author: DAVID S. GORBATY, Judge. ARMSTRONG, C.J., MURRAY, J.,

text:
    Mark and Nzinga TALBERT v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY.
    No. 2007-CA-0211.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.

      Craig R. Nelson, Nelson Fay, LLC, New Orleans, LA, for Plaintiffs/Appellants.
    Robert H. Cooper, Robert H. Cooper, Attorney at Law, Mandeville, LA, for Defendant/Appellee.

      (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY).
   DAVID S. GORBATY, Judge.

11 This is an insurance coverage dispute. The parties are State Farm Fire and Casualty Insurance Company (“State Farm”) and Mark and Nzinga Talbert (“the Tal-berts”). The issue presented is whether State Farm properly denied the Talberts’ claim for an allegedly stolen automobile based on material misrepresentations in obtaining coverage. From a judgment in favor of State Farm dismissing their claim, the Talberts appeal. For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On June 16, 2003, Mrs. Talbert’s unemployed brother, Merle Offray, donated to Mr. Talbert a 2003 GMC Yukon Denali bearing Vehicle Identification Number (“VIN”) 1GKEK63U13J287031. According to Mrs. Talbert, the donation was memorialized in an “Act of Donation of a Movable,” which was executed at Mid-City Auto Title in New Orleans before Don Fern, Mid-City’s owner and a notary. In connection with the donation, Mr. Offray and Mr. Talbert jointly presented to Mr. Fern two documents: 1) a “Bill of Sale” dated June 2, 2003, which was notarized by an Ohio notary; and 2) an “Ohio Certificate of Title” for the vehicle. The documents represented that Mr. Offray purchased the vehicle |¡>from James Mayo on June 2, 2003, for the sum of $28,000.00. From these documents, Mr. Fern prepared the donation and completed the necessary forms allowing Mr. Talbert to be issued a Louisiana certificate of title and registration for the vehicle. Mr. Offray then paid $2,719.00 in cash for the sales taxes and registration fees to Mr. Fern.

Immediately after leaving Mid-City’s office, Mr. Talbert and Mr. Offray went to the State Farm agency at which the Tal-berts had insured other vehicles. At the agency, Mr. Talbert presented the documents that he obtained from Mid-City, including the act of donation. Mr. Talbert also presented a 2003 white GMC Yukon Denali that he claimed to be the vehicle described in the documents. At that time, pictures were taken of the vehicle, which show it had a temporary Georgia license plate. Based on Mr. Talberts’ representation that he was the sole owner of the vehicle, State Farm added the Yukon Denali to the Talberts’ policy. Thereafter, the Talberts paid the insurance premium on the vehicle for the next year.

On June 5, 2004, the Talberts reported to the police and to the On-Star Service that the vehicle was stolen from their home in the Florida Housing Project in New Orleans. The On-Star service located a Yukon Denali with VIN 1GKEK63U13J287031 in Florida. However, the vehicle that On-Star located belonged to Ann Treadwell, a Georgia resident, and was pewter in color, not white. The record reflects that Ms. Treadwell purchased the vehicle new from a Georgia dealership, which acquired it directly from the GMC factory.

|sThe Talberts made a claim with State Farm for the value of the vehicle. State Farm provided the Talberts with a rental car and proceeded to investigate the claim. On November 3, 2004, the Talberts filed suit against State Farm, seeking to recover the following: 1) proceeds allegedly due them under their policy for the theft of the vehicle; 2) damages, including rental costs and premiums paid after the date of the theft; and 3) statutory penalties for bad faith refusal to pay the claim as well as attorney’s fees under La. R.S. 22:658 and 22:1220.

On August 12, 2005, State Farm informed the Talberts by letter of its denial of their claim. State Farm also terminated the rental coverage that was provided during the investigation of the claim.

On October 13, 2006, the trial court denied the Talberts’ motion to strike or prohibit State Farm from introducing any evidence or argument that the title or insurance obtained on the Yukon Denali was “fraudulent,” “obtained through fraud,” or was in any way flawed. Rejecting the Talberts’ assertion that such evidence was irrelevant and prejudicial, the trial court reasoned that “State Farm’s investigation of the claim required it to conduct a title search history of the vehicle. The title search led to the discovery of problems with the title, proof of insurance, and impropriety with the VIN number. State Farm should be allowed to set forth a defense as to its failure to pay plaintiffs’ claim.”

On November 14, 2006, a jury trial commenced in this matter. Mr. and Mrs. Tal-bert both testified. The gist of their testimony was that although Mr. Offray was unemployed, they did not question how he could afford the vehicle because they trusted him. Insofar as Mr. Offray’s whereabouts, they indicated that he had Rlived with his mother in New Orleans. They further indicated that they were unaware of where he was currently living.

Neither of the Talberts offered any explanation for the discrepancies regarding Mr. Offray’s Ohio title, his proof of insurance, or the VIN. More specifically, Mrs. Talbert could not explain why her brother, who never lived in Georgia, would have obtained insurance for the Yukon Denali from a Georgia insurance agency. Nor could she explain why the vehicle, which was transferred by a bill of sale that was notarized by an Ohio notary, and which had an Ohio title, would have a Georgia temporary license plate.

The Talberts presented the deposition testimony of Valencia Thomas. Ms. Thomas testified that she was employed by the State Farm agency at which the Tal-berts purchased the insurance. Ms. Thomas stated that when Mr. Talbert came into the agency to add the Yukon Denali to his existing policy she was training a new employee. Ms. Thomas testified that she and the new employee used the information on the documents Mr. Talbert provided them to complete the application. Although she indicated that they obtained the VIN from those documents, she testified that they are required to physically check the VIN on the vehicle, and that she actually did so. She further testified that they took pictures of the vehicle. She described the vehicle as a white Yukon Denali. Given the documents provided by Mr. Talbert, including the act of donation, Ms. Thomas stated that she was satisfied that he was the owner of the vehicle.

The Talberts also presented the testimony of Richard Rushton, who was qualified as an expert in the field of automobile appraisal. Mr. Rushton opined that the value of the Yukon Denali in June of 2004, when the vehicle was stolen, was $37,300.00.

IfAt the close of the Talberts’ case, the trial court granted State Farm’s motion for directed verdict on the issue of statutory penalties and attorney’s fees. As a result, the trial court found that the Tal-berts’ claim did not meet the $50,000.00 jury trial threshold. Thus, the jury was released.

On November 15, 2006, the trial court heard State Farm’s evidence regarding the Talberts’ remaining claim as to the value of the vehicle. State Farm presented Ms. Treadwell as a witness. She testified that on August 4, 2008, she purchased a Yukon Denali bearing the VIN indicated on the Talberts’ policy from a dealership in Decatur, Georgia for $43,804.15. She also presented her vehicle for inspection at trial. The trial court examined the vehicle and determined that the VIN on that vehicle matched the VIN on Ms. Treadwell’s Georgia title. The trial court also determined that the keys that the Talberts provided to State Farm for their vehicle did not turn on the ignition of Ms. Treadwell’s vehicle.

State Farm also introduced at trial the deposition testimony of Yvette Worthing-ton, the president of the Georgia dealership from which Ms. Treadwell purchased her vehicle. Ms. Worthington identified the certificate of origin, which established that the 2003 Yukon Denali with VIN 1GKEK63U13J287031 was shipped from the GMC factory to the dealership on April 28, 2003. She also corroborated Ms. Treadwell’s testimony that she purchased the vehicle from the dealership on August 4, 2003.

At trial, State Farm presented evidence establishing the questionable nature of the documentation that Mr. Talbert and Mr. Offray presented to Mr. Fearn at Mid-City in order to obtain the act of donation and the Louisiana registration documents.

[fiFirst, State Farm presented the deposition of Mr. Mayo, a retired bishop of the AME Church who, according to the bill of sale and Ohio title, sold the Yukon Denali to Mr. Offray. Mr. Mayo denied ever owning a Yukon Denali. Mr. Mayo also denied knowing Mr. Offray. Furthermore, Mr. Mayo testified that it was not his signature on either the bill of sale or the Ohio title.

Second, State Farm presented the deposition testimony of Patrick Lightfoot, the Assistant Chief of Investigations for the Ohio Bureau of Motor Vehicles. Mr. Lightfoot testified that he accessed the Bureau’s automated title processing system and determined that there was no record of the State of Ohio ever issuing a title in the number referenced on the Ohio certificate of title. He also testified that there was no record of the State of Ohio ever issuing a title for VIN 1GKEK63U13J287031. Mr. Lightfoot further testified that there were a number of discrepancies on the Ohio title that he had not seen on regularly issued Ohio titles.

Third, State Farm presented the deposition testimony of Allison Thompson, the regional operations manager for Southern General Insurance Company. Ms. Thompson was asked about Southern General’s alleged coverage for Mr. Offray on the Yukon Denali from June 10, 2003 to December 10, 2003. More particularly, she was asked about a Georgia Liability Insurance Card that Advantage Insurance Agency allegedly issued to Mr. Offray reflecting such coverage. Ms. Thompson testified that this card did not resemble the proof of insurance cards that Southern General issues. She further testified that she researched Southern General’s database and determined that no policy of insurance was written for Mr. Offray or a vehicle with VIN 1GKEK63U13J287031.

Finally, State Farm presented the deposition testimony of Mr. Offray’s (and Mrs. Talbert’s) mother, Mary Offray. Mrs. Of-fray testified that she had not had|7contact with Mr. Offray since he turned eighteen years old, which was several years before the donation was made. Although Mrs. Offray lived close by the Talberts from the time of the donation to the time of the alleged theft, she testified that she was neither shown the Yukon Denali nor told about the donation.

On December 11, 2006, the trial court rendered judgment in favor of State Farm, dismissing the Talberts’ claim with prejudice at their cost. In its reasons for judgment, the trial court stated:

The plaintiffs [the Talberts] claim that Mrs. Talbert’s brother, Merle Offray, gave them a 2003 Yukon Denali. Mr. Offray, who never held a job except as a dishwasher, could not be found to testify to explain how he was able to be so generous. The plaintiffs insured the donated vehicle with State Farm. A year later, they claim that the vehicle was stolen. Interestingly, this was the third time that they have filed a claim for a stolen vehicle. They filed a claim with State Farm which was denied. This lawsuit was then filed.
For all of the reasons argued by State Farm, the Court has dismissed the Tal-berts’ lawsuit. This Court found the testimony of Mr. and Mrs. Talbert to be unworthy of belief.

This appeal followed.

DISCUSSION

On appeal, the Talberts assert the following three assignments of error:

1. The trial court erred in granting defendant’s motion for a directed verdict dismissing plaintiffs’ claims for arbitrary and capricious conduct and failure to negotiate in good faith.
2. The trial court erred in dismissing the jury after plaintiffs rested and conducting a bench trial during defendant’s case.
3.The trial court erred in failing to follow Louisiana law and find plaintiffs had an insurable interest in the stolen vehicle and failure to find any misrepresentation with intent to deceive by plaintiffs in order to void State Farm’s obligation under the policy.

We separately address each of these issues.

[Rl. Directed Verdict:

In a jury trial, a party may move for directed verdict at the close of an opponent’s evidence. La. C.C.P. art. 1810. The standard of review on appeal of a directed verdict is whether reasonable persons could reach a contrary verdict under the evidence. Thomas v. A.P. Green Industries, Inc., 05-1064, p. 19 (La.App. 4 Cir. 5/31/06), 933 So.2d 843, 858; Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 03-2219, pp. 7-8 (La.App. 4 Cir. 11/17/04), 887 So.2d 722, 727.

As noted, the trial court granted State Farm’s motion for directed verdict on the issue of statutory penalties under La. R.S. 22:658 and 22:1220. The prohibited conduct under these two statutes is virtually identical: “the failure to timely pay a claim after receiving satisfactory proof of loss when that failure to pay is arbitrary, capricious, or without probable cause.” Reed v. State Farm Mutual Automobile Ins. Co., 03-0107, p. 12 (La.10/21/03), 857 So.2d 1012, 1020 (citing Calogero v. Safeway Ins. Co. of Louisiana, 99-1625, p. 7 (La.1/19/00), 753 So.2d 170, 174). Because these two statutes are penal in nature, they are strictly construed. Reed, 03-0107 at pp. 12-13, 857 So.2d at 1020 (citing Hart v. Allstate Insurance Company, 437 So.2d 823, 827 (La.1983)).

The claimant seeking to recover under these two statutes has the burden of establishing three things: 1) the insurer received a satisfactory proof of loss; 2) the insurer failed to pay the claim within the applicable statutory period; and 3) the insurer’s failure to pay was arbitrary and capricious. Boudreaux v. State Farm Mutual Automobile Ins. Co., 04-1339, p. 4 (La.App. 4 Cir. 2/2/05), 896 So.2d 230, | fl 233; Sterling v. U.S. Agencies Casualty Co., 01-2360, p. 6 (La.App. 4 Cir. 5/15/02), 818 So.2d 1053, 1057. When “there is a reasonable and legitimate question as to the extent and causation of a claim, bad faith should not be inferred from an insurer’s failure to pay within the statutory time limits.” Reed, 03-0107 at p. 13, 857 So.2d at 1021 (citing Block v. St. Paul Fire & Marine Ins. Co., 32,306, p. 7 (La.App. 2 Cir. 9/22/99), 742 So.2d 746, 751); Boudreaux, supra. A trial court’s determination that an insurer’s handling of a claim was not arbitrary, capricious, or without probable cause is a factual finding that may not be disturbed on appeal absent manifest error. Reed, 03-0107 at p. 14, 857 So.2d at 1021 (citing Scott v. Insurance Co. of North America, 485 So.2d 50, 52 (La.1986)).

In this case, State Farm had information that gave it cause to make a reasonable investigation into the title of the vehicle. State Farm’s investigation revealed discrepancies as to the title, proof of insurance, and the VIN. Given these findings, which the Talberts were unable to explain, we find no error in the trial court’s finding that State Farm was not arbitrary or capricious in handling the Tal-berts’ claim. The trial court thus did not err in granting a directed verdict as to statutory penalties.

2. Bench Trial:

The Talberts contend that because the case began as a jury trial, it was an abuse of discretion for the trial court to dismiss the jury in the middle of the trial. State Farm counters that the trial court was required to dismiss the jury after it granted the motion for directed verdict because the amount in controversy was then reduced to $37,300.00, the value of the vehicle as established by the Talberts’ expert. We agree. A jury trial is not available “where no individual petitioner’s cause of action exceeds fifty thousand dollars exclusive of interests and costs.” La. ImC.CJP. art. 1732(1). The Talberts cite no authority, nor do we find any authority, for the proposition that a trial court cannot dismiss a jury once the amount in controversy is reduced below the jury trial threshold. Accordingly, we find no error in the trial court’s decision to dismiss the jury.

3. Material Misrepresentation/Intent to Deceive:

The jurisprudence of Louisiana is clear that an insurer must meet a three-tiered burden of proof in an action for denial of coverage for misrepresentation. First, it must be shown that the applicant’s statements were false. Second, the insurer must establish that the misrepresentations were made with an actual intent to deceive. Third, the insurer must establish that these misstatements materially affected the risk assumed by the insurer. Deutschmann v. Rosiere, 02-2002, p. 4 (La.App. 4 Cir.4/9/03), 844 So.2d 1082, 1085. (citing Johnson v. Occidental Life Ins. of Cal., 368 So.2d 1032 (La.1979)).

The burden of proof on the insurer, as set forth above, is predicated on La. R.S. 22:619, which provides:

A. Except as provided in Subsection B of this Section and R.S. 22:692, and R.S. 22:692.1, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or void the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.
B. In any application for life or health and accident insurance made in writing by the insured, all statements therein made by the insured shall, in the absence of fraud, be deemed representations and not warranties. The falsity of any such statement shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer.

Inin this regard, the Louisiana Supreme Court in Cousin v. Page, 372 So.2d 1231, 1233 (La.1979), noted that the insurer has the burden of proving misrepresentation and the intent to deceive, but explained:

The courts of appeal in interpreting a similar provision in R.S. 22:619B have reasoned that strict proof of fraud is not required to show the applicant’s intent to deceive, because of the inherent difficulties in proving intent. Intent to deceive must be determined from surrounding circumstances indicating the insured’s knowledge of the falsity of the representations made in the application and his recognition of the materiality of his misrepresentations, or from circumstances which create a reasonable assumption that the insured recognized the materiality.

Implicit in the trial court’s finding that the Talberts’ testimony was “unworthy of belief’ is a finding that they made material misrepresentations with the intent to deceive. State Farm contends that finding is supported by the following evidence. First, Mr. Offray, who gave the Talberts the vehicle, was unemployed at the time of the donation and had been unemployed for several years. Second, the Talberts testified that Mr. Offray lived across the street from them with his mother, Mrs. Offray, and denied that he ever lived in Georgia. However, Mr. Offray had a Georgia proof of insurance card and the vehicle he donated to the Talberts had a Georgia temporary license plate. State Farm also cites Mrs. Offray’s testimony that she had not seen Mr. Offray for years before the donation and that she was neither told about the donation nor shown the vehicle.

In order for the misrepresentations made by the applicant to be found material, they must have affected the risk assumed by the insurer. La. R.S. 22:619 B; Watson v. Life Insurance Company of Louisiana, 335 So.2d 518, 522 (La.App. 1 Cir.1976). “Material” means that the statement must have been of such a nature that, had it been true, the insurer either would not have contracted or would have contracted only at a higher premium rate. West v. Safeway Insurance Co. of Louisiana, 42,028, p. 7 (La.App. 2 Cir. 3/21/07), 954 So.2d 286, 290. In the present case, it is without question that State Farm would not have insured the Yukon Denali had it known that the documents presented and the assertions made regarding ownership and title were false.

As to whether the representation, or lack thereof, was made with the intent to deceive, it is evident from the attendant circumstances that the Talberts knew the falsity of the representation as to ownership of the vehicle, and it is reasonable to assume that they recognized the materiality of this representation. The Talberts’ assertion that they did not know Mr. Of-fray did not have clear title to the vehicle is unsupported by the evidence.

It is a well settled principle that an appellate court may not set aside a trial court’s finding of fact unless it is clearly wrong. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Harvey v. Cole, 00-1849 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 776. Moreover, a trial court’s finding regarding an insured’s intent to deceive is a factual finding governed by the manifest error standard of review. Holt v. Aetna Casualty & Surety Co., 28,450, 28,451, 28,-452 (La.App. 2 Cir. 9/3/96), 680 So.2d 117.

The record in this case fully supports the trial judge’s findings of fact and conclusions. After careful review of the record, we cannot say that the trial judge’s evaluations of credibility and her factual finding that State Farm met its burden of proving material misrepresentation with the intent to deceive are clearly wrong or manifestly erroneous.

|iaDECREE

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

AFFIRMED.

ARMSTRONG, C.J., concurs.

MURRAY, J., dissents with reasons.

ARMSTRONG, C.J.,

concurs.

hi respectfully concur in the decision to affirm the judgment of the trial court.

MURRAY, J.,

dissents with reasons.

hi respectfully dissent. I cannot agree that the record supports the trial court’s determination that the Talbert’s made a material misrepresentation with the intent to deceive State Farm. The misrepresentation apparently is that the VIN number on the documentation that Mr. Talbert presented to State Farm when he insured the vehicle could not have been correct as that VIN number later was determined to be on another vehicle.

However, there is no evidence that Mr. Talbert was aware that the information he provided to State Farm was not accurate. All of the documentation that Mr. Talbert had in his possession showed the VIN number that he gave to State Farm. Mr. Offray provided Mr. Talbert with an Ohio title to a white Yukon Denali bearing the VIN number that later proved to be incorrect. There was nothing about the title that would have alerted Mr. Talbert to the fact that the information contained thereon, specifically the VIN number, was not correct. In fact, Mr. Lightfoot, the Assistant Chief of Investigations for the Ohio Bureau of Motor Vehicles, could not opine that the title was invalid. Nether Mr. Fearn nor the employees at the State Farm agency saw anything that caused them to question the validity of Mr. Tal-bert’s documentation of ownership or the accuracy of the VIN number. Apparently, no one checked the VIN number on the white Yukon | ¡.Denali that Mr. Talbert insured, and for which he paid premiums for over a year before it was stolen.

While it appears that Mr. Offray did not, in fact, purchase the vehicle that he donated to the Talberts, there was no evidence presented that either Mr. or Mrs. Talbert was aware of that fact. The trial court and the majority opine that the Talberts should have questioned Mr. Offray about how he could have afforded the vehicle he was giving them or why the vehicle had a Georgia temporary tag and why he had a Georgia insurance card. In hindsight, with all the information that has come to light since the donated vehicle was stolen, it would have been prudent of the Talberts to question Mr. Offray. Their failure to do so, however, does not establish that they were aware that the VIN number did not match the vehicle they insured. There is absolutely no evidence that the Talberts did anything other than rely on the Ohio title that Mr. Offray presented.

Because the record does not support the conclusion that the Talberts made a material misrepresentation with the intent to deceive State Farm in obtaining coverage for the vehicle that was donated to them, I would reverse the trial court and find that the Talberts are entitled to recover $37,300, the value of the stolen vehicle at the time of the theft, from State Farm.

      . According to the Talberts, Mr. Offray also spent an additional $3,000.00 installing an alarm system and stereo in the vehicle prior to the donation.

      . State Farm paid $10,342.45 in rental car costs for the Talberts.

      . Mrs. Talbert acknowledged that she never told her mother about the donation.

      . The primary difference between these two statutes is the different time periods allowed for payment — thirty days under La. R.S. 22:658 and sixty days under La. R.S. 22:1220.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    John R. SISK, Plaintiff-Appellant, v. Heather Grable SISK, Defendant-Appellee.
    No. 42,619-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 21, 2007.
    Rehearing Denied Dec. 7, 2007.
    John R. Sisk, In Proper Person.
    Layne M. Adams, Monroe, for Appellee.
    Before WILLIAMS, PEATROSS and DREW, JJ.
   DREW, J.

11 This appeal is a spinoff from a bitter and long-running custody dispute. The litigants are John Sisk (“John”) and his ex-wife, Heather G. Sisk (“Heather”).

John, in a deficient and disrespectful diatribe, now seeks relief from the monetary sanctions imposed on him by the trial court in a February 14, 2007, judgment. We amend and affirm.

FACTS

In Sisk v. Sisk, 39,768 (La.App.5/11/05), 902 So.2d 1237, writ denied, 2005-1658 (La.6/30/05), 905 So.2d 291, this court (through Judge Peatross) accurately and thoroughly set out the initial history of this sad case, from inception through the middle of 2005. That opinion affirmed these rulings of the trial court:

• that California was at that time the child’s “home state,” leaving Louisiana without subject matter jurisdiction of this particular child custody dispute;
• that Heather justifiably secured a civil warrant for the return of her child;
• that John should pay some court costs and some of Heather’s travel expenses.

This is a rough chronology of what has happened since our denial of rehearing on June 1, 2005:

• Fall of 2005 — John filed several requests for relief, all ruled upon adversely to him, all being meritless; none of the rulings were appealed, and none of the rulings are properly at issue in the instant appeal;
• October 27, 2006 — John filed a Rule for Change of Custody and/or Modification of Custody;
• November 28, 2006 — Heather filed Exceptions of Res Judicata, No Cause of Action, No Subject Matter Jurisdiction, Inconvenient laForum, Rule for Sanctions and Contempt, Motion to Fix Attorney’s Fees, and Motion to Require Posting of Bond;
• December 29, 2006 — Hearing was conducted on the Fall 2006 filings;
• January 22, 2007 — The trial court provided Reasons for Judgment;
• February 14, 2007 — The trial court signed the judgment, the subject of this appeal, which:
• sustained Heather’s Exception of Res Judicata;
• overruled Heather’s Exception of Lack of Subject Matter Jurisdiction;
• found Louisiana to be an inconvenient forum;
• noted that North Carolina was the appropriate forum;
• dismissed John’s rule;
• held him in contempt for not paying the mother’s $421 airfare, as previously ordered in a judgment of September 17, 2004, and ordered him to pay the $421 within 60 days of December 29, 2006;
• ordered John to pay a deposition fee, a subpoena fee, and a court reporter fee, totaling $252.50 by the end of April 2007; and
• ordered John to pay $1,200 at the rate of $100 per month, starting June 1, 2007, for Heather’s legal fees for the defense of the spurious October 2006 rule.
The judgment also:
• denied Heather’s request for a bond; and
• denied Heather’s request for attorney’s fees and court costs for her defense of matters heard over two years before, in September of 2004.

I;¡Issues in this Appeal, According to John

Though rambling about many alleged injuries perpetrated upon him over the last three years by an imagined judicial syndicate against him, he requests we focus on the sole issue of the trial court’s monetary-sanctions against him.

Factual Showing by John

There were no facts elicited showing that the child had resided in Louisiana at any time since our previous ruling in June 2005. Moreover, no material evidence was presented by John.

Legal Showing by John

He submitted no statutory citations nor any case law in support of his tenuous legal position.

Issues in this Appeal, According to Heather

Heather filed an answer to his appeal, requesting that we:

• reverse the denial of her exception of lack of subject matter jurisdiction;
• find John in contempt and sanction him for his discourtesy; and
• require John to pay all court costs accruing since we last reviewed this case.
She is clearly entitled to some relief.

Subject Matter Jurisdiction

The only disagreement we have with the February 14, 2007, judgment of the learned trial court is its denial of Heather’s Exception of Lack of Subject Matter Jurisdiction, for the reasons that:

|41. In our previous opinion, which has long been final, we ruled that the trial court lacked subject matter jurisdiction over this case; and
2. The trial court essentially conceded the point in its Reasons for Judgment.

What we apparently have here is a nomenclature/syntax problem. Certainly a district court has the general jurisdiction to grant divorces and to adjudicate custody issues. The issue here, though, is that the Fourth Judicial District Court clearly lacks subject matter jurisdiction over this case, as outlined in La. R.S. 13:1813 (effective 8/15/07), and pursuant to our referenced final judgment.

Contempt

John, once a lawyer admitted to the bar associations of California and Louisiana, makes many disturbing statements in brief, including, inter alia:

• that he would rather be shot in the head than suffer “an excruciatingly slow death by raping the dissenter’s child right before his eyes and even requiring the dissenter to fund the costs of that revelry and entertainment for all to enjoy but him”;
• that he no longer expects “any on this 2d Circuit Court of Appeals [sic] to work to achieve any conceivable form of actual justice in this matter”;
• that (paraphrased) the judicial system “is a morally and ethically bankrupt fraternity. One which, over time, has become immeasurably similar to the Gambino family, the Bonanno family, the Luchese, Genovese and Columbo family and others like them”;
• that, (paraphrased) the courts in this case have made “systematic rulings of self interest to cleanse this public court record of documentary evidence and references to corruption and collusion in our courts”; and
• that he expects this court to effect “a form of rationalized political justice. One consistent with the jaded ethics, morals and perceptions practiced and honed by the members of the fraternity you have joined. And, of course, heavily laded [sic] with insignias of self interests [sic ].”

|sHe knows better than to commit these written atrocities, and our previous opinion warned John by quoting Uniform Rule 2-12.4 of the Courts of Appeal:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person, class of persons or association of persons, or any court, or judge or other officer thereof, or of any institution. Any violation of this Rules shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

(Our emphasis.)

At the December 29, 2006, hearing now at issue, the learned and eminently patient trial court warned John:

I’m not giving you any jail sentence or anything like that. But I am telling you this, Mr. Sisk, and I want you to listen very carefully. These allegations of corruption on the judiciary level, bought Judgments and all that kind of thing is contemptible in itself.

John has abused the system and sought to bully the judiciary. His actions in filing endless defamatory and unsupportable allegations must be sanctioned. Quite simply put, if we don’t punish this man' now, after his continual disparagement of our court system, we have forfeited the right to punish anyone who ever files such garbage.

Every judge who has touched this case, without exception, has bent over backwards to treat John with courtesy, and give him every benefit of the doubt. His most recent actions demonstrate that there is no | ^reciprocation of respect coming from this litigant. His 2007 filings in this court are contemptible and must be punished.

The trial court’s monetary assessments are very conservative and reasonable. There is no abuse of its discretion. We affirm those assessments.

But it’s not enough. We find this case much more egregious than Hester v. Hester, 680 So.2d 1232, 96-0189 (La.App. 4 Cir. 9/11/96), writs denied, 96-2452, 96-2468 (La.12/6/96), 684 So.2d 933, 934, in which the appellate court affirmed the assessment of $7,500 for another husband’s repetitive and harassing filings.

We rely heavily upon C.C.P. art. 2164, which states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

CONCLUSION

We hereby take the following actions against John Sisk:

• finding him in contempt of this court;
• requiring him to pay all court costs, filing fees, and other assessments relative to this appeal or any writs filed here in 2007; and
• ordering him to pay $1,500 to Heather’s counsel of record, to partially compensate the attorney for having to defend this bizarre appeal.
Accordingly:
• The ruling of the trial court denying the Exception of Lack of Subject Matter Jurisdiction is reversed.
[7* All other rulings of the trial court are affirmed, with this court’s appreciation for its kind and thorough patience shown throughout this ordeal at the trial court level.
• John Sisk is ordered to pay $1,500 to counsel of record for Heather Sisk for services associated with this appeal.
• All appellate costs of court from calendar year 2007 are assessed against John Sisk.

DECREE

The ruling of the trial court is amended as reflected above, and as amended, affirmed, all at the cost of John Sisk.

AMENDED, AND AS AMENDED, AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

Rehearing denied.

      . Primarily covering events which we han-died in our previous opinion, now long final.

      . He filed RICO suits, now dismissed, against all three panel members who rendered our previous opinion.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. Jamal J. ANTHONY (multiple-billed as “Jamal Anthony”) and Jamon J. Anthony.
    No. 07-KA-204.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Rehearing Denied Jan. 14, 2008.

      Paul D. Connick, Jr., District Attorney, Terry Boudreaux, Anne Wallis — Appellate Counsel, Vincent Paciera, Jr. — Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee, State of Louisiana.
    Mary E. Roper, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Appellants, Jamal J. Anthony and Jam-on J. Anthony.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

|gOn March 3, 2006, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendants, Jamal J. Anthony and Jamón J. Anthony, with possession of heroin, a violation of La. R.S. 40:966(C), and possession with intent to distribute cocaine, a violation of La. R.S. 40:967(A). The State subsequently nolle prossed the possession of heroin charge against Jamón Anthony and agreed not to file a multiple offender bill of information. At their arraignments, both defendants pled not guilty.

Jamón Anthony filed a Motion to Suppress the Evidence, which the trial court denied. Subsequently, Jamal Anthony filed an omnibus motion that included a Motion to Suppress Confession, Identification, and Physical Evidence, which the trial court denied.

On June 28, 2006, both defendants withdrew their former pleas of not guilty and entered guilty pleas pursuant to State v. Crosby, 338 So.2d 584 (La.1976). |,The trial court sentenced Jamón Anthony for possession with intent to distribute cocaine to fifteen years at hard labor, ordering the first two years to be served without benefit of parole, probation, or suspension of sen-fence. The trial court sentenced Jamal Anthony to 8⅜ years for possession of heroin and 15 years, with the first two years to be served without parole, probation, or suspension of sentence, for possession with intent to distribute cocaine. Both sentences were to be served at hard labor and to run concurrently.

The State thereafter filed a multiple offender bill alleging Jamal Anthony was a second felony offender. Jamal Anthony admitted to the allegations in the multiple offender bill. The trial court vacated the sentence originally imposed for the possession of heroin conviction, which was count one of the original bill of information, and sentenced the defendant to 8½ years at hard labor without benefit of probation or suspension of sentence to run concurrently with his other sentences.

Facts

Because both defendants’ convictions were obtained as a result of guilty pleas, the following facts were obtained from testimony at the hearing on defendants’ motions to suppress evidence. Detective Wayne Williams of the Gretna Police Department testified that, on February 3, 2006, he received a telephone call from a confidential informant with a tip that a black male nicknamed “Twin” would be delivering crack cocaine to the Oasis Motel located at 70 Westbank Expressway in Gretna that afternoon. The informant stated that “Twin” would be driving a newer-model, black Pontiac Grand Prix with chrome rims. Detective Williams stated that, in that past, the informant’s tips had been used successfully to affect apprehensions and convictions.

14When Detective Williams ran the nickname “Twin” through the computer, he received several names, but he could not remember if the defendants were included. Twenty or thirty minutes after receiving the call, Detective Williams and other members of the Gretna Police Department Criminal Investigation Division set up surveillance of the location using unmarked vehicles. At about 3:20 p.m. that day, Detective Williams observed a black Grand Prix on the Expressway just before it pulled into the parking lot of the Oasis Motel. When Detective Williams rode behind the vehicle, he observed that the vehicle had an expired, temporary license plate in the rear window. The black Grand Prix then entered the motel’s parking lot and parked. All three of the vehicle’s occupants remained in the car.

Detective Williams informed the other officers via radio that this was the vehicle. When the officers converged on the vehicle, they stated that they were the police, ordered the driver to turn off the vehicle, and ordered the occupants to exit the car. Detective Williams agreed that basically his “officers approached the vehicle, guns drawn.” The driver of the black Grand Prix attempted to flee by putting the vehicle into reverse and quickly backing out of the parking spot while officers stood behind the vehicle. The driver also revved the car’s engine, “as though he was going to ... strike one of the officers.” Finally, the driver turned off his vehicle and “threw his hands up.”

When the driver opened his hands, Detective Williams, who was within ten feet from the car, saw the driver drop a white object from his right hand into the backseat. Detective Williams believed that the white object was narcotics. Because the officers were concerned that the men might be armed, all three men were removed from the vehicle and detained. The driver was identified as 1 ¡^defendant, Jamal Anthony. The front-seat passenger was identified as defendant, Jamón Anthony. The backseat passenger was identified as Morris Clark.

After the men were removed from the vehicle, Detective Williams checked the backseat of the vehicle and found a clear, plastic baggie that contained several off-white rocks on the floorboard of the driver’s side. After the rocks field-tested positive for cocaine, Jamal Anthony was placed under arrest. In a search incident to his arrest, the officers found a foil packet containing some “brownish powder” in Jamal’s possession. The powder field-tested positive for heroin.

Detective Richard Russ of the Gretna Police Department testified that, because he was in the direct path of the vehicle driven by the suspects, he was forced to draw his weapon when the vehicle continued “inching” towards him while its engine was being revved. Detective Russ testified that all the occupants of the vehicle were placed under arrest after narcotics were found inside the vehicle and no one claimed ownership of the contraband. Detective Russ searched Jamón Anthony incident to his arrest and found him in possession of a clear plastic bag containing an off-white rock-like substance, which field-tested positive for cocaine.

In their sole assignment of error, the defendants argue the trial court erred in denying their motions to suppress because the police did not corroborate the information supplied by the confidential informant before they converged on their vehicle, blocked it from leaving the parking lot, and ordered them to exit. The defendants claimed that they were detained solely on information received about the model of the car and the nickname of one of the male occupants. Although the defendants admit that the information regarding the arrival of the described vehicle at the described location was accurate, they claim that the police did not witness |fiany corroborating criminal behavior that suggested that they were in possession of drugs or engaged in criminal or illegal activity before converging on the vehicle and seizing them. Therefore, the stop was unjustified, the subsequent search was unlawful, and all of the evidence seized without a warrant or probable cause should have been suppressed.

The State argues that the police acted on a tip from a reliable confidential informant that contained sufficient predictive information to allow the police to determine that the informant had knowledge of the defendant’s affairs and, thus, gave the police sufficient reasonable suspicion to make an investigatory stop. The State suggests that the details of the tip regarding future behavior allowed verification of its reliability before the stop was made. In addition, the State asserts that, even if the police had no legal right to stop the defendants based on the tip, they had the right to perform an investigatory stop because of an expired license tag, citing State v. Sherman, 05-779 (La.4/4/06), 931 So.2d 286.

A trial court’s denial of a motion to suppress is afforded great weight, and it will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Gagnon, 01-1302 (La. App. 5 Cir. 4/10/02), 817 So.2d 167, 171. See also State v. Payne, 04-1084 (La.App. 5 Cir. 1/25/05), 894 So.2d 528, 530. Whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference is determined under the facts and circumstances of each case. State v. Sam, 05-88 (La.App. 5 Cir. 5/31/05), 905 So.2d 379, 383-84, writ denied, 05-2100 (La.3/10/06), 925 So.2d 510.

The Fourth Amendment to the United States Constitution and the Louisiana Constitution Article I, § 5 protect individuals from unreasonable searches and seizures. State v. Massey, 03-1166 (La. App. 5 Cir. 1/27/04), 866 So.2d 965, 968. Law enforcement officers are authorized by La.C.Cr.P. art. 215.1, as well as state |7and federal jurisprudence, to conduct investigatory stops to interrogate persons reasonably suspected of criminal activity. State v. Sam, 905 So.2d at 383. “ A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.’ ” La.C.Cr.P. art. 215.1(A); State v. Sims, 02-2208 (La.6/27/03), 851 So.2d 1039, 1043.

An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person’s freedom. State v. Broussard, 00-3230 (La.5/24/02), 816 So.2d 1284, 1286. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. Id. at 1287. Investigatory stops may be accompanied by features normally associated with an arrest, i.e., use of drawn weapons. Id. An investigatory stop is reasonable even when the police block a vehicle to prevent its occupant from leaving and approach with weapons ready or even drawn. Id. at 1288-89.

“ ‘Reasonable suspicion’ is required for an investigatory stop.” State v. Nelson, 02-65 (La.App. 5 Cir. 6/26/02), 822 So.2d 796, 800, unit denied, 02-2090 (La.2/21/03), 837 So.2d 627. Reasonable suspicion is something less than probable cause to arrest, and requires that police officers have sufficient knowledge of facts and circumstances to justify an infringement of the individual’s right to be free from government interference. State v. Massey, 866 So.2d at 968.

“Under certain circumstances, an informant’s tip can provide reasonable suspicion to detain and question a person.” State v. Clay, 06-37 (La.App. 5 Cir. 4/25/06), 930 So.2d 1028, 1032. An informant’s tip may create reasonable suspicion necessary to justify an investigatory stop under the totality of the circumstances. Id. The “totality of the circumstances approach” applied by the United States Supreme Court considers an informant’s veracity, reliability and lsbasis of knowledge as highly relevant in determining the value of an informant’s tip. State v. Nelson, 822 So.2d at 801, citing Illinois v. Gates, 462 U.S. 213, 214, 103 S.Ct. 2317, 2320, 76 L.Ed.2d 527 (1983).

An informant’s past record for accuracy and reliability is only one factor taken into account when determining the reliability of the tip in question. State v. Austin, 04-993 (LaApp. 5 Cir. 3/1/05), 900 So.2d 867, 879, writ denied, 05-0830 (La.11/28/05), 916 So.2d 143. An independent police investigation that corroborates details of the informant’s tip is valuable in applying the totality of the circumstances analysis. State v. Clay, 930 So.2d at 1032. An unverified tip alone may not be sufficient to establish reasonable cause for the stop of the defendant. State v. Nelson, 822 So.2d at 801-02. However, the Supreme Court has held an unverified tip, when corroborated by independent police work, may exhibit sufficient indicia of reliability to justify stopping the suspects. State v. Nelson, 822 So.2d at 802, citing Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 2417, 110 L.Ed.2d 301 (1990).

In State v. Nelson, supra, the police received information on drug activity in the Bon Soir Motel, in Westwego, Louisiana, involving a suspect named “Tony” and a Pontiac Grand Am rental car. The police went to the motel and observed a car meeting the description. During their investigation, the police learned that the car would be at the McDonald’s restaurant on Stumpf Boulevard in Gretna, Louisiana with large amounts of cocaine. The officers set up surveillance at the McDonald’s restaurant and waited for the car. When the Grand Am arrived in the parking lot, the officers approached the car, identified themselves and had the occupants exit the car. State v. Nelson, 822 So.2d at 798. This court found that the confidential informant’s tip was sufficiently corroborated by the information gained by the officers during their surveillance. Therefore, the officers had | reasonable suspicion to make the investigatory stop. State v. Nelson, 822 So.2d at 803.

In the present case, like State v. Nelson, supra, the confidential informant, who had previously provided information that aided in apprehensions and convictions, provided a specific description of the vehicle and the location where the delivery of the drugs would take place. In addition, the informant also described the vehicle’s driver was a black male nicknamed “Twin.” Within twenty minutes of the tip, the police corroborated the reliable confidential informant’s tip with surveillance of the Westbank Expressway and the motel’s parking lot, which gave the police reasonable suspicion to stop the defendants.

If a law enforcement officer reasonably suspects that he is in danger, after he has stopped a person for questioning, he may frisk the outer clothing of the person for a dangerous weapon. The law enforcement officer may also search the person, if he reasonably suspects the person possesses a dangerous weapon. La. C.Cr.P. 215.1(B). After a lawful investigatory stop, a police officer may frisk a suspect only where a reasonably prudent person would be warranted in believing that his safety or that of others is in danger. State v. Sims, 851 So.2d at 1043. An officer’s suspicion that he is in danger is not reasonable unless he can point to particular facts which led him to believe that the individual was armed and dangerous. State v. Sims, 851 So.2d at 1043-44. The police officer need not establish that it was more probable than not that the individual that he detained was armed and dangerous. It is sufficient if the officer establishes a “ ‘substantial possibility’ ” of danger. State v. Sims, 851 So.2d at 1044.

In this case, Detectives Williams and Russ both testified that Jamal Anthony quickly backed the vehicle out of its parking spot when the officers approached and as officers stood behind it. In addition, Jamal Anthony revved the vehicle’s engine “as though he was going to ... strike one of the officers.” Detective 1, nWilliams testified that, based upon these actions, the officers feared that the suspects might have weapons. In addition, Detective Russ testified that he was forced to draw his weapon because Jamal Anthony continued “inching” toward him while he was standing in the direct path of the vehicle. Therefore, we believe a reasonably prudent person would be warranted in believing that his safety or that of others is in danger and, thus, justified in performing a safety patdown.

A search conducted without a warrant issued upon probable cause is per se unreasonable, unless it is justified by a specific exception to the warrant requirement. State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 86, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625. “In order for the plain view exception to the warrant requirement to apply, there must be prior justification for police intrusion into a protected area and it must be immediately apparent, without close inspection, that the item is contraband.” State v. Gray, 06-298 (La.App. 5 Cir. 10/31/06), 945 So.2d 798, 802, writ denied, 06-2958 (La.9/14/07), 963 So.2d 993. A search incident to a lawful custodial arrest is also a limited exception to the constitutional prohibition of warrantless searches. State v. Sherman, 931 So.2d at 292.

The police may conduct a war-rantless search of a person they have legally arrested in order to discover and seize evidence of the crime. State v. Doussan, 05-586 (La.App. 5 Cir. 2/14/06), 924 So.2d 333, 342, writ denied, 06-608 (La.10/13/06), 939 So.2d 372. The police can search the arrestee’s person and the area within his immediate control in order to remove any weapons from his person and to prevent evidence from being destroyed. State v. Bergman, 04-435 (La.App. 5 Cir. 10/12/04), 887 So.2d 127, 130. The search area includes the passenger compartment of the vehicle and the contents of any open or closed containers found within the passenger compartment. State v. Bergman, 887 So.2d at 130. Even though a person is not in physical possession of a drug, he may have Inconstructive possession when the drugs are under that person’s dominion or control. State v. Schieffler, 00-1166 (La.App. 5 Cir. 2/13/01), 812 So.2d 7, 9, writ denied, 02-0712 (La.9/13/02), 824 So.2d 1188. The State has the burden of establishing the admissibility of evidence seized without a warrant, in a hearing on a defense motion to suppress the evidence. La. C.Cr.P. art. 703(D), State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 755.

In the present case, when the occupants were removed from the vehicle, Detective Williams saw the clear, plastic bag containing off-white rocks in plain view on the floorboard of the vehicle. After off-white rocks field-tested positive for cocaine, Jamal Anthony was arrested.

Based on the foregoing, we find no error in the trial court’s denial of defendants’ motions to suppress. The police corroboration of the confidential informant’s tip gave them reasonable suspicion to justify the stop. The evidence found by the police in plain view, during the stop, and in the search incident to arrest was lawfully seized. This assignment of error lacks merit.

As is our practice, we have reviewed the record for errors patent, according to La.C.Cr.P. art. 920. Our review reveals that Jamal Anthony did not receive a complete advisal of the prescriptive period for filing for post-conviction relief at either the original sentencing or the habitual offender sentencing hearings, as required by La.C.Cr.P. art. 930.8. La. C.Cr.P. art. 930.8(A) states that a defendant has two years after the judgment of conviction and sentence has become final to file for post-conviction relief. State v. Tran, 05-518 (La.App. 5 Cir. 12/27/05), 919 So.2d 787, 795. Accordingly, we remand this case to the trial court in order for the court to inform defendant of the appropriate prescriptive period for filing for post-conviction relief by sending appropriate written notice to the defendant |¶ ¡¡within ten days of the rendition of this Court’s opinion and by filing written proof that the defendant received the notice in the record. Id. In all other respects, defendants’ convictions and sentences are affirmed.

AFFIRMED; REMANDED.

      . The State also dismissed a misdemeanor possession of drug paraphernalia charge.

      . Upon entering a plea of guilty, a defendant may be allowed appellate review, if he expressly reserves his right to appeal a specific adverse ruling. State v. Landry, 02-1242 (La. App. 5 Cir. 4/29/03), 845 So.2d 1233, 1236, writ denied, 03-1684 (La. 12/19/03), 861 So.2d 556. In the present case, neither Jamón Anthony nor Jamal Anthony stated which pre-plea ruling they were appealing pursuant to State v. Crosby, supra. However, in State v. Joseph, 03-315 (La.5/16/03), 847 So.2d 1196-97, the Louisiana Supreme Court noted that, in such cases, the reviewing court could nevertheless review the trial court's evidentiary ruling on a motion to suppress:
      Absent a detailed specification of which adverse pre-trial rulings the defendant reserved for appellate review as part of his guilty plea, an appellate court should presume that the trial court permitted a Crosby reservation no broader than necessary to effectuate the underlying purpose of conditional guilty pleas, i.e., to preserve review of evidentiary rulings which go to the heart of the prosecution’s case that a defendant would otherwise waive by entering an unqualified guilty plea. Such rulings typically include denial of a motion to suppress evidence or a confession and exclude rulings which may affect the conduct of trial but which do not substantially relate to guilt, such as the denial of a continuance or severance.

      . According to Detective Williams, he could see that the tag had expired on January 4, 2006.

      . Defense counsel for Jamal Anthony and Jamón Anthony acknowledged that the brothers, who are identical twins, were in the vehicle when the police stopped the vehicle.

      .Morris Clark was also charged in the original bill of information but is not a party to this appeal.

      . When, the officers searched the vehicle's center console, they found a foil packet with brownish powder, four syringes, and some cotton balls. Initially, Jamón Anthony was also charged with possession of heroin for the items found in the console but this charge was subsequently nolle prossed.

      . Because we have found that the officers had sufficient reasonable suspicion to stop the defendants’ vehicle based on the informant’s tip and corroborating police work, we need not determine whether the police would have made an investigatory stop based on the expired license tag, pursuant to State v. Sherman, supra.


author: SUSAN M. CHEHARDY, Judge. GUIDRY, J.,

text:
    Terry HOLLAND v. Stephen J. HORNYAK & XYZ Insurance Company.
    No. 07-CA-394.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 27, 2007.
    Rehearing Denied Jan. 14, 2008.

      Terry Holland, Westwego, LA, In Proper Person.
    William E. Wright, Jr., Charlotte C. Meade, Attorney at Law, New Orleans, LA, for Defendants/Appellees, Stephen J. Hornyak and Continental Casualty Company.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| ^Plaintiff, Terry Holland, appeals from the trial court’s grant of summary judgment in favor of defendants, Stephen J. Hornyak and Continental Casualty Company, dismissing with prejudice Holland’s claim for legal malpractice. For the reasons set forth below, we affirm.

Facts and Procedural Background

For more than fifteen years, Terry Holland operated a business at 1611 Franklin Avenue in Gretna, Louisiana in a building Holland leased from Nelson and June Bar-rois. On August 2, 2000, Terry Holland (hereinafter “Holland”) signed a document, which purported to sell the property from the Barrois’ to ^Holland. The document was signed by Terry Holland as “Purchaser,” by Nelson Barrois as “Owner,” and by June Barrois as “Witness.”

According to Stephen Hornyak (hereinafter “Hornyak”), Holland approached him in August of 2003 to review the purported purchase agreement and represent Holland in protecting his legal rights. On October 3, 2003, the Barrois’ donated their interest in the property to their adult children. The act of donation was recorded in the Jefferson Parish conveyance records. On October 14, 2003, eleven days after the act of donation was signed, the Barrois children donated their interest in 1611 Franklin Avenue to Junel, L.L.C., a Louisiana limited liability company. This act of donation was also recorded in the conveyance records. On November 11, 2003, Holland recorded the August 2, 2000 agreement in the Jefferson Parish conveyance records.

On November 24, 2003, Hornyak filed a Petition for Declaratory Judgment and to Rescind Donations on behalf of Holland. In their answer to the petition, the defendants asserted that the agreement of August 2, 2000 is a nullity, because the signature of both spouses is required to alienate community property. Since Mrs. Barrois signed only as a witness, the agreement was absolutely null. The Barrois’ 14defendants moved for summary judgment on the basis that the Offer to Purchase was an absolute nullity.

On March 17, 2004, after hearing argument from both parties, the trial judge granted summary judgment in favor the Barrois’ defendants on the basis that the document was “fatally flawed” because Mrs. Barrios signed as a witness. Mr. Hornyak represented Holland at that hearing.

On April 19, 2004, Hornyak, still representing Holland, filed a Petition and Notice of Appeal with this Court. This Court affirmed the trial court’s grant of summary judgment on that basis that the original agreement, which Hornyak did not draft, was absolutely null because Mrs. Barrois signed as a witness, not as a party. Holland v. Barrios, 04-883 (La.App. 5 Cir. 12/28/04), 892 So.2d 675, writ not considered, 05-0250 (La.4/1/05), 898 So.2d 384.

On March 9, 2006, Holland filed the instant legal malpractice action against his original attorney, Stephen Hornyak and Hornyak’s malpractice insurer (hereinafter when the term “defendants” is used, it will refer to them exclusively). On June 1, 2006, defendants answered the lawsuit. On July 21, 2006, the defendants filed a motion for summary judgment seeking dismissal of Holland’s suit. According to defendants, there was no genuine issue of material fact as to whether Hornyak provided negligent representation to Mr. Holland in his property | Bdispute because the agreement was invalid and unenforceable, which precluded Holland from establishing causation or damages. Holland opposed defendants’ motion for summary judgment.

On February 2, 2007, after finding that there were no material facts in dispute, the trial judge rendered summary judgment in defendants’ favor, dismissing, with prejudice, Holland’s claims against them. Holland now appeals.

Discussion

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37; Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The supreme court has recognized that a “genuine issue” is a “triable issue,” or an issue on which reasonable persons could disagree. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773; Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002. A fact is material for summary judgment purposes when its existence or nonexistence may be essential to claimant’s cause of action under the applicable theory of recovery. La. C.G.P. art. 966. In other words, material facts are those which potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/05/94), 639 So.2d 730.

| fiTo establish a claim for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship, negligent representation by the attorney, and loss caused by that negligence. Costello, 864 So.2d at 138, citing Finkelstein v. Collier, 636 So.2d 1053, 1058 (La.App. 5 Cir.1994). Failure to prove any one of these elements is fatal to the claim. Id.

An attorney is liable to his client for the damages caused by the attorney’s negligence in handling the client’s business, providing that the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. Bauer v. Dyer, 00-1778 (La. App. 5 Cir. 2/28/01), 782 So.2d 1133, writ denied, 01-0822 (La.5/25/01), 793 So.2d 162. The proper method of determining whether an attorney’s malpractice is a cause in fact of damage to his client is whether the performance of that act would have prevented the damage. Id.

A plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim. See, e.g., Spellman v. Bizal, 99-0723 (La.App. 4 Cir. 3/1/00), 755 So.2d 1013, 1019; Couture v. Guillory, 97-2796, (La.App. 4 Cir. 4/15/98), 713 So.2d 528, 532, writ denied, 98-1323 (La.6/26/98), 719 So.2d 1287. In the instant case, this Court determined that Holland could not have prevailed in his underlying claim since the Offer to Purchase was invalid and, thus, affirmed the trial court’s grant of summary judgment.

We find defendants have established that summary judgment was proper as to Holland’s legal malpractice claim. Thus, we find no error in the trial court’s grant of summary judgment in favor of attorney, Stephen Hornyak. There is no genuine issue of material fact as to whether Horn-yak was negligent in his representation of Holland or whether his action/inaction was the proximate cause of Holland’s alleged loss. Quite simply, Holland cannot prove that he sustained a |7loss as a result of Hornyak’s action or inaction. In the instant case, Holland’s claims centers around the loss of his opportunity to purchase property from the Barrios family. The cause of Holland’s loss, however, was not Hornyak’s action or inaction, but Holland’s choice to enter into an agreement to purchase real property — the faulty “Offer to Purchase,” which Hornyak did not con-fect — that did not properly protect his interests.

Based on the foregoing, the judgment of the trial court is affirmed. Costs are assessed to plaintiff-appellant, Terry Holland.

AFFIRMED.

GUIDRY, Judge, dissents with reasons.

GUIDRY, J.,

dissenting.

hi respectfully dissent from the majority opinion. Holland alleges in this legal malpractice case that his attorney was negligent for failing to timely file a writ application to the Supreme Court from the previous decision of this Court and for failing to allege fraud and other causes of action that would have prevented summary judgment. In my view, both these allegations raise material issues of fact that preclude summary judgment.

The majority bases its contrary decision on the reasoning that this Court’s previous opinion held that “Holland could not have prevailed in his underlying claim since the Offer to Purchase was invalid.” I find that reading of the previous opinion overbroad. The previous opinion by this Court did not hold that Holland could not prevail on his claim, only that the Offer to Purchase was unenforceable as signed. In fact, the opinion expressly states, “[b]eeause we find that the agreement is unenforceable, we need not address the other issues raised by the appellant.” A timely application to the Supreme Court may have corrected possible error.

In addition, Holland alleges his attorney was negligent in failing to allege fraud and other causes of action that could have prevented summary judgment. This raises material issues of fact precluding summary judgment given the facts of the case. The Offer to Purchase was confected by the | ¡¡¡Barrios’ representative, and any ambiguities therein should have been interpreted against them. All the parties were in the office and agreed to the terms of the agreement, despite where or how Mrs. Barrios may have put her signature. Under the circumstances, it seems to at least raise issues of fact as to whether causes of action asserting fraud, ratification, detrimental reliance or equitable estoppel may have been successful.

In my view, there are material issues of fact concerning the alleged negligent handling of Holland’s case that preclude summary judgment. Accordingly, I dissent.

      . The facts of the underlying litigation were taken from the appellate record as well as this Court’s opinion in the underlying litigation. See Holland v. Barrios, 04-883 (La.App. 5 Cir. 12/28/04), 892 So.2d 675, writ not considered, 05-0250 (La.4/1/05), 898 So.2d 384.

      . The underlying agreement entitled “Offer to Purchase” reads:
      Terry Holland, herein after [sic] called Purchaser, offers to purchase said property, 1611 Franklin Street, in the City of Gretna, Parish of Jefferson, State of Louisiana, and more particularly described as follows: TWO CERTAIN LOTS OF GROUND, together with all the buildings and improvements thereon, and all the rights, ways, privileges, servitudes and advantages thereunto belonging or in anywise appertaining, situated in the Parish of Jefferson, State of Louisiana, in that part known as the town of McDonoghville, forming part of the City of Gretna, in Square 109, designated as Lots 2 and 3, bounded by Franklin, Solon, Kepler and Monroe Streets, measuring, each, 60 feet front on Franklin Street by 125 feet in depth between equal and parallel lines, more or less, from Nelson Barrios, herein after [sic] call [sic] owners for $114,000.
      Purchaser has already paid $24,000 of purchase price in the form of improvements to the said property.
      The offer does not effect [sic] the current leasing of said property. The current lease agreement will remain valid until acquisition of property is finalized by purchaser. The offer becomes active upon written notification to purchaser or by death of owner. Purchaser will have 180 days from notification or death of owners to execute the sale by paying the remaining $90,000.
      All parties by evidence of their signature agree and understand this agreement.

      . On appeal, Hornyak argued the following assignments of error, on behalf of Holland:
      1. The court erred by finding, as a matter of law, that the Offer to Purchase was "fatally flawed.”
      2. The court erred by not finding, as a matter of law, that June Barrois’ signature on the Offer to Purchase was confirmation of her voluntary obligation to Appellant, Terry Holland.

        3. The court erred by not finding, as a matter of law, that the donation from the Barrois’ to their children and the donation from the children to Junel, L.L.C. were not protected by the Public Records Doctrine because of the gratuitous nature of the donations and that the children, as both do-nees and subsequently as donors, were not bona fide purchasers.
      4. The court erred by not finding, as a matter of law, that the donation from the Barrois’ to their children and the donation from the children to Junel, L.L.C. were not protected by the public records doctrine because of the elements of bad faith, circumvention and fraud interlaced with the actions of Appellees.
      5. The court erred by not finding, as a matter of law, that the use of summary judgment was inappropriate since the factual issues raised in the pleadings and documents were adequate to have caused the matter to proceed to trial.
      6. The court erred by ignoring the listed disputed facts rooted in the issues of law present in this case in appellant’s Memorandum.

      . The Louisiana Supreme Court refused to consider the writ application on the basis that it was untimely. Holland v. Barrios, 05-0250 (La.4/1/05), 898 So.2d 384.


author: PAINTER, Judge.

text:
    Kevin J. KENNISON v. BLR CONSTRUCTION COMPANIES, L.L.C.
    No. 2007-743.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Randall K. Theunissen, Alan Meche, Allen & Gooch, Lafayette, LA, for Defendant-Appellant, BLR Construction Companies, LLC.
    Lawrence Blake Jones, Stephen F. Arm-burster, Scheuermann & Jones, New Orleans, LA, for Plaintiff-Appellee, Kevin J. Kennison.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

11 Defendants appeal, alleging that the trial erred in granting Plaintiffs “Motion to Dismiss Without Prejudice” the first filed suit where a second suit between the same parties had a pending motion for lis pendens before a different court. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

In August 2006, Plaintiff, Kevin J. Ken-nison (Kennison), filed a “Petition for Damages Under the Savings to Suitors Clause” in St. Martin Parish and named BLR Construction Companies, LLC (BLR) as defendant. In his petition, Ken-nison alleged that he was injured in an accident while performing his duties as an employee of BLR on BLR’s vessel, the Roy Angelle, and that the accident was caused by the unseaworthiness of the vessel. BLR first answered the suit and later filed an exception of improper venue. The St. Martin Parish court granted the exception, and the suit was transferred to Acadia Parish by order dated October 31, 2006.

On September 11, 2006, Kennison dismissed his attorney and hired new counsel. In November 2006, Kennison’s newly retained counsel filed suit in Plaquemines Parish. In January 2007, Kennison filed a “Motion to Dismiss without Prejudice” in the Acadia Parish suit. After a hearing, the court dismissed the Acadia Parish suit. BLR appeals.

DISCUSSION

Article 1671 of our Code of Civil Procedure states:

A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to a general appearance by the defendant. If the application is made after a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice.

LA trial judge is thus granted wide discretion as to dismissal without prejudice after the defendant has appeared, and his determination will not be set aside absent a clear abuse of that discretion. The jurisprudence has delineated two circumstances in which such an abuse has been found in dismissals without prejudice: 1) where substantive rights of the defendant would be lost, or 2) where the defendant would be deprived of a just defense, Oliver v. Davis, 95-1841 (La.App. 1st Cir.8/12/95), 679 So.2d 462. It is also the rule in this circuit that after appearance by the defendant, a trial judge may either grant plaintiffs motion to dismiss without prejudice, or deny it; he is not authorized to enter a dismissal with prejudice, Roussell v. Roussell, 94-742, 94-743 (La.App. 5th Cir.1/31/95), 650 So.2d 373.

Martinez v. Dow Chemical Co., 97-289, pp. 3-4 (La.App. 5 Cir. 9/30/97), 700 So.2d 1096, 1098.

BLR argues that La.Code Civ.P. arts. 531 and 925 mandate dismissal of the later filed Plaquemines suit. They further assert that their substantive rights have been prejudiced because the dismissal of the Acadia suit allows Kennison to forum shop. However, the trial court found that the dual filing was not the result of forum shopping in this case. Finding no manifest error in this decision, we are “precluded from setting [it] aside even were we to have found otherwise sitting as the original trier of fact.” Id. Finding no other evidence that any substantive right was prejudiced by the dismissal, we find no abuse of the trial court’s vast discretion in granting Kennison’s motion to dismiss without prejudice.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to Defendant-Appellant, BLR Construction Companies, LLC.

AFFIRMED.


author: DECUIR, Judge.

text:
    Sandra GUILLORY, et al. v. ROYAL, INC. d/b/a Valley View Health Care.
    No. 2007-754.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      David R. Sobel, Jeremy C. Cedars, Pro-vosty, Sadler, DeLaunay, Fiorenza & So-bel, Alexandria, LA, for Defendant/Appel-lee: Royal, Inc. d/b/a Valley View Health Care.
    Chris Villemarette, Hawkins & Villemar-ette, Lafayette, LA, for Plaintiffs/Appellants: Sandra Guillory, Bernadine Brown, Leon Desselle, Barbara Desselle.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

hThe plaintiffs, Sandra Guillory, Bernadine Brown, Leon Desselle, and Barbara Desselle, filed suit against Royal, Inc., d/b/a Valley View Health Care, seeking damages for the death of their mother while she was a resident at Valley View Nursing Home. Contending the plaintiffs’ suit was premised on allegations of medical malpractice, Royal filed an exception of prematurity as the plaintiffs did not submit their claim to a medical review panel as required by La.R.S. 40:1299.41, et seq. The trial court maintained the exception, and the plaintiffs have appealed. For the following reasons, we affirm the judgment rendered in favor of the defendant.

The allegations of the petition state that Julia Marie Desselle, the plaintiffs’ decedent, was a resident of Valley View Nursing Home at the time of her death. Mrs. Desselle had a history of choking and had previously been hospitalized as a result of choking on a sandwich. The plaintiffs assert that following her return to the nursing home after the hospitalization, her physician instructed the staff to assist and supervise Mrs. Desselle while eating. Nevertheless, the petition alleges that, on January 28, 2006, Mrs. Desselle was left unattended in the cafeteria with a serving of peaches in front of her. She choked on the peaches and attempted to alert the staff by “striking the table and flailing her arms, but no one came to her assistance until she fell to the floor.” She was pronounced dead later that day.

The plaintiffs’ petition asserts several acts of negligence on the part of the nursing home, including failing to adequately monitor Mrs. Desselle, failing to follow doctor’s orders, failing to promptly attend to her after observing that she was choking, failing to follow the appropriate standard of care for patients who are at risk of choking, failing to follow the plan of care, and failing to provide adequate care in accordance with community standards. In support of the exception of prematurity, the defendant submitted into evidence the decedent’s medical records which | ^documented her medical history, the doctor’s orders for a regular diet, and the event leading up to her death on January 28, 2006. The issue before us now is whether the plaintiffs’ allegations of negligence constitute a claim of medical malpractice, which is governed by strict statutory procedural and substantive rules, or a claim of general negligence.

The Medical Malpractice Act defines the term “malpractice” as:

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

La.R.S. 40:1299.41(A)(8). Additionally, the term “health care” is defined as:

any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement, or during or relating to or in connection with the procurement of human blood or blood components.

La.R.S. 40:1299.41(A)(9). The Act specifically encompasses nursing homes as health care providers. La.R.S. 40:1299.41(A)(1). If we find, as did the trial court, that the provisions of the Act apply in this case, then the plaintiffs’ failure to submit this claim to a medical review panel renders their petition premature. La.R.S. 40:1299.47(B).

In the procedurally similar case of Taylor v. Christus Health Southwestern La., 04-627 (La.App. 3 Cir. 11/10/04), 886 So.2d 696, writ denied, 04-3007 (La.3/11/05), 896 So.2d 65, this court gave the following analysis of whether a hospital’s alleged negligence in failing to prevent a patient’s fall in the shower was covered by the | ^Medical Malpractice Act. After defining both “malpractice” and “health care,” the court stated:

In determining whether the circumstances of this case, as alleged in the petition, fall under the confines of the definitions quoted above, we look to the jurisprudence. The Louisiana Supreme Court in Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303, articulated several considerations for determining whether a claim is governed by the medical malpractice statute. Those factors include, for instance, whether the alleged wrong is “treatment related” or caused by want of professional skill, involved an assessment of the patient’s condition, or was within the scope of activities a hospital is licensed to perform. Also relevant is whether expert medical evidence will be required to determine the appropriate standard of care.
In Dominick v. Rehabilitation Hospital of New Orleans, 97-2310 (La.App. 4 Cir. 4/15/98), 714 So.2d 739, the plaintiff slipped and fell on a wet floor in the hospital kitchen, while walking with a small walker and with the aid of a physical therapist. The plaintiff alleged negligence on the part of the hospital. The hospital’s exception of prematurity was granted; the court held the injury occurred during the rendition of health care and was subject to statutory malpractice procedure, even though the plaintiff alleged alternative theories of liability.
In Harris v. Sternberg, 01-1827, 01-2170 (La.App. 4 Cir. 5/22/02), 819 So.2d 1134, writ denied, 02-1617 (La.9/30/02), 825 So.2d 1198, the plaintiff fell off a scale in a doctor’s office and alleged that the scale had not been properly secured by the doctor’s staff. Applying the factors of Coleman v. Deno, the court found that the incident involved medical malpractice as the injury occurred during the rendition of medical services.
With regard to the particular facts alleged in this case, we find the failure of the hospital nursing staff to monitor or assist a post-surgical elderly patient who has expressed a desire to take a shower must be analyzed under the medical malpractice laws of this state. Likewise, with regard to the absence of a bath mat near the shower, we find the act of properly equipping a hospital room’s private bathroom should be addressed within the confines of medical malpractice. The actions and inactions of the nursing staff will be considered. An assessment of Mr. Taylor’s post-surgical status may be examined. Issues of hospital procedure might arise. Expert testimony on nursing practices and hospital equipment may be relevant. In short, the plaintiffs’ allegations of negligence belong in the medical malpractice arena.

Id. at 698-699.

|4In the present case, the trial court considered the facts alleged in light of the applicable jurisprudence, specifically, Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303 and Eldridge v. Heritage Manor, LLC, 06-718 (La.App. 3 Cir. 11/2/06), 942 So.2d 743. The court reached the following conclusions:

When reviewing the totality of the allegations of the plaintiffs petition, it is clear that these are allegations of an unintentional tort and/or a breach of contract based on professional services rendered, or which should have been rendered, by Valley View, who is a qualified health care provider. This meets the definition of “malpractice” without question.

Further, this Court has reviewed each case cited by the parties and finds that the ease closest on point appears to be the case of Eldridge v. Heritage Manor, LLC 942 So.2d 743. Following Eldridge, and also applying the factors set forth by the Louisiana Supreme Court in Coleman v. Deno 813 So.2d 303, the allegations in the Petition clearly are allegations of such a nature that same should be presented to a medical review panel.

In Jackson v. DeSoto Retirement & Rehab. Ctr., Inc., 40,482 (La.App. 2 Cir. 12/14/05), 917 So.2d 727, the second circuit held that the degree of care to be provided to a nursing home patient is a question to be answered within the context of a medical malpractice analysis. By contrast, the failure to instruct a hospital patient on the proper operation of his bed, and the failure to keep the bed in working condition, are allegations unrelated to medical treatment and are therefore not governed by the Medical Malpractice Act. Blevins v. Hamilton Medical Center, Inc., 07-127 (La.6/29/07), 959 So.2d 440.

After reviewing the record before us, we find no error in the conclusions reached by the trial court. Considering the jurisprudence and the facts asserted in the petition, we view this claim as one sounding in medical malpractice, requiring the testimony of experts regarding the assessment, monitoring, supervision of the decedent as well as the applicable standard of care, an analysis of the professional skill required in attending to a patient in distress, and a review of the correctness of |Bthe staffs actions in following a doctor’s orders. Ultimately, a determination must be made as to whether there was negligence in the health care provided to the decedent.

Accordingly, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.