stemming from injuries received in a May 31, 2002 collision between a passenger train on which plaintiffs were working and a tractor-trailer in Iberia Parish, Louisiana.

Plaintiffs sued Amtrak, their employer, under the Federal Employer’s Liability Act (hereinafter “FELA”), 45 U.S.C. § 51, et seq.; they sued BNSF for failing to properly maintain the portion of railroad track where the accident transpired; and they sued Ace Transportation, Inc. (“Ace”), K & E Trucking Company (“K & E”), Liberty Mutual Insurance Company (“Liberty”), Lexington Mutual Insurance Company (“Lexington”), and Sherwin J. Neal, Jr. (“Neal”) as, respectively, the owners, insurers, and operator of the truck with which the Amtrak train collided. Plaintiffs’ petition also asserts that DOTD is liable for failing to properly construct, maintain, and sign the railroad crossing at issue.

Amtrak argues that the collision occurred at a grade crossing over the BNSF mainline that is owned and maintained by Iberia Parish. Amtrak notes that plaintiffs’ petition calls “into question the design, construction, safety, maintenance, and accident history of the grade crossing and its approaches.” However, plaintiffs’ petition does not name Iberia Parish as a culpable party. On the other hand, Amtrak’s answer assigns fault to Iberia Parish. Amtrak claims that Iberia Parish was not named as a defendant in the present matter because it cannot be sued in Orleans Parish under La. R.S. 13:5104, which provides that all “suits filed against a political subdivision of the state ... shall be instituted before the|4district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.” For the same reason, it is uncontested that La. R.S. 13:5104 prevents Amtrak from filing a third-party action against Iberia Parish as part of these Orleans Parish proceedings.

Amtrak and BNSF filed a peremptory exception of nonjoinder of a party on May 28, 2005, asking the trial court to dismiss plaintiffs’ case without prejudice or transfer it to the Sixteenth Judicial District Circuit so that the Parish of Iberia can be made a party to the proceedings. Amtrak argues that plaintiffs’ case must be dismissed or transferred to Iberia Parish by virtue of the interplay between the United States Supreme Court’s decision in Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003) and La. R.S. 13:5104.

In Ayers, the United States Supreme Court held that an employee who suffers an injury caused in whole or in part by a railroad’s negligence may recover his or her full damages from the railroad pursuant to FELA, regardless of whether the injury was also caused in part by the actions of a third party. Accordingly, Louisiana’s comparative negligence law respecting the apportionment of damages does not apply to plaintiffs’ claim against Amtrak. Pursuant to Ayers, Amtrak will be liable for all of plaintiffs’ damages in the event it is found to be even partially at fault. If that occurs, Amtrak will have to seek contribution or indemnification from the other joint obligors. The plaintiffs-respondents do not dispute this statement of the law as defined by Ayers.

Amtrak argues that its inability to file a third-party contribution action against Iberia Parish in the present suit mandates the dismissal or transfer of this 1 ¡^matter under the joinder articles of the Code of Civil Procedure, La. C.C.P. art. 641, et seq.

La. C.C. art. 1794 defining solidary obligations as to obligors states in pertinent part that:

An obligation is solidary for the obligors when each obligor is liable for the whole performance.

As Amtrak is “liable for the whole performance” under Ayers if even the slightest fault is attributed to it and regardless of the fact that the preponderance of the fault may be attributable to other tort-feasors, i.e., Amtrak would be hable not only for its fault, but for the fault of all others found to be at fault, we find the plaintiffs’ claim against Amtrak to be soli-dary in nature as defined by La. C.C. art. 1794. Accordingly, this Court will treat it as such.

When the question of joinder is considered in the context of a solidary obligation, La. C.C.P. art. 643 is applicable:

One or more solidary obligees may sue to enforce a solidary right, and one or more solidary obligors may be sued to enforce a solidary obligation, without the necessity of joining all the others to the action.

The placement of this Code of Civil Procedure Article in the middle of the chapter of the Code entitled “Joinder” following La. C.C.P. arts. 641 and 642 indicates that a solidary obligor is not entitled to avail itself of the exception of nonjoinder of other obligors as might otherwise be allowed under La. C.C.P. arts. 641 and 642. Therefore, Amtrak has no basis for complaining about the nonjoinder of Iberia Parish.

We find this same public policy of facilitating litigation against a solidary obligor expressed in La. C.C.P. art. 73 concerning venue, and La. C.C. art. 1799 providing that, “the interruption of prescription against one solidary obligor is 1 ^effective against all solidary obligors and their hems ...,” consistent with this reasoning.

Up to this point we would have to conclude that the trial court was correct in denying Amtrak’s exception of non-joinder. However, we also note that La. C.C.P. art. 645 allows this Court sua sponte to notice the failure to join a party. In other words, under La. C.C.P. art. 645 we are not limited to a consideration of how the non-joinder of Iberia Parish affects Amtrak. We may also take notice of how, under La. C.C.P. art. 641(1) and 641(2)(b), this non-joinder affects the other parties to this litigation, even if those parties have not complained. Accordingly, bearing in mind that this matter has been remanded to this Court by the Supreme Court, in the interest of thoroughness, we shall conduct a more exhaustive analysis of the question of joinder. Initially, this requires consideration of La. C.C.P. arts. 641 and 642 which must be read together:

La. C.C.P. art. 641 provides:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

La. C.C.P. art. 642 provides:

If a person described in Article 641 cannot be made a party, the court shall determine whether the action should proceed among the parties before it, or should be 17dismissed. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person’s absence might be prejudicial to him or those already present.
(2) The extent to which the prejudice can be lessened or avoided by protective provisions in the judgment, by shaping of relief, or by other measures.
(3) Whether a judgment rendered in the person’s absence will be adequate.
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

First, we note from the undisputed facts of record, there is a potential for conflicting allocations of fault as between proceedings in Iberia and Orleans Parishes, thereby raising concerns under La. C.C.P. art. 641(1) and 642(2). As La. R.S. 13:5104 prevents the joinder of Iberia Parish in these proceedings, La. C.C.P. art. 642 directs this Court to consider the four factors quoted above.

In evaluating those four factors, we interpret the phrase in the first paragraph of La. C.C.P. art. 642, “the court shall determine,” as meaning that we should review the findings of the trial court in accordance with the “abuse of discretion” standard of review.

According to plaintiffs’ petition, on May 31, 2002, defendant Neal was operating a truck owned by defendants, Ace and K & E, and insured by defendants, Liberty and Lexington, easterly on Louisiana Highway 182 in Iberia Parish. Amtrak asserts that the BNSF mainline track parallels State Highway 182. According to the writ application, Airport Boulevard forms a “T” intersection with Highway 182 at its northernmost terminus and Airport Boulevard crosses the BNSF mainline track. Further, plaintiffs’ petition asserts that the Airport | sBoulevard grade crossing is protected by advance warning signs, crossbars, flashing lights, and gates.

According to Amtrak, Airport Boulevard and the approaches to its BNSF crossing are owned, maintained, and signed by Iberia Parish. Amtrak supports this contention by attaching a copy of an agreement between the Texas and New Orleans Railroad Company (BNSF’s ancestor in title) and Iberia Parish whereby the railroad grants an easement to the parish to install and maintain a grade crossing at the site of the present crossing.

Additionally, Amtrak attaches a copy of Judge Anne Lennan Simon’s reasons for judgment in Succession of Theriot v. Southern Pacific Transportation Company, et al., Docket No. 55599, Sixteenth Judicial District Court for the Parish of Iberia, Louisiana, a case involving an accident at the same crossing. In her Reasons for Judgment, Judge Simon finds that Iberia Parish built and controls Airport Boulevard and the crossing at issue. Further, Judge Simon allocated twenty-five percent of the fault for that accident to Iberia Parish. Judge Simon’s judgment was affirmed by our learned brethren of the Third Circuit, in Succession of Theriot v. Southern Pacific Transportation Company, 560 So.2d 861 (La.App. 3 Cir.1990).

Amtrak attaches portions of the deposition of William Shrewsberry, an engineer in charge of DOTD’s railroad section. In the deposition extracts, Shrewsberry confirms that Airport Boulevard and the BNSF grade crossing are owned and maintained by Iberia Parish. Finally, Amtrak cites La. R.S. 48:382(B), which provides that when a highway is constructed across an existing facility or utility, such as a railway line, the agency constructing or causing the construction of the highway shall provide for the construction of an adequate and appropriate crossing and for the subsequent maintenance and replacement of the crossing in |flaccordance with current maintenance standards. Therefore, Amtrak argues that Iberia Parish is statutorily obligated to maintain the crossing at suit because it was the agency that constructed the crossing.

According to plaintiffs’ petition and Amtrak’s writ application, the events leading up to the present accident occurred when defendant Neal steered his tractor trailer south onto Airport Boulevard in order to go to one of several adjacent industrial complexes. Approximately five feet of the underside of Neal’s trailer became lodged on the crossing because the slopes both leading to and away from the grade crossing were too steep. Although Neal was unable to dislodge the trailer from the crossing, both the petition and the writ application assert that he failed to contact his dispatcher, 911, or BNSF through an emergency number posted at the crossing.

The petition and writ application assert that some time after Neal’s truck became lodged on the tracks a westbound Amtrak train approached the Airport Boulevard crossing with its horn, bell, and light functions operating. The petition and writ application assert that the train activated the grade crossing’s flashing lights and gate arms. Plaintiff, Rayford, the Amtrak engineer, saw Neal’s tractor-trailer on the crossing and applied the train’s emergency brakes in an effort to avert a collision. However, Rayford’s efforts proved unsuccessful and a violent collision occurred between the train and Neal’s tractor-trailer. Plaintiffs contend that they suffered severe career-ending injuries because of the foregoing collision.

Amtrak asserts that the underlying accident has resulted in the filing of six additional lawsuits in Iberia Parish, four of which name Iberia Parish as a defendant. According to Amtrak, plaintiffs Rayford and Dzerve are named as defendants in one of the Iberia Parish lawsuits. Amtrak’s writ application contends that defendants Ace, K & E, Liberty, Lexington, Neal, and DOTD are also parties to | inone or more of the Iberia Parish lawsuits. Significantly, Amtrak is allegedly a plaintiff in one of the Iberia Parish lawsuits. Amtrak’s petition names Iberia Parish as well as all defendants in the present suit, save BNSF, as defendants in its Iberia Parish suit and seeks recompense for “the payment of claims for personal injuries, medical expenses, loss of wages, and other damages occasioned by certain of Amtrak’s passengers and crew members.” Accordingly, Amtrak has already effectively instituted a contribution action against Iberia Parish.

Finally, Amtrak asserted in its original writ application that the six Iberia Parish lawsuits have been consolidated for trial. The plaintiffs allege that since the time this matter first came before this Court, the Iberia cases were resolved through a mediation process in which the plaintiffs, Rayford and Dzerve, did not participate. The plaintiffs further allege that as a result thereof, Amtrak reserved all rights to file a claim for contribution relative to Rayford, and Dzerve’s Orleans Parish claim.

There is no evidence in the record of the procedural history of what has actually transpired in the proceedings in Iberia Parish to support the foregoing contentions of the parties, only argument. However, from this argument we observe that both Amtrak and the plaintiffs agree that substantial litigation has been instituted in Iberia Parish involving this accident. Amtrak and the plaintiffs do not dispute each other’s representations about the nature of the proceedings in Iberia Parish. This Court may safely proceed for purposes of this writ application based on the assumption that those proceedings are basically as represented by Amtrak and the plaintiffs.

The trial court supported its ruling by reference to La. C.C. art. 2323, regarding apportionment of fault and this Court’s decision in Gatlin v. Entergy Corp., 04-0034 (La.App. 4 Cir. 5/4/05), 904 So.2d 31, writ denied 05-1509 (La.12/16/05),11 917 So.2d 1114, which held that fault is to be apportioned among all persons contributing to an injury whether those persons are unidentified, nonparties, or statutorily immune. The trial court concluded:

Therefore, pursuant to La. C.C. art. 2323 and the Fourth Circuit ... decision in Gatlin, although Iberia Parish is statutorily immune from suit in Orleans Parish, the jury in Orleans Parish will have the ability to apportion fault against Iberia Parish and other Defendants. Contribution and Indemnity may then be sought in Iberia Parish thus, not prejudicing the Defendants in this matter.
Moreover, the Court finds that transferring this matter to Iberia Parish places substantial hardship on the Plaintiffs when this matter can easily be tried in Orleans Parish, where [they] are domiciled.

The absence of Iberia Parish from these proceedings increases the likelihood that Iberia Parish will be found at fault as other defendants could ordinarily be expected to offload fault onto the absent party to the extent possible as the greater the fault ascribed to the absent party, the lesser the amount fault remaining to be ascribed to the other defendants. However, it is difficult to see how this would prejudice Iberia Parish as it is undisputed that Iberia Parish would not be bound by proceedings to which it was not a party. As to the other parties already present (other than Amtrak which is excluded from this consideration by virtue of La. C.C.P. art. 643 as discussed earlier), it seems unrealistic to think that the absence of Iberia Parish from these proceedings would result in a greater percentage of fault being assessed to any of the other Orleans Parish defendants than would have been assessed in Iberia Parish’s presence. Therefore, we find that La. C.C.P. art. 642(1) favors affirming the judgment of the trial court.

As we find no prejudice to either the absent party or to those already present under La. C.C.P. art. 642(1), La. C.C.P. art. 642(2) does not apply.

|1gAs to La. C.C.P. art. 642’s third factor, of whether a judgment rendered in Orleans Parish in the absence of Iberia Parish would be adequate, we find that the only parties who could have any substantial complaints in this regard would be the plaintiffs, as such a judgment would likely assess greater fault against Iberia Parish in its absence and the plaintiffs would not be able to enforce the judgment against Iberia Parish. However, this possibility is mitigated by the fact that the plaintiffs appear able to collect the full amount of any judgment rendered in their favor against Amtrak under Ayers in the event Amtrak is found to be even the slightest bit at fault. As it is the plaintiffs who oppose the nonjoinder exception, they may be said to have waived any objection to the unenforceability of a potential judgment failing to ascribe any fault to Amtrak, while at the same time holding Iberia Parish at fault.

Moreover, while we may consider, on our own motion under La. C.C.P. art. 645, factors affecting, but not raised by, parties, the fact that the other parties to this litigation have notice of these writ proceedings and have not seen fit to join in, is an indication that they do not consider themselves to be seriously aggrieved by any potential outcome. Therefore, we find that La. C.C.P. art. 642(3) provides no basis for reversing the judgment.

Finally, we consider whether under La. C.C.P. art. 642(4) the plaintiffs will have an adequate remedy if the action is dismissed for nonjoinder. The plaintiffs do not contend that there is anything preventing them from pursuing an adequate remedy in Iberia Parish, where Iberia Parish may be joined as a party. Their argument is one of inconvenience only — it is more convenient for them and for certain medical witnesses to go to court in Orleans Parish. As the plaintiffs presumably have access to an adequate remedy in Iberia Parish, La. C.C.P. art. 642(4) arguably weighs in favor of granting Amtrak’s nonjoinder exception. This [ ^dovetails with the issue of judicial economy. If all of these proceedings could be consolidated into one proceeding the interests of judicial economy would certainly be advanced. Iberia Parish is the only parish where that would be possible under La. R.S. 13:5104. However, we note that judicial economy is not one of the factors mentioned in the joinder articles. Therefore, while judicial economy may be used to tip the balance in a close case, we do not feel that it would be appropriate to give it the same weight as we would to the legislatively prescribed factors found in La. C.C.P. art. 642.

When we weigh the first three factors against the fourth, we find that the weight of the factors favors affirming the decision of the trial judge. Additionally, we add to the scales the strong policy expressed in La. C.C.P. art. 643 which permits suit against Amtrak in Orleans Parish in the absence of Iberia Parish based on the solidary nature of Amtrak’s liability under Ayers, along with the failure of any of the other parties to join with Amtrak in objecting to the nonjoinder of Iberia Parish. To put it another way, we find no basis for saying that the trial court abused its discretion in denying Amtrak’s exception of nonjoinder.

Bonnette v. Tunica-Biloxi Indians, 2002-919 (La.App. 3 Cir. 5/28/03), 873 So.2d 1, fails to persuade us otherwise for two reasons: First, in Bonnette, La. C.C.P. art. 643 does not apply as it does in this case. Secondly, we disagree with Bonnette’s conclusion that among the reasons the nonjoinder exception in that case was well founded was “the trial court’s inability to adjudicate ... fault among other joint obligors.” The presence of all those parties potentially at fault is no longer required in order to adjudicate fault. In that regard, we agree with the analysis of Bonnette offered by the Second Circuit in Gibbs v. Magnolia Living Center, Inc., 38,184, p. 13 (La.App. 2 Cir. 4/7/04), 870 So.2d 1111, 1119:

[Bonnette ] appears inconsistent with the express wording of La. C.C. art. 2323, Dumas [v. State ex rel. Dept. of Culture, Recreation, and Tourism, 02-0563 (La.10/15/02), 828 So.2d 530,] and our analysis under La. C.C.P. art. 642.

In Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, the Supreme Court, in reversing an appellate decision which made a finding of non-joinder on its own motion, admonished:

A person should be deemed needed for just adjudication only when absolutely necessary to protect substantial rights.

Id., 02-0665, p. 14, 837 So.2d at 1217.

Applying this admonition to the facts and law discussed in this opinion, we find no error in the judgment of the trial court. Therefore, we deny the relief requested by Amtrak at Amtrak’s cost.

WRIT DENIED.

      . Amtrak’s exception of nonjoinder was argued on July 6, 2005. On July 7, 2005, the trial court rendered a judgment supported by written reasons, denying Amtrak's exception. There is no exception to the venue in Orleans Parish.

      . The opposition to the writ application alleges that Rayford is a lifelong domiciliary of Orleans Parish. It is also alleged that all of his treating physicians are located in Orleans Parish.

      . Additionally, the original writ application asserts that the other named defendants also make issue of Iberia Parish's culpability for plaintiffs’ injuries.

      . In Gibbs, the Second Circuit’s La. C.C.P. art. 642 analysis concluded that the present and absent parties would suffer no prejudice by any judgment rendered because any obligation imposed would be joint and divisible and all parties would be able to allege the fault of non-parties pursuant to La. C.C. arts. 2323 and 2324.


author: GAIDRY, J.

text:
    Michael Randall BARDWELL v. Michael FAUST.
    No. 2006 CA 1472.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2007.

      Joseph P. Brantley, IV, Baton Rouge, Counsel for Plaintiff/Appellant Michael Randall Bardwell.
    Michael A. Patterson, Katherine G. Ec-kert, Baton Rouge, Counsel for Defendant/Appellee Michael Faust.
    Before: KUHN, GAIDRY, and . WELCH, JJ.
   GAIDRY, J.

laThis case presents a number of interesting procedural issues arising from a summary judgment ordering the dismissal of a formal malpractice complaint against a certified public accountant. For the following reasons, we amend the judgment, and affirm it as amended.

FACTS AND PROCEDURAL BACKGROUND

The defendant herein, Michael Randall Bardwell, a Louisiana resident, was appointed conservator of the person and estate of his stepmother, Mary Caroline Lambert Bardwell, on May 11, 2000, by the chancery court of Amite County, Mississippi. In that capacity, he retained the professional services of the plaintiff, Michael Faust, C.P.A., to assist and advise him in the management of the conservator-ship's affairs. Mr. Faust is a certified public accountant licensed in Mississippi, with “substantial equivalency” practice rights in Louisiana under the authority of La. R.S. 37:94.

Mr. Bardwell’s actions as conservator were subsequently challenged by other family members, and he was ordered to return to the estate certain funds received by him and to show cause why he should be allowed to retain a prior court-approved fee of $27,000.00. A guardian ad litem was appointed for Mrs. Bardwell, who later filed a report recommending that Mr. Bardwell be removed as conservator and be required to render an accounting of his service as conservator. A motion was then filed on behalf of another family member to remove Mr. Bardwell as conservator. On May 16, 2001, Mr. Bardwell voluntarily withdrew as conservator, purportedly on the advice and representations of Mr. Faust, who was appointed as conservator in his laplace. On November 2, 2001, the chancery court ordered Mr. Bardwell to return most of the $27,000.00 fee and other funds previously paid to him. The chancery court’s judgment was affirmed by the Mississippi Supreme Court on July 17, 2003. In re Conservatorship of Bardwell, 849 So.2d 1240 (Miss.2003). Final judgment on these matters was rendered on June 14, 2004.

On October 28, 2005, Mr. Bardwell filed a request for a public accountant review panel pursuant to La. R.S. 37:101, et seq. In his request, Mr. Bardwell claimed that Mr. Faust committed malpractice and breached fiduciary duties owed Mr. Bard-well, among other acts and omissions, causing him the financial losses associated with the Mississippi litigation, as well as loss of rights “in real and personal property” (as a potential legatee of Mrs. Bard-well). The Society of Louisiana Certified Public Accountants, charged with the duty of administering the review panel procedure,_J^acknowledged receipt of the request by letter dated November 10, 2005, and mailed a copy of the letter to Mr. Faust.

On December 21, 2005, Mr. Faust instituted the present action by filing a motion for summary judgment in the 20th Judicial District for the Parish of East Feliciana. The motion set forth the respective capacities of the parties and the asserted basis of the malpractice claim, attaching a verified copy of Mr. Bardwell’s request for the review panel, and further asserted that Mr. Bardwell’s claim was perempted under La. R.S. 9:5604 and should be dismissed. On December 28, 2005, the trial court signed an attached order fixing the motion for hearing on February 22, 2006.

On January 31, 2006, Mr. Bardwell moved to continue the hearing on the grounds of conflict with his counsel’s calendar, and the hearing was rescheduled for April 3, 2006. On March 23, 2006, Mr. Bardwell filed a pleading entitled “Response to Defendant’s [sic ] Motion for Summary Judgment,” alleging that genuine issues of material fact existed, and praying that the motion be denied. On the same date, he filed an opposition memorandum and four opposing affidavits.

Following the hearing on the motion, the trial court ruled in favor of Mr. Faust, with oral reasons. Its judgment granting the motion and dismissing the request for the review panel was signed on April 11, 2006. On April 21, 2006, Mr. Bardwell filed a motion for new trial, urging reconsideration by the tidal court on the grounds that summary judgment was an improper method to address peremption and that the statutory exception of fraud had been adequately pleaded. The trial denied the motion for the new trial ex parte on April 25, 2006. Mr. Bardwell thereupon instituted this appeal.

| ¡ASSIGNMENTS OF ERROR

Mr. Bardwell presents two assignments of error:

(1) The district court erred when it granted Faust’s motion for summary judgment.
(2) The District court erred when it denied Bardwell’s motion for new trial.

STANDARD OF REVIEW

The defense of peremption was raised here by motion for summary judgment. As Mr. Faust chose to use the latter procedural device, our review of the summary judgment at issue must be a de novo review based upon the evidence presented in the trial court, using the same criteria used by the trial court in deciding whether summary judgment is appropriate. Doe v. Jones, 02-2581, p. 4 (La.App. 1st Cir. 9/26/03), 857 So.2d 555, 557-58.

DISCUSSION

The Mode of Procedure and the Procedural Vehicle

Mr. Bardwell challenges the procedural propriety of summary judgment in determining the issue of peremption, arguing that because his request for review was neither a petition nor a “pleading” and no discovery was undertaken, a motion for summary judgment was procedurally unavailable to Mr. Faust. He frames the issue as follows: “Is a motion for summary judgment the proper procedure [sic] to urge the exception of peremption to a request for review of claims by a public accountant review panel?”

Mr. Faust in turn contends that as this issue was first raised on appeal, rather than in the trial court, we should not consider it. However, the record shows that Mr. Bardwell first raised this issue in his motion for new trial, and renews his argument challenging the propriety of summary judgment in | (¡this appeal. Like the parallel review procedure of the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq., the public accountant review panel procedure constitutes special legislation in derogation of the rights of tort victims, and its provisions similarly must be strictly construed. See Sewell v. Doctors Hosp., 600 So.2d 577, 578 (La.1992), and Williams v. Notami Hospitals of La., Inc., 04-2289, p. 7 (La.App. 1st Cir.11/4/05), 927 So.2d 368, 373. Because strict compliance with the provisions of La. R.S. 37:108 bears upon the validity of the judgment, we will consider the issue of the proper procedural vehicle as part of Mr. Bardwell’s first assignment of error, together with the substantive issues, and find it unnecessary to consider his second assignment of error relating to the denial of his motion for new trial. We conclude this issue is properly before us.

In order to resolve this procedural issue, we must first consider the mode or type of proceeding governing the present civil action. Mr. Faust instituted the present civil action under the authority of La. R.S. 37:108, which provides:

A certified public accountant or firm, against whom a claim has been filed under the provisions of this Part, may raise any exception or defense available, pursuant to R.S. 9:5604, in a court of competent jurisdiction and proper venue at any time without the need for completion of the review process by the public accountant review panel. If the court finds that the claim was perempted prior to being filed, the panel, if established, shall be dissolved.

The statute does not precisely designate the proper procedural vehicle (or vehicles) by which “any exception or defense available, pursuant to R.S. 9:5604,” may be raised. (Emphasis supplied.) By the use of the well-defined term “exception,” however, it seems apparent that the legislature intended to authorize the defense of per-emption under La. R.S. 9:5604 to be raised in a trial court via peremptory exception. What is less clear is |7whether another procedural vehicle, such as a motion for summary judgment, may also be used. But if the use of either or both of these procedural vehicles is appropriate, may the exception or motion be used as the initial procedural device to institute the action in the trial court, without the necessity of a petition, such as a petition for declaratory judgment? Mr. Bardwell’s argument necessarily raises the question of whether an ordinary proceeding, as opposed to a summary proceeding, must be used to raise the defense of peremption.

Ordinary civil proceedings contemplate the use of four types of pleadings: petitions, exceptions, written motions, and answers. La. C.C.P. art. 852. The petition is the basic pleading by which a party seeks relief in an ordinary proceeding in a Louisiana court. A civil action ordinarily is commenced by the filing of a petition. 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 6.3 (1999).

Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings. La. C.C.P. art. 2591. In addition to certain extraordinary remedies, summary proceedings may be used for trial or disposition of an issue which may be raised properly by an exception, contradictory motion, or rule to show cause. La. C.C.P. art. 2592(3). Thus, the codal definition of summary proceedings encompasses two separate concepts: (1) a “true” summary proceeding by which the parties obtain an expedited trial on the merits, and (2) a summary procedure used to determine incidental issues arising in the course of either an ordinary, summary, or executory proceeding. Maraist & Lemmon, supra § 5.3.

|SA summary proceeding may be commenced by the filing of a contradictory motion or by a rule to show cause, except as otherwise provided by law. La. C.C.P. art. 2593. Thus, the motion at issue initiated a “true” summary proceeding, rather than an ordinary proceeding. Our interpretation accords with the implicit purpose of La. R.S. 37:108 in expeditiously terminating the review process as unnecessary if the claim is already perempted. In summary, we hold that La. R.S. 37:108 was intended to authorize the use of a summary proceeding, instituted by the filing of either an exception or a contradictory motion raising the defense of peremption. See La. C.C.P. art. 2592(3).

The rules governing ordinary proceedings are applicable to summary proceedings, except as otherwise provided by law. La. C.C.P. art. 2596. In a summary proceeding, exceptions to a contradictory motion or rule to show cause shall be filed prior to the time of trial, and shall be disposed of on the trial. La. C.C.P. art. 2593. The objection of unauthorized use of summary proceeding may be raised through the dilatory exception. La. C.C.P. art. 926(A). Mr. Bardwell did not file an exception objecting to unauthorized use of summary proceeding prior to the trial of the motion. Thus, to the extent Mr. Bard-well’s argument may be viewed as an objection to the use of summary proceeding rather than ordinary proceeding, any such procedural objection would have been waived. See La. C.C.P. art. 926(B). This would be true whether the objection was directed to a “true” summary proceeding or to a motion for summary judgment incidental to an ordinary proceeding.

Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also properly be raised by motion for summary judgment in an ordinary proceeding. Doe, 02-2581 at p. 4, 857 So.2d at 557. The procedural propriety of a motion for | gsummary judgment to assert a plea of prescription has never been seriously questioned by our courts and in fact has been expressly approved, especially when there is no dispute as to the facts upon which the defense is based. Doe, 02-2581 at p. 4 n. 3, 857 So.2d at 557 n. 3. In the typical case where prescription is raised as a defense, however, the defendant will ordinarily use the peremptory exception as the procedural vehicle for pretrial determination of the issue, for the practical reason that his burden is a preponderance of the evidence, and he need not exclude all genuine issues as to material fact. Id.

In Saia v. Asher, 01-1038 (La.App. 1st Cir.7/10/02), 825 So.2d 1257, this court reviewed a judgment sustaining a peremptory exception of prescription and granting a motion for summary judgment on the issue of peremption under La. R.S. 9:5604. There, however, the public accountant review panel procedure was waived by the parties, and the plaintiffs instituted the action by filing a petition for damages in an ordinary proceeding. Citing Coffey v. Block, 99-1221, p. 8 (La.App. 1st Cir.6/23/00), 762 So.2d 1181, 1186, writ denied, 00-2226 (La.10/27/00), 772 So.2d 651, we observed that “as a general rule, the peremptory exception raising the objection of no cause of action is the correct procedural device for raising the issue of peremption.” Saia, 01-1038 at p. 4 n. 5, 825 So.2d at 1259 n. 5. However, we further held that the defense of peremption could also properly be raised through the peremptory exception raising the objection of prescription. Id. We affirmed the trial court’s judgment sustaining that exception, even though no evidence was introduced at the hearing, since no objection was made to the trial court’s consideration of the depositions, affidavits, and pleadings submitted in connection with the alternate motion for summary judgment. Saia, 01-1038 at p. 5, 825 So.2d at 1260-61. The propriety of the alternate motion for summary judgment to |inraise the defense of peremption was not addressed, nor was that portion of the trial court’s judgment granting that motion.

In Ascension Sch. Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 04-1227 (La.App. 1st Cir.6/10/05), 916 So.2d 252, a credit union filed a request for a public accountant review panel, asserting malpractice claims against its accounting firm for its failure to perform certain auditing services in 1998, 1999, and 2000. The accounting firm thereupon filed a peremptory exception of prescription in the trial court as to the 1998 and 1999 claims and a motion for summary judgment as to the 2000 claim, both procedural vehicles being contained in a single pleading. Reaching the merits of the dispute, we affirmed the trial court’s judgment insofar as it sustained the exception and reversed the judgment insofar as it granted the motion. Neither procedural vehicle’s use for purposes of La. R.S. 37:108 was challenged by the plaintiff or questioned by this court. Ascension Sch. Employees Credit Union, 04-1227 at p. 3 n. 2, 916 So.2d at 254 n. 2.

Coffey, cited in Saia, was a legal malpractice case; therefore, it arose in an ordinary proceeding not involving a review panel procedure. The defendant attorneys filed a peremptory exception of prescription and peremption. The plaintiff argued that there was no peremptory exception of peremption, and that the proper procedural device to raise the issue of peremption was the peremptory exception of no cause of action. We agreed that the general rule was that the peremptory exception of no cause of action was the correct procedural device to raise peremption, and that the trial court therefore erred in sustaining the exception, as the petition sufficiently alleged fraud. Coffey, 99-1221 at pp. 7-8, 762 So.2d at 1186-87. However, Inwe qualified that ruling with the following, setting out the actual rationale for our decision:

While the general rule is that peremption exceptions are treated as a no cause of action exception, we decline to hold that every exception raising a peremption claim [sic] must be treated as an exception of no cause of action on which no evidence may be taken. When the fraud exception of La. R.S. 9:5605(E) [relating to legal malpractice peremption] is raised in a legal malpractice action, the trier of fact must examine the underlying circumstances to determine if the evidence supports such a claim in a pre-trial hearing on an innominate peremptory exception of peremption, via summary judgment procedure or at the trial on the merits of the claim. If this is treated as an attempted hearing on an innominate peremptory exception of preemption [sic], the trial court did not give the parties a full opportunity to litigate the fraud issue.... Based on the foregoing, we vacate the judgment sustaining the defendants’ exception and dismissing the action as untimely.

Coffey, 99-1221 at p. 9, 762 So.2d at 1187. (Emphasis supplied.)

The language of La. R.S. 37:108 parallels that of La. R.S. 40:1299.47(B)(2), relating to similar procedure authorized for medical malpractice review panels. As the procedural purposes of the statutes are similar, they should be considered in pari materia, and jurisprudence interpreting La. R.S. 40:1299.47(B)(2) should be considered relevant in interpreting La. R.S. 37:108. See La. C.C. art. 13.

In the case of Perritt v. Dona, 02-2601, p. 16 (La.7/2/03), 849 So.2d 56, 66, the Louisiana Supreme Court interpreted La. R.S. 40:1299.47(B)(2) as precluding the Al-ing of a dilatory exception of vagueness or a peremptory exception of no cause of action in a trial court during the medical review Impanel stage of proceedings. The basis for that ruling was that the request for review was not a petition or a pleading, but only a “claim,” and therefore not subject to challenge on the grounds of legal sufficiency in pleading. Id. The supreme court further noted that the statute expressly limited the health care provider to raising “any exception or defenses available pursuant to R.S. 9:5628 [the medical malpractice prescription statute].” It then held that “a health care provider is allowed to only assert the peremptory exception of prescription during the medical panel review stage of the proceedings.” Perritt, 02-2601 at p. 15, 849 So.2d at 66. Seizing upon the latter quoted statement, Mr. Bardwell urges that La. R.S. 37:108 should be interpreted as precluding the filing of a motion for summary judgment to raise the defense of peremption. We disagree. The issue of prescription and the related issue of the proper procedural vehicles by which it could be asserted were not actually before the court in Perritt; thus, the statement is technically dictum. Reading the opinion in its entirety, it is clear that the statement must properly be interpreted as referring to the defense of prescription, whether raised through the usual peremptory exception of prescription or another appropriate procedural vehicle.

Based on the jurisprudence discussed above, we conclude that the defense of peremption in a summary proceeding instituted pursuant to La. R.S. 37:108 may be raised by a peremptory exception asserting the objection of either no cause of action, prescription, or peremption, or by a motion for summary judgment. Thus, insofar Mr. Bardwell’s objection is directed simply to the character of the procedural vehicle itself, rather than to the mode of procedure, it still lacks merit.

Louisiana Code of Civil Procedure article 966(C)(1) expressly predicates the granting of a motion for summary judgment upon “adequate discovery” being accomplished, or a party at least being afforded the opportunity to undertake adequate discovery. But there is no absolute right to delay action on a motion for summary judgment until discovery is completed. Judson v. Davis, 04-1699, p. 13 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1115-16, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167. The only requirement regarding discovery in the context of summary judgment is that the parties be given a fair opportunity to present their claims. Judson, 04-1699 at p. 13, 916 So.2d at 1116.

When a trial court cannot positively determine the diligence of a party in securing evidence through discovery, it should grant a requested continuance. The continuance produces delay, but the denial of the continuance may cause irreparable injury. Matte v. Louisiana Farm Bureau Casualty Insurance Company, 95-1308, pp. 5-6 (La.App. 3rd Cir.6/12/96), 676 So.2d 713, 715.

Despite his expressed need to undertake discovery, Mr. Bardwell did not seek to avail himself of the benefit of La. C.C.P. arts. 966(B) and 967(C) by formally requesting additional time or moving for continuance of the summary judgment hearing in order to undertake discovery or to submit opposing affidavits demonstrating a genuine issue of material fact. The trial court thus did not err in proceeding to hear the motion for summary judgment, based upon the character of the procedural vehicle used.

1 uFraud as an Exception to Peremption

The peremptive statute applicable to malpractice claims against certified public accountants is La. R.S. 9:5604, which provides, in pertinent part:

A. No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from, the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred .... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953. (Emphasis supplied.)

Louisiana Civil Code article 1953 defines fraud as follows:

Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may result from silence or inaction.

For the purpose of testing the sufficiency of a pleading, allegations of time and place are material. La. C.C.P. art. 860. Here, it is undisputed that the latest possible date triggering the running of peremption is the date of the “final” judgment determining Mr. Bardwell’s liability to the estate, or June |1R14, 2004. Given the undisputed fact that the request for a public accountant review panel was filed well over a year after the foregoing date, the validity of the summary judgment hinges upon the existence of genuine issue of material fact on the issue of fraud.

Any circumstances constituting fraud must be alleged “with particularity.” La. C.C.P. art. 856. These standards relating to pleadings obviously apply with equal force to supporting or opposing affidavits considered for determination of a motion for summary judgment, as the nature of the cause of action determines which facts are material for purposes of summary judgment. Our review of the factual allegations of Mr. Bardwell’s verified request for the review panel, his “response” to the motion, and the affidavits reveals significant deficiency in factual particularity as to any circumstances purportedly constituting fraud.

In his request for review, Mr. Bardwell alleged that all of his losses, consisting of his liability to his stepmother’s estate and his loss of “right in real and personal property,” were due to Mr. Faust’s “erroneous professional advice and misrepresentation” during the time Mr. Bardwell served as conservator. He alleged that prior to his replacement as conservator, he “conducted the business of the [cjonserva-torship” and took certain unspecified “actions” based upon “the professional advice and guidance of Faust.” He itemized Mr. Faust’s “faulty misleading professional advice” as including the following “acts or omissions”:

a. Malpractice in recommending Bard-well to take certain actions as [cjonser-vator;
|1fib. Breach of [fiduciary [djuty, by first advising against the dissolution of the Trusts and distributing of property while Bardwell was [cjonservator, but recommending such action when Faust was either or both [cjonservator of the [ejstate and CPA for the Trusts;
c.Negligence; and [sic ]
d. Actions constituting unfair and deceptive trade practices;
e. Conflict of [ijnterest in regard to a-d above.

Although the affidavits of Mr. Bardwell, his wife, his former attorney, and a nephew of Mrs. Bardwell generally track the content of the request for review, they add little additional factual detail.

Mr. Bardwell contends that the statutory requirements governing the content of the request for a review panel are not as demanding as those of the Code of Civil Procedure for pleadings in a civil action, and thus any failure to particularize an allegation of fraud is excusable. Louisiana Revised Statutes 37:102(B) provides that “[tjhe request for review shall set forth the name, surname, and domicile of all claimants and all defendants [and] shall contain a short, clear, and concise statement of the material facts that give rise to or constitute the claim.” (Emphasis supplied.) Louisiana Code of Civil Procedure article 891, governing the form of a petition, provides that a petition “shall set forth the name, surname, and domicile of the parties [and] shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” (Emphasis supplied.) 117If there is a significant difference between the descriptive standards of a request for review under La. R.S. 37:102 and a petition, we do not see it.

In ordinary proceedings, a motion is considered a pleading. See La. C.C.P. art. 852. The same holds true in summary proceedings. See La. C.C.P. art. 2593. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes. La. C.C.P. art. 853. The request for the public accountant review panel, attached to the motion for summary judgment and verified by Mr. Bardwell’s own affidavit, was therefore both part of a pleading and competent evidence to be considered for purposes of summary judgment. It should also be kept in mind that La. C.C.P. art. 856’s requirement of particularity in pleading fraud applies to all pleadings in which fraud is raised as an issue, not just petitions.

The mover has the burden of proof that he is entitled to summary judgment. If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B). Thus, after Mr. Faust established a pvima \ wfacie case of peremption based upon the verified request for review and his supporting affidavits, it was incumbent upon Mr. Bardwell to produce factual support for his claim of fraud, sufficient to rebut the proof put forth by Mr. Faust on that point and to demonstrate a genuine issue of material fact.

Bare allegations of “faulty misleading professional advice,” “[mjalpractice,” “[bjreach of [fiduciary [d]uty,” “[njegli-gence,” “[ajctions constituting unfair and deceptive trade practices,” and “[c]onfliet of [ijnterest,” even in combination, do not rise to the level of establishing genuine issue of material fact as to a case of fraud, in the absence of specific, material factual circumstances. Significantly, Mr. Bard-well has not sufficiently alleged or demonstrated what material facts constituted “the truth” which he contends Mr. Faust misrepresented or suppressed, nor how any such claimed misrepresentation bore upon his alleged “losses.” See La. C.C. art. 1953. He has not even minimally particularized the “erroneous professional advice” and “professional advice and guidance of Faust,” nor the nature of his own “actions” purportedly based upon Mr. Faust’s recommendations. These omissions alone are fatal to his burden of persuasion as to fraud. In short, Mr. Bard-well did not specifically allege fraud or demonstrate factual circumstances constituting fraud with any particularity in any new pleading or opposing affidavit filed with the trial court, although he had the opportunity to do so.

In summary, whether the verified request for the public accountant review panel constitutes a “pleading” or not, Mr. Bardwell has failed to adequately demonstrate a genuine issue of material fact as to the existence of fraud on the part of Mr. Faust. Such being the case, summary judgment under La. R.S. 37:108 was appropriate.

|19Because the filing of a request for review does not technically initiate a civil action, a court has no jurisdiction under La. R.S. 37:108 to “dismiss” the potential cause of action or claim which might later be asserted in a civil action. However, La. R.S. 37:108 clearly contemplates a “finding” by the trial court that the claim is perempted, amounting to a declaration of the rights between the parties on that issue embodied in a final judgment subject to appellate review. Therefore, if an ordinary proceeding for declaratory judgment is not used to raise the defense of peremption, a summary proceeding instituted by the filing of an exception or contradictory motion raising that defense under La. R.S. 37:108 implicitly seeks a summary declaratory judgment on the issue. See La. C.C.P. arts. 1872, 1877, and 1879. Accordingly, under the authority of La. C.C.P. art. 2164, we must amend the trial court’s judgment to delete that language dismissing Mr. Bardwell’s request for review and to provide that his cause of action and claim asserted therein are declared perempted. In conformity with the language of La. R.S. 37:108, we also amend the judgment to provide that the public accountant review panel, if established, be dissolved.

|2qDECREE

The judgment of the trial court is amended to provide that the cause of action and claim of the plaintiff-appellant, Michael Randall Bardwell, asserted in his Public Accountant Review Panel Complaint are declared perempted and that the public accountant review panel, if established, be dissolved. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant-appellant, Michael Randall Bardwell.

AMENDED AND AFFIRMED AS AMENDED.

      . For technical accuracy, we refer to Mr. Faust as plaintiff and Mr. Bardwell as defendant, since Mr. Faust actually instituted the present civil action, even though Mr. Bard-well occupies the capacity of claimant and Mr. Faust that of defendant in the professional malpractice claim at issue.

      . The record does not reflect the nature of the final judgment or the court issuing that judgment, which the parties concede was rendered on June 14, 2004. We have been unable to confirm that the Mississippi Supreme Court took any further action after its decision of July 17, 2003, so we can only presume that the chancery court may have later taken some action in conformity with the Mississippi Supreme Court’s decision. In its decision, the Mississippi Supreme Court expressly held that Mr. Bardwell's payment to himself of an additional $19,750.00 over a two-month period, without court approval, violated a Mississippi statute. The court also pointedly observed:
      The activity in this conservatorship as revealed by the record certainly is not indicative of how a conservator should handle the affairs of a ward. In fact [Mr. Bardwell’s] actions in this case are indicative of what a conservator should not do in properly representing a ward. Conservators and guardians who might be of an inclination similar to that of [Mr. Bardwell] should not expect mercy from our chancellors or the appellate courts.

        In re Conservatorship of Bardwell, 849 So.2d at 1251.

      . A previously-filed civil action in East Feliciana Parish by Mr. Bardwell against Mr. Faust was dismissed on a dilatory exception of prematurity, based upon the failure to present a prior request for a public accountant review panel and the absence of the panel's written opinion. See La. R.S. 37:105(A). Mr. Bard-well claims in his brief that he originally mailed his request for the review panel on September 16, 2005 to the temporary address of the Society of Louisiana Certified Public Accountants established following Hurricane Katrina, but that his request was returned as “unclaimed.” There being no competent support in the record for this earlier mailing, we may not properly consider it. At any rate, as will be seen, its consideration would not influence the result herein.

      . Louisiana Revised Statutes 40:1299.47(B)(2) reads as follows:
      (2)(a) A health care provider, against whom a claim has been filed under the provisions of this Part, may raise any exception or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel.
      (b) If the court finds that the claim had prescribed or otherwise was perempted pri- or to being filed, the panel, if established, shall be dissolved.

      . Nothing in the codal provisions relating to summary proceedings prohibits a party from propounding discovery in such a proceeding. We emphasize the fact that Mr. Bardwell actually requested and was granted a continuance of the hearing originally set for February 22, 2006, but his inability to obtain adequate or necessary discovery was not asserted as one of the grounds for his motion nor even mentioned therein.

      . We emphasize that the parties do not contest the applicability of Louisiana law to the issue of peremption herein. It is therefore unnecessary for us to undertake an analysis of principles of conflicts of laws that otherwise might be appropriate, given the underlying facts forming the basis of Mr. Bardwell's claim.

      . See n. 2, supra. In his argument to the trial court, Mr. Bardwell's counsel made the following judicial confession bearing upon the material fact of the operative dates:
      Now, we don’t really contest the periods of time that we’re talking about. I mean, that's a matter that is readily discernible: the decision of the Chancery Court, the decision of the Mississippi Supreme Court.

      . The attorney, Donald E. Walsh, and the nephew, Leslie B. Lambert, each attested to being present in the chancellor's chambers on some unspecified date or dates when Mr. Faust "re-nigged” [sic] on certain unde-scribed recommendations previously made to Mr. Bardwell regarding "fees and actions to be taken by the [cjonservator on behalf of the [e]state.” No further explanation or description of Mr. Faust's actions in that regard were offered.

      . We observe that in his affidavit verifying the allegations of his request for review as "true and correct,” Mr. Bardwell inadvertently but tellingly refers to his request for review as "the above and foregoing Petition for Damages.”

      . If the declaratory relief is denied based upon a finding that the claim is not perempted, then any judgment overruling a peremptory exception or denying a contradictory motion would constitute a nonappealable interlocutory judgment, and the issue would be subject to reconsideration at a later time by the trial court. See, e.g., Ascension Sch. Employees Credit Union, 04-1227 at p. 14, 916 So.2d at 260.

      . Louisiana Code of Civil Procedure article 1879 expressly provides that any issue of fact in a declaratory judgment action “may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions.” This language would authorize a summary proceeding for declaratory judgment in appropriate cases, such as the situation contemplated by La. R.S. 37:108.

      .We have a statutory mandate to render a judgment "which is just, legal, and proper upon the record on appeal.” La. C.C.P. art. 2164. The purpose of article 2164 is to give the appellate courts "complete freedom to do justice on the record irrespective of whether a particular legal point or theory was made, argued, or passed on by the court below.” Comment (a), La. C.C.P. art. 2164.