author: TERRI F. LOVE, Judge.

text:
    PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, LP v. MISSISSIPPI LAND HOLDINGS, INC., Formerly known as Convention Center Boulevard Hotel, Inc., Convention Center Boulevard Hotel, Limited, CFP-Riverfront Hotel Partners, L.P., Crow Family, Inc., Darryl D. Berger, Roger H. Ogden, et al.
    No. 2006-CA-0601.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.

      James R. Swanson, Loretta G. Mince, Lance C. McCardle, Correro Fishman Haygood Phelps Walmsley & Casteix, New Orleans, LA, for Patriot American Hospitality Partnership, L.P.
    Michael A. Patterson, Adrian G. Na-deau, Katherine G. Eckert, Long Law Firm, L.L.P., Baton Rouge, LA, for Schrenk & Peterson Consulting Engineers, Inc.
    Victor E. Stilwell, Jr., Joseph L. McRey-nolds, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Lyons & Hudson Architects, Ltd.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

11 This appeal arises from a dispute involving the sale of the Wyndham Hotel located at 701 Convention Center Boulevard in New Orleans. Patriot American Hospitality Partnership, L.P. purchased the hotel in 1997 and subsequently discovered extensive termite damage in weight bearing columns. It then sued the previous owners and businesses involved in a previous renovation. Lyons & Hudson Architects, Ltd. and Schrenk & Peterson Consulting Engineers, Inc. claimed that the suit was perempted due to the time limitations set forth in La. R.S. 9:5607. The trial court dismissed both parties without prejudice finding that the peremp-tive period of La. R.S. 9:5607 applies. Patriot American Hospitality Partnership, L.P. filed a motion for a new trial. The trial court denied the motion. We find that the peremptive period set forth in La. R.S. 9:5607 applies to the case sub judice and affirm the decision of the trial court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 16,1997, Patriot American Hospitality Partnership, L.P. (“Patriot”) purchased the Wyndham Hotel (“the Hotel”) from Mississippi Land Holdings, Inc. (formerly known as Convention Center Boulevard Hotel, Inc.); Convention Center Boulevard Hotel, Limited; CFP-Riverfront Hotel Partners, L.P.; Land Crow Family, Inc. (hereinafter referred to as “the Crow Entities”). From 1995 to 1996, the owners hired several businesses to complete a massive renovation project on the over one-hundred year old rice warehouse, which included adding two new wings. The Crow Entities discovered and repaired some termite damage. In 1996, the Crow Entities accepted possession of the remodeled structure and subsequently sold it to Patriot.

However, in 2003, Patriot began investigating the structural integrity of the building. Patriot found extensive damage to the columns and beams in the original structure that existed during the renovation. The termite damage compromised the structural integrity of the building and resulted in the closure of the Hotel for repairs. Patriot sold the Hotel in 2005.

On September 20, 2004, Patriot filed a petition against the Crow Entities; Darryl Berger; Roger Ogden; W.S. Bellows Con-struetion Corporation; and Lyons & Hudson Architects Ltd. (“Lyons”) alleging that they knew of the extensive pre-renovation damage and did not repair it. Patriot then amended its petition on November 5, 2004, to add Arrow Pest Control of New Orleans and Schrenk & Peterson Consulting Engineers, Inc. (“Schrenk”) as defendants.

Schrenk, the engineers of the renovation, filed a peremptory exception of per-emption, based on La. R.S. 9:5607, and claimed that any claims were perempted within five years of the owner taking possession of the completed renovation; thus, in the case sub judice, 2001. Lyons, the architects involved in the renovation, then filed an exception of no cause of action or alternatively a motion for summary judgment based on the same peremptive period contained in La. R.S. 9:5607. Lyons filed an exception of no cause of action, no right of action, motion for summary judgment, or partial summary judgment.

|sThe trial court sustained Lyons’ exception of no cause of action or motion for summary judgment and granted Schrenk’s peremptory exception of peremption. Further, the trial court held that Patriot’s demands and causes of action against Lyons and Schrenk (hereinafter referred to as “the Defendants”) were perempted by La. R.S. 9:5607. The trial court dismissed all claims against the Defendants without prejudice and ordered each party to bear its own costs.

Patriot filed a motion for a new trial. The trial court denied Patriot’s motion and adopted the following pleadings as its reasons for judgment: Schrenk’s opposition to Patriot’s motion for a new trial, Lyons’ opposition to Patriot’s motion for a new trial, and Lyon’s sur-reply. Patriot’s timely devolutive appeal followed.

Patriot asserts that the trial court erred by holding that La. R.S. 9:5607 perempts its claims against the architect and engineer involved in the renovation based on the premise that its property right vested prior to the enactment of La. R.S. 9:5607.

STANDARD OF REVIEW

Appellate courts review peremptory exceptions by reviewing the entire record “to determine whether the trial court was manifestly erroneous with its factual conclusions.” Roadhouse Bar-B-Que, Inc. v. Certain Underwriters At Lloyds, 04-1697, p. 5 (La.App. 3 Cir. 5/4/05), 909 So.2d 619, 623, quoting Parker v. Buteau, 99-519, p. 3 (La.App; 3 Cir. 10/13/99), 746 So.2d 127, 129.

A trial court’s denial of a motion for a new trial will only be reversed upon a finding of an abuse of discretion. Raiford v. U.S. Indus./Ames Lawn & Garden Tools, 05-0815, p. 10 (La.App. 4 Cir. 5/3/06), 929 So.2d 288, 294.

PEREMPTION

The exception of no cause of action is a peremptory exception. La. C.C.P. Part. 927. “The peremptory exception may be pleaded at any stage of the proceeding.” La. C.C.P. art. 928. If amendment of the petition can cure the basis for the peremptory exception, the trial court “shall order such amendment within the delay allowed by the court.” La. C.C.P. art. 934. “Per-emption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461.

Retroactivity of La. R.S. 9:5607

Patriot contends that its cause of action accrued when it purchased the Hotel in 1997, which dictates that the applicable peremptive period is ten years, pursuant to the version of La. R.S. 9:2772 effective in 1997. The Defendants counter that the cause of, action did not accrue until Patriot discovered the termite damage in late 2003, which dictates an applicable peremp-tive period of five years from the date the owner accepted the renovated property pursuant to La. R.S. 9:5607. La. R.S. 9:5607 became effective on July 1, 2003, and reads, in pertinent part:

A. No action for damages against any professional engineer ... or any professional architect ... whether based upon tort, or breach of contract, or otherwise arising out of an engagement to provide any manner of movable or immovable planning, construction, design, or building, which may include but is not limited to consultation, planning, designs, drawings, specifications, investigation, evaluation, measuring, or administration related to any building, construction, demolition work, shall be brought unless filed in a court of competent jurisdiction and proper venue at the latest within five years from:
(1) The date of registry in the mortgage office of acceptance of the work by the owner;
C. The five-year period of limitation provided for in Subsection A of this Section is a peremptive period within the meaning of Civil Code Article 3458 and in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
D. The provisions of this Section shall take precedence over and supersede the provisions of R.S. 9:2772 and Civil Code Articles 2762 and 3545.

|BThe Louisiana Revised Statutes are not applied retroactively “unless expressly so stated.” La. R.S. 1:2. The Louisiana Civil Code also provides guidance regarding the retroactivity of laws in La. C.C. art. 6, which reads:

In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.

The legislative expression exhibited in La. R.S. 9:5607 states that it supersedes the provisions of La. R.S. 9:2772. However, it does not specifically reflect whether the peremptive period is meant to supersede La. R.S. 9:2772 by applying retroactively. Accordingly, we must determine whether La. R.S. 9:5607 is a substantive or procedural change. Davis v. Willis-Knighton Med. Ctr., 32,193, p. 3 (La.App. 2 Cir. 8/18/99), 738 So.2d 1191, 1193.

“[Statutes of limitation are remedial in nature and as such are generally accorded retroactive application.” Lott v. Haley, 370 So.2d 521, 523 (La.1979); Saucier v. Drs. Houston, Roy, Faust & Ewin, 446 So.2d 877, 878 (La.App. 4th Cir.1984). Although La. C.C. art. 6 states that procedural and interpretive laws apply prospectively and retroactively, it is “subject to the exception that procedural and remedial laws are not accorded retroactive effect where such retroactivity would operate unconstitutionally to disturb, vested rights.” Lott, 370 So.2d at 523.

“Under Louisiana law, a cause of action accrues when a party has the right to sue.” Landry v. Avondale Indus., Inc., 03-0719, 03-0993, 03-1002, p. 4, (La.12/3/03), 864 So.2d 117, 122, quoting Bourgeois v. A.P. Green Indus., Inc., 00-1528, p. 9 (La.4/3/01), 783 So.2d 1251, 1259. Fault, causation, and damages are required for a cause of action to exist. Owens v. Martin, 449 So.2d 448, 450-51 6(La.l984). “Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” Cole v. Celotex, 599 So.2d 1058 (La.1992).

Patriot argues that it suffered damage in 1997 when it purchased the Hotel as opposed to late 2003, when it discovered the structural damage caused by termites. Patriot relies upon jurisprudence regarding long latency asbestos related diseases to support its contention that it suffered damage when it purchased the Hotel. See Austin v. Abney Mills, Inc., 01-1598, pp. 26-27 (La.9/4/02), 824 So.2d 1137, 1154-55; Cole, 599 So.2d at 1068.

We find Patriot’s jurisprudence distinguishable. Discerning the date of damage from alleged pre-purchase termite damage is not as complex as determining the dates of asbestos exposure sufficient to cause an asbestos related disease, which fact the above-cited cases relied upon in determining that damage occurred to those plaintiffs when they received substantial asbestos exposure. Louisiana jurisprudence regarding property damage has held that the “effects of excessive settlement did not become ‘damage’ until it was discovered.” Korossy v. Sunrise Homes, Inc., 94-473 (La.App. 5 Cir. 3/15/95), 653 So.2d 1215, 1226. Referring to the discovery of termite damage, James Pest Control, Inc. v. Scottsdale Ins. Co., 99-1316 (La.App. 5 Cir. 6/27/00), 765 So.2d 485, 491, held that “the effects of the termite infestation ... did not become ‘damage’ until it was discovered.”

This Court examined the discovery of property damage and how that date affected a plaintiffs cause of action. 639 Julia St. Partners v. City of New Orleans, 02-0777 (La.App. 4 Cir. 11/13/02), 830 So.2d 1131. In 639 Julia, the plaintiff purchased a building in 1985. Id. at pp. 1-2, 830 So.2d at 1132. In 1987, |7cracks started forming in the building. Id. at p. 2, 830 So.2d at 1132. The plaintiff filed a petition in 1998 attributing the cracks to the settlement of its building. Id. However, it later determined that trees planted by the City of New Orleans were the cause of the cracks. Id. In determining which version of La. C.C. art. 2324 applied, this Court examined when the cause of action accrued. 639 Julia, 02-0777, p. 5, 830 So.2d at 1134. The plaintiff admitted that it “did not acquire or could not have acquired the knowledge of what was the cause of their property damage until 1998.” Id. While this Court acknowledged that the “single wrongful conduct was the negligent selection and planting of the red oak trees,” we also held that it was not latent and was “continuing only in the sense of the gradual tree growth.” Id., at p. 6, 830 So.2d at 1135. Thus, this Court determined that the cause of action arose in 1998. Id.

In the case sub judice, Patriot admits that they did not acquire or could not have acquired knowledge of the alleged preexisting termite damage until 2003. While the alleged tort was latent in that they allege that the termite infestation did not continue, this cáse does not rise to the level of complexity regarding the determination of the accrual of damages like that in Patriot’s referenced asbestos cases. Patriot did not acquire the right to sue until it discovered the damage in 2003.

Accordingly, we find that the trial court was not manifestly erroneous in its factual conclusions that Patriot did not suffer damage until 2003; therefore, the peremp-tive period from La. R.S. 9:5607 applies.

MOTION FOR A NEW TRIAL

A motion for a .new trial “may be granted, upon contradictory motion of any party or by the court.” La. C.C.P. art. 1971. The trial court must grant a new trial | swhen. the “judgment appears clearly contrary to the law and the evidence.” La. C.C.P. art. 1972. We find that the trial court did not abuse its discretion by denying Patriot’s motion for new trial as nothing could cure peremption.

DECREE

For the above-mentioned reasons, we find that the peremptive period set forth in La. R.S. 9:5607 applies and affirm the decision of the trial court.

AFFIRMED.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Doris Jean Prisock DUPREE Plaintiff-Appellee v. John E. DUPREE, Jr. Defendant-Appellant.
    No. 41,572-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2006.

      James Willis Berry, Counsel for Appellant.
    Donald L. Kneipp, Counsel for Appellee.
    Before CARAWAY, DREW and MOORE, JJ.
   DREW, J.

hBoth the ex-husband in his appeal and the ex-wife in her answer to her ex-husband’s appeal asserted that the trial court erred in partitioning their former marital community property. John E. Dupree, Jr., complained that the trial court incorrectly ordered him to reimburse Doris Jean Prisock Dupree for half of her separate funds used for community expenses and in awarding his ex-wife 40 acres and a motorcycle.

According to Doris, the trial court erred in ruling she waived .her claims for reimbursement of her separate funds used to extinguish community obligations after the termination of the community. In addition, Doris objected to the trial court’s refusal to include certain of John’s checking accounts and certificates of deposit as community property in calculating the partition. Finally, Doris asserted that the trial court incorrectly omitted the civil fruits of John’s separate property as community property in allocating community assets.

In very detailed and carefully-considered reasons for judgment, the trial court gave scholarly explanations for the judgment partitioning the community assets and ordering the equalizing payment from John to Doris. We amend the judgment of the trial court to increase by $9,145.52 the equalizing payment from John to Doris. In all other respects, the judgment of the trial court is affirmed.

BACKGROUND

06/02/1973 Marriage.
Two children born of marriage.
1203/26/2001 Doris filed declaration of separateness of property by which she reserved as separate the civil fruits derived from her separate property.
03/26/2001-06/21/2003 Parties acknowledged that Doris deposited separate funds of $284,008.32 into community checking account during that period.
03/2003 Parties separated.
06/21/2003 Doris filed for divorce.
02/07/2004 Divorce judgment terminating community as of May 21, 2003.

While married to John, Doris received an inheritance from her father and donations from her mother of bank stock and other assets which produced large dividends. Doris deposited the dividends into a community checking account and spent the monies on the family. John acknowledged that, from the date that Doris filed the declaration making the dividends her separate property on March 26, 2001, until the termination of the community on May 21, 2003, those deposits totaled $284,008.32. Although both spouses were signatories on the checking account, it was used almost exclusively by Doris.

During this period, John worked as a registered nurse at LSU Hospital in Monroe at a salary of some $44,000.00 per year and also farmed on the 40-acre tract in dispute. John also received an inheritance from his parents during the marriage. According to Doris, John’s support of the family consisted of a monthly payment to her of approximately $1,400.00. By stipulation, the parties agreed to the value and community nature of certain assets and debts.

|aDISCUSSION

The property of married persons domiciled in Louisiana is either community or separate. La. C.C. art. 2335. La. C.C. art. 2338 defines community property:

The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

What constitutes separate property is set out in La. C.C. art. 2341:

The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

Property possessed by a spouse during the existence of the community property regime is presumed community, although either spouse may prove it to be separate property. La. C.C. art. 2340. The natural and |4civil fruits of separate property are community property; however, a spouse may reserve them as separate property by a declaration made in authentic form effective from the date the declaration is filed in the public records. La. C.C. art. 2339. An obligation incurred by a spouse for the common interest of the spouses or for the interest of the other spouse is a community obligation. La. C.C. art. 2360. Except as provided in La. C.C. art. 2363, obligations incurred during the community property regime are presumed to be community obligations. La. C.C. art. 2366. Reimbursement from the Community to Doris for Separate Funds Used

In response to Doris’s claim for reimbursement from the community for half the amount of her separate funds spent for community obligations and expenses, John argued that the money was spent for exorbitant luxuries which exceeded the ordinary needs and expenses of the family. As examples, John cited:

• Doris’s monthly lease payment of $1,050.00 for a large luxury model Lexus; and
• more than $10,000.00 per month Doris spent for clothing, gifts, pool expenses, furniture, landscaping, and jewelry.

Conceding the separate nature of the aforementioned dividends, John agreed that the money was Doris’s to spend as she chose. Since the | ^expenses were well beyond the needs and means of the parties, John argued that the community should not be ordered to reimburse Doris for half of the expenditures which were not ordinary expenses of the marriage.

In Doris’s view, the trial court correctly found the funds were spent for community-expenses and benefitted the entire family by maintaining their 4,500-square-foot residence, pool, yard, and comfortable lifestyle, along with educating their children in private schools. John for many years enjoyed the lifestyle which Doris’s separate funds provided. Doris testified that John did not pay for his daughter’s education or expenses or for their home and its furnishings. This permitted John to hoard his assets. Among the benefits to John were a luxurious home on which he never paid a mortgage note; interests in two airplanes during the marriage; sheepskin seats in the airplane; new, nicely-equipped trucks; recreation land upon which to hunt; and recreational vehicles. Moreover, John obtained a college education and nursing degree without having any financial worries after he and his father sold their family business a number of years earlier.

The trial court correctly ruled that under La. C.C. art. 2361, Doris was entitled to the benefit of the legal presumption that the $284,008.32 was used to satisfy community obligations. To defeat Doris’s claim for reimbursement, John had to prove under La. C.C. art. 2363 that the expenditures were not for the common interest of the spouses or for John’s interest, but were incurred for Doris’s separate property for which neither the community nor the family received any benefit. The trial court stated:

John produced no evidence that any of these expenditures were incurred for Doris’ separate property. His basic argument focuses on | fithe amount of money Doris spent on clothing, gifts, furnishings, jewelry, transportation and related items which he testified were primarily to satisfy the extravagant lifestyle of his ex-wife and daughters. However, an obligation which improves the community property- assets or fulfills his alimentary obligation to his daughters or was incurred for the common interest of the spouses is a community obligation. La. C.C. arts. 227, 229, 230, 2349, 2360, 2362, and 2367.
A review of thé expenditures in question reveals that most of the expenditures were for clothing, household items and furnishings, ■ transportation ' expenses, swimming pool necessities, house and yard maintenance, taxes, insurance premiums, medical needs, educational and extracurricular activities for his minor child and other customary expenses of the marriage for which he received a direct benefit.

Noting that the evidence showed the family enjoyed the benefits flowing from Doris’s separate property for many years, the trial court correctly concluded that the expenses John characterized as extravagant were not beyond the normal and customary expenses of this marriage. The testimony and documentation placed into evidence showed that, without Doris’s separate funds, the family would not have been able to have enjoyed the lifestyle to which they - were accustomed. John’s monthly contributions to the family were insufficient to finance, maintain and pay the monthly expenses for their large home, swimming pool and yard and to provide clothing, food, transportation, medical expenses and related costs for the family.

To John’s contention that he did not agree or consent to the family’s "lifestyle, the trial court noted that Doris was not required to have John’s consent to make the expenditures. La. C.C. art. 2346 provides for equal management of community property and directs that each spouse alone may manage, control and dispose of community property. The trial court found it would be “inequitable to deny Doris’s reimbursement claim because some |7of the expenses about which John complains are beyond the reach of most people living in Richland Parish.” The use of Doris’s separate funds inured to the benefit of the community, the family and John who failed to overcome the Article 2361 presumption in Doris’s favor. Therefore, the trial court found Doris entitled to reimbursement from the community assets the sum of $142,004.16, or half the amount of the funds stipulated to be her separate property.

In Doris’s answer to John’s appeal, Doris claimed the trial court erred in finding she waived her claims for reimbursement for payment of community debts with her separate funds after the termination of the community. Doris did not include this issue in post-trial brief, and the trial court assumed in footnote 2 of the unpublished addendum that Doris had abandoned her claims for reimbursement after the termination of the community. Placed into evidence at trial was an itemized list of those expenses totaling $18,291.05, primarily for insurance premiums on community property, taxes, and car payments. Doris testified at trial about many of these items and pointed out in her appellate brief that John did not provide evidence disputing that these were community debts. Doris’s weak explanation of this omission from her post-trial brief was that she concentrated on more complex and contested issues. However, the record supports her contention that she is entitled to reimbursement for half of these expenditures. Therefore, the amount of equalizing payment ordered by the trial court from John to Doris is amended and increased by $9,145.52.

| ^Motorcycle and 4-0-Acre Tract

John objects to the 2001 Harley-Davidson motorcycle having been included in the community property partition and awarded to Doris. According to John, Doris gave him the motorcycle in full ownership as a Christmas gift, which she judicially admitted in a petition for revocation of a donation filed in the record. At trial, John stated that Doris paid for the motorcycle and that it was presented as a gift to him. When asked if the motorcycle was a gift for the couple, John said he could not answer that but his wife probably could. John acknowledged that Doris rode the motorcycle with him. Doris stated she. wanted the motorcycle.

John initially testified he was willing for Doris to have the motorcycle and other assets and wanted no compensating payments for community assets. John explained in later testimony that he was confused by the questioning and wanted all community assets split equally with him receiving a compensating payment if the amount Doris received exceeded his share. John’s complaints about the motorcycle being his separate property by virtue of a gift are belied by the joint stipulation filed by the parties that listed the motorcycle as community property.

In the stipulation filed into the record, the parties also agreed that the disputed 40-acre tract was community property. While John contended that the trial court erred in allocating this asset to Doris, John does not state how or why this was erroneous. John simply states that he wanted the acreage assigned to him. In Roan v. Roan, 38,383 (La.App.2d Cir.4/14/04), 870 So.2d 626, this court noted that the trial court has much discretion in 1 gvaluing and allocating assets and liabilities in community property partitions and must consider the source and nature of each asset or liability, the financial situation of the other spouse, and any other relevant circumstances. La. R..S. 9:2801, et seq. An appellate court may not set aside a trial court’s factual findings absent manifest error or unless clearly wrong. Roan, supra. We can discern no abuse of discretion or clear error in the trial court’s allocation of the acreage and the associated debt along with the motorcycle to Doris.

Rulings on John’s Bank/Investment Accounts and Certificates of Deposit

Finding that Doris had failed to follow the procedure required by La. R.S. 9:2801, et seq., to place at issue assets alleged to be part of the community, the trial court refused to include those items in the partition of the community. In response to Doris’s interrogatories, John included the following assets which were not on his detailed descriptive list:

Commercial National Bank
• CD #8000951 $125,065.82 inherited
• CD #8000965 $ 20,000.00 inherited
• Cheeking #2007452 $ 89,493.03 inherited
Guaranty Bank & Trust
• Checking #1092103 $ 7,474.38
• CD $ 40,000.00 inherited
• CD $ 13,402.17

Doris’s initial sworn detailed descriptive list of community property filed July 26, 2004, did not contain any reference to the foregoing assets. On October 6, 2004, John filed his sworn detailed descriptive list, which did not include those assets which John considered his separate property. Doris hndid not include any reference to the funds in her December 7, 2004, traversal of John’s sworn detailed descriptive list. John filed his traversal of Doris’s sworn detailed descriptive list and his amended detailed descriptive list of community property on April 1, 2005. The trial court observed that John’s response to Doris’s interrogatories contained information about the CDs and checking accounts and was mailed to Doris’s attorney on May 10, 2005. Thereafter on July 1, 2005, prior to the trial held July 5 and August 12, 2005, Doris filed an amended sworn detailed descriptive list, which did not raise the ownership of the assets. Notwithstanding testimony about these assets at both days of the trial, Doris did not place these assets at issue and first raised her claim that they be included in the partition in her post-trial brief to the trial court.

The trial court explained:
This court finds that even though Doris had sufficient notice and opportunity to place these assets at issue during these proceedings, she failed to make this known to John or this court until after the trial had concluded. John testified about the certificates of deposit and the checking accounts during the trial; however, he did not have “fair notice” that Doris intended to place them at issue as items to be partitioned in the proceedings.
This court considered John’s testimony during cross-examination about these assets in light of Doris’ attempts to reveal John’s alleged nefarious decision to keep his money to himself. Since these assets had not been included in the detailed descriptive lists, this court understood that Doris was eliciting this testimony to show why she was required to infuse her separate property funds into the community checking account so that this family could enjoy their high standard of living. This testimony was not considered by this court as an effort on Doris’ part to expand her detailed descriptive list to include these assets as potential community property.

In While John’s testimony about these assets being separate property was inconclusive, the record supports the trial court’s conclusion that Doris had notice well in advance of trial that he claimed them to be his separate property. Doris did not contest John’s characterization of the assets as separate or make demand that those assets be included in the partition until after the conclusion of the trial.

La. C.C.P. art. 862 provides that a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief. As the trial court properly observed, art. 862 does not permit a trial court to decide issues which litigants have not raised. See Wilson v. Wilson, 30,445 (La.App.2d Cir.4/9/98), 714 So.2d 35.

The trial court also recognized that La. C.C.P. art. 1154 permits expansion of pleadings to include issues not raised in pleadings when the issue is tried by the express or implied consent of the parties. The very specific procedural requirements of La. R.S. 9:2801 govern judicial partitions of community property. Despite knowing that John considered the CDs and checking accounts his separate property, Doris failed to place them at issue and did not assert she wanted them included in the partition until after the conclusion of the trial. It is not necessary for this court to examine the legal status of those assets because they were not properly raised at trial. We find no error in the trial court’s rejection of Doris’s claims based upon her failure to place them at issue according to the | ^mandates of La. R.S. 9:2801 when she had notice, time, and opportunity to do so.

CONCLUSION

The judgment of the trial court, which apportioned the assets and debts of community formerly existing between Doris and John and ordered an equalizing payment from John E. Dupree, Jr., to Doris Jean Prisock Dupree in the amount of $67,565.33, is amended to increase the equalizing payment by $9,145.52 to a total of $76,710.85. In all other respects, the judgment of the trial court is affirmed. Costs of the appeal are to be paid equally by the parties.

AMENDED AND, AS AMENDED, AFFIRMED.

      . The trial court’s extensive Reasons for Judgment are attached as an unpublished addendum.

      . See discussion entitled "Classification of Assets” in Katherine S. Spaht and W. Lee Har-grave, Matrimonial Regimes, § 3.1, 16 Louisiana Civil Law Treatise (2d ed.1997).

      . A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse. An obligation incurred after termination of a community property regime, except an obligation incurred for attorney’s fees and costs under Article 2362.1, is a separate obligation.
      An obligation resulting from an intentional wrong not perpetrated for the benefit of the community, or an obligation incurred for the separate property of a spouse to the extent that it does not benefit the community, the family, or the other spouse, is likewise a separate obligation.


author: ROLAND L. BELSOME, Judge.

text:
    TOURO INFIRMARY v. SIZELER ARCHITECTS, a Professional Corporation.
    No. 2006-CA-0349.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.
    James M. Garner, Timothy B. Francis, Martha Y. Curtis, Howard T. Boyd, Shar-onda R. Williams, Sher Garner Cahill Richter Klein & Hilbert, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Charles M. Lanier, Jr., Kevin R. Tully, H. Carter Marshall, Christovich & Kear-ney, L.L.P. New Orleans, LA, for Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

Appellant, F.L. Crane <& Sons, Inc., filed this appeal from a judgment denying its exception of prematurity. The denial of an exception of prematurity is an interlocutory judgment. Louisiana Code of civil Procedure Article 2083(C) governs the ap-pealability of interlocutory judgments. Recent amendments to Article 2083 took effect on January 1, 2006. In its present form, Article 2083 provides that an interlocutory judgment is appealable only when expressly provided for by law. La. C.C.P. art. 2083(C). The proper procedural vehicle to contest an interlocutory judgment that is not immediately appealable is an application for supervisory writ. See La. C.C.P. arts. 2087 and 2201. In the instant matter, the appellant has exhausted that option. Accordingly, this appeal is dismissed.

APPEAL DISMISSED WITHOUT PREJUDICE.

      . Application for supervisory writ No. 2005-C-0955, denied on December 12, 2005.


author: CHARLES R. JONES, Judge.

text:
    In re Medical Review Panel Proceedings Regarding the Death of Joshua MATRANGA. Joseph J. Matranga, III, Individually and on Behalf of his Deceased Minor Son, Joshua Matranga v. St. Paul Fire and Marine Insurance Company, Children’s Hospital and Alan M. Robson, M.D.
    Nos. 2006-CA-0604, 2006-CA-0605.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 20, 2006.

      R. Ray Orrill, Jr., Leslie A. Cordell, W. Christopher Beary, Orrill, Cordell & Beary, L.L.C., New Orleans, LA, for In-tervenor/Appellant, Jodi Caronna.
    Charles C. Foti, Jr., Attorney General, Don Paul Landry, Special Assistant Attorney General, Alan J. Yacoubian, Special Assistant Attorney General, Nicholas J. Lorusso, Special Assistant Attorney General, Johnson, Johnson, Barrios & Yacou-bian, New Orleans, LA, for Appellee, Lisa Fuller, M.D.
    Peter E. Sperling, John B. Cazale, Fri-lot Partridge, L.C., New Orleans, LA, for Appellee, Children’s Hospital.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and JUDGE TERRI F. LOVE).
   CHARLES R. JONES, Judge.

hThe Appellant/Intervenor seeks review of an adverse district court judgment, which denied her request to be added as co-plaintiff in a medical malpractice action because the prescriptive period to file her claim had run. We Reverse.

This appeal arises from a medical malpractice action brought by Joseph Matran-ga, III, the father of Joshua Matranga. The suit alleges improper treatment of Joshua, who was brought to Children’s Hospital on July 28, 1999, and died eight days later on July 31,1999.

Mr. Matranga and the Appellant, Jodi Caronna, were married in 1979. Three children were born of this union: Jaclyn, Joseph, and Joshua. Joshua was admitted to Children’s Hospital upon presentation for treatment of “non-Hodgkin’s lymphoma/Burkitt’s lymphoma,” which the Petition alleges is a “treatable and curable disease.” Mr. Matranga and Ms. Caronna divorced in 1991.

After Joshua’s death, Mr. Matranga filed a complaint with the Louisiana Patient’s Compensation Fund on July 17, 2000. Subsequently he- filed- a First Supplemental and Amended Complaint on May 9, 2001, and added additional healthcare providers as defendants.

LA Medical Review Panel convened to render an opinion regarding the actions of Children’s Hospital and Dr. Alan Robson, the private medical care provider, named as defendants in the complaint. However, the Medical Review Panel concluded that the evidence did not support the allegation that the standard of care had been breached by either Children’s Hospital or Dr. Robson.

Mr. Matranga filed his original Petition for Damages on September 5, 2002, in Civil District Court for the Parish of Orleans. In the suit, he named Children’s Hospital, Dr. Robson, and St. Paul Fire and Marine Insurance Company as defendants.

On May 7, 2004, a second Medical Review Panel was convened to address the allegations made against Dr. Lisa Fuller, another treating physician. However, the Panel, again, concluded, that the evidence did not support the allegation that the standard of care had been breached. In response, Mr. Matranga filed a First Supplemental and Amending Petition for Damages, adding Dr. Lisa Fuller, Dr. David Ode, Dr. Rajsekharan Warrier, Dr. Aarati Rao, and Dr. Matti Vehaskari as defendants.

On April 26, 2005, the Appellant filed her Petition of Intervention seeking to be recognized as a co-plaintiff in the suit. In her Petition, she adopted all of the allegations made by Mr. Matranga in his First and Supplemental Amending petitions. The Appellant also averred that since the allegations in her Petition of Intervention arose out of the same conduct, transaction, or occurrence set forth in Mr. Matranga’s original Petition, she argued that her Petition of Intervention related back to the filing of the original Petition filed by Mr. Matranga.

|sDr. Fuller, Dr. Ode, Dr. Warrier, and Dr. Rao filed an Answer to the Appellant’s Petition of Intervention. ' In the Answer they essentially argued that the Appellant’s Petition of Intervention was barred by prescription.

On July 25, 2005, Dr. Rao, Dr. Ode, Dr. Robson and Children’s Hospital,, the original named defendants, filed an Exception of Prescription. After a hearing on the exception, the district court subsequently granted the exception on March 10, 2006, thereby dismissing the Appellant’s claims against the defendants, with prejudice. This timely appeal followed.

In her first assignment of error, Ms. Caronna argues that the district court erred in granting the Appellees’ exception of prescription in response to her “post-prescription” petition of intervention.

Recently, in Katz v. Allstate Ins. Co., 2004-1133, (La.App. 4 Cir. 2/2/05), 917 So.2d 443, this Court reiterated the standard of review for a peremptory exception of prescription as follows:

“[i]n reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s 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, 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).
Further, “the standard controlling review of a peremptory exception of prescription requires that this court strictly construe the statutes ‘against prescription and in favor of the claim that is said to be extinguished.’ ” Security Ctr. Prot. Servs., Inc. v. All-Pro Security, Inc., 94-1317, 94-1318 (La.App. 4 Cir. 2/23/95), 650 So.2d 1206, 1214 (quoting Louisiana Health Service v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1098).
14When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription. However, if prescription is evident on the face of the pleadings, as it is in the instant case, the burden shifts to the plaintiff to show the action has not prescribed. Spott v. Otis Elevator Company, 601 So.2d 1355 (La.1992); Eastin v. Entergy Corp., 03-1030 (La.2/6/04), 865 So.2d 49.”

Katz v. Allstate Ins. Co., 917 So.2d at 444-45.

In the present action, Mr. Matranga’s Petition for Damages was filed on September 5, 2002, while the Appellant’s Petition of Intervention was filed on April 26, 2005, nearly two and one half years after the original Petition was filed.

Dr. Fuller and Children’s Hospital contend that Ms. Caronna’s Petition of Intervention is prescribed on its face, arguing that the three year preemptive period, provided for in La. R.S. 9:5628(A), expired on July 31, 2002. Additionally, Dr. Fuller argues that the Petition of Intervention is prescribed on its face, pursuant to La. C.C.P art. 1067. Lastly, Dr. Fuller argues that the “relation back” doctrine set forth in La. C.C.P. art 1153, does not apply to Ms. Caronna’s intervention, rather, Dr. Fuller contends that the “relation back” doctrine applies to amendments only, and that amendments cannot be made without the participation of the party or parties to the pleading sought to be amended.

lfiIn support of her argument, Ms. Car-onna points out that La. R.S. 9:5628(A) is not applicable to this matter. She contends that prescription was interrupted when the claim was filed with the Patient’s Compensation Fund and the subsequent lawsuit was filed by Mr. Matranga. She avers that she filed the Petition of Intervention to enforce her right to be a co-plaintiff in the original suit.

In support of her argument, the Appellant also cites Allstate v. Theriot, 376 So.2d 950 (La.1979). In Theriot, Allstate, in its capacity as a worker’s compensation insurance carrier, brought suit against Theriot, who was a motorist in an automobile accident. Specifically, Allstate sued Theriot for aggravation of pre-existing work-related injuries sustained by its insured (Moore) as a result of the accident. Allstate alleged that as a result of Theriot’s negligence, it was forced to pay additional medical and worker’s compensation benefits to Moore. Moore subsequently intervened seeking damages for the medical expenses and injuries he sustained as a result of the accident.

The defendants filed exceptions of No Cause of Action and Prescription. The district court ultimately maintained the defendants’ exceptions, and Allstate’s principal demand, along with Moore’s suit, were dismissed. The Court of Appeal affirmed the district court, holding that Allstate did not have an independent cause of action for aggravation of Moore’s personal injuries. Moore brought a writ of certiorari to the Louisiana Supreme Court.

Reversing both the district court and the Court of Appeal, the Supreme Court held that: (1) the district court erred in dismissing the intervention simply because the principal action fell, Id. at 952; (2) the timely petition by Allstate for damages arising out of the accident interrupted prescription in favor of the intervenor, in spite of the fact that the insurer’s petition was eventually held not to have stated a | ficause of action, Id. at 953; (3) if [a] subsequent claimant is a different person than the original plaintiff, then to interrupt prescription the first suit must not only be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention; (our emphasis) Id. at 953-54; and (4) the fundamental purpose of the prescription statute is only to afford defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from the loss or nonpreservation of relevant proof. Id. at 954.

In addition to Allstate, the Appellant also cites Giroir v. South Louisiana Medical Center, Div. Of Hospitals, 475 So.2d 1040 (La.1985). In Giroir, the husband of a patient brought both survival and wrongful death actions against the doctors and hospital who treated his wife. Subsequently, the actions were amended to add major children as plaintiffs and to change the husband’s capacity in the survival action from administrator of the estate to that of an individual, after prescription had run. After trial, the defendant hospital filed exceptions of prescription and preemption arguing that the amendment adding the Giroir children as plaintiff was not filed within one year after their mother’s death.

The district court overruled the hospital’s exception and rendered favorable judgments for the husband, as administrator and in his individual capacity, to bring the wrongful death action. The district court also rendered judgment in the children’s favor as to the wrongful death claim. The hospital subsequently appealed arguing that the district court erred in overruling its exceptions of prescription and preemption with respect to the children’s claims. The Court of Appeal reversed in part, amended in part and as amended, affirmed. Id. at 1042.

On writ of certiorari, the Louisiana Supreme Court held that: (1) the amendment which changed the capacity in which the husband brought the survival faction related back to the date of filing of the original petition, Id. at 1044, and (2) the amendment to add the major children’s wrongful death and survival actions related back to the date of filing of the original petition. Id. at 1045.

Specifically, in Giroir, the Supreme Court reiterated the test that it established two years prior in Ray v. Alexandria Mall, 434 So.2d 1083 (1983), which set forth four criteria in which an amendment seeking to substitute or add a plaintiff will relate back to the original demand. These criteria are:

(1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; (4) the defendant will not be prejudiced in preparing and conducting his defense. See Ray v. Alexandria Mall, supra p. 1087; Leachman v. Beech Aircraft Corp., 694 F.2d 1301 (D.C.Cir.1982); Hockett v. American Airlines, 357 F.Supp. 1343 (N.D.Ill.1973); Williams v. United States, 405 F.2d 234 (5th Cir.1968); Paskuly v. Marshall Field Co., [494 F.Supp. 687], supra; Bujtas v. Henningsen Foods, Inc., 63 F.R.D. 660. (S.D.N.Y. 1974); 3 Moore’s Federal Practice § 15.15[4-1] at 15-220 (1982).

Giroir, 475 So.2d at 1044.

Considering the jurisprudence relied upon by the Appellant, we find that Ms. Caronna’s interest in being a party to the original lawsuit is valid. We find that the issue before this Court is a question of whether the Appellant’s Petition for Intervention relates back to the original petition. For this reason, we agree with the Appellant that Giroir, and not La. R.S. 9:5628(A), is applicable to the matter sub judice.

| ^Borrowing the Supreme Court’s test from Giroir, the record indicates that the Appellees in this matter knew or should have known of the Appellant because her name appears on the medical records which document Joshua’s medical care and treatment, prior to the filing of Mr. Matranga’s suit. The record also indicates that the Appellant was Joshua’s custodial parent, rather than Mr. Matranga. Finally, the record also indicates that Joshua’s medical records clearly list the Appellant as Joshua’s mother. Considering that the Appellant’s status, as Joshua’s biological parent, puts her in an identical standing as the original plaintiff, Mr. Ma-tranga, the Appellees are not prejudiced by the Appellant’s addition to the suit as a plaintiff. Therefore, based upon the record; we agree with the Appellant that the defendants knew or should have known of her interest in the claim and should have anticipated that she could, if she chose to, raise her own claim or join any suit which arose out of the death of her child.

While Dr. Fuller and Children’s Hospital vigorously argue that Ms. Caronna’s intervention was untimely and that intervention does not relate back, we find that these arguments are not persuasive. The Appellant, given the fact that she was Joshua Matrangas’s biological mother, would certainly have an interest in any lawsuit arising out of his death, given the criteria set forth by the Louisiana Supreme Court’s decision in Giroir v. South Louisiana Medical Center, Div. Of Hospitals, supra.

Thus, based upon the above jurisprudence, we find that Appellant’s first assignment of error has merit and hold that the Appellant’s claim relates back to the filing of the original claim by Mr. Matran-ga.

In her second assignment of error, the Appellant argues that the district court erred in its reliance on obiter dictum in Traylor v. Reliance Insurance Co., 1998-1379 9(La.App. 4 Cir. 7/1/98), 715 So.2d 1253. In Traylor, the plaintiffs Mr. and Mrs. Traylor, individually and on behalf of their minor son, filed a personal injury action for injuries they sustained as a result of an auto accident. Named as defendants were the driver of the vehicle, the driver’s employer, and the employer’s insurer. About two years after the original suit was filed, the mother of Mr. Traylor’s alleged illegitimate acknowledged daughter was granted leave by the district court to intervene on her daughter’s behalf for loss of consortium. The defendants, in turn, filed an exception of prescription alleging that the intervenor failed to timely file her Petition of Intervention. The district court overruled the defendants’ exception and the defendants filed a writ application with this Court seeking to have the district court ruling reversed. This Court held that: (1) the intervention was filed more than 90 days after the main demand, Id. at 1255; (2) the petition did not relate back to the filing of the original petition, Id. at 1256-57; and (3) the daughter’s minority did not suspend the running of prescription even though she could not proceed until a tutor had been appointed for her. Id. at 1257.

The Appellant argues that Traylor is not applicable to the instant appeal. She argues that although the ruling in Traylor allows post-prescription amendments only to an original petition, the Supreme Court has ruled, in Giroir v. South Louisiana Medical Center, Div. of Hospitals, supra, that both post-prescription amendments and interventions would be allowed if all four criteria set forth in Giroir are met.

In Traylor, this Court indicated that although the intervention successfully met three of the four Giroir criteria, the second criteria, (i.e., the defendant either knew or should have known of the existence and involvement of the new plaintiff), was not met. This Court opined:

holt is significant that the Giroir court found that the defendant had actual notice of the potential additional plaintiffs. In the instant case the respondent-inter-venor does not contend that the relators-defendants had timely actual notice of the existence of Traylor’s illegitimate daughter. Moreover, the defendants would not have inferred the possible existence of the illegitimate intervenor in the instant as the Giroir court suggested might be done under the facts of that case. In this case, where Robert Tray-lor filed suit not only on behalf of himself, but also on behalf of his minor son, any reasonable defendant would infer (in a manner analogous to the legal maxim, “inclusio unius est exclusio alterius”) that had Traylor had additional progeny he would have included them in the suit. Of course, the existence of additional illegitimate children is always a possibility, but only in the sense that anything is possible. The fact that there is always the vague and remote possibility of the existence of unknown illegitimate offspring is not such notice of the “existence and involvement of the new plaintiff’ as would satisfy the second Giroir requirement. Nor is there any indication that “the facts in the original petition gave defendants notice” as the court in Giroir found to be the case.

Traylor, 715 So.2d at 1256.

Additionally, the Appellant argues that the district court erred by its reliance on the obiter dictum in Traylor. In Traylor, this Court also indicated that:

[I]n Giroir the court was dealing with La. C-C.P. art. 1153 which specifically provides for the relation back of an amended petition. The intervention in the instant case did not take the form of an amended petition. We recognize that it is not always the caption on a pleading that determines its substance. In that regard, intervenor argues that because intervenor could have been joined as a plaintiff in the original petition, or added later by an amendment as was done in Giroir (assuming the amendment was either within-the prescriptive period or was beyond the prescriptive period, but met the four Giroir requirements and, therefore, related back) the intervention should be treated as an amended petition and not as an intervention. The fact that the intervention was not entitled “Amended Petition” or “Supplemental Petition” is not the reason this Court finds that the intervention in the instant ■case is not an amended petition under LSA-C.C.P. art. 1153, although it is an indication l^that the intervenor did not believe it to be such at the time it was filed. Instead this Court finds that the intervention is not an amendment in substance. An amendment to a pleading cannot be made unilaterally without the participation of the party or parties to the pleading sought to be amended. The original plaintiffs did not participate in the intervention. Intervenor does not contend that the original plaintiffs have annexed or incorporated the intervention into their claims. The attorneys handling the intervention are not the same attorneys as those handling the claims of the original plaintiffs. The attorneys for the original plaintiffs have gone on record as opposing the intervention if it should retard the progress of the main demand. The fact that inter-venor could have been added by the original plaintiffs to their suit by way of amendment to their original petition does not make the intervention an amendment-and La. C.C.P. art. 1153 applies only to amendments.

Traylor, 715 So.2d at 1256-57.

We find that the Traylor ruling is distinguishable and unique to its own set of facts in that the intervenor, who was an alleged illegitimate child, could not have reasonably been foreseen as a party plaintiff in the suit. In the instant appeal, the Appellant/Intervenor is undeniably identical in status, as a biological parent, to the party who filed the original claim.

Additionally, this Court certainly cannot ignore the fact that all of the Giroir criteria have been met in the instant appeal. Furthermore, the Allstate case, supra, which upheld an intervenor’s post-prescription intervention even though the principal demand was dismissed, allowed the intervenor’s action to proceed on the basis that his claim arose out of the same transaction and occurrence as the principal demand. For these reasons, we agree with the Appellant and find that her right to intervene in the suit should have been maintained by the district court.

haThis Court agrees with Traylor in concluding that “it is not always the caption on a pleading that determines its substance.” Traylor, 715 So.2d at 1256.

The intervention in the case sub judice was not entitled “Amended Petition” or “Supplemental Petition.” However, La.C.C.P. art 1091, titled Third Person May Intervene, provides that “[a] third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by (l)[j]oining with plaintiff in demanding the same or similar relief against the defendant.”

For the above reasons, we hold that post-prescription amendments and interventions in which a person seeks to join or substitute parties will relate back to the original petition, if: (1) the new person has an interest in the original claim pursuant to La. C.C.P. art. 1091; (2) the new person states a cause of action arising out of the same conduct, transaction, or occurrence complained of in the original claim; and (3) the four criteria set forth in Giroir have been satisfied.

DECREE

For the forgoing reasons, we reverse the district court judgment. The judgment granting the Appellees’ peremptory exception of prescription is vacated and set aside, and the matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . Now deceased.

      . La. R.S. 9:5628(A), titled Actions for medical malpractice provides:
      A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing.home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

      . In her appeal brief, Dr. Fuller refers to Joseph v. Entergy, 2000-2213 (La.App. 4 Cir. 2/13/02), 811 So.2d 54, in which a husband/plaintiff filed his suit for injuries sus-tamed in an accident and his wife filed an intervention alleging a loss of consortium claim 216 days after the original petition was filed and 113 days after the incident in question.

      . The Louisiana Supreme Court indicated that it extensively reviewed federal jurisprudence on the question of relation back in order to overcome an exception of prescription.

      . The suit was brought on the minor's behalf by her mother.

      . The Court takes note that had all four of the Giroir criteria had been met by the intervenor in Traylor, the Court’s decision may have been different.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    STATE of Louisiana v. Elijah D. JACKSON Jr.
    No. 06-KA-565.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Ken Dohre, James W. Adair, Assistant District Attorneys, Gretna, LA, for Plaintiff'Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
   EDWARD A. DUFRESNE, JR., Chief Judge.

|2On July 24, 2003, the Jefferson Parish Grand Jury issued an indictment charging defendant, Elijah D. Jackson, Jr., with one count of second degree murder, a violation of LSA-R.S. 14:30.1. At his arraignment, defendant pled not guilty. The matter proceeded to trial, and on March 31, 2006, a twelve person jury found defendant guilty as charged. On April 20, 2006, the trial court denied both defendant’s motion for new trial and motion for post verdict judgment of acquittal. Thereafter, on April 24, 2006, the trial judge sentenced defendant to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant now appeals.

FACTS

On May 4, 2003, Deputy Todd Giacona of the Jefferson Parish Sheriffs office arrived at 1108 Scotsdale, and found an unresponsive victim, later identified as Bryan Gumms, with a gunshot wound to the left side of his neck.

13At trial, Selina Brue testified about the circumstances surrounding the shooting. According to Brue, on the morning of the incident, she was in her apartment with defendant, Bryan Gumms, Jermaine Hudson, Courtney Casey, and Ronnell Anderson playing cards when an argument began between defendant, Hudson, and some of the other men. During the argument, one of the men told defendant to get his gun, “[and the defendant] told them when he come [sic] back with his gun that he was going to use it.” At this point, everyone left the apartment, including Brue who went with defendant.

Later, on May 4, 2003, at 2:30 p.m., defendant and Brue went to Scotsdale Street, and were in front of a building with Hudson, Gumms, Casey, Anderson, and other unnamed people. At approximately 4:00 or 4:30 p.m., defendant and Hudson became involved in a dispute. According to Brue, defendant “left and went through the cut, got his car from by my building, pulled back around and then got out the car with the gun.” She saw defendant walk to the opposite side of the wall from Gumms. When defendant pulled out his gun, Hudson and Casey ran away. Defendant then walked towards Gumms and shot him from a couple of feet behind, as Gumms turned his head to look back. After he shot Gumms, defendant jumped in his car and left, taking his gun with him. Brue did not talk to police that night; however, the following day, she went to the investigation bureau and told Detective Eddie Klein what happened. She also identified defendant from a photographic lineup.

Based on the information received from witnesses, Detective Klein arrested defendant. Subsequently, defendant gave two taped statements. In his first statement, defendant denied being in Scotsdale and shooting the victim. In his second statement, defendant admitted that he was involved in an argument with | ¿Jermaine Hudson. At some point, Gumms tried to defend his friend Hudson. Defendant then attempted to strike Gumms with the gun, but the gun went off. Defendant saw Gumms fall, and then fled in his car.

SUFFICIENCY OF THE EVIDENCE

On appeal, defendant argues that the evidence was insufficient to support the verdict as it failed to prove beyond a reasonable doubt that the homicide was not committed in self-defense.

The standard of review for determining the sufficiency of evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 448 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Rather, the reviewing court is required to consider the whole record and determine whether any rational trier of fact would have found guilt beyond a reasonable doubt. State v. Barnes, 98-932 (La.App. 5 Cir. 2/10/99), 729 So.2d 44, 46, writ denied, 99-1018 (La.9/17/99), 747 So.2d 1099. The trier of fact can accept or reject, in whole or in part, the testimony of any witness. It is not the function of the appellate court to second-guess the credibility of witnesses as determined by the trier of fact or to reweigh the evidence absent impingement on the fundamental due process of law. State v. Baker, 01-1397 (La.App. 5 Cir. 4/30/02), 816 So.2d 363, 365.

In this case, defendant was charged with second degree murder. LSA-R.S. 14:30.1 A(i) states that second degree murder is the killing of a human being when the offender has specific intent to kill or inflict great bodily harm. In order to 15prove second degree murder, the state must prove the killing and that the defendant had specific intent to kill or inflict great bodily harm. State v. Cazenave, 00-183 (La.App. 5 Cir. 10/31/00), 772 So.2d 854, 859, writ denied, 00-3297 (La.10/26/01), 799 So.2d 1151.

According to LSA-R.S. 14:20 A(l), a homicide is justifiable “[w]hen committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” When a defendant claims self-defense, the state must prove beyond a reasonable doubt that the defendant did not act in self-defense. State v. Cazenave, 772 So.2d at 860. The determination of a defendant’s culpability focuses on a two-fold inquiry: 1) whether, from the facts presented, the defendant could reasonably have believed his life to be in imminent danger, and 2) whether deadly force was necessary to prevent the danger. While there is no unqualified duty to retreat from an altercation, the possibility of escape is a recognized factor in determining whether or not a defendant had a reasonable belief that deadly force was necessary to avoid the danger. State v. Woodhead, 03-1036 (La.App. 5 Cir. 1/27/04), 866 So.2d 995, 999-1000, writ denied, 04-0598 (La.7/2/04), 877 So.2d 144. Furthermore, LSA-R.S. 14:21 states that “[a] person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict.”

Defendant contends, in his appellate brief, that he killed the victim in self-defense; however, defendant presented no such evidence or theory at trial. An appellate court need not consider a claim of self-defense raised for the first time on appeal. State v. Thibodeaux, 450 So.2d 1060, 1062 (La.App. 1 Cir. 5/30/84). 1 ^Although we need not consider this claim since it was raised for the first time on appeal, we determine that it is without merit.

To support his claim of self-defense on appeal, defendant points to the state’s introduction of his second police statement. In this second statement, defendant claimed that he and Jermaine Hudson were involved in a verbal argument. Before it became physical, defendant left, but then returned a little while later. After defendant returned, he ran into Hudson, who started “mouthing off again.” Defendant and Hudson were about to fight, but Hudson ran away. At this point, Hudson’s friend, Bryan Gumms, told defendant that he was not going to fight “his boy”, and then they all began fussing. Defendant left again but then came back in a car with a revolver in his pocket. Defendant and Hudson, who had also returned, started arguing again, and the defendant suggested they fight. He saw Hudson reach down, between the cars, “for a gun or something.” Hudson yelled, reached down, and raised up, which scared defendant. He shot the gun in the air, causing Hudson to run. Defendant then fired a second shot into the air. Gumms asked defendant why he was shooting at his friend, and defendant told him to “get out of his face.” In response, Gumms told defendant that “I’m gonna bring the heat to your ass man,” which defendant thought meant that he was “gonna get his gun or whatever.” According to defendant, Gumms had pulled a gun on him once before. Defendant then tried to hit Gumms with the gun, and it went off. When Gumms fell, defendant threw the gun on the ground, and left in a friend’s car.

We find that nothing in this statement supports a claim of self-defense. By defendant’s own admission, he left the argument, retrieved a gun, returned, started arguing with Hudson again, and then fired the gun two times in the air. This statement shows that the victim only became involved in the situation when 17defendant wanted to fight the victim’s friend, Hudson. The victim initially told defendant that he was not going to fight with his friend. It was only after defendant shot the gun twice in the air that the victim told him that “I’m gonna bring the heat to your ass man.” In his statement, defendant admitted that he guessed this meant the victim was going to get his “gun or whatever.” The only evidence that the victim ever previously confronted defendant with a gun was the defendant’s second statement. There was no evidence that the victim even had a gun, on his person, on the day he was shot. Defendant claims that he tried to hit the victim with the gun, and it went off. However, eyewitness Brue testified that defendant walked towards the victim, after everyone else had run away, and shot him from behind, as the victim was turning his head to look back. Further, Dr. Karen Ross, a forensic pathologist with the Jefferson Parish Sheriffs Office, testified that she performed an autopsy on the victim. Her examination revealed an entrance gunshot wound to the victim’s neck on the left side beneath his ear that was the cause of his death. The bullet trajectory was left to right, and slightly front to back and downward. The stippling on the victim indicated that he had been shot from one to three feet away.

From our review, we find that defendant was actually the aggressor. Therefore, he cannot now claim the right of self-defense. Moreover, defendant never attempted to withdraw from the conflict. Instead, he left, returned with his gun, and further escalated the conflict by suggesting that he and the victim’s friend fight. He also twice shot into the air. Based on the evidence, we find that defendant did not act in self-defense. Defendant was not in imminent danger of losing his life or receiving great bodily harm from the victim, nor was the killing necessary under the circumstances to save himself. Accordingly, the arguments raised by defendant in this assignment are without merit.

\ SIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES

On appeal, defendant contends that the trial court improperly restricted his right to cross-examine state’s witness Selina Brue. Defendant argues that the trial court erred in not allowing him to cross-examine Brue fully about her criminal record, even after she admitted her prior convictions and a pending charge against her. Defendant suggests that the details of Brue’s convictions should have been admissible, because “the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.” LSA-C.E. art 609.1 C.

A close reading of the record reveals that defense counsel did not actually attempt to question Brue about the details of her convictions, nor did he argue to the court that he wished to institute such a line of questioning. We point specifically to the following exchanges between defense counsel and Brue:

Q. Now, Ms. Brue, you testified that you had a couple of little run-ins with the law yourself, right?
A. Yes, sir.
Q. And how did they call that — aggravated battery?
A. Second degree aggravated battery. Q. Second. And would you tell the ladies and gentlemen what second degree aggravated battery is?

After this exchange, the state objected to defense counsel questioning Brue about the details of her convictions. However, the defense had not actually questioned Brue about the details of her convictions, but rather about the definition of second degree aggravated battery. The trial court sustained the state’s objection, and the cross-examination of Brue continued as follows:

|aQ. You wouldn’t dispute it, Ms. Brue, if I were to say you were a rather violent person, would you?
A. No.
Q. In fact you can be downright dangerous at times, right?
A. I used to.
Q. You used to. But not anymore?
A. Not anymore.
Q. And why not?
A. ‘Cause I have changed. I have a child and I’m raising my child and I don’t want to be incarcerated again.
Q. And would the same be true for your conviction of breaking into people’s homes?
A. Breaking into people’s homes?
Q. Yes. You don’t do that no more either, do you?

After this exchange, the state again objected to defense counsel questioning Brue about the details of her prior convictions. However, defense counsel did not question Brue about her prior convictions. Defense counsel referred to her prior convictions and told the judge that Brue was only being questioned about her efforts to reform her life. The trial judge stated, “I’m going to allow this but there’s no details that you are going to pursue on that charge.” Defense counsel responded, “No.” When the trial judge stated, “If you are pursuing a pattern of conduct — ,” defense counsel interrupted and responded, “Yes.” The trial judge allowed the line of questioning to continue, and defense counsel only asked the following question about Brue’s efforts to reform:

Q. So it is your testimony, Ms. Brue, that you are a reformed felon. You don’t go around stabbing people. You don’t go around breaking in people’s houses no more; is that correct?
A. I don’t.

|inAs shown by these exchanges, defense counsel did not attempt to question Brue about the details of her prior convictions. Accordingly, defendant cannot now argue on appeal that he was denied his right to cross-examine Brue about the details of her convictions.

Moreover, even if the trial court had erred in not allowing defense counsel to question Brue about her prior convictions because of its probative value, the error was harmless. See State v. Jackson, 03-883 (La.App. 5 Cir. 4/27/04), 880 So.2d 841, 853, writ denied, 04-1399 (La.11/8/04), 885 So.2d 1118. While Brue’s testimony was important and not cumulative in nature, defendant’s second statement, in which he admitted to killing the victim, provided the state with strong corroborating evidence of his guilt.

Accordingly, the arguments raised by defendant in this assigned error are without merit.

ERROR PATENT REVIEW

We have also reviewed the record for errors patent in accordance with LSA-C.Cr.P.art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). Our review reveals no errors patent in this case.

For the reasons set forth herein, we affirm defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Louise Walzer of the Jefferson Parish Sheriff’s Office Crime Laboratory testified that the bullet was a .44 caliber Gold Dot fired from a revolver.

      . Ordinarily, only the fact of a conviction, the name of the offense, the date thereof, and the sentence imposed is admissible. However, details of the offense may become admissible to show the true nature of the offense ... when the probative value thereof outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. Taisi J. ALO.
    No. 06-KA-473.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Megan L. Gorman, Martin Belanger, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Ap-pellee.
    Jane L. Beebe, Attorney at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| aThis is defendant’s second appeal. In his first appeal, defendant’s conviction for possession of alprazolam was affirmed. State v. Alo, 04-62 (La.App. 5 Cir. 10/12/04), 886 So.2d 1130, writ denied, 04-2992 (La.3/24/05), 896 So.2d 1035. At the time of his first appeal, multiple offender proceedings were pending against defendant. In the multiple offender bill of information, filed January 22, 2004, the State alleged defendant to be a fourth felony offender based on two prior Louisiana convictions for violations of the controlled dangerous substance law, LSA-R.S. 40:966(A), and one prior Louisiana conviction for first degree robbery, LSA-R.S. 14:64.1. Defendant denied the allegations and filed a motion to quash the multiple bill on the grounds that the predicate convictions were based on invalid guilty pleas.

LOn June 15, 2005, a hearing was held on the multiple bill and on defendant’s motion to quash the multiple bill. Although the multiple bill set forth three Louisiana guilty pleas as the predicate convictions, the three predicate convictions presented at the hearing included a burglary conviction from Hawaii and two Louisiana convictions for violations of the controlled dangerous substance laws. At the hearing, defendant argued against the use of the two Louisiana convictions and the Hawaii conviction on the basis that all three predicates were based on invalid guilty pleas. After the hearing, the trial court took both matters under advisement.

On July 1, 2005, defendant filed a pro se written objection to the State’s use of his Hawaii conviction as a predicate offense, asserting he was not advised of his rights prior to his guilty plea and that the proof of the conviction was inadequate. On November 16, 2005, the trial court ruled that the State could not use defendant’s Hawaii conviction as a predicate offense, but for reasons other than those raised by defendant in his written objection. Specifically, the trial court ruled that defendant did not have notice of the Hawaii conviction because it was not listed as a predicate offense in the multiple bill. The trial court further concluded that defendant’s stated objections were rendered moot by the ruling.

The next day, November 17, 2005, the State filed a second multiple bill of information again alleging defendant to be a fourth felony offender, but replacing one of the original Louisiana predicate convictions with the Hawaii conviction for first degree burglary. On the same day, the State filed a supervisory writ with this Court challenging the trial court’s ruling excluding the Hawaii conviction. In its writ application, the State argued that it met its burden of proving the validity of the Hawaii conviction under the requirements of State v. Shelton, 621 So.2d 769, 14779-780 (La.1993), because the evidence submitted at the hearing was sufficient to prove the existence of the Hawaii guilty plea and that the defendant was represented by counsel. The State further argued that defendant never objected to lack of notice that the State would use the prior Hawaii conviction as a predicate offense. This Court granted the writ and stated that the trial court erred in excluding the Hawaii conviction, finding that, based on the writ application and attached exhibits, the State met its burden of proving the validity of defendant’s predicate conviction from Hawaii and, thus, could use it as a predicate offense. This Court did not address the lack of notice issue. The trial court’s November 16, 2005 order prohibiting the use of the Hawaii conviction was set aside and the-matter was remanded for further proceedings consistent with the writ disposition.

On remand, the trial judge held a hearing on March 14, 2006. The trial judge stated that he had initially ruled that defendant was a third felony offender but that he had been reversed by this Court. Therefore, he concluded that defendant was a four-time offender and sentenced him as such to twenty years without the benefit of probation or suspension of sentence. Defendant appeals his adjudication as a fourth felony offender.

DISCUSSION

On appeal, defendant argues that the trial court erred in finding him to be a fourth felony offender. Specifically, he asserts that the trial court erred in using the Hawaii conviction as a basis for adjudicating him a fourth offender. He contends his due process rights were violated when the State failed to include the Hawaii conviction in the multiple bill, which denied him proper notice of the predicate ^conviction. Defendant asserts this Court’s previous writ disposition is not decisive because it never ruled on the issue of notice. He further maintains the writ disposition ruled on an issue not properly before the Court because the trial court never ruled on the sufficiency of the predicate Hawaii conviction. Defendant also challenges the sufficiency of the Hawaii conviction under State v. Shelton, 621 So.2d 769 (La.1993), out of an abundance of caution.

The State responds that this Court disposed of the notice issue when it granted the writ and ruled that the Hawaii conviction was admissible. It maintains that this issue cannot be revisited because defendant failed to file a writ with the Louisiana Supreme Court. It further contends that defendant had adequate notice of the Hawaii conviction.

The first multiple bill, filed January 22, 2004, alleged defendant to be a fourth felony offender based on 1) a July 23, 1996 conviction for a violation of LSA-R.S. 40:966(A), marijuana,, bearing docket # 183-295 in the 34th Judicial District Court; 2) a second conviction for violating LSA-R.S. 40:966(A), marijuana, on July 13, 1999, bearing docket # 220-921 in the 34th JDC; and, 3) an April 26, 1990 conviction for a violation of LSA-R.S. 14:64.1, first degree robbery, bearing docket # 860-280 in the Criminal District Court for the Parish of Orleans.

The State filed a second multiple bill on November 17, 2005, which was before any adjudication of defendant as a multiple offender and was one day after the trial court ordered that the Hawaii conviction could not be used because it was not listed in the multiple bill. The second multiple bill again alleged defendant to be a fourth felony offender but replaced the Orleans Parish robbery conviction Rlisted in the original multiple bill with a January 16, 1987 conviction for violation of the Hawaiian Revised Statute Section 708 — 810(1)(C), first degree burglary, bearing docket # 86-0280 in the Second Circuit Court of the State of Hawaii. After the multiple bill hearing, the trial judge took the matter under advisement.

Although the trial judge indicated at the sentencing hearing on remand that he had previously found defendant to be a third felony offender, nothing in the record shows that the trial court ruled on the sufficiency of the evidence as it related to the adjudication of defendant as a multiple offender or that the trial court ever adjudicated defendant a multiple offender prior to the sentencing hearing. The November 16, 2005 order was issued in response to defendant’s pro se objection to the use of the Hawaii conviction as a predicate offense for a multiple offender adjudication. The order simply ruled that the Hawaii conviction could not be used to render defendant a fourth time felony offender, but the order never adjudicated defendant a multiple offender. When the State filed a second multiple offender bill of information on November 17, 2005, no adjudication of defendant as a multiple offender had been made. Ño proceedings were held in connection with the second multiple bill.

It has been held that a superseding indictment implicitly dismisses a first indictment. State v. Freeman, 37,312 (La.App. 2 Cir. 7/16/03), 850 So.2d 1088, 1090, writ denied, 03-2466 (La.2/6/04), 865 So.2d 740. Applying this principle of law to the multiple offender proceedings before us, we find that when the State filed the second multiple bill prior to any adjudication of defendant as a multiple offender, the second multiple bill rendered the first multiple bill and all related proceedings null and void, thereby rendering defendant’s issue regarding lack of notice of the Hawaii conviction moot. Accordingly, because the proceedings on the first multiple bill of information are null and void and there have been no ^proceedings regarding the second multiple bill of information, we vacate the defendant’s adjudication as a fourth felony offender and his sentence, and we remand the case for new proceedings relating to the second multiple bill, including an admit or deny hearing and a multiple bill hearing.

Defendant requests an error patent review. Ordinarily, defendant would be entitled to an errors patent review of the habitual offender proceedings. See State v. Yrle, 05-202 (La.App. 5 Cir. 10/6/05), 916 So.2d 1197, 1200. However, considering our determination that all of the proceedings relating to the first multiple bill are null and void, defendant’s request for an errors patent review is moot.

DECREE

For the reasons set forth above, we vacate the trial court’s judgment adjudicating defendant as a fourth felony offender and we vacate defendant’s sentence. We remand the case for new proceedings relating to the second multiple bill, including an admit or deny hearing and a multiple bill hearing.

MULTIPLE OFFENDER ADJUDICATION AND SENTENCE VACATED; REMANDED.

      . The matter was remanded for the trial court to give defendant notice of the two-year prescriptive period for filing an application for post-conviction relief. The record in the current appeal shows the trial court issued the requisite order on October 18, 2004.

      . The record does not show that defendant was arraigned on the second multiple bill or that a second multiple bill hearing was held.

      . In its writ application to this Court, the State failed to attach a copy of the original multiple bill and only attached the second multiple bill of information, which set forth the Hawaii conviction as a predicate conviction. The State also failed to mention in its writ application that the attached multiple bill was the second multiple bill it had filed. Thus, at the time of its January 13, 2006 writ disposition, the State did not indicate that the multiple bill attached to its writ application was not the multiple bill upon which the challenged trial court’s ruling had been based.

      . On appeal, defendant challenges his adjudication as a fourth felony offender based solely on the use of the Hawaii conviction. Defendant does not challenge the validity of the other two predicate.convictions.


author: EDWARD A. DUFRESNE, Jr., Chief Judge.

text:
    Thomas L. FURR d/b/a Christian Construction Company v. PEARCE & LeBLANC, INC., Tri-State Road Boring Incorporated and Parish of St. Charles.
    No. 06-CA-564.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 27, 2006.

      Donald G. Cave, Attorney at Law, Baton Rouge, LA, for PlaintiffiAppellant.
    Steven B. Loeb, Yvonne R. Olinde, Breazeale, Sáchese & Wilson, LLP, Attorneys at Law, Baton Rouge, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., CLARENCE E. McMANUS, and GREG G. GUIDRY.
   EDWARD A. DUFRESNE, Jr., Chief Judge.

| ¡¡This is an appeal by Thomas L. Furr, d/b/a Christian Construction Co., plaintiff-appellant, from a judgment dismissing with prejudice his suit against Pearce & LeBlanc, et al. on grounds of abandonment. For the following reasons we affirm that judgment.

The pertinent facts are these. Suit was instituted- in 1984, and various papers were filed by the parties over the next 15 years. The last document appearing in the record during that period was filed on June 24, 1999. On October 14, 2004, the clerk of court filed a motion to dismiss the case because the record indicated that no action had been taken for over three years as provided by La.Code Civ. Pro. Art. 561. That motion was granted on the date of filing. The record shows that notice of the judgment was mailed to counsel of record on February 16, 2005.

On February 25, 2005, plaintiffs counsel filed a motion to set aside the dismissal. He represented there that he had received notice of the dismissal on |3February 17, 2005. He also submitted copies of interrogatories which had been sent to defendants’ counsel on February 19, 2002. Then on April 14, 2005, the October 14, 2004, order of dismissal was set aside.

The next action was on March 23, 2006, when plaintiff urged a motion to set the case for trial. The defendants responded by filing a motion to dismiss, again based on abandonment. They asserted that the operative three year period of inaction ran not from June 24, 1999 to October 14, 2004, as urged by the clerk of court, but rather from service of the interrogatories on February 19, 2002, to February 25, 2005, when plaintiffs motion to set aside the earlier dismissal was filed. This motion for dismissal was granted. Plaintiff now appeals.

Article 561 of the Louisiana Code of Civil Procedure is as follows:

561. Abandonment in trial and appellate court

A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or,
(c) In which a testament has been probated.
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(4) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the [¿date of the clerk’s mailing of the order of denial.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

In Clark v. State Farm Mutual Automobile Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779, the court discussed this statute at length and made the following rulings. First, the court recited that a plaintiff must take some step in the prosecution of the action which must appear of record, except for formal discovery actions, and which must be taken within three years of the last action taken by any party. Second, it noted that the statute is self-executing, i.e. abandonment occurs automatically upon the passing of three years of inaction. Finally, it noted that in only two circumstances could abandonment be defeated by matters not appearing of record, or not involving formal discovery. One is the contra non valentum rule which applies where circumstances beyond plaintiffs control prevent any action. The other is when the defendant waives his right to assert abandonment by taking actions inconsistent with his intent to treat the case as abandoned.

The evidence presented in the district court shows that no action was taken by any party in the prosecution or defense of the action as contemplated in Art. 562 between February 19, 2002, and February 25, 2005, a period of over three years. The action was consequently abandoned. The next inquiry is whether plaintiff can avail himself of either of the two exceptions enunciated in Clark v. State Farm Mutual Automobile Ins. Co., supra. There is no assertion here by appellant that the defendants waived their rights to urge abandonment. The only Mother ground which would defeat abandonment is therefore the doctrine of contra non valentem.

As noted above, the doctrine of contra non valentem applies when a party is prevented from acting by circumstances beyond his control. Appellant argues here that because of the dismissal of his case on motion of the clerk of court on October 14, 2004, he was legally prevented from taking any action on the record prior to February 25, 2005, when he filed his motion to reinstate the matter. Alternatively, he argues that the dismissal of 2004 interrupted the three year period of Art. 561. We disagree with both assertions.

First, Art. 561 provides that a judgment of dismissal does not become final until 30 days after it is served on the plaintiff, which in this case was February 17, 2005. Thus, there was no legal impediment to appellant filing papers in the record or pursuing formal discovery before February 20, 2005, when the three year period for abandonment ran. Second, the article states explicitly that it is the parties who must take action within the three year period. Here the first motion for dismissal was urged by a non-party, the clerk of court. Because the clerk was not a party, his action did not affect the running of the applicable period.

For the foregoing reasons the judgment of the district court dismissing this action with prejudice on grounds of abandonment is hereby affirmed.

AFFIRMED.