author: MAX N. TOBIAS, JR., Judge.

text:
    DOMINION EXPLORATION & PRODUCTION, INC. v. Kenneth M. WATERS, III, Fluids Management, Ltd., Borehole Control L.L.C. and K.W. Management, L.L.C. Dominion Exploration & Production, Inc. v. Kenneth M. Waters, III, Fluids Management, Ltd., Borehole Control L.L.C. and K.W. Management, L.L.C.
    Nos. 2007-CA-0386, 2007-C-0287.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.

      James E. Wright III, Jones Walker Waechter Poitevent Carrere & Denegre, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Richard T. Simmons, Jr., John Shea Dixon, Hailey McNamara Hall Larmann & Papale, L.L.P., Metairie, LA, David J. Ca-logero, Davidson, Meaux, Sonnier & McElliogott, Lafayette, LA, and Mickey P. Landry, Landry & Swarr, L.L.C., New Orleans, LA, for Defendants/Appellees.
    (Court Composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., and Judge LEON A. CANNIZZARO, JR.).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff, Dominion Exploration and Production, Inc. (“Dominion”), appeals the trial court’s granting of an Exception of Prescription in favor of Defendants, Fluids Management, Ltd. (“FML”), Kenneth M. Waters, III (“Waters”), Borehole Control, L.L.C. (“Borehole”), and K.W. Management, L.L.C. (“KW.Management”) (herein after collectively “the Waters’ Companies”), on the basis that the latest date prescription could have commenced was 6 April 2005, and, thus, the tort claims alleged in Dominion’s Petition for Damages filed on 3 August 2006, have prescribed. The trial court dismissed all claims filed by Dominion against the Waters’ Companies, as based solely in tort. The trial court likewise dismissed Dominion’s tort claims and claims asserted under the Louisiana Unfair Trade Practices Act against FML and Waters. For the following reasons, we affirm the trial court’s judgment.

I. Background and Procedural History

The basic facts of this case are largely not in dispute. The plaintiff, Dominion, is engaged in the business of oil and gas exploration and production in Louisiana and other locations. In May 2002, Dominion, through a staffing ^company, Stokes and Spiehler, Inc., hired Waters as a full-time subcontractor/ consultant mud engineer responsible for overseeing and managing drilling mud programs utilized by Dominion in Louisiana. Waters worked directly with Dominion’s mud engineers and was charged with the authority to make purchases of goods and services for Dominion. The defendant, FML, a vendor, is engaged in the sale of drilling fluid additives and other oil field products and services in Louisiana.

This suit, filed on 3 August 2006, arises out of Dominion’s attempt to recoup monies associated with an alleged kickback scheme existing between Waters and FML that purportedly took place between September 2002 and December 2003. Specifically, in June 2002, at the direction of Waters, Dominion began using FML as a vendor for its drilling products and engineering services. Six months later, in January 2003, Dominion entered into a Master Service Contract with FML, which set forth the terms governing all work and services performed by FML for Dominion. Between 8 August 2002 and 12 September 2003, Dominion paid $1,744,594.38 to FML for oil field products and engineering services.

In June 2003, concerned about the high costs it was incurring for mud drilling purchases from FML pursuant to the Master Service Contract, Dominion requested a vendor audit of FML for the calendar years 2002 and 2003. The vendor audit took place on 25-26 June 2003 at FML’s Houston office. Dominion’s Audit Manager, James Rooney, a certified public accountant and certified fraud |aexaminer, was specifically looking for potential conflicts of interests between FML and Dominion employees. In this regard, at the outset of the audit, FML completed a written vendor audit questionnaire, which identified four Dominion employees with whom FML had contact in soliciting business from Dominion. One of the employees named was Defendant, Waters. Dominion has alleged that FML did not allow it to conduct a proper vendor audit because FML only allowed Dominion access to documents Dominion already had in its possession, such as summaries of FML invoices to Dominion and records of payments made by Dominion to FML. According to Dominion, FML refused to allow review of any original entertainment and expense reports or disbursement records in order that Dominion could ascertain the existence of any potential conflicts of interest, failure to disclose, or disloyalty by any Dominion representative on any transaction between Dominion and FML. To the contrary, FML contends that it provided Dominion with access to all of its records pertaining to business FML conducted with, or was related to, Dominion.

Following the audit, on 8 July 2003, Dominion held a meeting with Waters seeking information and clarification regarding his relationship with FML. Dissatisfied with Waters’ responses and the alleged development of “trust issues,” Dominion terminated Waters’ employment during this meeting. On the same day, LDominion terminated its Master Service Agreement with FML. The record reflects that for three years — between 8 July 2003 and 18 July 2006 — except for a single email sent from Waters to his former supervisor at Dominion, James Abercrombie, in September 2003, absolutely no contact whatsoever was had between Dominion and Waters.

In August 2003, still trying to pursue its audit rights against FML, Dominion sought to limit the scope of its FML vendor audit by sending a letter to FML seeking specific information related to the four Dominion employees listed by FML in the vendor audit questionnaire, including information concerning FML’s relationship with Waters, and two of the Waters’ companies, namely, defendants, Borehole and KW. Management. According to Dominion, FML again refused to provide all of the information requested. Dissatisfied with the information produced by FML in the audit, coupled with its belief that FML was withholding information regarding potential conflicts of interest, on 17 March 2004, Dominion filed suit against FML in the Twenty-Fourth Judicial District Court for the Parish of Jefferson to enforce its audits rights under the Master Service Contract (hereinafter “Audit Litigation”).

On 6 April 2005, in response to written discovery propounded by Dominion to FML in the Audit Litigation, FML produced a set of invoices disclosing that, between 2 September 2002 and 11 December 2003, FML made payments to Waters and the Waters’ Companies totaling $210,321.02. FML represented that these invoices related to consulting services, testing, mileage, and commissions on Ifibiobase product development conducted by Waters, completely unrelated to work Waters performed for Dominion. During a follow-up meeting held four months later between Dominion and FML, on 22 August 2005, FML informed Dominion that no back-up documents ever existed that would verify the legitimacy of the work performed for it by the Waters’ Companies as reflected in the invoices FML had previously produced.

On 18 July 2006 — eleven months after Dominion was told that no verifying documentation for the payments ever existed, and after nearly three years of having no contact with Waters — Dominion confronted Waters with evidence of the $210,321.02 in payments. At that time, Waters admitted ownership of the Waters’ Companies and to receipt of the payments from FML. Waters contended the payments were for work his companies preformed for FML, unrelated to Waters’ work for Dominion. In this meeting, Waters advised that all of his documentation, which would verify the validity of the subject invoices, was destroyed in Hurricane Katrina.

On 3 August 2006, one year and four months after Dominion first learned of the $210,321.02 in payments made by FML to Waters and/or the Waters’ Companies, Dominion filed the instant action against FML, Waters, and the Waters’ Companies alleging five causes of action: breach of fiduciary duties, breach of contract, wrongful concealment, unjust enrichment, and violation of Louisiana’s Unfair Trade Practices and Consumer Protection Law (“LUTPA”), La. |fiR.S. 51:1401, et seq. Subsequently, the defendants filed peremptory exceptions of no cause of action and prescription, and, alternatively, dilatory exceptions of vagueness or ambiguity of the petition.

On 21 October 2006 and 11 January 2007, the trial court heard these exceptions. At the conclusion of the 21 October 2006 hearing, the defendants’ exceptions of no cause of action, vagueness, and ambiguity of Dominion’s Petition were denied. The court also denied defendants’ exceptions of prescription relating to Dominion’s claims arising under a breach of fiduciary-duty and contract law. The trial court continued to 11 January 2007 the hearing on the defendants’ exceptions of prescription relating to Dominion’s alleged tort and LUTPA claims for the purpose of taking testimony. At the conclusion of the 11 January 2007 hearing, the trial court granted the defendants’ peremptory exceptions of prescription as it related to the tort and LUTPA claims pled by Dominion assigning oral reasons. Judgment was entered by the trial court on 7 February 2007 resulting in a partial dismissal of Dominion’s claims against FML and Waters, and complete dismissal of Dominion’s claims against the Waters’ Companies.

Dominion timely filed the instant appeal from the trial court’s judgment granting the peremptory exception of prescription and dismissing Borehole and K.W. Management, with prejudice. Dominion also timely filed an Application for ^Supervisory Writs from the trial court’s judgment rendered in favor of FML and Waters, dismissing Dominion’s alleged tort and LUPTA claims against them, with prejudice. Dominion’s appeal and writ application were consolidated herein.

Standard of Review

This Court, in Parker v. B & K Construction Co., Inc., 06-1465 (La.App. 4 Cir. 6/27/07), 962 So.2d 484, reiterated the appellate standard of review for a grant of an exception of prescription:

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial courts finding of fact was manifestly erroneous. Davis v. Hibernia National Bank, 98-1164 (La.App. 4 Cir. 2/24/99), 732 So.2d 61. When evidence is received on the trial of the peremptory exception of prescription, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard as articulated in Stobart v. State Through Dept, of Transp. and Development, 617 So.2d 880 (La.1993).

06-1465, p. 2, 962 So.2d at 485, citing Katz v. Allstate Insurance Co., 04-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444. See also Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Carter, 04-0646, p. 9, 892 So.2d at 1267.

II. Law and Analysis

In the case sub judice, Dominion’s claims for wrongful concealment and unjust enrichment are delictual actions subject to liberative prescription of one year. La. C.C. art. 3492. Moreover, Dominion’s claims for alleged violations under LUPTA are also subject to a one-year prescriptive period. La. R.S. 51:1409 E. The one-year limitation period in LUPTA is preemptive, rather than prescriptive. Canal Marine Supply, Inc. v. Outboard Marine Corp. of Waukegan, \HIll., 522 So.2d 1201 (La.App. 4 Cir.1988). These statutes, like all prescription statutes, are strictly construed against prescription and in favor of maintaining the cause of action. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211.

Ordinarily, prescription commences when a plaintiff obtains “actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 10 (La.1/20/05), 891 So.2d 1268, 1276, citing Campo v. Correa, 01-2702, p. 11 (La.6/21/02), 828 So.2d 502, 510. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Campo, supra at p. 12, 828 So.2d at 510. An injured party has constructive notice when he or she possesses information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry, and includes knowledge or notice of everything to which that inquiry might lead. Id. The ultimate issue is the reasonableness of the plaintiffs action or inaction in light of his education, intelligence, and the nature of the defendant’s conduct. Id.; Bailey, 04-0620, 04-0647, 04-0684, p. 10, 891 So.2d at 1276.

The party raising an exception of prescription has the burden of proving that the claim has prescribed. Campo, 01-2702, p. 7, 828 So.2d at 508. However, when it appears on the face of the pleadings that prescription has run, the burden shifts to the opposing party to show that prescription was suspended or interrupted. Id. Dominion’s petition alleges that, beginning in June 2003, when it noticed that FML’s drilling costs were high, it began to suspect a conflict of interest — or a potential “kickback” scheme — existing between Waters and FML. The petition further avers that, in 2004, Dominion filed suit against FML in the Twenty-Fourth | 9Judicial District Court seeking to compel an audit of FML’s business activities with Dominion for the years 2002 and 2003, and that on 6 April 2005, FML produced invoices, without supporting documentation, confirming that it made payments to Waters from August 2002 to May 2003, totaling $210,321.02. FML represented that the payments were made for work performed by Waters and the Waters’ Companies unrelated to Waters’ work for Dominion. Dominion’s petition further alleges that Dominion finally had the information it needed to prove its three-year-old suspicion of a kickback scheme when, in a meeting held between FML and Dominion on 22 August 2005, FML advised that no back-up documents ever existed supporting that Waters and/or the Waters’ companies actually performed the work for which the FML payments were made. Dominion filed suit on 3 August 2006, within one year of its meeting with FML. Based solely on the allegations set forth in the petition, it appears that Dominion’s claim was filed timely. Thus, the defendants bear the burden of proving that Dominions tort and LUTPA claims are barred by prescription. Bailey, 04-0620, 04-0647, 04-0684, p. 10, 891 So.2d at 1275.

At issue in the instant case is the date upon which Dominion had constructive knowledge of its tort and LUTPA claims against the defendants sufficient to begin the running of prescription on the claims. FML, Waters, and the Waters’ Companies contend that, applying the general rules of prescription, at the very latest, Dominion had actual, or at least constructive, knowledge of its alleged tort and LUTPA claims against them on 6 April 2005 when FML produced invoices with no supporting documentation evidencing payments it made to Waters and the Waters’ Companies between 2002 and 2003 of $210,321.02. Thus, the Imdefendants argue, and the trial court agreed, that Dominion’s suit filed one year and four months after this date is prescribed.

In an effort to extend the commencement of the running of prescription beyond 6 April 2005, Dominion seeks to avail itself of the doctrine of contra non valentum non currit praescriptio. Simply put, this means that prescription does not begin to run against a person who cannot bring his suit. Carter; 04-0646, p. 11, 892 So.2d at 1268. Contra non valentum is a jurisprudentially-created exception to the general rules of prescription. The doctrine is based on the premise that, in some circumstances, equity and justice require that prescription “be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.” Wimberly, 635 So.2d at 211.

In Plaquemines Parish Commission Council v. Delta Development Co., Inc., 502 So.2d 1034, 1054-55 (La.1987), the Louisiana Supreme Court recognized four instances where contra non valentum is applied to prevent the running of prescription: (1) where there is some legal cause which prevented the courts or their officials from taking cognizance of or acting on the plaintiffs action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or (4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though this ignorance is not induced by the defendant. See also Renfroe v. State ex rel. Dept, of Transp. and Development, 01-1646, p. 9 (La.2/26/02), 809 So.2d 947, 953. These categories, thus, allow “the courts to weigh the ‘equitable nature of the circumstances in each ^ individual case’ to determine whether prescription will be tolled.” Carter, 04-0646, p. 12, 892 So.2d at 1268.

A. Contra Non Valentum

By its first assignment of error, Dominion contends the trial court erred when it failed to find that the third category of contra non valentum applies in this case because the defendants’ actions between 2003 and 2006, including continuously concealing the existence and true nature of $210,321.02 of payments made by FML to Waters, lulled Dominion into inaction and convinced Dominion not to file suit against them during these three years. Alternatively, Dominion argues that the trial court erred in refusing to apply the fourth category of the doctrine, commonly referred to as the “discovery rule,” because Dominion did not have sufficient “probable cause” to file suit before 22 August 2005 when it first learned that there were no documents to support the payments FML made to Waters and the Waters Companies to substantiate its three-year-old suspicions of a kickback scheme.

The third category of contra non valentum applies when the defendant has done some act effectually to lull the victim into inaction and prevent him from availing himself of his cause of action. Fontenot v. ABC Ins. Co., 95-1707, p. 4 (La.6/7/96), 674 So.2d 960, 963. To trigger application of the third category, a defendant’s conduct that keeps the victim in ignorance must rise to the level of concealment, misrepresentation, fraud, or ill practices. Id. Where the plaintiff is able to establish such conduct, prescription is suspended until the plaintiff is made aware of the truth of the matter. Id. At the hearing on the exceptions of 1 ^prescription in the case sub judice, the trial court defined the issue before it, for purposes of the application of the doctrine of contra non valentum, as follows:

[W]hether or not there was sufficient information in April [2005] based on the documentation that was produced; whether or not there was some stalling and/or frustration of the process brought on by [FML and Waters’] action or inaction; and/or whether or not in August [2005] — any time between April and August [Dominion] got more information that should have triggered a later date.

After listening to the testimony of witnesses and the argument of counsel, the trial court determined that, if the third category of contra non valentum applied to suspend the running of prescription of Dominion’s tort claims, it ceased on 6 April 2005, when FML disclosed the invoices evidencing payments made to Waters and the Waters’ Companies in 2002 and 2003, without any supporting documentation, and thus, the trial court concluded Dominion’s tort claims filed one year and four months later had prescribed.

Next we proceed to determine whether the trial court’s ruling was manifestly erroneous based on the record evidence as a whole. Based on our review of the entire record, we conclude that it was not.

At the hearing, counsel for Dominion conceded that the third category would not apply if, at the time FML produced the invoices, FML had not maintained that the payments to the Waters’ Companies were for legitimate services actually performed by Waters unrelated to Waters’ work for Dominion, effectually lulling Dominion into inaction. However, the testimony of the witnesses reveals that from July 2003 to the filing of suit in August 2006, at no time was Dominion ever in a state of “inaction.” At all times pertinent, beginning in June 2003, Dominion suspected a conflict of interest, or potentially a kickback scheme, existing between FML and Waters. At no time during those years does any evidence exist or | ^suggestion that Dominion believed otherwise. This suspicion is what prompted Dominion’s vendor audit of FML in June 2003; the confrontation and termination of Waters in July 2003; the filing of the Audit Litigation in May 2004; the confrontation of Waters in July 2006; and, the filing of the instant suit in August 2006. That FML and Waters made no concessions as to Dominion’s allegations of kickbacks and have chosen to defend that they had a legitimate business relationship unrelated to Dominion during the time period at issue is insufficient evidence of the kind of concealment or ill practice required to trigger the application of the third category of contra non valentum. See High Tech Communications v. Panasonic Co., 1995 WL 120154, *2 (E.D.La.1995); In re Ford Motor Co. Bronco II Product Liability Litigation, 982 F.Supp. 388 (E.D.La. 1997). Moreover, the record is completely devoid of any evidence that either FML or Waters engaged in any conduct — specifically after 6 April 2005, when Dominion gained evidence that payments were made — that prevented Dominion from availing itself of a cause of action or that would trigger a later date for the commencement of the running of prescription. We fail to find exceptional circumstances in this case that would warrant the application of the third category of contra non valentum.

Alternatively, Dominion contends the fourth category of contra non valentum applies because, prior to its learning from FML on 22 August 2005 that there was never any substantiating documentation verifying that the payments FML made to Waters and the Waters’ Companies was for work that was actually performed, Dominion had no definitive proof of its suspected kickback scheme, |14and thus, no probable cause to file suit. Dominion filed the instant suit within one year of 22 August 2005.

We agree with the trial court’s finding that the record fails to support application of the fourth category of contra non valentum to extend the commencement of the running of prescription beyond 6 April 2005. Under the fourth category, prescription does not begin to run until the plaintiff knows sufficient facts and has a reasonable basis for filing suit against a certain defendant or set of defendants. Chaney v. State of Louisiana, Through the Dept, of Health and Human Resources, 432 So.2d 256 (La.1983). Moreover, it is well settled that the principle of contra non valentum will not exempt a plaintiffs claim from running if his ignorance is attributable to his own willfulness, neglect, or unreasonableness. See Campo, supra at p. 12, 828 So.2d at 511. In determining when the plaintiff should know of the basis for his claims, the focus is on the reasonableness of the plaintiffs action or inaction. Beth Israel v. Bartley, Inc., 579 So.2d 1066, 1072 (La.App. 4 Cir.1991). A plaintiff will be deemed to know what he could have learned though reasonable diligence. Id. See also Renfroe, 01-1646, p. 8, 809 So.2d at 953. Generally, the prescriptive period commences when enough notice to call for an inquiry of a claim exists, not when an inquiry reveals the facts or evidence to sufficiently prove the claim. See Babineaux v. State, Dept, of Transp. and Dev., 04-2649, p. 5 (La.App. 1 Cir. 12/22/05), 927 So.2d 1121,1125.

With these principles in mind, we turn to the record to determine whether Dominion exercised reasonable diligence to discover the basis of their alleged tort and LUTPA claims. As discussed above, as early as June 2003, Dominion was suspicious of a potential conflict of interest between Waters and FML. Yet, other 11Rthan a confrontation with Waters where they terminated his employment in July 2003, Dominion made absolutely no effort to obtain additional information or verification from Waters until three years later in July 2006. This second confrontation took place more than fifteen months after receiving notice that substantial payments were made to Waters by FML during the time Waters was employed by Dominion and directing Dominion to purchase supplies and services from FML. At the hearing on the exceptions, Dominion offered no testimony or evidence that even remotely justifies or even reasonably explains this delay in seeking critical information to confirm or dispel its three-year-kickback-scheme suspicions. The record further reveals that Dominion was represented by able counsel as early as May 2004, when it instituted the Audit Litigation, and, consequently, we agree with the trial court that it was unreasonable for Dominion not to pursue additional information from Waters for a period of three years, when it could have easily done so.

Regarding FML, clearly Dominion was suspicious enough that when it did not get the information and documentation it was hoping to obtain during the initial vendor audit in June 2003, it pursued litigation to compel the audit. Yet, even though that suit was filed in May 2004, we find no evidence that Dominion sought to subpoena records from Waters or the Waters’ Companies, to depose any key witnesses, et cetera, when Dominion could have. Discovery devices are tools whereby each litigant is given the opportunity to search for and obtain information. Welch v. Robert Campbell, Inc., 316 So.2d 822 (La.App. 1 Cir.1975). The h (¡purpose of discovery is to afford all parties a fair opportunity to obtain facts pertinent to litigation, to discover true facts, and compel disclosure of such facts wherever they may be found. State, through the Dept, of Highways v. Spruell, 243 La. 202, 142 So.2d 396 (La.1962). Not only may discovery be had on any relevant matter involved in a pending action, but it may be had of any matter even if inadmissible at trial, which is reasonably calculated to lead to the discovery of admissible evidence. Royal American Corp. v. Republic Securities Corp., 392 So.2d 98 (La.App. 1 Cir.1980). Dominion had a discovery vehicle available to it in the ongoing Audit Litigation whereby it could have reasonably obtained the information it contends that it needed, but apparently chose not to heed it, all to its detriment. Like the trial court, we find Dominion’s inaction unreasonable under the circumstances.

By contrast, Dominion asserts that it did everything it could to obtain the information, but that Waters and FML continuously and affirmatively denied any improper activity. Indeed, Dominion urges that, because FML and Waters continuously denied any wrongdoing, it was not “unreasonable” to believe them. All along Dominion was searching for evidence to substantiate their suspected kickback scheme. This they got on 6 April 2005, when FML produced the invoices evidencing FML payments of $210,321.02 to Waters and the Waters’ Companies with no accompanying documentation. The law only requires enough notice to incite inquiry of a claim to trigger the running of prescription, not evidence that will ultimately prove the claim. Babineaux, 04-2649, p. 5, 927 So.2d at 1125.

We agree with the trial court that, as of 6 April 2005, sufficient information existed for Dominion to bring a lawsuit against FML, Waters, and the Waters’ | ¶ ./Companies. We find that the existence of the payments made by FML to Waters and the Waters’ Companies was reasonably knowable — and known — in excess of one year prior to Dominion’s filing of the instant law suit. The fact that Dominion was represented by competent counsel at this time even further compels a finding that properly availing itself of the discovery process would have clearly exposed the defendants’ potential liability. Thus, even if this court were to find that Dominion was unaware of facts which would support its causes of action in tort and under LUT-PA prior to 22 August 2005 as maintained by Dominion, we find that such lack of knowledge was negligent and unreasonable under the facts and circumstances presented herein. The trial court did not manifestly err in failing to apply the fourth category of contra non valentwm to extend the running of prescription in this case.

B. Judicial Confession

By its third assignment of error, Dominion argues in the alternative that FML, Waters, and the Waters’ Companies should be barred from claiming that Dominion had probable cause to file suit prior to 3 August 2005, because the defendants have filed reconventional demands against Dominion for malicious prosecution, ■which are tantamount to a judicial confession under La. C.C. art. 1853.

A review reveals that the bases of the reconventional demands filed by the defendants are that Dominion’s petition was filed without reasonable inquiry; was not well grounded in fact; was not warranted by existing law, or a good faith [ 1Rargument for the extension, modification, or reversal of existing law; and, was interposed for an improper purpose — namely, to harass and cause unnecessary litigation expense to the defendants. Accordingly, the defendants claim Dominion’s petition was filed in violation of La. C.C.P. art. 863, warranting an award of sanctions. Moreover, defendants also maintain that Dominion has not sustained any damages that would support the filing of the petition, and that if, at trial, Dominion cannot prove that it was damaged by the alleged conduct of defendants, they are entitled to seek article 863 sanctions.

Nowhere in the reconventional demands do the defendants claim that Dominion’s suit was premature or that Dominion lacked “probable cause” to bring suit. Accordingly, Dominion’s third assignment of error lacks merit.

C. Continuing Tort Rule and the Louisiana Unfair Trade Practices Act

By its fourth assignment of error, Dominion contends that the continuing tort rule applies in this case to its claims under the Louisiana Unfair Trade Practice Act because of FMLs continued activity in denying Dominion its contractual right to a vendor audit for purposes of: (1) concealing that it made improper payments to Waters, and then (2) concealing the true nature of those payments to lull Dominion into inaction and to convince Dominion not to file suit.

The doctrine of contra non valentum does not apply to a preemptive period. The one-year statute of limitation set forth in LUTPA at La. R.S. 51:1409 E, is preemptive rather than prescriptive, thus precluding the application of contra non valentum. Canal Marine Supply, Inc. v. Outboard Marine Corp. of Waukegan, III., supra. While Dominion maintains that Waters made misleading statements to it |13regarding his business relationship with FML in July 2003, the record is devoid of evidence of any actions taken or statements made by Waters until July 2006, three years later, after any LUTPA case against Waters would have prescribed. Prescription that has already run cannot be suspended or interrupted. Geiger v. State ex rel Dept, of Health and Hospitals, 01-2206 (La.4/12/02), 815 So.2d 80. Likewise, Dominion has failed to point out any “continuing torts” of Dominion that would serve to interrupt prescription as to FML. As noted previously, prescription began to commence on 6 April 2005 when FML produced invoices evidencing substantial payments to Waters without substantiating documentation. Thus, any LUTPA claim Dominion may have had against FML prescribed one year later, on 6 April 2006, and the doctrine of contra non valentum cannot be invoked to extend this preemptive period. Accordingly, Dominion’s fourth assignment of error is also without merit.

In the further alternative, by its fifth assignment of error, Dominion contends that the defendants engaged in acts constituting violations of LUTPA occurring within one year from the date it filed its petition on 3 August 2006. Specifically, regarding FML, Dominion avers that on 24 May 2006 and 18 July 2006, Dominion produced documents in the Audit Litigation relative to the payments FML made to Waters and the Waters’ Companies, documents which Dominion alleges were meant to conceal the true nature of the payments, constituting acts violating the LUTPA. Regarding Waters, Dominion contends that the statements made by Waters on 18 July 2006, when he was confronted with the invoices evidencing lanpayments, were likewise meant to conceal the true purpose of the payments, constituting an act in violation of the LUT-PA.

Pretermitting whether any of these purported acts by FML and Waters, respectively, rise to the level of an unfair or deceptive act or practice in the conduct of commerce declared unlawful under LUT-PA, we dismiss Dominion’s fifth assignment of error on the basis that Dominion lacks standing to pursue a LUTPA action against these defendants. This court has previously determined that the personal right of action afforded under LUTPA applies only to direct consumers or to business competitors, none of which are present in the instant case. Gil v. Metal Service Corp., 412 So.2d 706 (La.App. 4 Cir.1982); Nat’l Oil Service of La. v. Brown, 381 So.2d 1269 (La.App. 4 Cir.1980). See also Nat’l Gypsum Co. v. Ace Wholesale, Inc., 98-1196 (La.App. 5 Cir. 6/1/99), 738 So.2d 128. Thus, although Dominion may have a right of action for breach of contract and breach of fiduciary duty with Waters and FML, we find Dominion is not a member of the class of persons to which the LUTPA was intended to apply.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, sustaining the defendants’ Peremptory Exceptions of Prescription as to the tort and |⅞1 LUTPA claims made by Dominion against FML, Waters, and the Waters’ Companies.

AFFIRMED.

      . Still pending against FML and Waters are Dominion’s claims for breach of fiduciary duties and breach of contract.

      . Pursuant to the terms of the Master Service Contract, FML provided drilling fluid engineering services, drilling fluid additives, and other oil field products to Dominion at various Dominion-operated well sites located in Louisiana.

      . Mr. Rooney testified that, in or about June 2003, he was advised by Dick Glogger, Dominion's onshore drilling manager, that Dominion was experiencing problems with high drilling costs. Presumably, because Waters was responsible for purchasing drilling products and related services, Mr. Glogger requested that Mr. Rooney conduct an analysis of Water's mud drilling activities. As a result of Mr. Rooney's analysis, FML was identified by Dominion as a vendor with high costs. Consequently, on 11 June 2003, an audit demand letter was sent by Dominion to FML scheduling the vendor audit at FML's Houston offices for 25-26 June 2003.

      . Dominion expressed concern at the audit regarding the coincidental dates that Waters began working with Dominion and the dates FML began doing business with Dominion.

      . In this e-mail, Waters allegedly acknowledged that he performed work for other entities independent of his work for Dominion, and maintained that this "other” work was completely unrelated to any of the work he conducted for Dominion. The e-mail apparently did not divulge that FML was one of these "other” entities.

      . Waters revealed to Dominion in this July 2005 meeting that he and his wife were the sole employees of his companies, Borehole and K.W. Management.

      . At the time the instant action was filed, the Audit Litigation against FML was — and still is — pending in Jefferson Parish.

      . Specifically, the trial court’s 7 February 2007 judgment dismissed all claims asserted by Dominion in paragraph 93 (alleging FML and the Waters’ Companies aided, abetted, and conspired with Waters in his breach of fiduciary duties to Dominion); paragraph 104 (alleging Waters and the Waters’ Companies aided, abetted, and conspired with FML in FML’s breach of duty to perform its contractual obligations to Dominion in good faith); paragraphs 105-108 (allegations of wrongful concealment); paragraphs 109-113 (allegations of unjust enrichment); and, paragraphs 114-116 (allegations of violation of Louisiana's Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401, et seq.).

      . In fact, the record reveals that Dominion had no contact with Waters during the three years prior to its confrontation with him on 18 July 2005.

      . The Audit Litigation was initiated by Dominion based on its belief that a conflict of interest existed between FML and Waters that would account for the high drilling costs Dominion was experiencing from FML.

      . Defendants’ reconventional demands are not alleging “malicious prosecution” as asserted by Dominion in its original brief, but rather, are limited to seeking article 863 sanctions, including attorney’s fees and reasonable expenses incurred in the defense of this case.

      . Waters asserts that because Dominion’s petition does not specifically allege that statements made by Waters on the 18 July 2006 constituted a violation of LUTPA, Dominion should not be allowed to assert this allegation for the first time on appeal. In Louisiana, however, we are subject to fact pleading rather than theory pleading and the court is bound to construe allegations of fact under any theory of law that entitles the pleader to relief. Cox v. W.M. Heroman & Co., Inc., 298 So.2d 848 (La.1974).


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge. MURRAY, J.,

license: Public Domain

text:
    CHEVRON U.S.A., INC. v. STATE of Louisiana, et al.
    No. 2007-CA-0673.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.

      Joe B. Norman, J. Patrick Morris, Jr., Collette N. Ross, Liskow & Lewis, New Orleans, LA, for Chevron U.S.A. Inc.
    L.V. Cooley IV, Assistant Parish Attorney, Belle Chasse, LA, for Plaquemines Parish Government.
    Robert E. Tarcza, Tarcza & Associates, L.L.C., New Orleans, LA, FOR Chauvin Family Interests.
    Robert L. Lobrano, Braithwaite, LA, in Proper Person.
    Charles C. Foti, Attorney General, E. Kay Kirkpatrick, Assistant A.G., La. Department of Justice, Baton Rouge, LA, Patrick S. Ottinger, Special Assistant Attorney General, Stuart M. Simoneaud, Special Assistant Attorney General, Renee A. Dupre’, Special Assistant Attorney General, Ottinger Hebert, L.L.C., Lafayette, LA, and Stephen C. Braud, Ballay, Braud & Colon, PLC, Belle Chasse, LA, for the State of Louisiana, the State Mineral Board and the State Department of Natural Resources.
    Court Composed of Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, JR.
   MAX N. TOBIAS, JR., Judge.

Lin this concursus proceeding, the defendants/appellants, State of Louisiana, State Mineral Board, and State Department of Natural Resources (hereinafter collectively referred to as the “State”), appeal from a summary judgment in favor of the plaintiffs/appellees, Chevron U.S.A., Inc. (“Chevron”), Plaquemines Parish Government (“PPG”), Chauvin Family Interests (“Chauvin”), and Robert L. Lobrano (“Lobrano”), on the basis of res judicata. After reviewing the record and applicable law, we affirm the judgment rendered below.

By Act No. 18 of 1894, Act No. 205 of 1910, and Act No. 824 of 1938 as amended, the State of Louisiana created the Buras Levee District (“BLD”) and provided for the transfer to its Board of Commissioners of all lands belonging to the State within the geographic limits of the BLD. These lands included a tract of land located within the SW 1/4 of Section 13 and NW 1/4 of Section 24 of Township 22 South, Range 30 East, referred to herein as Tract 1. On June 11, 1938, the BLD granted a mineral lease, which affected Tract 1, to Delta ^Development Company (Delta). The State subsequently supplemented the 1938 transfer on 1 July 1954. The lands in question were ultimately subleased to Chevron and, at all relevant times, there has been oil and gas production attributable to Tract 1, except for temporary cessation caused by Hurricanes Katrina and Rita.

On April 15, 1975, the Board of Commissioners of the BLD was consolidated and merged into the PPG. As a result of this consolidation and merger, all properties of the BLD were transferred to its successor entity, PPG, which is the governing authority for the merged entity. The BLD was not dissolved by the merger and continues in its ownership rights in lands transferred by the State in 1938. It is undisputed that Tract 1 is covered by the 1938 BLD/Delta lease and that the lease is valid and presently in effect.

The 1938 conveyance of lands to the BLD also included property identified as Tract 87, which like Tract 1, is covered by the 1938 BLD lease and ultimately subleased to Chevron. Chevron operates Tract 87 under the same mineral lease from the BLD as Tract 1.

In 1990, PPG sued the State, seeking a resolution to competing claims to minerals on the basis that Tract 87 had become a waterbottom. In that matter, |sChevron held a competing lease and had previously filed a concursus proceeding to determine to whom it should make royalty payments: the State or PPG. The two cases were consolidated for trial [hereinafter referred to as the “Tract 87 litigation”].

At trial, PPG clarified that it did not seek ownership of the waterbottoms underlying Tract 87, but rather sought confirmation of its ownership of the mineral rights. On its own motion, the trial court entered judgment for PPG, finding, inter alia, that the BLD lease was valid. This court affirmed the decision. See Plaquemines Parish Government v. State, 01-1027, 01-1028 (La.App. 4 Cir. 4/10/02), 826 So.2d 14, writ denied, 02-1304 (La.9/13/02), 824 So.2d 1170, 1171. In doing so, the court stated:

In the instant case, it is undisputed that the State conveyed Tract 87 and other lands to the BLD by an instrument dated September 9,1938. In 1943, the Louisiana Supreme Court declared the September 9, 1938 conveyance instrument to be a valid and constitutional conveyance from the State to the BLD. State v. Gulf Refining Co., 202 La. 951, 13 So.2d 277 (1943). In that case, the State brought suit against the BLD and others contending that the transfer by the State Auditor and the Register of the State Land Office was null on the ground that the land was below the southern boundary of the BLD and hence there was no authority for the transfer. The lower court rejected the State’s contention and the Supreme Court affirmed the lower court’s ruling. The 1938 conveyance from the State was supplemented in 1954. The purpose of this 1954 supplemental conveyance was to show the correct location of the lands conveyed in 1938 in accordance with an official survey map approved by the Register of the State Land Office on October 18, 1940. After describing the lands covered in the September 9, 1938 conveyance, the 1954 supplemental conveyance provides as follows:
14A11 of the above lands, sections and townships are in accordance with the official map of T. 22 S. Rs. 30 & 31 E. and T. 23 S. Rs. 30 & 31 E., South Eastern District, West of River, Plaquemines Parish, Louisiana, made under the authority of the Register of the State Land Office, as provided by Act No. 232 of 1934, dated November, 1939, Jno. C. deArmas, Jr., Reg. C. E., approved in October 18, 1940 by the Register of the State Land Office. Excepted therefrom are the bayous, lagoons, lakes, and bays and beds thereof under authority of R.S. 9:1101.
This instrument corrects and supersedes act of transfer from State of Louisiana to Board of Commissioners of Buras Levee District dated September 9,1938.

Id. at pp. 4-5, 826 So.2d at 18-19 [emphasis added].

At all pertinent times, Chevron has maintained continuous production under and for the BLD lease arising from or attributable to various tracts covered by the lease, as a single mineral interest under one mineral lease. Prior to filing the instant proceeding, Chevron sought confirmation from the State that it would not contest the validity of the lease or the BLD ownership of the minerals produced by Chevron from Tract 1. The State refused to provide such assurance and advised Chevron that it considered Tract 1 as unleased property belonging to the State. Faced with competing claims to the payments resulting from Tract 1 production, Chevron filed a petition for concursus and for declaratory judgment and deposited royalty payments into the registry of the court. The State argued that the merger and consolidation of the BLD and PPG in 1975 constituted an impermissible alienation of state minerals and that it is now entitled to the mineral revenues attributable to Tract 1 as an unleased owner.

IsChevron moved for summary judgment on several grounds. The trial court granted the motion, stating:

Because I believe that your distinction between , a lease as a corporeal immovable and individual tracts of land is the compelling argument in terms of what was litigated in the prior litigation. In view of the fact that a contrary ruling would, in fact, lead to absurd consequences and that is a re-litigation of thousands, and thousands, and thousands of leases. And not only leases, but as you point out in the '57 [sic] litigation, the prior litigation, individual wellheads, well. I don’t think — I think that would be an absurd consequence.
I’m going to grant the argument on the basis of res judicata, allow you gentlemen to make your arguments in the Fourth Circuit. And if it comes back, we’ll address the 1151, 1152 arguments. If it doesn’t come back wonderful.

The State filed the instant appeal.

The State has assigned two errors for review. The State argues that the trial court erred by holding that this matter is barred by res judicata and that the court erred in granting summary judgment because there are disputed issues of material fact regarding the State’s claim to the minerals in and under Tract 1.

The principle of res judicata is found in La. 13:4231, which States:

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

In Burguieres v. Pollingue, 02-1385, pp. 7-8 (La.2/25/03), 843 So.2d 1049, 1053, the Louisiana Supreme Court stated:

The civilian concept of res judicata is based upon a presumption of correctness. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 6 (La.7/2/96), 676 So.2d 1077, 1080; Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, p. 12 (La.1/16/96), 666 So.2d 624, 632; Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978); Peter Wilbert Arb-our, Comment, The Louisiana Concept of Res Judicata, 34 La. L.Rev. 763, 764 (1974). Under this concept, the prior legislation established that a decided case precluded a second suit only if the second suit involved the same parties, the- same cause, and the same object of demand as the prior suit. Avenue Plaza at p. 6, 676 So.2d at 1080; Terrebonne Fuel at p. 12, 666 So.2d at 632. In contrast to the civil law, the common law doctrine of res judicata is based on a concept of extinguishment of the cause of action. Terrebonne Fuel at p. 12, 666 So.2d at 631; Arbour, 34 La. L.Rev. at 764 (1974). Under the federal res judi-cata law, a judgment bars a subsequent suit if both cases involve the same parties, the prior judgment was rendered by a court of competent jurisdiction, the prior decision was a final judgment on the merits, and the same cause of action is at issue in both cases. Terrebonne Fuel at 633. Thus, as a result of our civilian heritage, Louisiana’s res judicata law, at least prior to the 1990 amendment, was much narrower in scope than its common law counterpart. Terre-bonne Fuel at p. 11-12, 666 So.2d at 631; Welch at 156.
Most of the controversy and confusion in Louisiana surrounding res judicata prior to the 1990 amendment concerned whether there was an “identity of cause.” With the 1990 amendment to the res judicata statute, however, the chief inquiry is whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action. Avenue Plaza at p. 6, 676 So.2d at 1080. See also La. R.S. 13:4231 cmt. a (1990). While this is 17the central inquiry under the current statute, it is not the only inquiry. A reading of La. R.S. 13:4231 reveals that a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

The State concedes that the first three requirements exist: the judgment rendered in the Tract 87 litigation is valid; the Tract 87 judgment is final; and the parties in both matters are the same. However, the State argues that (1) the appellees’ claim to the minerals under La. R.S. 9:1151 and La. R.S. 9:1152 did not exist at the time of the Tract 87 litigation, and (2) the causes of action asserted in the instant case do not arise out of the same transaction or occurrence that was the subject matter of the Tract 87 litigation.

The primary problem with the State’s position is that beginning in 1943, the courts have recognized the validity of the 1938 BLD lease. See State v. Gulf Refining Co., 202 La. 951, 13 So.2d 277 (1943). It is uncontested that the 1938 BLD lease contains Tracts 1 and 87 that have been leased to Chevron along with a number of other tracts. The State argues that the cause of action asserted by the appellees in the present action does not arise out of a transaction or occurrence which was the subject matter of the Tract 87 litigation. The State is incorrect because it narrowly focuses on Tract 87 versus Tract 1. The real cause of action in both cases is the immovable known as the 1938 BLD lease, not any single tract of land contained therein.

This is exactly the type of case to which res judicata applies. Res judicata promotes judicial efficiency and final resolution of disputes by preventing needless |RreIitigation. Terrebonne Fuel, supra, at p. 12, 666 So.2d at 631. To find otherwise would permit the State to file a series of separate actions challenging the ownership of mineral rights in each and every tract contained in the 1938 BLD Lease. Thus, we find that this matter is barred by res judicata.

In its second assignment of error, the State argues that there are genuine issues of material fact as to whether there were any bayous, lagoons, lakes, and bays situated within the confines of Tract 1 at the time of the conveyance to the BLD. For the reasons below, we find no merit in this assignment of error.

In connection with its motion for summary judgment, PPG filed into the record, an affidavit executed by George J. Castille, III, who holds a Ph.D. in geography, and is employed as a geographer. Dr. Castille was asked by PPG to render an expert opinion on the existence of land as of September 1938 in the area known as Tract 1. After reviewing numerous maps and photographs, Dr. Castille concluded that at the time of the transfer of Tract 1 to the BLD in 1938, the entirety of Tract 1 was land. However, to the extent that Tract 1 may have contained certain bodies of water, we note that the 1938 transfer specifically excluded the bayous, lagoons, lakes, and bays and beds thereof under authority of La. R.S. 9:1101. Therefore, the fact that these types of water bodies may have been present in Tract 1 at the time of the initial transfer is of no moment.

Based on the foregoing, we affirm the judgment of the trial court. Because we find that the present matter is precluded by res judicata, we pretermit discussion of any other issues raised in this case.

AFFIRMED.

MURRAY, J., concurs with reasons.

MURRAY, J.,

concurring.

| ^though I agree with the result, I concur because I do not feel the fact there might have been a water bottom in Tract 1 has any relevance to the disposition regarding Tract. 87.

      . For the record, we note that the transfer of lands to the BLD authorized by Act No. 324 of 1938 did not take place until September 9, 1938. However, the BLD granted a mineral lease, which covered some of these lands on June 11, 1938. This is valid under the doctrine of after acquired title. Ordinarily, where one sells the property of another and the rule is equally applicable to the granting or sale of mineral leases and later acquires title to the property sold by him, the title vests immediately in his vendee. St. Landry Oil & Gas Co. v. Neal, 166 La. 799, 118 So. 24 (1928).

      . The State also contends that Little Pass de Wharf, as well as other small lakes and lagoons, traverse and are situated in Tract 1.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    Ms. Brenda FRANKLIN, Individually and on Behalf of her Minor Daughter, Shaylon Day. v. The TULANE UNIVERSITY HOSPITAL AND CLINIC, and Dr. Franklin G. Boineau, III, M.D., Dr. Olugbenga A. Akingbola and The Administrators of the Tulane Educational Fund, d/b/a Tulane University Health Sciences Center, et al.
    No. 2006-CA-1557.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.
    Dr. Edward A. Robinson, III, Dr. Mark Edward Robinson, Law Offices of Dr. Edward A. Robinson, III, Baton Rouge, LA, for Appellants, Ms. Brenda Franklin Individually and on Behalf of her Minor Daughter, Shaylon Day.
    Stewart E. Niles, Jr., Karen M. Fonta-na, Niles, Bourque & Fontana, L.L.C., New Orleans, LA, for appellees, Dr. Franklin G. Boineau, III, Dr. Olugbenga Akingbola and The Administrators of the Tulane Educational Fund.
    Peter E. Sperling, A. Jacob Culotta, Jr., Frilot Partridge, L.C., New Orleans, LA, for Appellee, Tulane University Hospital and Clinic.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

hThe, plaintiffs, Ms. Brenda Franklin, individually and on behalf of her minor daughter, Shaylon Day, appeal two district court judgments dismissing their medical malpractice claims against the defendants, Dr. Franklin G. Boineau, III, Dr. Olugben-ga A. Akingbola, the Administrators of the Tulane Educational Fund d/b/a Tulane University Health Sciences Center (“Tulane Medical School”), and Tulane University Hospital and Clinic (“Tulane Hospital”). We affirm the judgments of the trial court.

FACTS AND PROCEDURAL HISTORY

Shaylon Day, a seven-year-old girl, was admitted to Baton Rouge General Medical Center (“Baton Rouge General”) on March 26, 2000, by her pediatrician, Dr. Rodger H. Elofson, II, for persistent abdominal pain with diarrhea, vomiting, dehydration and fever after she failed to respond to outpatient treatment with antibiotics. Upon admission, Shaylon had high fever, low blood pressure, and a rapid heart rate. Her urine output was minimal, indicating possible renal failure. |¡>Shortly after her admission to Baton Rouge General, Shay-lon’s BUN/creatinine levels increased rapidly despite her being administered fluids intravenously. The urinalysis and lab work confirmed progressing renal failure. Due to Shaylon’s deteriorating condition, Dr. Elofson consulted with Dr. Boi-neau, a pediatric nephrologist at Tulane Hospital in New Orleans. Based on the information provided to him, Dr. Boineau believed Shaylon’s condition included interstitial nephritis (a kidney disorder) and advised Dr. Elofson to transfer her to Tulane Hospital’s Pediatric Intensive Care Unit (PICU).

Shaylon arrived at Tulane Hospital at 3:00 a.m. on March 28, 2000, was admitted directly to the PICU, and placed under the care of Dr. Boineau and Dr. Akingbola, a pediatric critical care specialist. Upon arrival, she was found to be dehydrated, hypotensive (low blood pressure) and in shock. An abdominal ultrasound revealed fluid in Shaylon’s pelvic region. After further examination, the doctors made a diagnosis of a possible ruptured appendix in addition to acute renal failure. Shaylon continued to be fluid resuscitated and slowly developed an excessive amount of fluid in her lungs.

At midnight on March 29, 2000, Shaylon was placed on an oxygen mask to assist her breathing. Dr. Robert Hopkins, a pediatric critical care specialist, monitored Shaylon’s condition through the night and into the morning. At 9:30 a.m., Shaylon had an extremely rapid heart rate and her urine output had decreased |ssignificantly, indicating acute respiratory failure as a result of the fluid accumulation in her lungs. At that time, Dr. Hopkins elected to intubate Shaylon with an endotracheal tube and consulted with Dr. Usha Rama-dhyani, a Tulane Medical School pediatric anesthesiologist, who successfully performed the intubation. Approximately thirty minutes after the intubation, Shay-lon suffered a cardiac arrest and a code was called. The medical staff began car-dio pulmonary resuscitation, an epinephrine drip was started, and Shaylon was placed on mechanical ventilation. Although Shaylon was resuscitated from the code, she experienced multiple seizures several hours later.

On April 3, 2000, Dr. John Willis, a pediatric neurologist, examined Shaylon and had her undergo a CT scan, which disclosed that she had suffered extreme brain damage due to a deprivation of blood and oxygen to her brain. On April 10, 2000, Shaylon’s endotracheal tube was removed, but it had to be reinserted two days later due to respiratory failure. Shortly thereafter, Shaylon underwent a tracheostomy under general anesthesia for long-term ventilation. Shaylon’s neurological status was unchanged, and she remained in a persistent vegetative state with little or no improvement anticipated. As a result of her condition, she was transferred from PICU to a regular hospital room on May 3, 2000, and was subsequently discharged.

|4On February 8, 2001, a complaint was filed with the Patient’s Compensation Fund pursuant to the Louisiana Medical Malpractice Act, La.R.S. 40:1299.41 et seq., to request that a medical review panel be convened to consider the care rendered by Baton Rouge General and Dr. Elofson. On November 1, 2002, the complaint was amended to ask the medical review panel to also consider the actions of Tulane Medical School, Tulane Hospital, Dr. Boineau and Dr. Akingbola.

In a decision dated December 6, 2004, the medical review panel unanimously found that the evidence did not support the conclusion that Tulane Hospital, Tulane Medical School, Dr. Boineau, Dr. Ak-ingbola, or Dr. Elofson had breached the applicable standards of care as alleged in the complaint. However, the panel concluded that Baton Rouge General had breached the appropriate standard of care. Specifically, the medical review panel opinion stated:

[t]he panel finds that the Baton Rouge General deviated from the appropriate standard of care in that the child should have been admitted to a pediatric intensive care unit. At the time of service, the Baton Rouge General did not have this level of care. The emergency room physician had an adequate amount of clinical information, i.e., the child’s tachycardia [ (rapid heart rate) ], elevated BUN and elevated creatine (sic) to require intensive care. A second point is that once the child was admitted to the Baton Rouge General, there was an abrupt change in blood pressure noted by the nursing staff on the floor. The blood pressure was not communicated to any physician. This omission represents a potential beginning of the child’s impending clinical deterioration. This deviation from the standard of care caused a delay in getting the child appropriately hydrated and may have been the sentinel event, or definitely a combined factor in the child’s outcome. This represents a serious downturn in the patient’s condition | Band indicates an unstable patient, requiring PICU intervention where more aggressive fluid management and observation could be done. While this abrupt drop in blood pressure does not necessarily represent the actual damages, it does represent a serious state in the evolution of a septic shock picture and indicates that this child is very unstable and should be cared for in a PICU setting, not a general admission floor. Further, the failure of a nurse to communicate this change in patient status is a major breach of nursing care standards.

Despite the medical review panel opinion, on February 22, 2005, the plaintiffs filed a petition alleging medical malpractice against the defendants herein as well as Baton Rouge General and Dr. Elofson. The defendants filed an answer, denying the plaintiffs’ allegations and asserting as an affirmative defense the opinion of the medical review panel. In connection with the suit, the defendants propounded discovery to the plaintiffs specifically requesting that they identify any and all witnesses who may testify at trial that the defendants breached the applicable standards of care. In response, the plaintiffs provided the name of Dr. Steven Palder, a pediatric general surgeon, and Dr. Mickey Viator, a pediatrician and an emergency room physician.

Dr. Palder testified at his deposition on April 28, 2006, that he was initially retained by the plaintiffs’ first attorney in 2000 and, based on the information provided to him at that time, he believed the defendants had deviated from the applicable standards of care. However, upon a later review of Shaylon’s complete medical records from Tulane Hospital, Dr. Palder recanted his opinions as to Dr. Akingbola, Dr. Boineau, and Tulane Medical School. He specifically stated:

When I initially looked at the chart, I felt that was (sic) child’s care at Tulane deviated from the standard of care. But when I looked at the chart with what I had, I have to recant that. I think that the standard of care at Tulane was within the realms of what was okay. It could have been different from what I would have done, but | fithat doesn’t necessarily mean that it deviated from the standard of care. So my rereading of the chart changed my opinion with regard to Tulane and the doctors at Tulane.

Dr. Palder explained further:

What [the Tulane Medical School doctors] did was they were faced with a child who — they apparently felt they couldn’t hydrate her fast enough. She was at the point where if they didn’t do something in addition to hydration, they were going to — she was going to code. When you have a blood pressure of 50 over 80, you don’t have much leeway. When you have a blood pressure of 77 over 44, you have a little more reserve. And so for these doctors at Tulane, they had little reserve and they put her on vasoactive [ (relating to blood vessels) ] agents, dopamine and epinephrine.
It turns out they needed that. They couldn’t take the epinephrine off until the 1st of April. And they couldn’t take the dopamine off — they weaned it down on the 2nd and stopped it on the 7th.
So it’s interesting, because on the 28th when she was transferred into Tulane at 10:00, she was seen by Dr. Boineau. And at that point he felt that the patient’s renal failure was due to poor profusion. He thought she had a diagnosis of ruptured appendicitis. That’s never been proved or disproved. But he agreed that she was poorly profused and that hydration was what needed to be done.
And I didn’t have some of that information, I believe the first time. But the first time was five years, six years ago.

As to the actions of the nurses and other medical staff employees of Tulane Hospital, Dr. Palder testified that he found no deviation from the acceptable standard of care.

The plaintiffs’ other pediatric expert, Dr. Mickey Viator, also testified that Dr. Ak-ingbola, Dr. Boineau, Tulane Medical School, and the nurses and staff at Tulane Hospital had complied with all the prevailing standards of care.

Based on the favorable opinion of the medical review panel and the deposition testimony of Drs. Palder and Viator, the defendants filed motions for |7summary judgment, seeking the dismissal of the plaintiffs’ medical malpractice claims against them. The defendants argued that the plaintiffs cannot satisfy their burden of proof at trial considering the lack of any expert testimony from a qualified witness that the defendants had breached the applicable standards of care.

In opposition to the motion, the plaintiffs submitted an affidavit from Dr. Carl Warren Adams, a board certified cardioth-oracic surgeon and surgical critical care specialist, from Pueblo, Colorado. Dr. Adams averred that based on his review of Shaylon’s medical records from Baton Rouge General and Tulane Hospital, he concluded that the defendants’ treatment of Shaylon had departed from the acceptable standards of care. Specifically he found that Dr. Boineau and Dr. Akingbola failed to place central or right heart pressure monitoring devices to appropriately treat Shaylon’s intravascular volume status; failed to make the appropriate diagnosis of the cause of Shaylon’s continued sepsis and cardiogenic shock; and, failed to treat the renal failure appropriately with volume expansion rather than vasoac-tive and potentially contraindicated pres-sor support. He also found that Dr. Boi-neau and Dr. Akingbola as well as the staff at Tulane Hospital failed to perform the “elective” intubation in a safe and controlled environment.

At the hearing on the motion for summary judgment, the defendants argued that the submission of Dr. Adams’ affidavit was insufficient to satisfy the plaintiffs’ burden of proof at trial because Dr. Adams, a cardiothoracic surgeon, was not qualified as an expert in the areas of pediatric nephrology or pediatric critical care as required under La. R.S. 9:2794. To counter Dr. Adams’ affidavit, the defendants introduced into evidence the sworn deposition testimony of Dr. Adams from three other medical malpractice cases which set forth his training and experience as a cardiothoracic surgeon who treated adult patients. Following the | shearing, the trial court granted the defendants’ motions for summary judgment and dismissed the plaintiffs’ medical malpractice claims against them.

STANDARD OF REVIEW

The proper standard of review for an appellate court considering summary judgment is de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93-1480, p. 1 (La.4/11/94), 634 So.2d 1180, 1182; See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). La. G.G.P. art. 966(C)(2) provides, in pertinent part:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, aetion, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his \c,evidentiary burden of proof at trial, there is no genuine issue of material fact. [Emphasis added.]

ASSIGNMENTS OF ERROR

The plaintiffs raise five assignments of error. The gist of the first, second, and third assignments of error is that the trial court erred in granting the defendants’ motions for summary judgment. The fourth assignment of error asserts that the trial court denied the plaintiff due process of law by usurping the function of the jury, which is to weigh the opinions of the experts and determine whether the plaintiffs met their burden of proving causation. In the fifth assignment of error, the plaintiffs argue that the trial court erred in failing to apply La. C.E. art. 702.

LAW AND DISCUSSION

The plaintiffs burden of proof in a medical malpractice action is statutorily established. Pursuant to La. R.S. 9:2794 A(l)-(3), a plaintiff in a malpractice action against a physician must prove:

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
|¾0(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

In Broussard v. Andersson, 05-0006, p. 6 (La.App. 4 Cir. 11/03/05), 921 So.2d 128, 132, this Court stated that “[t]o determine whether a physician possesses the requisite degree of knowledge or skill or whether he exercised reasonable care or diligence, the court is guided by expert witnesses who are members of the medical profession.... ” Further, “[wjhere the alleged acts of negligence raise issues peculiar to the particular specialty involved, then only physicians in that specialty may offer evidence of the applicable standard of care.” 05-0006, pp. 6-7, 921 So.2d at 132. This Court also stated that “[t]he jurisprudence has recognized that ‘an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.’ ” Id., citing Williams v. Metro Home Health Care Agency, Inc., 02-0534, p. 5 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228.

There are, however, some situations where the jurisprudence has recognized that expert testimony is not required to meet the plaintiffs burden of proof in a medical malpractice case. Pfiffner v. Correa, 94-0924, 94-0963, and 94-0992 (La.10/17/94), 643 So.2d 1228,1230. In the Pfiffner case the Louisiana Supreme Court explained that a plaintiff in a medical malpractice case could prevail regarding the appropriate standard of care if a layperson could infer negligence from the facts presented at trial. 94-0924, 94-0963, and 94-0992, p. 1, 643 So.2d at 1230. The Supreme Court stated that “[ejxpert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a Impatient, or leaving a sponge in a patient’s body.” 94-0924, 94-0963, and 94-0992, p. 9, 643 So.2d at 1233.

This Court in Pierre-Ancar v. Browne-McHardy Clinic, 00-2409, 00-2410 (La. App. 4 Cir. 11/16/02), 807 So.2d 344, 348, stated that with a few exceptions, such as those described in the Pfiffner case, “because of the complex medical and factual issues involved in medical malpractice cases, a plaintiff will likely fail to sustain his or her burden of proving his or her claim under La. R.S. 9:2794 without medical experts.”

In the instant case, the alleged malpractice was not the type of malpractice that was described in the Pfiffner case from which a layperson could infer negligence without the benefit of expert testimony. Here, the case involved the treatment of a critically ill seven-year-old child with acute renal failure, sepsis, dehydration, possible appendicitis, and respiratory failure, which required surgical intervention during her hospitalization. Moreover, it is undisputed that Shaylon was transferred from Baton Rouge General to the PICU at Tulane Hospital because Dr. Elofson and Baton Rouge General were not equipped or trained to provide the necessary, specialized treatment for the child.

In support of their motion for summary judgment, the defendants offered the opinion of the medical review panel as well as the deposition testimony of Drs. Palder and Viator that stated the defendants did not breach the applicable standards of care. Thus, to avoid having the summary judgment granted in favor of the defendants, the plaintiffs were required to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial. Specifically, they had to submit evidence in the form of deposition testimony or an affidavit from a physician specializing in pediatric nephrology and/or pediatric | ^critical care that opined Drs. Boineau and Aking-bola and the staff at Tulane Hospital had breached the applicable standards of care in their treatment of Shaylon.

In opining that the defendants breached the applicable standard of care, the plaintiffs’ expert, Dr. Adams, admits in his affidavit that there are differences in fluid management between children and adults. However, nowhere does he aver that he has done a residency or fellowship or received any training in pediatrics, much less pediatric critical care or pediatric nephrology. Absent any evidence to indicate Dr. Adams is qualified to render an expert opinion regarding pediatric ne-phrology or pediatric critical care, the plaintiffs cannot satisfy their burden of proof as required by La. R.S. 9:2794 A. Thus, we find the trial judge was correct in rendering summary judgment as a matter of law in favor of the defendants and dismissing the plaintiffs’ medical malpractice claims.

In view of our conclusion that the plaintiffs will not be able to meet their burden of proving a breach in the applicable standards of care, we need not consider the plaintiffs’ fourth and fifth assignments of error relative to the trial court’s determining the admissibility of and weight given to expert testimony.

DECREE

Accordingly, for the reasons set forth above, we affirm the judgments of the trial court rendered in favor of the defendants, dismissing the plaintiffs’ medical malpractice claims against them.

AFFIRMED.

      . The Administrators of the Tulane Educational Fund d/b/a Tulane University Health Sciences Center is a separate and distinct entity from the Tulane University Hospital and Clinic, which is owned and operated by University Healthcare System L.C.

      . BUN or blood urea nitrogen is a metabolic by product of the liver from the breakdown of blood, muscle and protein. Abnormal elevation in the BUN level can indicate renal disease, dehydration, congestive heart failure, gastrointestinal bleeding, starvation, shock, or a urinary tract obstruction.
      Creatinine is a waste product of protein metabolism that is found in the urine. An abnormally elevated blood creatinine level is common in individuals with kidney failure.

      .A nephrologist is a specialist in the treatment of kidney insufficiency and kidney disease.

      . A “code" is a signal indicating a life threatening, emergency situation.

      . Epinephrine is an adrenal hormone used medicinally as a cardiac stimulant for the treatment of abnormally low or absent blood pressure.

      . A computed tomography scan is a special radiographic technique that uses a computer to assimilate multiple x-ray images into a two dimensional cross-section image.

      . A tracheostomy is the surgical creation of an artificial airway in the trachea (windpipe) on the front of the neck.

      . The appeal record contains neither a transcript of the hearing on the motion for summary judgment nor written reasons for judgment from the trial court. However, at the oral argument in this case, the attorneys acknowledged that the trial judge concluded that Dr. Adams, an adult heart surgeon, was not qualified to render an opinion on pediatric nephrology or pediatric critical care.

      . La. C.E. art. 702 provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Levon LEBAN v. ORLEANS PARISH SCHOOL BOARD.
    No. 2007-CA-0571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2007.

      Charles M. Samuel, III, Rittenberg Samuel & Phillips, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Philip A. Costa, Costa Law Firm (APLC), New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   DENNIS R. BAGNERIS, SR., Judge.

|,The plaintiff, Levon LeBan, was dismissed as a tenured classroom teacher for willful neglect of duty and immorality by the Orleans Parish School Board (“OPSB”) on December 16, 2003. Mr. LeBan petitioned the district court for review of OPSB’s decision. The district court reversed OPSB’s dismissal of Mr. Leban and ordered that the OPSB reinstate all lost benefits to him. For the following reasons, we affirm the judgment of the district court.

FACTS

Mr. LeBan was a tenured teacher who had been employed by OPSB since the 1981-82 school year. On April 30, 1996, Ms. Antoinette Miller, one of Mr. LeBon’s biology students at Walter S. Cohen Senior High School, accused Mr. LeBon of sexual harassment. On May 1 and May 3, 1996, the school principal, Leroy Gray, convened a “Level 1” conference with Mr. LeBan to inform him that a complaint had been made and, at that time, Mr. LeBan denied the accusations. Although Ms. Miller did not attend the “Level 1” conference, Mr. LeBan alleges that Mr. Gray recorded Ms. Miller’s “full statement”, and that he played the recorded statement to him at that time. Mr. Gray then forwarded the complaint to the OPSB Compliance Department for an investigation. Mr. Joseph Falls, a | ¡¡representative from the OPSB Compliance Department then visited the school and prepared a report. However, the OPSB did not convene for the “Level II” administrative hearing until November 5, 2001, five and one-half years after the sexual harassment complaint was made. On November 15, 2001, the OPSB hearing office held a Level III administrative hearing to review the 1996 sexual harassment accusation. At this hearing, for the first time, Mr. LeBan was given the opportunity to confront Ms. Miller, the student who made the complaint in 1996. Although Ms. Miller claimed that some of the harassment took place in front of the entire class, and that Mr. LeBan had made inappropriate comments to the entire class, no other students were brought to testify. Thereafter, on November 21, 2001, then New Orleans Public School System Superintendent/CEO Col. Alphonse Davis recommended Mr. LeBan’s dismissal from employment based upon the student’s harassment complaint.

It is worth noting at this time that on August 21, 1996, Mr. LeBan was accused of improprieties relating to his attendance. Between August 21, 1996 and November 19, 1996, the New Orleans Public School System convened a series of conferences and hearings as required by OPSB policies, rules and regulations, for the purpose of reviewing Mr. LeBan’s attendance matters only. During this time, the school board failed to bring forth any matters related to the sexual harassment accusation, nor did the school board give Mr. LeBan the opportunity to respond to or refute any evidence relating to the sexual harassment accusation. On April 28, 1997, the New Orleans Public School System Superintendent Morris Holmes lodged charges of willful neglect of duty and immorality against Mr. LeBan, \xrelating to the attendance matters only. However, on March 16, 2000, after a two day hearing related to the attendance matter only, then New Orleans Public School System CEO Col. Alphonse Davis withdrew the nonsexual charges against Mr. LeBan as part of a negotiated settlement, and reinstated Mr. LeBan into active service as a teacher.

Thereafter, in December of 2003, two years after the administrative hearings relating to the sexual harassment accusation, and seven and one-half years after the student made her complaint, the OPSB convened a “tenure hearing” under La. R.S. 17:462, to consider the sexual harassment charges. Mr. LeBan’s counsel subpoenaed documents as well as a tape recorded statement taken by the principal; however, the documents and tape recording had disappeared during the seven and one-half year lapse. At the conclusion of the two day hearing, the OPSB found Mr. LeBan guilty of the charges of willful neglect of duty and immorality, and ordered his immediate discharge from employment.

On July 17, 2006, after reviewing the transcript and exhibits from the tenure hearing convened by the OPSB, together with briefs submitted by both counsel, and oral argument, the trial court judge reversed the decision of the OPSB. Specifically, in his reasons for judgment, the trial judge stated, in pertinent part:

The central question is whether or not Mr. Levon LeBan, a certified tenured teacher with 15 years experience, accused of sexual harassment, was discharged by the School Board of New Orleans without a fair hearing.
The original complaint was made on April 30, 1996 and no trial on the charges were set until October of 2001; five and one-half years after the complaint. This setting was for a Level II hearing and neither the complaining student nor any witness testified.
|4In November of 2001, a Level III hearing was held at which the complaining witness did testify. Mr. LeBan’s attorney timely asked for production of documents and tape recordings from the School Board for his defense, none of which were produced. In answer to their non-production, the defense lawyer was advised that no documents nor tape recordings would ever be produced because they had been “lost”.
This Court believes that Mr. LeBan’s ability to defend himself against the sex charges was so seriously impaired by this lack of production, that the charges should be dismissed.
Even while these serious charges were pending, other more minor charges, (relative to attendance), were brought against Mr. LeBan. These latter charges were tried, defended and dismissed in August 1996 without ever mentioning or setting the sex charges for a hearing. It goes without saying that the sex charges were much more serious than the minor attendance charges.
This unanswerable and inexcusable passage of time, the lost [sicjof documents, and the lost tape recordings may even had been responsible in part for the complaining witness’ memory lapse which her testimony at this later date reflects.
In addition to all of these deficiencies, the original sex charges were so improperly investigated by the School Board’s Compliance Department, that when the charges were finally tried, most of the evidence which defendant needed to defend himself were lost or gone.
For these reasons, the defendant’s ability to defend himself was so seriously impaired, that a trial on these charges was fundamentally unfair and they should be dismissed against Mr. LeBan. Also, the School Board is to reinstate all previous employee’s lost benefits to Mr. LeBan.

The OPSB now appeals this final judgment. On appeal, the OPSB assigns the following assignments of error: (1) that the trial court committed reversible error in failing to follow the proper standard of review with regard to the decision of the school board; and (2) that the trial court committed reversible error in failing to find that the formalities of the tenure law were followed and that the decision of the school board was based upon substantial evidence.

J^DISCUSSION

A tenured teacher has a constitutionally protected interest in continued employment. Franceski v. Plaquemines Parish School Bd., 772 F.2d 197 (5th Cir.1985). The Louisiana Teachers’ Tenure Act is designed to protect the job security of teachers, and the statute should be liberally construed in favor of its primary beneficiaries, tenured employees. Howell v. Winn Parish Sch. Bd., 332 So.2d 822, 827 (La.1976).

La. R.S. 17:443(A) provides in relevant part as follows:

A. A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency, dishonesty, or immorality, or of being a member of or contributing to any group, organization, movement, or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and then only if found guilty after a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder, the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.

Despite the provision for a full hearing, the standard for judicial review of a school board’s action is limited to whether there is a rational basis for the board’s determination supported by substantial evidence insofar as factually required. Howard v. West Baton Rouge Parish School Bd., 2000-3234 p. 7 (La.6/29/01), 793 |fiSo.2d 153, 157. Substantial evidence has been defined as “evidence of such quality and weight that reasonable and fair-minded men in exercise of impartial judgment might reach different conclusions.” Wiley v. Richland Parish School Bd., 476 So.2d 439, 443 (La.App. 2 Cir. 9/25/1985).

The reasons for dismissal of a teacher are largely within the sound discretion of the school board, whose judgment will not be disturbed absent a clear showing of an abuse of discretion. Gaulden v. Lincoln Parish School Bd., 554 So.2d 152, 157 (La.App. 2 Cir. 12/6/1989). The school board’s judgment thus should not be reversed in the absence of a clear showing of abuse of discretion. Id. However, if the action taken by the school board is arbitrary, capricious, or an abuse of discretion, it should be reversed. West v. Tangipahoa Parish School Bd., 615 So.2d 979, 981 (La.App. 1 Cir. 3/5/1993).

In this case, Mr. LeBan’s counsel has consistently argued throughout these proceedings that his client was prejudiced by having to defend charges relating back more than five and one-half years, and by the school board’s delay, of an additional two years, in hearing the case. Mr. LeBan cites to Jones v. Rapides Parish School Bd., 634 So.2d 1197 (La.App. 3 Cir. 5/19/1993) for guidance on how to handle a case such as this whereby the superintendent fails to formally institute charges against a tenured teacher until five years after the student made the complaint, and then waited another two years to hold the tenure hearing. In Jones, a tenured teacher was dismissed for willful neglect of duty. Specifically, during the dismissal proceedings before the school board, which occurred in 1989, the teacher was charged with incidents that occurred in 1984, 1985, and 1987-88, in addition to the 1989 incident that led to the dismissal action. The Third Circuit held that the school board could not rely upon the “old charges” — i.e. the 1984, |71985, and 1987-88 incidents, in dismissing the teacher. The Third Circuit stated that “[although no statute limits a school board’s power to consider past conduct in a current charge of willful neglect of duty, the lapse of time may bar prosecution when it would render a resulting conviction fundamentally unfair.” Jones at 1199. The Third Circuit agreed with the trial court’s finding that Jones was prejudiced and impaired in defending himself against some of the “older charges” and that the resulting conviction based on the older charges was fundamentally unfair. Id.

Similarly, in this case, the Superintendent and administration let this matter sit idle for five and one-half years before convening a hearing to give Mr. LeBan an opportunity to confront and cross-examine witnesses. After reviewing the record, we agree with the trial court that the OPSB’s decision to delay this disciplinary matter for five and one-half years, then for another two years, deprived Mr. LeBan of a meaningful opportunity to respond to the charge, and impaired his ability to defend himself against the charge of sexual harassment. The school board administration failed to properly gather and then preserve the documents, and then bring the charges in a timely fashion. To wait over seven years before discharging a teacher for alleged misconduct is fundamentally unfair as such a delay makes it impossible to gather evidence, particularly in a situation such as this where the witnesses are students.

Accordingly, we find that the school board’s decision to allow the hearing to go forward more than seven years after the alleged complaint was filed was arbitrary and an abuse of discretion. We find that a trial on the charge of sexual harassment under these circumstances was fundamentally unfair and thus, we hereby affirm the judgment of the trial court.

AFFIRMED.

      . Although Mr. Falls interviewed Ms. Miller [the student], Mr. LeBan, and three members of the school faculty [Ms. Lee, Mr. Lang and Mr. Murray], he never interviewed any students or asked faculty members about the accusation.