author: PETERS, J. GENOVESE, J„

text:
    Janice FLUITT v. CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a St. Frances Cabrini Hospital.
    No. 2005-0945.
    Court of Appeal of Louisiana, Third Circuit.
    June 28, 2006.
    Rehearing Denied Aug. 16, 2006.

      Edward E. Roberts, III, Neblett, Beard & Arsenault, Alexandria, LA, for Plain-tifí/Appellee, Janice Fluitt.
    Kathryn Flower Van Hoof, Van Hoof Law Firm, Lecompte, LA, for Defendant/Appellant, Christus Health Central Louisiana d/b/a St. Frances Cabrini Hospital.
    Court composed of JIMMIE C. PETERS, J. DAVID PAINTER and JAMES T. GENOVESE, Judges.
   PETERS, J.

L Christus Health Central Louisiana d/b/a Christus St. Frances Cabrini Hospital (Cabrini) has appealed a judgment which awarded its former employee, Janice Fluitt, workers’ compensation disability and medical benefits for injuries she sustained while working in the course and scope of her employment with Cabrini. For the following reasons, we affirm the judgment in all respects.

DISCUSSION OF THE RECORD

Ms. Fluitt began working for Cabrini soon after she obtained her nursing license in April of 1997, and in August of 2002 she was still employed by Cabrini as an oncology nurse. This litigation arose because Ms. Fluitt claims to have injured her left knee on August 17 and 18, 2002, while in the course and scope of her employment with Cabrini. When her employer refused to compensate her for that injury, Ms. Fluitt filed a claim for compensation asserting that she suffered a compensable injury to her left knee on August 17, 2002. She filed her claim on July 3, 2003, and the matter went to trial before the workers’ compensation judge (WCJ) on January 20, 2005.

At trial, the WCJ heard the testimony of Ms. Fluitt and three other witnesses. However, no physicians or other healthcare providers testified, and all of the evidence with regard to the medical issues was provided by extensive medical exhibits filed by both litigants. After completion of the evidentiary portion of the trial, the WCJ took | ¿the matter under advisement. In its March 11, 2005 oral reasons for judgment, the WCJ found that Ms. Fluitt sustained a compensable injury while in Cabrini’s employment and awarded her indemnity benefits and medical expenses, but denied her claim for penalties and attorney fees. The WCJ executed a written judgment on May 23, 2005, awarding Ms. Fluitt temporary total disability benefits (TTDs) in the amount of $398.00 per week for the period beginning on August 18, 2002, and terminating on December 17, 2002; supplemental earnings benefits (SEBs) in that same weekly amount from December 17, 2002, until further orders of the court; and medical expenses totaling $26,032.61.

Cabrini timely appealed this judgment, asserting the following assignments of error:

1. The Office of Workers’ Compensation erred in factually determining that the last day of work on August 18, 2005[sic] was due to knee problems and that a knee injury occurred at work on August 17, 2002 and on August 18, 2002, when that finding is unsupported by the record.
2. The Office of Workers’ Compensation erred in factually determining that chiropractic treatment for the left knee was for the claimant’s husband, and thus failing to consider all chiropractic evidence, when that finding is not supported by the record.
3. The Office of Workers’ Compensation erred as a matter of law in determining that the burden of proof is on the employer to show there is no disability.
4. The Office of Workers’ Compensation erred in awarding temporary total disability benefits for disability and medical benefits during the period [sic] August 18, 2002 through December 17, 2002.
5. The Office of Workers’ Compensation erred in factually determining that light duty work was not available as of December 17, 2002 and in awarding SEBs from that date and continuing thereafter and medical benefits, a finding which is not supported by the record.

|aOPINION

The evidentiary record establishes without dispute that Ms. Fluitt worked a complete shift at Cabrini on the weekend of August 17 and 18, 2002. She testified that while working on August 17, 2002, her left knee buckled under her as she walked up a ramp in the hospital to retrieve medicines sent from the hospital pharmacy to the floor where she was working. When her knee buckled, she “caught” herself on the adjacent handrail and continued up the ramp. She did not recall whether she reported that particular incident to the charge nurse or supervisor, and she completed her shift without further incident.

The next day, according to Ms. Fluitt, her knee buckled three additional times. The first time that day occurred at approximately 9:30 a.m. as she maneuvered through several obstacles in a patient’s room to turn on a light at the patient’s request. The second time occurred at approximately 2:00 p.m. while she was in the restroom. The third time occurred at approximately 5:30 p.m. as she walked from the nurse’s station to a table used to make entries in patient charts. On each of these three occasions, a clearly audible popping sound emanated from the knee as it buckled.

Ms. Fluitt testified that she immediately reported the first August 18 incident to Lynn Durr, the charge nurse on duty. She did so because immediately after the knee bucMed, it began burning. However, according to Ms. Fluitt, Ms. Durr did not prepare a written incident report because the staff was extremely busy at the time. Ms. Fluitt completed her shift, but the next morning her knee was extremely swollen |4and the accompanying pain prevented her from walMng or even placing any weight on her left leg. Ms. Fluitt never returned to work with Cabrini.

Ms. Durr’s trial testimony supported Ms. Fluitt’s testimony with regard to the first and last bucMing incident of August 18. With regard to the first incident, she testified that she observed Ms. Fluitt leaving a patient’s room, rubbing her knee and complaining that her knee was weak. She also testified that she observed Ms. Fluitt’s left knee bucMe as Ms. Fluitt walked toward the table used for charting work and that, when it bucMed, she heard a popping sound. According to Ms. Durr, Ms. Fluitt “looked surprised and scared at the same time.” She further acknowledged that, as the charge nurse for that shift, she was the person to whom Ms. Fluitt would have reported any accident. Although she did not recall completing an incident report on that day, she did confirm Ms. Fluitt’s testimony that the oncology unit was often extremely busy with patients and that other things simply had to wait.

The medical exhibits submitted at trial establish that Ms. Fluitt sought treatment for her left knee condition from three physicians and a chiropractor: Dr. Chris Rich, an Alexandria, Louisiana, orthopedic surgeon; Dr. Barry Henry, a Lafayette, Louisiana, orthopedic surgeon; Dr. Mohammad I. Shbeeb, an Alexandria, Louisiana, rheu-matologist; and Dr. Kemp J. Nelson, an Alexandria, Louisiana chiropractor. Dr. Rich treated her with physical therapy and pain medication; Dr. Shbeeb saw her on only one occasion for evaluation at the request of Dr. Rich; Dr. Henry performed surgery on Ms. Fluitt’s left knee and repaired a torn meniscus; and Dr. Nelson saw her on at least one occasion, August 26, 2002. All of this medical | Bevaluation and treatment occurred between Ms. Fluitt’s first visit with Dr. Rich on August 20, 2002, and Dr. Henry’s surgery on November 14, 2002. During this period, on August 26, 2002, Cabrini fired Ms. Fluitt for absenteeism.

Assignments of Error Numbers One and Two

In asserting that the WCJ erred in concluding that Ms. Fluitt sustained a compensable injury on August 18, 2002, Cabrini directs us to inconsistencies established by the evidence which “cast[ ] serious doubt on [Ms. Fluitt’s] version of the incident.” In considering these assignments of error, we first note that “[t]he trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error.” Bruno v. Harbert Int’l Inc., 593 So.2d 357, 361 (La.1992).

Cabrini’s primary argument in both of these assignments relates partially to Ms. Fluitt’s actions [or inactions] in reporting the events of August 17 and 18, 2002, both to her employer and the healthcare providers. While there may have been inconsistencies created by the evidence presented, we find that they do not rise to the level of requiring a reversal of the WCJ’s factual findings.

With regard to the reporting inconsistencies, Cabrini relies primarily on the testimony of its employee, Christa Book, who holds the position of employee health nurse. She is the person within Cabrini to whom accidents are supposed to be ultimately reported. According to Ms. Book, she had numerous conversations with Ms. Fluitt and Bruce Tassin, the hospital’s risk management director, concerning a June 2002 incident wherein Ms. Fluitt was sprayed in the face with a chemical air | ^freshener. She testified that she did not recall any reference to a knee injury during these conversations and that her first indication of an injury to Ms. Fluitt’s knee came three months after the hospital had terminated Ms. Fluitt’s employment. However, despite the fact that she is responsible for receiving claims and monitoring the progress of those claims, she acknowledged that she does not keep a log of her activities.

Ms. Fluitt’s testimony concerning her discussions with Cabrini with regard to her knee injury was in stark contrast to that of Ms. Book. She testified that, when she awoke on August 19 with a swollen knee, she immediately attempted to obtain an appointment with Dr. Rich but that the first available appointment was not until August 20, 2002. After leaving Dr. Rich’s office, she telephoned the hospital “house supervisor” and informed her that Dr. Rich had recommended that she not return to work for three weeks and that the hospital needed to make arrangements to replace her. The house supervisor suggested that she telephone Ms. Book. According to Ms. Fluitt, she finally reached Ms. Book two days later and informed her by telephone of her injury and of the fact that she had little or no leave left because of the continued complications arising from the unresolved June 2002 claim. Ms. Fluitt testified that she requested that Ms. Book expedite both her June claim and Jjthe current claim because she needed the workers’ compensation benefits to support her family.

The next day after her initial appointment with Dr. Rich, Ms. Fluitt received a telephone call from Joan Wilson, her immediate supervisor in her work unit. Ms. Fluitt testified that she related the history of her knee injury to Ms. Wilson and informed her that Dr. Rich had recommended that she not return to work for three weeks. Thus, in Ms. Fluitt’s view, Cabrini obviously understood her situation. However, she testified that thereafter she began to have difficulties communicating with Ms. Book. According to Ms. Fluitt, Ms. Book simply refused to discuss her knee injury and refused to accept it as a workers’ compensation claim. She testified that she asked Ms. Book on several occasions to telephone Dr. Henry but that Ms. Book refused. Dissatisfied with Ms. Book’s attitude, Ms. Fluitt then contacted Mr. Tassin in an effort to obtain some consideration of her claims. That attempt, according to Ms. Fluitt, was also in vain.

Cabrini also asserts that the medical exhibits in evidence reflect inconsistencies which undermine Ms. Fluitt’s credibility to the extent that the WCJ erred in finding that a compensable accident occurred. With regard to Dr. Rich, Cabrini points to the fact that on the doctor’s patient medical history form she wrote “unknown” in the blank concerning how the injury arose and that Dr. Rich’s notes reflect a history of pain for the week before the appointment with no known injury.

Dr. Nelson’s records reflect that Ms. Fluitt had been seeing him professionally for a number years for various ailments and that he saw her twice, August 26 and 28, 2002, for her current knee injury. The doctor’s typed notes with regard to those visits make no reference to any history obtained other than the complaint that she suffered |swith moderate stiffness, soreness, and pain in the left knee. However, Cabrini directs us to two other places in Dr. Nelson’s records that seem to refer to treatment for a previous knee injury. Those include recorded visits to Dr. Nelson on July 21, 2000, and January 19, 2001. The July 21 record contains a form which lists Ms. Fluitt as the patient and includes an image of an erect human body facing forward and backward. The obvious purpose of the form is to have the patient, or someone on his or her behalf, mark on the body the places he or she suffers pain. Cabrini points to an “X” which appears on the back portion of the left knee as evidence of a prior history of knee difficulties. Additionally, Cabrini directs us to the January 19, 2001 form which lists as the location of pain “Lt Knee & Rt hip, 2 fingers on left hand.” However, while it is made a part of Ms. Fluitt’s records, it contains no notation in the space reserved for the patient’s name.

Ms. Fluitt explained that, when Dr. Rich asked her whether the claim was one covered by workers’ compensation, she told him that, because she was already in a dispute with the hospital over another claim which the hospital would not recognize as a workers’ compensation claim, she was doubtful that Cabrini would accept this one. Therefore, she suggested to Dr. Rich that the claim should be carried under her husband’s private insurance. According to Ms. Fluitt, Dr. Rich informed her in the initial examination that he believed she suffered from a torn meniscus. He suggested that she undergo an MRI at Cabrini and indicated that he would schedule it 1 aimmediately. Additionally, according to Ms. Fluitt, Dr. Rich informed her that he would schedule her for surgery on Thursday of that week. She telephoned Cabrini on Wednesday and discovered that no surgery had been scheduled for Thursday. She then contacted Dr. Rich’s office and was informed that he wanted to await the results of the MRI. That test was performed on Wednesday afternoon. The results of the MRI proved to be inconclusive for a torn meniscus, and Dr. Rich chose to treat Ms. Fluitt’s complaints with physical therapy and pain medication.

With regard to Dr. Nelson’s records, Ms. Fluitt denied having any prior knee difficulties and explained the entries as a mistake. According to Ms. Fluitt, her husband, Michael D. Fluitt, Sr., had been treated for a left knee injury by Dr. Nelson. Mr. Fluitt testified that his wife suffered no prior knee difficulties, that both he and his wife had been under the care of Dr. Nelson prior to her August 2002 accident, and that it was he who had the left knee complaints. The WJC found Dr. Nelson’s records to be inconclusive and made the specific factual finding that Ms. Fluitt “was doing her job well until the— until August — mid-August of 2002.”

In attempting to evaluate Cabrini’s argument, we are not favored with the testimony of either Dr. Rich or Dr. Nelson. Rather, with regard to Dr. Rich, we must evaluate this issue by comparing Ms. Fluitt’s version of what transpired in the office visit to the actual notations in the medical records. In doing so, we acknowledge the correctness of Cabrini’s assertions concerning the inconsistencies between Ms. Fluitt’s testimony and the notations in the medical records. However, we also note that the MRI report of August 20, 2002, contains entries which suggest that traumatic etiology of the injury was considered. The report states that the MRI was performed because of a suspected meniscal tear. Under the section of the report entitled |in“FINDINGS,” the report states that “THERE IS A SMALL FOCUS OF MARROW EDEMA INVOLVING THE MEDIAL MARGIN OF THE MEDIAL FEMORAL CONDYLE. QUESTION HISTORY OF RECENT TRAUMA.” (Emphasis added.) Under that same section, the report further states that “NOTE IS MADE OF A REGIONAL ZONE OF EDEMA AROUND THE MEDIAL COLLATERAL LIGAMENT. THIS SUGGESTS SOME UNDERLYING LIGAMENTOUS STRAIN ALTHOUGH A DEFINITE LIGAMEN-TOUS TEAR IS NOT IDENTIFIED.” (Emphasis added.) With regard to Dr. Nelson, we are left with a record that contains no reference to the patient’s history.

In the oral reasons for judgment, the WCJ evaluated the evidence and made extensive findings of fact. The WCJ specifically recognized the conflicting testimony of Ms. Fluitt and Ms. Book, but also noted that the hospital made no effort to discredit the testimony of Ms. Durr. Citing the supreme court decision in Bruno, 593 So.2d 357, and noting that Cabrini’s attack on Ms. Fluitt related primarily to the supposition that her claim was based solely on her testimony, the WCJ stated that the evidence established otherwise. Pointing to Ms. Durr’s testimony, the various notations concerning Ms. Fluitt’s knee injury in her personnel file, and the fact that Ms. Fluitt did indeed suffer a meniscus tear as originally suspected by Dr. Rich, the WCJ discounted the other contentions of Cabrini and concluded that Ms. Fluitt had carried her burden of proof.

“[T]he plaintiff-worker in a compensation action has the burden of establishing a work-related accident by a preponderance of the evidence.” Bruno, 593 So.2d at 361. Additionally,

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence Indiscredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979); Malone and Johnson, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d Ed.1980). Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Malone & Johnson, supra; Nelson [v. Roadway Express, Inc., 588 So.2d 350 (La.1991) ]. Corroboration may also be provided by medical evidence. West, supra.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of the testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farms[Farm], Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases). Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation actions even when the trial court’s decision is based solely upon written reports, records or depositions. Virgil v. American Guarantee and Liability Insurance Co., 507 So.2d 825 (La.1987).

Id.

Applying the rationale in Bruno, we find no manifest error in the WCJ’s factual determinations. Therefore, we find no merit in Cabrini’s first two assignments of error.

Assignments of Error Numbers Three, Four, and Five

In these assignments of error, Cabrini addresses the issue of Ms. Fluitt’s disability, if any, arising from the accidents of August 17 and 18, 2002, and the payment of benefits for that disability. Because they are interrelated, we will consider them together.

Concerning the issue of disability, the WCJ stated the following in its reasons for judgment:

JjjThe employer offered some evidence that Ms. Fluitt is not disabled because she has gone on mission trips to South Africa, she does household chores, she participates in Church activities, and she goes deer hunting. But the burden is on the employer to show that Ms. Fluitt can earn 90 percent of her pre-injury wages. She testified she had looked for work when she was unemployed. According to Banks versus Industrial Roofing and Sheet Metal Works, Incorporated, a Supreme Court case, 696 So.2d, Page 551, the employer must show three minimum things, the existence of a suitable job within the claimant’s physical capabilities and within the claimant’s or the employer’s community or reasonable geographic region, the amount of wages that an employee with the claimant’s experience and training can be expected to earn in that job and an actual position available for that particular job at the time that the claimant received notification of the job’s existence. I recall some testimony that— from the hospital that Ms. Fluitt should have been aware that the hospital always accommodates it’s [sic] employees when they have job-related restrictions. However, there was no evidence introduced by the hospital that they ever offered any such position to the employee, Ms. Fluitt. Furthermore, in the case of Banks, the Court stated that, “An employer cannot point to a claimant’s lack of effort in lieu of the employer’s presenting sufficient evidence of job availability within the claimant’s physical capabilities.” And the last restriction we have from Dr. Henry is a light-work restriction. We’ve already read the job description for an oncology nurse which, to this Court’s view, indicates activities beyond a light-duty restriction. So Ms. Fluitt is entitled to SEB benefits from December 17, 2002 with a zero earning capacity through today’s date and continuing until such time as it changes in accordance of the law.

In its third assignment of error, Cabrini correctly points out that the burden of proof is on Ms. Fluitt to establish entitlement to TTDs [La.R.S. 23:1221(1) ] as well as SEBs [La.R.S. 23:1221(3) ]. In making its argument that the WCJ shifted the burden of proof to it, Cabrini refers to the oral reasons for judgment wherein the WCJ stated that “[Cabrini has] offered no contrary evidence to convince this Court that Ms. Fluitt did not sustain an accident” in the course and scope of her employment with the hospital. We do not find this comment supportive of Cabrini’s position. Specifically, h.qthe comment occurred in the context of causation of the accident, and not in the context of establishing the existence of an accident or the nature and extent of disability. In fact, at that point, the WCJ had not yet discussed the evidence with regard to the nature and extent of disability. Additionally, the WCJ had acknowledged that Ms. Fluitt, not Cabrini, had the burden of proving the existence of a work accident, stating: “Ms. Fluitt bears the burden of proving by [a] preponderance of evidence that she suffered an accident in the course and scope of her employment and that the incident qualifies as an accident.”

Rather, in making the comment at issue, the WCJ was responding to Cabrini’s assertion that chiropractic records indicated that Ms. Fluitt had knee problems prior to the alleged work accident. In responding to the assertion, the WCJ found the chiropractic records inconclusive and rejected that evidence as a basis to deny Ms. Fluitt’s claim. It appears that, in the context of causation, the WCJ’s comment was simply an observation that, in light of the uncontradicted objective evidence of a physical injury and the fact that Ms. Fluitt was able to perform her job prior to the alleged accident, Cabrini had not presented evidence to show that some other event was responsible for the injury.

Clearly, our jurisprudence provides that a claimant’s disability is presumed to have been caused by an accident, if before the accident the claimant was in good health but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the medical evidence establishes a reasonable possibility of a causal connection between the accident and the disabling condition. West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). In fact, “[o]nce the disabled employee establishes the presumption of a causal | ^relationship, the party denying the existence of the presumed fact assumes both the burden of producing evidence and the burden of persuasion on the issue.” Walton v. Normandy Vill. Homes Ass’n, Inc., 475 So.2d 320, 325 (La.1985). Accordingly, we find no error on the part of the WCJ, and we reject Cabrini’s assignment of error in that regard.

In its fourth assignment of error, Cabrini argues that the WCJ erred in awarding indemnity benefits and medical expenses. Essentially, this argument is a reassertion of Cabrini’s contention that the evidence does not support a finding of a work-related accident. Because we have already addressed and rejected Cabrini’s argument in that regard, we will offer no further discussion here.

Finally, Cabrini complains of the WCJ’s award of SEBs based on a zero earning capacity. Cabrini asserts that, “[ejxcept for the fact that she was terminated for excessive, unexplained absences, claimant admitted that her job could have been modified.” Cabrini also asserts that Ms. Book “testified also that the hospital accommodates modified duty.”

Regarding Ms. Fluitt’s initial burden of proof, the record reflects that she was released for only light-duty work, and there is no dispute that she cannot return to her prior job duties. Thus, it was incumbent upon Cabrini to prove, “by a preponderance of the evidence, that [Ms. Fluitt was] physically able to perform a certain job and that the job was offered to [her] or that the job was available to [her] in [her] or [Cabrini’s] community or reasonable geographic region.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 9 (La.7/1/97), 696 So.2d 551, 556. The fact that Cabrini has the capability of modifying a job for a former employee is not 11ñtantamount to a job offer or job availability. Thus, as Cabrini did not meet its burden of proof, the WCJ did not err in awarding SEBs based on a zero earning capacity.

DISPOSITION

For the foregoing reasons, we affirm the judgment below in all respects at Cabrini’s cost.

AFFIRMED.

GENOVESE, J., dissents and assigns reasons.

GENOVESE, J„

dissents.

I,The majority views this case as a manifest error case. The record, however, indicates an unwitnessed workers’ compensation accident with an abundance of conflicting testimony and without corroborating medical evidence. This is not a case of two permissive views of the evidence, but rather a failure to prove the occurrence of a work-related accident. Therefore, I respectfully dissent and would reverse the judgment below.

      . We observe that in her appellate brief Ms. Fluitt requests that we reverse the workers' compensation judge's denial of penalties and attorney fees. She also requests that we award additional attorney fees for work done on appeal. However, we have neither an appeal nor an answer to Cabrini's appeal on behalf of Ms. Fluitt. Therefore, Ms. Fluitt's requests are not properly before us, and we may not consider them.

      . In her original filing, Ms. Fluitt asserted that she had also sustained a work accident on June 28, 2002, when she was exposed to a strong chemical air freshener used in her work and that the exposure caused her to suffer asthma attacks. However, that issue is not directly before us in this appeal.

      . Ms. Fluitt testified that hospital policy required that she report any accidents to the charge nurse on duty at that time. The charge nurse was then required to prepare a written report for submission to the appropriate supervisor.

      . Ms. Durr's testimony was not emphatic concerning the completion of any report. She credited her lack of memory on this point to the time that had lapsed since the accident.

      . Whether Dr. Nelson saw and treated Ms. Fluitt more than one time is an issue on appeal.

      . Ms. Book testified that, with regard to the spray incident, the hospital did not deny the claim but "questioned” it.

      . Ms. Fluitt initially testified that her initial appointment did not occur until August 21, 2002. However, Dr. Rich's records reflect that his initial examination occurred on Tuesday, August 20, 2002. Later in her testimony, Ms. Fluitt referred to the appointment as having occurred on Tuesday of that week. Thus, given the record as a whole, we conclude that the initial appointment occurred on Tuesday, August 20, 2002.

      . The record reflects that Dr. Rich’s office is located immediately across the street from Cabrini.

      . The record does not specifically identify this person.

      . Part of the problem in evaluating Dr. Nelson’s records is that he has changed the format over the years. The July 21, 2000 entry is on a preprinted form entitled "PATENT'S DAILY PROGRESS REPORT/TREATMENT NOTES/DOCUMENTATION/SOPE NOTES.” Before January 19, 2001, the doctor used a half-page preprinted form that provided for basic information regarding complaints (subjective and objective), assessment, and treatment. By August of 2002, Dr. Nelson had begun to prepare individual after-the-fact notations of his findings and treatment.

      . The body contains an "X” at the rear left buttock, the left front foot, and the left side of the waistline as well.

      . The WCJ earlier in the reasons for judgment described the job duties as follows: "May require lifting a[sic] 50 to 100 pounds. Work requires sitting, bending, stretching and walking. May require prolonged standing and walking, lifting and moving patients, equipment and supplies. Subject to danger of infection from disease-bearing specimens, exposed to odorous chemicals and specimens. Exposed to all patient elements: infectious diseases, chemicals radiation, sharp tools/instruments, antineoplastic agents, combative patients/visitors and electric shock.”


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    LOUISIANA CRAWFISH PRODUCERS ASSOCIATION-WEST, et al. v. AMERADA HESS CORPORATION, et al.
    No. 2005-1156.
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2006.
    Rehearing Denied Aug. 16, 2006.
    Joseph R. Joy, III, Gordon J. Schoeffler, Joseph Joy & Associates, Lafayette, Louisiana, Leigh Haynie, Carenero, Louisiana, for Plaintiffs/Appellants, Louisiana Craw-fish Producers Association — West, et al.
    Joseph E. LeBlanc, Jr., A. Louise Blanchard, King, LeBlanc & Bland, P.L.L.C., Houston, Texas, Elizabeth S. Wheeler, King, LeBlanc & Bland, P.L.L.C., New Orleans, Louisiana, for Defendant/Appellee, Amerada Hess Corporation.
    Stephen L. Williamson, John T. Nesser, IV, Charles M. Steen, Steen & Williamson, L.L.C., New Orleans, Louisiana, Daniel G. Guidry, St. Martinville, Louisiana, for Defendants/Appellees, Sorrento Pipeline Company, Enterprise Products Company.
    Daniel G. Guidry, St. Martinville, Louisiana, for Defendants/Appellees, Furgo Chance, Inc.
    Joel A. Levy, Levy & Levy, Marrero, Louisiana, for Defendant/Appellee, Saba Dredging Company, Inc.
    Raymond M. Allen, Allen Law Office, Lafayette, Louisiana, Richard A. Cozad, Michael L. McAlpine, Emma A. Mekinda, McAlpine & Cozad, New Orleans, Louisiana, for Defendant/Appellee, Berry Brothers General Contractors.

      James M. Funderburk, Houma, Louisiana, for Defendant/Appellee, T. Baker Smith & Sons, Inc.
    Burton P. Guidry, Assistant Attorney General, Clement Story, III, Louisiana Department of Justice, Baton Rouge, Louisiana, for Intervenor, State of Louisiana.
    Albert M. Hand, Jr., Cook, Yancey, King & Galloway, Shreveport, Louisiana, Jerry A. Oubre, Caffery, Oubre, Campbell & Garrison, New Iberia, Louisiana, for Defendant/Appellee, El Paso Field Services Management.
    Michael D. Hunt, Steven J. Levine, Phelps, Dunbar, LLC, Baton Rouge, Louisiana, for Defendants/Appellees, C.L. Jack Stelly & Associates, Inc., Morris Hebert, Inc.
    Francis X. Neuner, Jr., Brandon W. Le-tulier, Laborde & Neuner, Lafayette, Louisiana, for Defendant/Appellee, C.H. Fen-stermaker & Associates.
    Kai David Midboe, Baton Rouge, Louisiana, for Defendant/Appellee, Florida Gas Transmission Company.
    Andre J. Mouledoux, Jacques P. De-gruy, New Orleans, Louisiana, for Defendant/Appellee, C.F. Bean, L.L.C.
    Edwin G. Preis, Jr., Robert M. Kallam, Casie L. Willis, Preis, Kraft & Roy, Lafayette, Louisiana, for Defendant/Appellee, C & C Technologies.
    Roger E. Ishee, Greg R. Mier, Onebane Law Firm, Lafayette, Louisiana, for Defendant/Appellee, Denbury Resources, Inc.
    Joe B. Norman, Stevia Marie Walther, Kelly B. Becker, New Orleans, Louisiana, for Defendants/Appellees, Texaco Petroleum Pipeline, LLC, Texaco Pipelines, LLC.
    Lawrence P. Simon, Jamie D. Rhymes, Jason P. Bergeron, Liskow & Lewis, Lafayette, Louisiana, for Defendant/Appellee, Hunt Oil Company.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

hAt issue in this appeal is whether Plaintiffs, who identify themselves as commercial crawfishermen, have a state law cause of action arising out of the alleged destruction of the “Buffalo Cove” fishing area in St. Martin Parish, Louisiana, due to Defendants’ oilfield-related activities. The trial court dismissed Plaintiffs’ state law claims on an exception of no cause of action, but reserved their right to proceed under maritime law. For the following reasons, we affirm.

Discussion of the Record

The Louisiana Crawfish Producers Association — West and over ninety of its individual members sued eighteen named Defendants who were allegedly engaged in oil and gas exploration, dredging and pipeline activities, or providing surveying services for those conducting such activities. Plaintiffs alleged that in the course of these activities Defendants created spoil banks and dams that have impeded the natural flow of water in the Buffalo Cove area, resulting in stagnant water that has destroyed the aquatic ecosystem and has eliminated or greatly diminished their ability to catch crawfish in the area. Plaintiffs initially filed suit under state law, specifically citing La.Civ.Code art. 667, then filed an amending petition seeking relief under both state tort law and general maritime law. They sought damages for loss of jobs, profits, wages, and earning capacity; loss of enjoyment of recreational use; and inconvenience and mental distress.

After hearing numerous exceptions filed by Defendants, the trial court found that Plaintiffs did not have a cause of action under state law, based primarily on their inability to demonstrate a proprietary interest in either the land of Buffalo Cove or the wild crawfish that they sought to catch. The trial court considered that its ruling ^rendered any other exceptions moot, but it reserved to Plaintiffs the right to proceed with any claims that they may have under maritime law. On appeal, Plaintiffs argue that the trial court erred in concluding that they did not have a cause of action under La.Civ.Code art. 2315 and La.Civ.Code art. 667.

Opinion

In Harp v. Pine Bluff Sand & Gravel Co., 98-1634, p. 4 (La.App. 3 Cir. 11/24/99), 750 So.2d 226, 229 (citations omitted), this court explained the function of the exception of no cause of action as follows:

The function of an Exception of No Cause of Action is to test the legal sufficiency of a petition by determining whether the law affords a remedy on the facts alleged in the pleading. Any doubts must be resolved in favor of the sufficiency of the petition.
No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. When a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be denied. A “cause of action” is an act by a Defendant which gives a Plaintiff a right to invoke a judicial interference on his behalf.

“In reviewing a trial court’s ruling sustaining an exception of no cause of action, we conduct a de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition.” Schoeffler v. Drake Hunting Club, 05-499, p. 5 (La.App. 3 Cir. 1/4/06), 919 So.2d 822, 828.

The trial court’s dismissal of Plaintiffs’ state law claims is based upon the rule of Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), which, broadly stated, operates to deny a plaintiff recovery for economic loss resulting from physical damage to property in which he has no proprietary interest. Although Robins arose in a contractual setting, in that the charterer of a vessel was denied recovery for its loss of use after the vessel was negligently damaged by the dry dock operator, its application has not been confined to contract cases, but rather it has become “a pragmatic limitation imposed by the Court upon the tort doctrine of foreseeability.” Louisiana ex rel. Guste v. M/V TESTBANK, 752 F.2d 1019, 1023 (5th Cir.1985), cert. denied, 477 U.S. 903, 106 S.Ct. 3271, 91 L.Ed.2d 562 (1986).

In this appeal, plaintiffs argue that they fall within the exception to Robins afforded to commercial fishermen, as recognized in the federal district court ruling of Louisiana ex rel. Guste v. M/V TESTBANK, 524 F.Supp. 1170 (E.D.La.1981), and in Union Oil Co. v. Oppen, 501 F.2d 558 (9th Cir.1974). Plaintiffs also rely upon two other federal district court cases in which, they contend, other similarly-situated claimants have recovered economic damages under state tort law. See Shaughnes sy v. PPG Indus., Inc., 795 F.Supp. 193 (W.D.La.1992), and Maddox v. Int’l Paper Co., 47 F.Supp. 829 (W.D.La.1942). Defendants respond that Shaughnessy and Maddox are distinguishable, in that those plaintiffs were riparian landowners as well, and that the one Louisiana state court case to address this issue, Dempster v. Louis Eymard Towing Co., Inc., 503 So.2d 99 (La.App. 5 Cir.), writ denied, 505 So.2d 1136 (La.1987), held that fishermen did not have a cause of action for economic loss arising from the destruction of a fishing site. After reviewing the above jurisprudence, and the many other cases cited by both sides to this controversy, we find Defendants’ arguments to be persuasive.

In TESTBANK, 524 F.Supp. at 1173, the federal district court recognized that claims for economic loss of commercial fishermen deserve special attention, as “[tjraditionally, seamen have been recognized as favored in admiralty and their ^economic interests require the fullest possible legal protection.” Accordingly, the district court refused to dismiss the economic claims of commercial fishermen “even in the absence of any proprietary rights over aquatic life.” Id. We note that the facts of TESTBANK occurred in a purely maritime setting, as the damage to the commercial fishing industry was caused by the collision of two vessels on a navigable waterway. Also, the commercial fishermen in TESTBANK and in Oppen, 501 F.2d 558, appear to be “Jones Act” seamen, subject to the “perils of the sea,” which is not the case here. Similarly, Plaintiffs reliance on Poe v. PPG Industries, 00-1141 (La.App. 3 Cir. 3/28/01), 782 So.2d 1168, writ denied, 01-1239 (La.6/22/01), 794 So.2d 801, is misplaced, as this court clearly stated that it was applying maritime law in that case.

In Shaughnessy, 795 F.Supp. 193, the owner of a fishing and hunting guide service filed suit when his bookings dropped significantly after the defendant, described by the court as a “land based polluter,” allegedly contaminated the waters in which his clients fished. Id. at 195. Although the court also concluded that the plaintiff should be protected in the same manner as the commercial fisherman in TESTBANK, 524 F.Supp. 1170, central to its analysis in permitting the suit to survive summary judgment under state law was the plaintiffs status as a riparian landowner. In addition to applying La.Civ.Code art. 2315, the court concluded that the plaintiff could recover under La.Civ.Code art. 656 as the owner of a servient estate whose servitude has become more burdensome through the actions of the owner of the dominant estate. That the plaintiff was a landowner led the court to observe: “Economic damages to fishing businesses, combined with damage to a riparian estate have often been found to be actionable in various jurisdictions.” Shaughnessy, 795 F.Supp. at 196 (emphasis added). As authority for allowing the case to proceed under |f;La.Civ.Code art. 2315, the court cited Maddox, 47 F.Supp. 829, a case in which the plaintiff was also a riparian landowner.

In Dempster, 503 So.2d 99, the court was presented with plaintiffs whose positions are more analogous to those in the case sub judice. In that case, two fishermen filed suit for the loss of a fishing site, seeking to recover for the loss of their nets, the loss of the catch in the nets, and the loss of future profits from the use of the fishing site. The fifth circuit affirmed summary judgment dismissing plaintiffs’ economic damage claims based upon the same rationale applied by the trial court in the present case: “[a]s plaintiff had no proprietary interest in the fish which were at large in the waters, and no right to object to the state’s interfering with the exercise of the fishing privilege granted, it has no right to complain and claim damages.” Id. at 101 (quoting Vanacor v. Dep’t of Wildlife & Fisheries, 483 So.2d 1127, 1130 (La.App. 5 Cir.1986) (emphasis added) (alteration in original)). The court also addressed one of Plaintiffs’ arguments herein, namely that regulatory cases such as Vanacor cannot be applied to defeat their tort claims, by stating:

Although Vimacor, supra dealt with the ability of the state to regulate fishing, we also find it applicable to the instant case which concerns the rights of a tortfeasor to recover damages for the future loss of fish insofar as holding that the appellants have no proprietary interest in the fish at large in the state waters.

Dempster, 503 So.2d at 101 (emphasis added). Additionally, we note that the supreme court reiterated the above principle in Louisiana Seafood Management Council v. Louisiana Wildlife & Fisheries Commission, 97-1367, p. 8 (La.5/19/98), 715 So.2d 387, 392, in finding that licensed commercial fishermen had no cause of faction under the “taking clause” of the United States Constitution as to the loss of fishing profits brought about by the state’s regulatory actions:

The lack of any property interest in the fish in the waters is well-settled, statutorily and judicially. See La.Civ. Code arts. 450, 452; La.Rev.Stat. 56:3. In LaBauve v. Louisiana Wildlife & Fisheries Comm’n, 444 F.Supp. 1370 (E.D.La.1978), the court explained that “fish which are at large in state waters are the property of the state, as public or common things;” that “an individual has no proprietary interest in the fish he is prevented from catching;” and that “an individual has no proprietary right to fish commercially in state waters.” 444 F.Supp. at 1378. Fishermen’s inability to establish a private property interest in free-swimming corporeal fish has precluded recovery under this theory. Douglas F. Britton, The Privatization of the American Fishery: Limitations, Recognitions, and the Public Trust, 3 Ocean & Coastal L.J. 217, 236 (1997) (noting that under these circumstances fishermen have been regarded as “possessing no compensable, or prosecutable, property interests” for takings claims purposes).

Plaintiffs also contend that they have a cause of action under La.Civ.Code art. 667, arguing that their fishing licenses place them in the category of “persons holding rights derived from the landowner,” as were the successful oyster lessees in Inabnet v. Exxon Corp., 93-681, p. 12 (La.9/6/94), 642 So.2d 1243, 1251. We disagree. As explained in Louisiana Seafood Management Council, 715 So.2d at 392 (emphasis added), a commercial fishing license is “a state-granted privilege subject |7to such limitations as the state may impose in the exercise of its police power.” Thus, a fishing license is issued by the state in the exercise of its regulatory and police powers, as opposed to its capacity to lease a specific area of land as a landowner. Further, as the court explained in Dumas v. Angus Chemical Co., 31,400, p. 16 (La.App. 2 Cir. 1/11/99), 728 So.2d 441, 451, writ denied, 99-751 (La.4/30/99), 741 So.2d 19:

[N]ot every claimant is within the class of people to whom a duty is owed under Article 667. The term “proprietor” in Article 667 has been interpreted to apply not only to a landowner, but also to any person whose rights derive from the owner. Inabnet v. Exxon Corp., 93-0681 (La.9/6/94), 642 So.2d 1243. A landowner, however, does not owe a duty under Article 667 to everyone: “Persons that do not qualify as proprietors, such as guests, contractors, and members of the public, may have a variety of remedies against a landowner under the law of delictual obligations ..., but not for violation of obligations established by Articles 667 and 668.” [A.N.] Yiannopoulos, [4 Civil Law Treatise (1997) Predial Servitudes], § 44.

Based upon the above, we find that the trial court properly granted Defendants’ exception of no cause of action as to Plaintiffs’ state law claims. Accordingly, the judgment of the trial court is affirmed at Plaintiffs’ cost.

AFFIRMED.

      . In their appellate brief, Plaintiffs identify the Buffalo Cove area as comprising 58,000 acres within the 595,000 acres of the Atchafa-laya Basin.

      . The trial court also denied an exception of improper cumulation of actions that is not at issue in this appeal.

      . As shown in a later proceeding, Maddox v. International Paper Co., 105 F.Supp. 89 (W.D.La.1951), aff’d, 203 F.2d 88 (5th Cir. 1953), the plaintiff was allowed to recover for the total. destruction of his fishing camp, the loss of improvements placed on his property, and the loss of the probable sale of two campsites.

      . Louisiana Civil Code Article 667 (emphasis added) provides:

        Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazar-dous activity as used in this Article is strictly limited to pile driving or blasting with explosives.


author: GREMILLION, Judge.

text:
    Darvin KERRY v. STATE of Louisiana, Through BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY, et al.
    No. CW2006-00131.
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2006.

      James D. Caldwell, Shreveport, LA, for Plaintiff/Respondent, Darvin Kerry.
    Charles C. Foti, Jr., Attorney General, James E. Calhoun, Asst. Attorney General, Alexandria, LA, for Defendant/Relator, State of Louisiana, through the Board of Supervisors, LSU Health Sciences Center, Health Care Services Division.
    Court composed of GLENN B. GREMILLION, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   GREMILLION, Judge.

I,In this writ application, the defendant, the State of Louisiana, through the Board of Supervisors of Louisiana State University, Health Sciences Center-Health Care Services, Huey P. Long Medical Center (the State), urges that the wrongful death claim of the plaintiff, Darvin Kerry, is prematurely before the court. We agree and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

This writ arises out of a medical malpractice claim that was originally filed by the plaintiffs wife, Robbie Kerry, who is now deceased. Robbie died on March, 17, 2005. On July 22, 2005, the medical review panel convened and found that the State failed to meet the appropriate standard of care when Robbie was admitted into the hospital on March 27, 2002. On October 26, 2005, Darvin filed both survival and wrongful death actions. The State filed an Exception of Prematurity arguing that the wrongful death claim was premature because Robbie died during the pen-dency of the proceedings. Following a hearing in December 2005, the trial court denied the exception. The State applied for writs to this court to decide this issue.

DISCUSSION

Louisiana Revised Statute 40:1299.39.1(A)(l)(a) states in pertinent part, “All malpractice claims against the state, its agencies, or other persons covered by this Part ... shall be reviewed by a state medical review panel[.]” Louisiana Revised Statute 40:1299.39.1(B)(l)(a)(i) goes on to say, “No action against the state, its agencies, or a person covered by this Part, or his insurer, may be commenced in any | ¡¡court before the claimant’s complaint has been presented to a state medical review panel established pursuant to this Section.” In Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451, p. 4 (La.12/1/04), 888 So.2d 782, 785, the supreme court discussed the use of a dilatory exception of prematurity in medical malpractice cases:

The dilatory exception of prematurity provided in La.Code Civ. Proc. art. 926 questions whether the cause of action has matured to the point where it is ripe for judicial determination. Spradlin v. Acadia-St. Landry Medical Foundation, 98-1977 (La.2/29/00), 758 So.2d 116; see also Frank L. Maraist and Thomas C. Galligan, Jr., Louisiana Tort Law § 21 — 3(f) (1996). An action is premature when it is brought before the right to enforce it has accrued. La.Code. [sic] Civ. Proc. art. 423. Under the Medical Malpractice Act, a medical malpractice claim against a [public] qualified health care provider is subject to dismissal on a timely filed exception of prematurity if such claim has not first been reviewed by a pre-suit medical review panel. La. Rev.Stat. 40:1299.47 A. The burden of proving prematurity is on the exceptor, in this case the defendant health care provider; therefore the defendant must show that it is entitled to a medical review panel. Hidalgo v. Wilson Certified Exp. Inc., 94-1322 (La.App. 1 Cir. 5/14/96), 676 So.2d 114, 117; Bennett v. Krupkin, 00-0023 (La.App. 1 Cir. 3/28/02); 814 So.2d 681, 685-86.

Robbie’s death certificate lists septicemia due to PEG tube site cellulitis as the cause of her death. The State urges that the medical review panel’s decision was limited to the finding that it was negligent in causing her brain damage. The State argues that the medical review panel did not decide whether it breached the standard of care pertaining to the septicemia and that this issue must be presented to the medical review panel.

The State further characterizes the issue as whether Darvin’s wrongful death claim is a separate cause of action from the survival action that must be presented to the medical review panel. It is true that wrongful death and survival actions are separate and distinct claims that can arise from a common tort, but there |3can be instances where a second tortious act occurs in the interim. This case presents an issue of first impression of whether or not Robbie’s death from septicemia requires a medical review panel to convene to determine if the septicemia was a negligent act or if it arose out of the original act which the medical review panel has already deemed was a derogation of the standard of care. We do not view the issue as separate claims under the medical malpractice act necessarily because survival and wrongful death actions are two separate actions. There are cases in which there would be little dispute that both the survival and wrongful death actions arose from the same act of malpractice. Rather, we view the issue in this case as whether there exists two separate injuries resulting from two different acts, i.e. 1) the brain damage which the medical review panel has determined was malpractice and, 2) death from infection of the PEG tube.

We view Robbie’s death from septicemia as a separate injury that requires an expert opinion from the medical review panel as to whether or not it was malpractice. In Batson v. South Louisiana Medical Center, 99-0232, p. 6 (La.11/19/99), 750 So.2d 949, 954, the supreme court stated:

It seems elementary that, but for contracting sepsis, [the plaintiff] probably would not have developed the decubitus ulcers and the flexion contractures. In fact, but for [the plaintiff] having a bleeding ulcer, she would not have been admitted to the hospital at all and therefore, would probably not have developed sepsis. The “but for” analysis can continue infinitely. However, the medical testimony is clear: sepsis is not the direct cause of flexion contractures or decubitus ulcers.

Although we do not have any expert testimony before us, it would appear that septicemia at a PEG tube site does not directly result from a brain injury. Accordingly, we cannot say that the PEG tube infection “arose” from the original act |4of malpractice. Although we regret prolonging the plaintiffs case any further, we feel it is necessary that the original medical review panel consisting of the same members be convened once again to determine if the infection at the PEG tube site constituted negligence.

CONCLUSION

The judgment of the trial court denying the defendant-appellant's Exception of Prematurity is reversed. The plaintiff-ap-pellee must submit his wrongful death claim due to his wife’s death from septicemia to the original medical review panel. All costs of this appeal are assessed against Darvin Kerry.

REVERSED.


text:
    Gary L. MILLER v. CONAGRA, INC.
    No. CW 06-00653.
    Court of Appeal of Louisiana, Third Circuit.
    July 19, 2006.
    Rehearing Denied Aug. 23, 2006.
    William Preston Crews, Jr., for Cona-gra, Inc.
    Craig Alan Davis, Lafayette, for Gary L. Miller.
   | t Insofar as the Defendant-Relator, ConAgra, Inc. a/k/a Pilgrim’s Pride Corporation, seeks reversal of the trial court’s ruling denying the motion for new trial, we deny the instant writ application. The denial of a motion for new trial can be assigned as error on the appeal from the final judgment. See Firemen’s Pension and Relief Fund For the City of Lake Charles v. Boyer, 420 So.2d 1323 (La.App. 3 Cir.1982); Moran v. G & G Construction, 03-2447 (La.App. 1 Cir. 10/29/04), 897 So.2d 75, writ denied, 04-2901 (La.2/25/05), 894 So.2d 1148. Therefore, the Defendant has an adequate remedy through an ordinary appeal.

Insofar as the Defendant seeks review of the trial court’s ruling denying the Defendant’s motion for a suspensive appeal and granting a devolutive appeal, we find that the trial court erred. When a timely motion for new trial has been filed, the delays for seeking an appeal begin to run upon the mailing of notice of the denial of the motion for |anew trial. La.Code Civ.P. art.2087 and 2123. Pursuant to La. Code Civ.P. art.1914, the denial of a motion for new trial must be accomplished through a written judgment and notice thereof sent by the clerk. In the instant case, the trial court issued only written reasons which included a provision that the motion for new trial was denied. This action does not fulfill the mandatory requirements of Article 1914. See ERI, Inc. v. Weinstein, 95-917 (La.App. 3 Cir. 8/21/95), 663 So.2d 103. Thus, the delays for seeking an appeal have not yet begun to run, and the Defendant’s motion for appeal was premature. La.Code Civ.P. art.2087 and 2123. See also City of Kaplan v. Mayard, 616 So.2d 826 (La.App. 3 Cir.1993). We hereby remand this case to the trial court for further proceedings in accordance with this court’s ruling herein.

We deny the motion to dismiss the writ application filed by the Plaintiff-Respondent, Gary L. Miller.

WRIT GRANTED IN PART AND MADE PEREMPTORY; WRIT DENIED IN PART.

/s/ S.R.C. S.R.C.

/s/ J.D.S. J.D.S.

/s/ O.A.D. O.A.D.


text:
    State of Louisiana In the Interest of V.L.S., M.E.S.-V. and A.S.S.-V.
    No. 41,514-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 10, 2006.

      Kermit M. Simmons, Winnfíeld, for Defendant Appellant, John Sipes.
    Herman A. Castete, for Plaintiff Appel-lees, V.L.S., M.E.S.-V. and A.S.S.-V.
    Anna E. Dow, Assistant District Attorney, for Plaintiff Appellee, State of Louisiana.
    Robert J. Elliott, for Plaintiff Appellee, State of Louisiana, DOSS.
    Richard C. Nevils, for Defendant Appel-lee, Tyra K. Stainbrook Sipes.
    Billy L. West, Jr., Natchitoches, for Defendant Appellee, Jonathan J. Menssen.
    Laura Jo Johnson, Natchitoches, for Defendant Appellee, Pedro Villalobos.
    Before STEWART, PEATROSS and MOORE, JJ.
   1 ¶WRIT GRANTED; JUDGMENT AFFIRMED. Applicant, John Sipes, seeks supervisory review of the trial court’s denial of his declinatory exception of lack of personal jurisdiction over him in the termination of parental rights proceedings initiated by the State of Louisiana, through the Department of Social Services (the “State”).

On November 9, 2005, the State initiated proceedings to terminate the parental rights of John Sipes in regards to the minor children M.V. and A.V. In its petition, the State alleged that John Sipes is an absentee whose address, whereabouts, date of birth and age are unknown and requested that a curator ad hoc be appointed to represent him. Pursuant to this request, the trial court appointed Kermit Simmons to represent Mr. Sipes.

In response to this petition, Mr. Simmons, on Mr. Sipes behalf, filed an exception of lack of personal jurisdiction. In it, he argues that the State would be unable to present any evidence that Mr. Sipes had even minimal contacts with the State of Louisiana which would justify the exercise of personal jurisdiction over him. The exception was heard by the trial court on February 24, 2006. No evidence as to Mr. Sipes contacts with the State of Louisiana, or lack thereof, was presented. The only testimony adduced at the hearing was from the Child Welfare Supervisor for the Winn Parish Office of Community Services, Donna Johnson. Ms. Johnson testified that she had no knowledge of whether Mr. Sipes ever resided or was even in Louisiana. The trial court denied the exception without providing reasons and the instant writ application followed.

The issue presented by the application is whether the courts of this state are required to have jurisdiction over the person of the parent in termination of parental rights proceedings regarding children domiciled in Louisiana and, if so, whether personal jurisdiction over Mr. Sipes was present. Because we find that personal jurisdiction under these circumstances is not required, we need not reach the question of whether it was present.

Each state, in its role as sovereign, has a rightful and legitimate concern in the protection of children domiciled within its borders whose health and welfare has significant social importance. Accordingly, in its capacity as Parens patri-ae, the state by virtue of its authority over its domiciliaries and its interest in the | {.welfare of children domiciled within its borders, can alter the parent-child relationship even though the parent is not subject to the personal jurisdiction of the court. See State ex rel. W.A., 63 P.3d 607 (Ut.12/20/02); J.D. v. Tuscaloosa County Department of Human Resources, 923 So.2d 303 (Ala.Civ.App.2005); In re Appeal in Maricopa County, Juvenile Action No. JS-734, 25 Ariz.App. 333, 543 P.2d 454 (1975); In re Interest of M.L.K., 13 Kan. App.2d 251, 768 P.2d 316 (1989); Graham v. Copeland (In re Adoption of Copeland), 43 S.W.3d 483 (Tenn.Ct.App.2000); In re M.S.B., 611 S.W.2d 704 (Tex.Civ.App. 1980); Wenz v. Schwartze, 183 Mont. 166, 598 P.2d 1086 (1979); and, In re A.E.H., 161 Wis.2d 277, 468 N.W.2d 190. Assuming the form and nature of the notice meet the requirements of due process and the uncontested domicile of the children in Louisiana, there is no constitutional prohibition to the State’s proceeding against Mr. Sipes to terminate his parental rights regardless of his lack of contacts with Louisiana.

Accordingly, the judgment of the trial court denying the declinatory exception of lack of jurisdiction over the person is affirmed.

      . Mr. Sipes initially filed an appeal from the denial of his exception. However, because the judgment was not subject to certification under La. C.C.P. art. 1915(B), it was not final and appealable. Accordingly, when the matter was lodged with this Court, it converted the appeal to a writ application.