text:
    In re Anne T. TURISSINI.
    No. 2006-B-0172.
    Supreme Court of Louisiana.
    April 24, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| T This disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Anne T. Turissini, a suspended attorney.

PRIOR DISCIPLINARY HISTORY

Before we address the current charges, we find it helpful to review respondent’s prior disciplinary history. Respondent was admitted to the practice of law in Louisiana in 1985. In June 1995, this court suspended respondent for one year and one day, fully deferred, subject to a two-year period of probation with conditions, stemming from her failure to communicate with a client, failure to return the client’s file upon the termination of the representation, and failure to cooperate with the ODC in its disciplinary investigation. In re: Turissini, 95-0735 (La.6/2/95), 655 So.2d 327 (“Turissini /”). In 2003, this court considered a proceeding involving three consolidated sets of formal charges alleging that respondent neglected legal matters, failed to communicate with her clients, failed to refund unearned fees or to place disputed fees in trust, failed to protect a client’s interest upon termination of the representation, and failed to cooperate with the ODC in several disciplinary investigations. After considering the record, this court suspended respondent from the practice of law for three years. In re: Turissini, 03-0549, 03-0550, 03-0551 (La.6/6/03), 849 So.2d 491 (“Turissini II”). Respondent has not yet served the entirety of the suspension imposed in Turissini II; accordingly, she remains suspended from the practice of law at this time.

UNDERLYING FACTS AND PROCEDURAL HISTORY

The ODC filed two sets of formal charges against respondent. The first set, bearing the disciplinary board’s docket number 03-DB-020, was filed on April 3, 2003 and consists of one count of misconduct. The second set, bearing the disciplinary board’s docket number 04-DB-034, was filed on March 30, 2004 and likewise consists of one count of misconduct.

The formal charges were considered by separate hearing committees, then consolidated by order of the disciplinary board on January 18, 2005. On January 24, 2006, the disciplinary board filed in this court a single recommendation of discipline encompassing both sets of formal charges.

0S-DB-020

Respondent represented Ernest Elias in a criminal case. After the representation was concluded, Mr. Elias asked respondent to handle a wrongful death claim on his behalf. Respondent filed a petition for damages in October 2001, but thereafter she failed to communicate with Mr. Elias and did nothing to move the case forward. In June 2002, Mr. Elias filed a complaint against respondent with the ODC, asserting that he had been unable to reach respondent and that she would not return his file. In November 2002, at which time respondent was still enrolled as counsel of record, she failed to appear at a hearing on a motion to compel responses to discovery in the civil case. The trial court rendered judgment ordering that the |sdiscovery be answered within twenty days, in default of which Mr. Elias’ case would be dismissed with prejudice.

A copy of Mr. Elias’ complaint was delivered to respondent via certified mail received on August 15, 2002. Respondent failed to reply to the complaint, necessitating the issuance of a subpoena compelling her to appear on February 18, 2003 and answer the complaint under oath. During her sworn statement, respondent testified that she filed the wrongful death suit on Mr. Elias’ behalf in order to interrupt prescription, but from that point on she was simply “trying to find another civil attorney to take the case for me because I’m just not comfortable handling civil things alone.” She maintained that Mr. Elias knew how to contact her and admitted that she had received a request from him for the return of his file. Respondent promised that she would return Mr. Elias’ file to him immediately; however, it is unclear whether she subsequently did so.

In its formal charges, the ODC alleges that respondent’s conduct violated Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 1.16(d) (obligations upon termination of the representation), 8.1(c) (failure to cooperate with the ODC in its investigation), and 8.4(g) (failure to cooperate with the ODC in its investigation) of the Rules of Professional Conduct.

The formal charges were served upon respondent by certified mail. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No | ¿formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Recommendation

After considering the ODC’s submission in response to the deemed admitted order, the hearing committee agreed that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee determined that respondent’s conduct was knowing and intentional and that she violated duties owed to her client and to the profession. The committee found no mitigating factors are present, but in aggravation, noted that respondent has previously been disciplined for misconduct that is nearly identical to that at issue here.

Considering these findings, the committee recommended that respondent be suspended from the practice of law for one year and one day.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation in 03-DB-020.

Ok-DB-OSk

In July 2003, Lynn Williams filed a complaint against respondent with the ODC. According to Ms. Williams, she retained respondent to seek post-conviction relief on behalf of her son, Lawrence Williams. In September 2002, Ms. Williams paid respondent $1,850 of an agreed upon $4,000 fee “to start Lawrence’s case.” From September until December 2002, respondent contacted Ms. Williams on a regular basis to discuss the status of the case. On December 10, 2002, at which time respondent and Ms. Williams signed a formal retainer agreement, respondent gave | sMs. Williams a copy of a letter addressed to Mr. Williams which detailed her preliminary efforts in connection with the representation. For the next two months, Ms. Williams made phone calls to respondent and visited her office on several occasions, but she was never able to speak with respondent. , In early February 2003, respondent called Ms. Williams to request an additional fee payment “to get started on moving [the] case into court.” On February 9, 2003, Ms. Williams paid respondent an additional $250, following which she did not hear from respondent again.

In October 2003, the ODC reviewed the record of Mr. Williams’ criminal case and determined that respondent had never enrolled as counsel on behalf of Mr. Williams, nor had she filed the application for post-conviction relief.

A copy of Ms. Williams’ complaint was delivered to respondent via certified mail received on August 29, 2003. Respondent failed to reply to the complaint.

In its formal charges, the ODC alleges that respondent’s conduct violated Rules 1.3, 1.4, and 8.1(c) of the Rules of Professional Conduct.

The formal charges were served upon respondent by certified mail. Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant .to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

IsHearing Committee Recommendation

After considering the ODC’s submission in response to the deemed admitted order, the hearing committee agreed that respondent violated the Rules of Professional Conduct as alleged in the formal charges. The committee determined that respondent violated duties owed to her client and to the profession. She acted knowingly and caused actual injury to Mr. Williams, who was unable to seek the post-conviction relief to which he may have been entitled had respondent acted in a timely manner. The committee determined that the baseline sanction for respondent’s misconduct is suspension.

The committee found that the following aggravating factors are present: prior disciplinary offenses, a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, vulnerability of the victim, and substantial experience in the practice of law (admitted 1985). The committee made no finding of mitigating circumstances.

Under these circumstances, and noting that repeated sanctions by this court have not deterred respondent “from committing the same type of offenses over and over again,” the committee recommended that respondent be suspended from the practice of law for eighteen months.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation in 04-DB-034.

\gDisciplinary Board Recommendation 03-DB-020 & Ok-DB-OSk

After reviewing the record, the disciplinary board determined that the deemed admitted facts as found in the formal charges are not manifestly erroneous, and that respondent violated Rules 1.3, 1.4, 1.16(d), 8.1(c), and 8.4(g) of the Rules of Professional Conduct in the Elias and Williams matters. Respondent failed to pursue Mr. Elias’ wrongful death claim, failed to communicate with him, and failed to return his file. She also failed to pursue Mr. Williams’ post-conviction relief claim and failed to communicate with Mr. Williams, despite the efforts of his family members to call her and go to her office. Finally, respondent failed to respond to the complaint filed by Mr. Williams’ mother, and had to be compelled by subpoena to respond to Mr. Elias’ complaint, following which she failed to cooperate with the disciplinary investigation.

Based on these findings, the board determined that respondent knowingly, if not intentionally, violated duties owed to her client and as a professional. She knew she had been paid to perform post-conviction relief services for Mr. Williams, but she failed to do anything even after requesting and receiving additional money from Mr. Williams’ mother. Due to respondent’s delay, the time expired for Mr. Williams to pursue his post-conviction relief claim. Mr. Elias’ wrongful death claim was jeopardized due to respondent’s failure to answer discovery and to appear for a hearing on a motion to compel. Respondent was also cast in judgment for attorney’s fees and costs related to the motion. In Mr. Elias’ matter, respondent was compelled |sto appear before the ODC pursuant to a subpoena, and she failed to answer the complaint relating to her representation of Mr. Williams.

Standard 4.41 of the ABA’s Standards for Imposing Lawyer Sanctions suggests that disbarment is appropriate when a lawyer knowingly fails to perform services for a client, or engages in a pattern of neglect with respect to client matters, and causes serious or potentially serious injury to a client. Respondent knowingly, if not intentionally, failed to do work for Mr. Elias and Mr. Williams. Both clients were actually harmed, in that Mr. Elias’ wrongful death claim was subject to dismissal with prejudice and Mr. Williams lost his chance at post-conviction relief efforts.

ABA Standard 7.1 suggests that disbarment is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system. Ms. Lynn Williams, the mother of Lawrence Williams, paid respondent more than half of her $4,000 fee, but no work was ever performed and the fee has not been refunded. Indeed, respondent did not so much as enroll as counsel of record in Mr. Williams’ case. She also failed to answer the Williams complaint and failed to cooperate in the disciplinary investigation in either the Elias or Williams matters. The board concluded that the baseline sanction for respondent’s misconduct is disbarment.

The board found that the following aggravating factors are present: prior disciplinary offenses, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, substantial experience in the practice of law, and | aindifference to making restitution. The board determined that no mitigating factors are present.

Relying on In re: Frank, 04-0238 (La.6/25/04), 876 So.2d 57, which the board suggested involved misconduct similar to that at issue here, the board recommended that respondent be disbarred “for the harm to Mr. Elias and Mr. Williams and to protect the public.” The board also recommended that respondent be ordered to make restitution to Lynn Williams and to return Mr. Elias’ file to him, and that she be assessed with all costs and expenses of these proceedings.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

DISCUSSION

The deemed admitted facts in this case support a finding that respondent violated Rules 1.3, 1.4, 1.16(d), 8.1(c), and 8.4(g) of the Rules of Professional Conduct. She failed to communicate with Mr. Elias and Mr. Williams and failed to pursue the legal matters she was retained to handle. She also failed to return Mr. Elias’ file to him, despite his numerous requests. Finally, respondent failed to cooperate with the ODC in its investigation of the complaints filed against her by Mr. Elias and by Mr. Williams’ mother. Therefore, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

|inIn determining an appropriate sanction, we are mindful that disciplinary proceedings are designed to maintain high standards of conduct, protect the public, preserve the integrity of the profession, and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So.2d 1173 (La.1987). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

Clearly, respondent violated duties owed to her clients, which caused their legal matters to be delayed. Respondent also violated duties owed as a professional by not cooperating with the ODC in its investigation or participating in these proceedings. Undoubtedly, she acted knowingly, if not intentionally. The baseline sanction for this misconduct is a period of suspension.

Several significant aggravating factors are present in the instant case, most notably respondent’s prior disciplinary matters in Turissini I and Turissini II, both of which involved misconduct identical to that at issue in this proceeding. Indeed, our observations in Turissini II are equally applicable here:

A review of the record indicates respondent’s misconduct was both knowing and intentional with regard to her failure to take any action in her clients’ cases, failure to account for and return unearned fees, and failure to cooperate with the ODC. She has exhibited a complete disregard for her professional responsibilities owed to her clients and the profession. Respondent has expressed no remorse for her actions in depriving her vulnerable clients of their funds for several years or jeopardizing their legal matters. She has made no genuine attempt at restitution or fee dispute resolution. Respondent’s chronic failure to cooperate with the ODC has caused undue delays and burdens on an already taxed disciplinary system.

Additionally present are the aggravating factors of a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceeding by intentionally failing Into comply with the rules or orders of the disciplinary agency, vulnerability of the victim, substantial experience in the practice of law, and indifference to making restitution. There are no mitigating factors.

Considering the numerous aggravating factors present, respondent’s prior suspensions, and the fact that she has never satisfied the professional obligations she owed to Mr. Elias and to Ms. Williams, we cannot say the board’s recommendation of disbarment is inappropriate. Accordingly, we will accept the board’s recommendation and disbar respondent. We will further order that respondent 'provide a complete accounting to Ms. Williams and refund the unearned portion of the legal fee she was paid, and that she return Mr. Elias’ file to him.

DECREE

Upon review of the findings and recommendations of the hearing committees and disciplinary board, and considering the record, it is ordered that Anne T. Turissi-ni, Louisiana Bar Roll number 15060, be and she hereby is disbarred. Her name shall be stricken from the roll of attorneys and her license to practice law in the State of Louisiana shall be revoked. Respondent is ordered to provide a complete accounting to Lynn Williams and refund the unearned portion of the legal fee she was paid. Respondent is further ordered to return Ernest Elias’ file to him. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . The trial court's order also awarded the defendant attorney's fees of $500, plus costs, to be paid by respondent by November 27, 2002. It is unclear from the record whether respondent complied with the order.

      . The return receipt card was signed by respondent personally.

      . Throughout the board's report, it is stated that Ms. Williams paid respondent $2,000 plus an additional $250, for a total of $2,250, to handle the post-conviction matter. However, in her complaint, Ms. Williams confirmed that she paid respondent $1,850 plus an additional $250, for a total of $2,100.

      . The board acknowledged that there is nothing in the record which shows that Mr. Elias' claim was ultimately dismissed; however, the record "substantiates unnecessary delays caused by Respondent's actions.”

      . In Frank, the respondent knowingly and intentionally failed to communicate with his clients, neglected his clients' legal matters, abandoned his clients, failed to respond to his clients’ requests for information, failed to expedite litigation, failed to account for or refund unearned fees, failed to return his clients' files, failed to withhold sums from clients’ settlements and/or remit payment to third parties, made misrepresentations during settlement negotiations, and failed to cooperate with the ODC. For this "persistent and serious professional misconduct,” and considering the numerous aggravating factors present (including prior disciplinary offenses), we imposed disbarment.


source: Caselaw Access Project

license: Public Domain

text:
    In re Johnny E. WELLONS.
    No. 2006-OB-0851.
    Supreme Court of Louisiana.
    May 2, 2006.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Johnny E. Wel-lons, Louisiana Bar Roll number 9332, be and he hereby is transferred to disability inactive status. All disciplinary proceedings against respondent shall be deferred until such time as he resumes active status.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall- be effective immediately.

/s/ John L. Weimer

Justice, Supreme Court of Louisiana


text:
    In re Russell A. SOLOMON.
    No. 2006-B-0632.
    Supreme Court of Louisiana.
    May 2, 2006.
   ORDER

In 2001, respondent pleaded guilty in the United States District Court for the Eastern District of Louisiana to one felony count of structuring financial transactions for the purpose of evading federal reporting requirements, a violation of 31 U.S.C. § 5324(a)(3), stemming from his participation in a runner-based solicitation scheme. In 2004, the Office of Disciplinary Counsel (“ODC”) filed three counts of formal charges against respondent arising out of his conviction and other professional misconduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Russell A. Solomon, Louisiana Bar Roll number 2120, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Russell A. Solomon for permanent resignation in lieu of discipline be and is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Russell A. Solomon shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 06-B-0632 be dismissed as moot.

/s/ Jeannette T. Knoll

Justice, Supreme Court of Louisiana


text:
    In re Russell A. SOLOMON.
    No. 2006-OB-0852.
    Supreme Court of Louisiana.
    May 2, 2006.
   ORDER

In 2001, respondent pleaded guilty in the United States District Court for the Eastern District of Louisiana to one felony count of structuring financial transactions for the purpose of evading federal reporting requirements, a violation of 31 U.S.C. § 5324(a)(3), stemming from his participation in a runner-based solicitation scheme. In 2004, the Office of Disciplinary Counsel (“ODC”) filed three counts of formal charges against respondent arising out of his conviction and other professional misconduct. Respondent now seeks to permanently resign from the practice of law in lieu of discipline. The ODC has concurred in respondent’s petition.

Having considered the Petition for Voluntary Permanent Resignation from the Practice of Law filed by Russell A. Solomon, Louisiana Bar Roll number 2120, and the concurrence thereto filed by the ODC,

IT IS ORDERED that the request of Russell A. Solomon for permanent resignation in lieu of discipline be and' is hereby granted, pursuant to Supreme Court Rule XIX, § 20.1 and Rule 5.5(c) of the Rules of Professional Conduct, as amended March 24, 2004.

IT IS FURTHER ORDERED that Russell A. Solomon shall be permanently prohibited from practicing law in Louisiana or in any other jurisdiction in which he is admitted to the practice of law; shall be permanently prohibited from seeking readmission to the practice of law in this state or in any other jurisdiction in which he is admitted; and shall be permanently prohibited from seeking admission to the practice of law in any jurisdiction.

IT IS FURTHER ORDERED that the proceedings in 06-B-0632 be dismissed as moot.

/s/ Jeannette T. Knoll

Justice, Supreme Court of Louisiana


author: GAIDRY, J. DOWNING, J., CARTER, C.J.,

text:
    Jeffery W. MIRE, Shane M. O’Quin, and Barbara T. Estes, and a Class of Similarly Situated Individuals v. EATELCORP., INC., Primco Personal Communications, L.P. d/b/a Verizon Wireless and Sprint PCS, Inc.
    No. 2004 CA 2603.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied April 24, 2006.

      Leonard Cardenas, III, Randall Eugene Estes, Baton Rouge, Counsel for Plaintiffs/Appellants Jeffery Mire, et al.
    Thomas A. Robert's, Baton Rouge, Counsel for Defendant/Appellee Verizon Wireless.
    Glenn M. Farnet, Baton Rouge, Counsel for Defendant/Appellee Eatelcorp, Inc.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

| zThe plaintiffs-appellants, Jeffery W. Mire and Barbara T. Estes (plaintiffs), appeal the order of the trial court recalling its initial order certifying this action as a class action. We affirm for the reasons set forth below.

FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

The factual and initial procedural history of this action was briefly outlined in this court’s earlier opinion in Mire v. Eatelcorp, Inc., 02-1705, pp. 2-3 (La.App. 1st Cir.5/9/03), 849 So.2d 608, 611-12, writ denied, 03-1590 (La.10/3/03), 855 So.2d 317. We supplement that description with the following.

In their original petition filed on September 1, 2000, plaintiffs initially presented a sequence of “general allegations” outlining their cause of action. In summary, plaintiffs alleged that Eatelcorp, Inc. (Ea-telcorp) sold personal communications services (PCS) digital cellular telephones for use with Eatelcorp’s service plan featuring a month-to-month term. Each telephone sold was programmed by the manufacturer with a random six-digit number known as a “subsidy lock,” used to activate the telephone on a particular PCS provider’s network. Plaintiffs alleged that Eatelcorp failed to disclose the existence of the subsidy lock, which prevented any Eatelcorp customer from using his telephone with another PCS provider unless he paid a fee to Eatelcorp to access the subsidy lock code. Plaintiffs made supplemental factual allegations categorized under five different “counts” or theories of recovery: breach of contract, negligent omission of material information, fraud and inducement by omission, unfair trade practices, and conversion.

Following removal of the action to federal court and subsequent remand, Eatelcorp responded to plaintiffs’ petition on July 31, 2001 with |smultiple exceptions, including a declinatory exception of lack of subject matter jurisdiction asserting the primary or exclusive jurisdiction of the Federal Communications Commission (FCC) or the Louisiana Public Service Commission (LPSC) over plaintiffs’ claims. On September 10, 2001, the trial court heard Ea-telcorp’s exceptions and dismissed the dec-linatory exception of lack of subject matter jurisdiction by order signed September 21, 2001.

On October 11, 2001, Eatelcorp moved to dismiss the class action allegations based upon plaintiffs’ failure to move for certification within ninety days of service, pursuant to La. C.C.P. art. 592(A)(1).

On October 16, 2001, plaintiffs filed a motion to certify a class of plaintiffs for a class action. In a supplemental and amended petition filed on the same date, plaintiffs made additional allegations setting forth a cause of action in redhibition. The most pertinent of those allegations are as follows:

II.
Any and all PCS telephones sold by the defendant to all of its subscribers including the plaintiffs were defective and contained a vice or defect which was and is redhibitory, containing a subsidy lock that rendered each telephone useless with any other PCS wireless telephone service provider....
III.
The plaintiffs further show that the subsidy lock in each telephone sold by the defendant was a redhibitory defect because of the limitations it placed on each telephone, and the cost to remove it, that could not have been discovered at the time of sale by a reasonably prudent buyer.
V.
The subsidy lock was coded into each telephone by the defendant, and the defendant failed to disclose a removal charge pto each buyer and plaintiffs herein, rendering the defendant a “manufacturer” for redhibition purposes and therefore deemed to be in bad faith in selling its product containing a redhibi-tory defect.

(Emphasis in original.)

The trial court granted plaintiffs’ motion to certify the class action, and its order was signed on April 2, 2002. Eatelcorp appealed. In the course of oral argument before this court, plaintiffs’ counsel expressly abandoned all theories of recovery except that of redhibition. This court affirmed the order of class certification on the sole remaining theory of redhibition. We stated that the relevant inquiry on commonality of issues “does not involve the buyer’s subjective knowledge or reliance, but rather is an objective inquiry into the deficiency and whether it diminishes the product’s value or renders it so inconvenient that the buyer would not have purchased it had he known of the deficiency.” Mire, 02-1705 at pp. 5-6, 849 So.2d at 613-14.

Following our earlier decision in this matter, Eatelcorp filed a renewed declina-tory exception of lack of subject matter jurisdiction on the grounds that plaintiffs’ claims constituted a challenge to the subsidy lock within the primary or exclusive jurisdiction of the FCC. In the course of oral argument on that exception, plaintiffs’ counsel acknowledged that plaintiffs were not putting forth the subsidy lock as the redhibitory defect upon which their cause of action for redhibition was based. The trial court accordingly dismissed the renewed declinatory exception of lack of subject matter jurisdiction.

Eatelcorp then moved to decertify the class, on the grounds that redhibition was no longer a viable cause of action based upon plaintiffs’ express stipulation. The motion to decertify the class was heard on August | b2, 2004, and following argument, the trial court ruled in favor of Eatelcorp, granting its motion. On August 5, 2004, the trial court signed its order recalling and vacating the class certification. Plaintiffs moved for a new trial, but that motion was denied by the trial court by order signed October 7, 2004. Plaintiffs now appeal.

STANDARD OF REVIEW

The standard of appellate review of a trial court’s certification of a class action or denial of certification is a two-step analysis. The trial court’s factual findings are subject to review under the manifest error standard, and its ultimate decision regarding certification is then reviewed under the abuse of discretion standard. Boyd v. AlliedSignal, Inc., 03-1840, pp. 8-9 (La.App. 1st Cir.12/30/04), 898 So.2d 450, 456, writ denied, 05-0191 (La.4/1/05), 897 So.2d 606. In reviewing a decision to certify a class, wide latitude must be given to the trial court in considerations involving policy matters and factual analysis. Mire, 02-1705 at p. 3, 849 So.2d at 612.

ASSIGNMENTS OF ERROR

We paraphrase plaintiffs’ assignments of error:

The trial court committed reversible error in decertifying the class (1) by failing to recognize the “law of the case” doctrine applicable by reason of this court’s prior opinion affirming class certification of plaintiffs’ redhibition claims, and (2) in concluding that there has been a change in plaintiffs’ claims that negates a cause of action in redhibition.

ANALYSIS

Louisiana Code of Civil Procedure article 591(A) establishes the following required elements for certification and maintenance of a class action:

|fi(l) The class is so numerous that join-der of all members is impracticable.
(2) There are questions of law or fact ■common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

All of the elements of numerosity, commonality, typicality, adequate representation, and objectivity (definability) must be present to maintain a class action. La. C.C.P. art. 591(B); Boyd, 03-1840 at p. 10, 898 So.2d at 457. As to the element of commonality, La. C.C.P. art. 591(B)(3) further requires that the common questions of law or fact must predominate over any questions affecting only individual members. Further, “[cjertification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class.” La. C.C.P. art. 591(C).

Class action certification is purely procedural. Hampton v. Illinois Central Railroad Company, 98-0430, p. 6 (La.App. 1st Cir.4/1/99), 730 So.2d 1091, 1093. Thus, the likelihood of any plaintiffs success on the merits is not properly part of the certification process. Mire, 02-1705 at p. 5, 849 So.2d at 613.

Louisiana Code of Civil Procedure art. 592(A)(3)(c) sets forth the authority of the trial court in regulating the conduct of a class action prior to the ultimate determination of the merits:

In the process of class certification, or at any time before a decision on the merits of the common issues, the court may alter, amend, or recall its initial ruling on certification and may 17enlarge, restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

Since the rendition of our earlier opinion in this matter, plaintiffs have on numerous occasions expressly stipulated through counsel, both in open court and in brief, that they are not contending that the subsidy lock constituted a redhibitory defect. With that preliminary point settled beyond peradventure, we undertake the resolution of the issues before us.

We initially address plaintiffs’ contention that the “law of the case” doctrine applies to bar decertification of the class action, as our prior opinion recognized the adequacy of their claims in redhi-bition as presently framed. We disagree. The certification of a class action is not determinative of whether a cause of action exists. Hampton, 98-0430 at p. 11, 730 So.2d at 1096. We further disagree with plaintiffs’ contention that this court in its earlier opinion recognized the validity of their current characterization of the redhi-bitory defect as the “effect” of the subsidy lock, rather than “the subsidy lock in and of itself.” The opinion plainly states this court’s understanding of plaintiffs’ position to be that the undisclosed redhibitory defect or “deficiency” was “[the] subsidy lock that renders [the telephones] useless and inoperable with any other service provider upon termination of their services with Eatel.” Mire, 02-1705 at p. 5, 849 So.2d at 613.

Under the “law of the case” doctrine, an appellate court generally will not, on a subsequent appeal, reconsider its earlier ruling in the same case. H.R. 10 Profit Sharing Plan v. Mayeux, 03-0691, p. 2 (La.App. 1st Cir.9/17/04), 893 So.2d 887, 893 (on rehearing), writ denied, 05-0868 (La.5/13/05), 902 So.2d 1031. But the discretionary doctrine applies only to parties who have previously had the identical question presented and decided by an appellate court. Id., citing Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 6 (La.7/2/96), 676 So.2d 1077, 1079. This court was not presented with the issue of whether certification was appropriate under the theory of redhibition for any alleged redhibitory defect other than the subsidy lock. Thus, the identical question presented to us earlier is not present here, and we are not “locked” in our earlier ruling.

A trial court has broad discretion in deciding whether to certify a class; it also has the same discretion to amend or reverse its decision at any time. Mathews v. Hixson Brothers, Inc., 03-1065, p. 4 (La.App. 3rd Cir.2/4/04), 865 So.2d 1024, 1028, writ denied, 04-0554 (La.4/30/04), 872 So.2d 491. When subsequent developments in the course of the proceedings eliminate or substantially impair any of the requisite elements for maintenance of a class action, decertification is appropriate and within the discretion of the trial court. See Richardson v. American Cyanamid Company, 99-675, pp. 7-10 (La.App. 5th Cir.2/29/00), 757 So.2d 135, 138-39, writ denied, 00-0921 (La.5/12/00), 761 So.2d 1291. Accordingly, neither the trial court’s initial order of class certification nor this court’s opinion affirming that order bars reconsideration of the propriety of maintaining the class action if the fundamental nature of its cause of action changes.

In their appellate brief, plaintiffs attempt to characterize the telephone itself as the redhibitory defect, rather than the subsidy lock. It is implicit in La. C.C. art. 2520’s definition of redhibitory defect that such a defect is a characteristic or component of the thing sold, rather than the entire thing | flitself. Plaintiffs recognized as much in the allegations of their supplemental and amending petition. If the thing sold is by its nature not reasonably fit for its ordinary or intended use, or differs in kind or quality from that specified or represented, the buyer’s rights are governed by other rules of conventional obligations, rather than redhibition. La. C.C. arts. 2524, 2529.

If the subsidy lock itself has been eliminated as the alleged redhibitory defect, plaintiffs’ residual factual allegations (as narrowed by stipulation) simply do not state a cause of action in redhibition, although they do state a cause of action for breach of contract, on various grounds. As unequivocally stated in the official comments to La. C.C. art. 2529, that article was revised to legislatively overrule prior jurisprudence interpreting the pre-1995 version of article 2529 as permitting assertion of redhibition even though no redhibi-tory defects were present. La. C.C. art. 2529, Revision Comment 1 m(c) — 1993. The trial court found that the current posture of plaintiffs’ cause of action is governed by La. C.C. art. 2529. We agree, but with the observation that La. C.C. art. 2524 might also apply.

If plaintiffs’ remaining cause of action falls outside redhibition and involves individual issues and subjective considerations governed by other rules of conventional obligations, class certification is not appropriate. See Banks v. New York Life Insurance Company, 98-0551, p. 9 (La.7/2/99), 737 So.2d 1275, 1281, cert. denied, 528 U.S. 1158, 120 S.Ct. 1168, 145 L.Ed.2d 1078 (2000). The record shows that plaintiffs have repeatedly conceded this point in the event that their cause of action sounds in breach of contract rather than redhibition.

Plaintiffs suggest that the trial court’s claimed error was caused by its inexperience, confusion, and lack of familiarity with the background and prior proceedings conducted before its predecessor in office, who was elected to this court following the rendition of the class certification order. Despite plaintiffs’ legal maneuvering to maintain the “Holy Grail” of class certification within their grasp, the record and transcripts of the proceedings below conclusively demonstrate that the trial court thoroughly reviewed the pleadings and memoranda and fully understood the prior rulings and the parties’ respective positions before making its ultimate decision.

InA cause which has no effect has caused nothing; similarly, a “defect” which has no effect is no defect. Without the subsidy lock (the cause), the effect of which plaintiffs complain would not exist. Plaintiffs seek to isolate or divorce the effect of the subsidy lock from the subsidy lock itself, and to combine it with Eatel-eorp’s alleged failure to disclose the effect in an attempt to fashion a hybrid redhibi-tory defect beyond the scope of the FCC’s jurisdiction. Unlike Dr. Frankenstein, plaintiffs have failed to animate their patchwork creation. In their attempt to do so, they were forced to sacrifice the crucial element of commonality by introducing subjective issues inherent in a cause of action based on contractual misrepresentation. We agree with Eatelcorp that plaintiffs cannot have it both ways.

In summary, by renouncing the subsidy lock itself as a redhibitory defect, plaintiffs effectively renounced redhibition as the viable theory of their case and consequently removed their action from maintenance as a class action. The trial court’s factual findings in that regard were not manifestly erroneous, its legal conclusions were correct, and its decision to recall the class certification was a sound exercise of its vast discretion.

DECREE

The order of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Jeffery W. Mire and Barbara T. Estes.

AFFIRMED.

CARTER, J., concurs with reasons.

DOWNING, J., dissents and assigns reasons.

DOWNING, J.,

dissents and assigns reasons.

hi respectfully dissent and would reverse the judgment of the trial court that recalled and vacated the class certification order in this matter. When this court previously ruled in this matter, we analyzed the plaintiffs’ theory of recover as follows:

Here, the plaintiffs argue that the predominant common factual and legal issue is Eatel’s failure to adequately disclose to its customers that the telephones they purchased contain a subsidy lock that renders them useless and inoperable with any other service provider upon termination of their services with Eatel. According to plaintiffs, the inquiry under a redhibition claim does not involve the buyer’s subjective knowledge or reliance, but rather is an objective inquiry into the deficiency and whether it diminishes the product’s value or renders it so inconvenient that the reasonable buyer would not have purchased it had he known. of the deficiency. We agree. Whether Eatel is liable in redhibition is the central issue and this issue is obviously common to all claimants. (Emphasis added.)

Mire v. EatelCorp, Inc., 02-1705, pp. 5-6 (La.App. 1 Cir. 5/9/03), 849 So.2d 608, 613-14. We reiterated our understanding of the plaintiffs’ theory of recovery as follows:

Here, the claim of every class member lies in redhibition; the legal theory is the same and each claim arises out of the same course of conduct — Eatel’s sales of its telephones with inadequate disclosure of the subsidy locks. We find no error in pthe trial court’s finding that the element of typicality has been established. (Emphasis added.)

Mire, 02-1705 at pp. 8-9, 849 So.2d at 615.

The majority misquotes this court’s understanding of the plaintiffs position. The omitted part of the quote is in bold, as follows:

[T]he plaintiffs argue that predominate common factual and legal issues is Eatel’s failure to adequately disclose to its customers that the telephones they purchased contain a subsidy lock that renders [the telephones] useless and inoperable with any other service provider upon termination of their services with Eatel. (Emphasis added.)

Mire, 02-1705 at p. 5, 849 So.2d at 613. And the majority accuses the plaintiffs of Frankensteinian attempts to animate a patchwork creation.

The majority correctly notes in its opinion that nothing bars “reconsideration of the propriety of maintaining the class action if the fundamental nature of its cause of action changes.” But here, there has been no change in the fundamental nature of plaintiffs’ cause of action. The plaintiffs’ stipulation that the subsidy lock was not defective in no way alters their theory of recovery as understood by a prior panel of this court. Accordingly, the trial court was manifestly erroneous in finding otherwise.

The majority here also concludes that, “by renouncing the subsidy lock itself as a redhibitory defect, plaintiffs effectively renounced redhibition as the viable theory of their case, and consequently removed their action from maintenance a class action.” This conclusion is wholly inconsistent with the ruling of the prior panel of this court as set forth above, despite the majority’s protestations to the contrary.

Under law of the case doctrine, we are bound to follow the prior ruling of this court on this issue. An appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. However, where a prior disposition is clearly erroneous and will create a 1 sgrave injustice, it should be reconsidered. Cole v. State, Dept. of Public Safety and Corrections, 03-2269, p. 3 (La.App. 1 Cir. 6/25/04), 886 So.2d 463, 465, writ denied, 04-1836 (La.10/29/04), 885 So.2d 589.

Eatel has made no argument that the prior disposition was clearly erroneous, nor has it demonstrated that grave injustice -will result from maintaining the class certification. And it is not apparent that the prior ruling of this court was clearly erroneous and will result in grave injustice.

I make no prediction on whether the plaintiffs will be able to prevail on their theory of recovery, but that is not the question for us to decide today; class de-certification is. Since the plaintiffs have not changed the theory of their case, the trial court had no factual basis on which to decertify the class. Accordingly, I find the trial court was manifestly erroneous in finding otherwise and would reverse its judgment. This result would be consistent with the prior ruling of this court on the precise issue before us.

CARTER, C.J.,

concurring.

bl agree with the result reached in the majority opinion. However, I do not join in the majority’s characterizations of plaintiffs’ legal arguments or strategies. Therefore, I concur in the result only.

      . For convenience, we henceforth refer to the alternate regulatory jurisdiction of the FCC and the LPSC as the FCC's jurisdiction.

      . Mire, 02-1705 at p. 2, 849 So.2d at 611-12. On March 22, 2004, plaintiffs' counsel further acknowledged that judicial confession in oral argument before the trial court on Eatelcorp's renewed declinatory exception of lack of subject matter jurisdiction.

      . Plaintiffs' appellate brief states: "[T]he red-hibitory defect is an entirely useless and inoperable telephone handset, with each telephone handset rendered redhibitorily defective by the fraudulent and deceptive conduct of Eatel [sic ] by programming each telephone to render it entirely useless.”

      . “The seller warrants the buyer against red-hibitory defects, or vices, in the thing sold.” La. C.C. art. 2520. (Our emphasis.) A redhi-bitory defect has also been defined in the jurisprudence as a "physical imperfection or deformity, a lacking of a necessary component or level of quality.” Downs v. Hammett Properties, Inc., 39,568, p. 5 (La.App. 2nd Cir.4/6/05), 899 So.2d 792, 796, citing Williams v. Louisiana Machinery Company, Inc., 387 So.2d 8, 11 (La.App. 3rd Cir.1980).

      . Louisiana Civil Code art. 2524 provides:
      The thing sold must be reasonably fit for its ordinary use.
      When the seller has reason to know the particular use the buyer intends for the thing, or the buyer’s particular purpose for buying the tiling, and that the buyer is relying on the seller’s skill or judgment in selecting it, the thing sold must be fit for the buyer’s intended use or for his particular purpose.
      If the thing is not so fit, the buyer’s rights are governed by the general rules of conventional obligations.
      Under this article, if the thing sold is not reasonably fit but is free of redhibitory defects, the buyer’s action is one for breach of contract and not redhibition. La. C.C. art. 2524, Revision Comment (b) — 1993.
      Louisiana Civil Code art. 2529 provides:
      When the thing the seller has delivered, though in itself free from redhibitory defects, is not of the kind or quality specified in the contract or represented by the seller, the rights of the buyer are governed by other rules of sale and conventional obligations.

      .We further question plaintiffs' characterization of the "intended use" of the telephones. The class was defined as including any persons who purchased wireless telephones from Eatelcorp at any time from October 10, 1997 through December 8, 1999. Plaintiffs seem to assume, without any basis, that every member of the defined class necessarily intended at the time of purchase to terminate his service contract with Eatelcorp and to use the telephone purchased from Eatelcorp with a competitor of Eatelcorp. Any rational inquiry as to such "intended use” would necessarily inject subjective issues into the commonality element required to maintain the class action.

      . See Hampton, 98-0430 at p. 2, 730 So.2d at 1097 (Kuhn, J., concurring).

      . A defect is "[sjomething that mars the appearance or causes inadequacy or failure.” Roget’s II: The New Thesaurus 111 (3rd ed.1996). (Emphasis supplied.) It is not a coincidence that the words "effect” and "defect” derive from a common Latin root, facere (meaning to make or to do). Merriam-Webster’s Collegiate Dictionary 302, 367 (10th ed.1998).


author: CARTER, C. J.

text:
    Vicki BABINEAUX and Norbert Babineaux v. STATE of Louisiana through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2004 CA 2649.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Conrad S.P. Williams, III, Houma, Elwood C. Stevens, Jr., Morgan City, for Plaintiffs-Appellants, Vicki and Norbert Babineaux.
    Charles C. Foti, Jr., Baton Rouge, Julius W. Grubbs, New Iberia, for Defendant-Appellee, State of Louisiana, Through the Department of Transportation and Development.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   CARTER, C. J.

[2This is an appeal from a trial court judgment sustaining a peremptory exception raising the objection of prescription. For the following reasons, we affirm.

BACKGROUND

The basic facts of this case are not in dispute. On September 7, 1999, Vicki Ba-bineaux was involved in a single-vehicle accident while driving her pickup truck in the rain on Louisiana Highway 90 (Hwy. 90) near Houma, Louisiana. Mrs. Babi-neaux was traveling approximately 55 mph when she lost control of her vehicle after encountering an accumulation of water in the right westbound lane. Her vehicle hydroplaned, spun around, left the roadway, hit a guardrail, and flipped over near the median. Mrs. Babineaux was injured as a result of the accident.

After observing a billboard in September 2002 advising of a hydroplane hazard along Hwy. 90, Mrs. Babineaux and her husband, Norbert Babineaux, contacted a lawyer regarding the accident. The Babi-neauxs filed suit against the State of Louisiana through the Department of Transportation and Development (DOTD) on May 2, 2003.

DOTD responded to the Babineauxs’ lawsuit by filing a peremptory exception raising the objection of prescription along with its answer. On May 3, 2004, the trial court held a hearing on the exception of prescription, allowing the parties to submit documentary evidence and deposition testimony. After hearing argument and considering the evidence, the trial court sustained DOTD’s exception of prescription, and dismissed the Babineauxs’ suit with prejudice. The Babineauxs appealed, arguing that the doctrine of contra non va-lentern applies in this case so as to prevent the ^running of liberative prescription. Essentially, the Babineauxs contend they were not aware of their cause of action against DOTD until they saw the billboard advising of hydroplane accidents along Hwy. 90, and it was only then that the liberative prescriptive period began to run.

STANDARD OF REVIEW

When evidence is introduced at the hearing on a peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

LAW AND ANALYSIS

Prescription commences when a plaintiff obtains “actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” Bailey v. Khoury, 04-0620 (La.1/20/05), 891 So.2d 1268, 1276, citing Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510. An injured party has constructive notice when he or she possesses information sufficient to incite curiosity, excite attention, or put a reasonable person on guard to call for inquiry, and includes knowledge or notice of everything to which that inquiry might lead. Alexander v. Fulco, 39,293 (La.App. 2 Cir. 2/25/05), 895 So.2d 668, 671, writ denied, 05-0781 (La.5/6/05), 901 So.2d 1107; K & M Enterprises of Slaughter, Inc. v. Richland Equipment Co., Inc., 96-2292 (La.App. 1 Cir. 9/19/97), 700 So.2d 921, 925. The party raising an exception of prescription has the burden of proving that the claim has prescribed. Campo, 828 So.2d at 508. |4However, when it appears on the face of the pleadings that prescription has run, the burden shifts to the opposing party to show that prescription was suspended or interrupted. Id.

The prescriptive period applicable in the case sub judice is the one-year liberative prescription for delictual actions, commencing the day the injury or damage is sustained. LSA-C.C. art. 3492. This statute, like all prescription statutes, is strictly construed against prescription and in favor of maintaining the cause of action. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. The accident occurred on September 7, 1999. The Babineauxs filed their lawsuit on May 2, 2003, over three years after the accident. Thus, the petition reveals on its face that prescription has run. As a result, the Babineauxs bore the burden of establishing that prescription was interrupted or suspended.

The Babineauxs avail themselves of the doctrine of contra non valentem non currit praescriptio. Simply put, this means that prescription does not run against a person who cannot bring his suit. Carter, 892 So.2d at 1268; Harvey v. Dixie Graphics, Inc., 593 So.2d 351, 354 (La.1992). Contra non valentem is a jurispru-dentially-created exception to the general rules of prescription. The doctrine is based on the premise that, in some circumstances, equity and justice require that prescription “be suspended because the plaintiff was effectually prevented from enforcing his rights for reasons external to his own will.” (Citations omitted.) Wimberly, 635 So.2d at 211.

The Louisiana Supreme Court generally recognizes four factual situations in which the doctrine of contra non valentem applies so as to prevent the running of liber-ative prescription:

| B(l) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

Renfroe v. State, Dept. of Transportation and Development, 01-1646 (La.2/26/02), 809 So.2d 947, 953.

The Babineauxs argue that the fourth category of contra non valentem, commonly referred to as the “discovery rule,” applies in this case because they did not realize or discover that DOTD could be responsible for Mrs. Babineaux’s accident until September 2002, when they saw a billboard advising of a hydroplane accident hazard along Hwy. 90. The Babineauxs contacted a lawyer and filed suit within a year of observing the billboard.

It is well settled that the principle of contra non valentem will not exempt the plaintiffs claim from the running of prescription if his ignorance is attributable to his own willfulness, neglect, or unreasonableness. See Campo, 828 So.2d at 511 and K & M Enterprises, 700 So.2d at 924-925. A plaintiff will be deemed to know what he could have learned through reasonable diligence. Renfroe, 809 So.2d at 953. Generally, the prescriptive period commences when there is enough notice to call for an inquiry about a claim, not when an inquiry reveals the facts or evidence to sufficiently prove the claim. See Terrel v. Perkins, 96-2629 (La.App. 1 Cir. 11/7/97), 704 So.2d 35, 39.

|fiThe Babineauxs argue that their ignorance of the grounds for a cause of action against DOTD was not willful. However, by Mrs. Babineaux’s own admissions and actions, it is clear that she was aware of the cause of the accident (i.e., the hydroplaning) at the time of its occurrence. Mrs. Babineaux admitted in her deposition that she clearly remembers the accident. She readily acknowledged that she was aware that she had driven into standing water on Hwy. 90 when her vehicle hydroplaned. Further, she recognized that the hydroplaning is what led her to lose control of her vehicle and crash. The accident report and deposition testimony of the investigating state trooper corroborated that the cause of the accident was the water on the roadway. Two witnesses to the accident gave written statements to the investigating state trooper declaring that they had observed Mrs. Babineaux’s vehicle hit a water puddle, leave the roadway, and overturn. Thus, it is apparent that the standing water on Hwy. 90 was not hidden or undiscoverable. Mrs. Babineaux also admitted in her deposition that nothing prevented her from filing her lawsuit within a year of the accident, and she confessed that she did not do anything to investigate whether she had a claim against DOTD after she had the accident.

The Babineauxs argue that even if they had made inquiries to DOTD, they would have been unsuccessful in gaining information about the alleged hydroplane hazard/defect. We find this argument to be unpersuasive. Silence is a recognized reaction by named, as well as potential, defendants in lawsuits. Discovery procedures in litigation exist for the purpose of affording all parties a fair opportunity to obtain pertinent facts, to discover true facts, and to compel disclosure of such facts. See Bennett v. General Motors Corp., 420 So.2d 531, 535 (La.App. 2 Cir.1982). Clearly, if the |7Babineauxs had inquired into DOTD’s potential liability and failed to obtain the requested information, they could have filed suit against DOTD and compelled the disclosure of the facts necessary to prove their cause of action. Certainly, the cause of action existed, the discovery devices were available, and the hydroplane hazard was “reasonably knowable” by the Babineauxs within one year of the date of the accident.

We find that the information that was immediately available to the Babineauxs was sufficient to create excitement, incite curiosity, and/or a reasonable desire to make further inquiry into the cause of the accident. Even a simple investigation or consultation with a lawyer would have revealed the existence of DOTD’s potential liability. Thus, it was not reasonable for the Babineauxs to fail to further inquire into their possible claim against DOTD within a year of the accident. Furthermore, there is nothing in the record to suggest that the Babineauxs were prevented from inquiring about their claim or from timely filing suit when they were aware that Mrs. Babineaux’s accident was caused by a hydroplaning incident on a state highway. Thus, the doctrine of contra non valentem does not apply in this case.

CONCLUSION

Based upon our review of the record, the trial court was not clearly wrong in sustaining DOTD’s peremptory exception raising the objection of prescription. Accordingly, we affirm the trial court judgment. All costs of this appeal are assessed to the plaintiffs-appellants, Vicki and Norbert Babineaux.

AFFIRMED.


author: GUIDRY, J.

text:
    Robin BUELLE and Kenneth S. Smith v. Thomas PERIOU, M.D. and Fireman’s Fund Insurance Company.
    No. 2004 CA 2733.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied April 24, 2006.

      Irvy E. Cossé, III, New Orleans, Counsel for Plaintiffs/Appellees Robin Buelle and Kenneth S. Smith.
    Deborah Deo Gracias Trahan, Jacques F. Bezou, Covington, Counsel for Defendant/Appellant Thomas Periou, M.D.
    C. Michael Pfister, Monica E. Gant, Me-tairie, Counsel for Defendant/Appellant Fireman’s Fund Insurance Company.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

| ^Defendants appeal a trial court judgment overruling their dilatory exception raising the objection of prematurity. The trial court concluded that the plaintiff was not required to submit her claim to a medical review panel pursuant to the Louisiana Medical Malpractice Act (“MMA”), La. R.S. 40:1299.41 et seq. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On June 17, 2004, plaintiff, Robin Buelle, filed suit against Thomas Periou, M.D., and his homeowner’s insurer, Fireman’s Fund Insurance Company. Plaintiffs petition contained the following pertinent allegations:

On or about October 5, 2003, Robin Buelle, petitioner herein, was outside of the place of her employment at Slidell Memorial Hospital on a smoke break and not at any pertinent time mentioned herein, in the course and scope of her employment.
During said break, defendant, Thomas Periou, M.D., an anesthesiologist, approached petitioner, whereupon defendant attempted to manipulate petitioner’s sacroiliac joint, despite having no training or expertise to do so.
As a result thereof, petitioner sustained severe and disabling personal injuries including, but not limited to: Extra abdominal fibromatosis, in addition to other spinal injuries.
Petitioner avers that although the actions of defendant were intentional, the consequences that resulted therefrom were not and could not have been intended.
* * ⅜
Petitioner avers that defendant, Thomas Periou, M.D., was negligent in the following, non-exclusive respects, to-wit:
A. Attempting to perform a medical adjustment and/or procedure for which he was not trained;
B. Acting in a careless manner; and
C.Any and all other acts of negligence which may be proven at the trial of this matter.
^Petitioner avers that at the time of the accident in question, defendant had no training in the manipulation of the sacroiliac joint.
Petitioner avers that at the time of the accident in question she had not and did not pay any sums of money or anything of value to defendant in order for him to perform said adjustment that would establish any professional relationship. Petitioner avers that at the time of the accident it was not her desire that defendant perform said adjustment and/or procedure on her person.

In response to plaintiffs petition, both defendants filed dilatory exceptions raising the objection of prematurity, alleging that the plaintiffs claims fell within the purview of the MMA and therefore must be submitted to a medical review panel before suit could be filed. In conjunction with his dilatory exception, Dr. Periou submitted a copy of his certificate of enrollment demonstrating his status as a qualified health care provider under the MMA. Conversely, Ms. Buelle argued that her claim did not constitute “malpractice” under the MMA, because she was neither Dr. Periou’s “patient” nor were his actions “health care” as those terms are defined in La. R.S. 40:1299.41.

A trial on the exceptions was held on September 20, 2004. Following argument by counsel, the trial court overruled the exceptions. Judgment was signed accordingly on September 28, 2004. From this judgment, defendants appeal.

DISCUSSION

I. Motion to Strike

As a preliminary matter, we must address a motion to strike that was subsequently filed by Dr. Periou. He complains that the plaintiff has | improperly submitted new evidence to this court by appending an affidavit to her appellate brief that was not presented during the underlying proceedings. Indeed, the affidavit postdates the trial court’s ruling. As an appellate court, we are required to render our judgment upon the record on appeal. La. C.C.P. art. 2164. We cannot review evidence that is not in the record, nor can we receive new evidence. Our Lady of the Lake Hospital v. Vanner, 95-0754, p. 4 (La.App. 1st Cir.12/15/95), 669 So.2d 463, 465, cert denied, 525 U.S. 818, 119 S.Ct. 57, 142 L.Ed.2d 45 (1998). Accordingly, Dr. Per-iou’s motion is granted, and the affidavit and all references thereto are hereby stricken. Having so ruled, we now proceed to the substantive issues raised in this appeal.

II. Prematurity and the MMA

Louisiana Code of Civil Procedure article 926 provides that an objection of prematurity may be raised through the dilatory exception. The exception raising the objection of prematurity is generally utilized in cases where the law has provided a procedure for a claimant to seek administrative relief before resorting to judicial action. Miller v. Columbia/HCA Healthcare Corp., 98-1874, p. 3 (La.App. 1st Cir.9/24/99), 754 So.2d 998, 999. The MMA provides such a procedure in that it requires all medical malpractice claims against qualified health care providers to be submitted to a medical review panel prior to filing suit in any court. La. R.S. 40:1299.47(B)(l)(a)(i); Bennett v. Krupkin, 2000-0023, p. 6 (La.App. 1st Cir.3/28/02), 814 So.2d 681, 685, writ denied, 2002-1208 (La.6/21/02), 819 So.2d 338. It is undisputed that Dr. Periou is a qualified health care provider under the MMA. Accordingly, the only issue to be determined by this court is whether the plaintiffs claim is one of medical malpractice.

IsThe burden of proving prematurity is on the exceptor; therefore, the defendants must establish that plaintiff has asserted a medical malpractice claim that must first be submitted to a medical review panel. Williamson v. Hospital Service District No. 1 of Jefferson, 2004-0451, p. 4 (La.12/1/04), 888 So.2d 782, 785. According to La. C.C.P. art. 930, evidence may be introduced at the trial of the exception either to support or controvert the objection of prematurity, when the grounds thereof do not appear from the petition.

The only evidence submitted in support of the exception was a copy of the certificate of enrollment establishing Dr. Periou’s status as a qualified health care provider. No evidence was submitted by Ms. Buelle to controvert the exception. During the trial, counsel for Ms. Buelle offered to have her testify; however, this never occurred. Rather, the trial ultimately consisted of plaintiffs counsel and defendants’ counsel arguing two very different factual scenarios relevant to the classification of Ms. Buelle’s claim. Clearly, argument by counsel does not constitute evidence. Roberts v. Owens-Corning Fiberglas Corp., 2003-0248, p. 13 (La.App. 1st Cir.4/2/04), 878 So.2d 631, 643, writ denied, 2004-1834 (La.12/17/04), 888 So.2d 863. Accordingly, we must examine the allegations in plaintiffs petition and ascertain whether these allegations establish a claim of medical malpractice under the MMA.

“Malpractice” is defined by La. R.S. 40:1299.41 A(8) as follows:

“Malpractice” means any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions in the training or supervision of health nare providers...

1 ¿Therefore, in order for a plaintiffs claim to be considered a malpractice action under the MMA, it must be an unintentional tort or contract claim predicated on health care or professional services rendered by a health care provider to a patient. Delcambre v. Blood Systems, Inc., 2004-0561, p. 6 (La.1/19/05), 893 So.2d 23, 27. Defendants contend that this clearly describes the claim asserted herein. However, Ms. Buelle urges that her claim does not satisfy the foregoing definition because it does not entail: (1) an unintentional tort; (2) involving health care services; (3) rendered to a patient.

We note that Ms. Buelle’s allegation that she did not “desire” the “adjustment and/or procedure” from Dr. Periou, and her assertion that his actions therefore constituted the intentional tort of battery, do not necessarily render her claim exempt from the provisions of the MMA. In Lugenbuhl v. Dowling, 96-1575, p. 9 (La.10/10/97), 701 So.2d 447, 453, our supreme court specifically rejected battery-based liability in lack of informed consent and no-consent cases in favor of liability based on the breach of a doctor’s duty to provide a patient with material information concerning the medical procedure. Nevertheless, the plain language of this holding, as well as the definitions of “malpractice” and “health care” set forth in La. R.S. 40:1299.41 A (8) and (9), still require a finding that Ms. Buelle’s status be that of a “patient.”

Ms. Buelle maintains that her lack of “desire that [Dr. Periou] perform [the] adjustment and/or procedure on her person,” as well as her allegation that she did not pay or give anything of value to Dr. Periou in order for him to perform the adjustment, demonstrates that she was not his “patient”. The MMA defines the term “Patient” as follows:

l7“Patient” means a natural person, including a nursing home resident, who receives or should have received health care from a licensed health care provider, under contract, expressed or implied.

La. R.S. 40:1299.41 A(3).

While Ms. Buelle’s allegation that she did not pay for Dr. Periou’s services is relevant in determining whether a contract existed, we realize that it is not dispositive. Our civil code provides that a contract may be unilateral or gratuitous. La. C.C. arts. 1907 and 1910. Moreover, her allegation that she did not “desire” the adjustment does not, in and of itself, exclude a finding that she was a patient, particularly in light of the Lugenbuhl decision. Nevertheless, we note that it was not Ms. Buelle’s burden to prove that she was not a patient; rather, it was defendants’ burden to prove that she was. There are no specific facts in Ms. Buelle’s petition to indicate that she entered into a contract with Dr. Periou, either express or implied. Rather, her allegations that she did not want the procedure and that she did not pay for the procedure so as to establish a professional relationship with Dr. Periou tend to indicate otherwise. Accordingly, it was incumbent upon the defendants to introduce evidence establishing the existence of a contract. This they failed to do.

Therefore, based on the face of the petition and the lack of any evidence to the contrary, we conclude that defendants are not entitled to a medical review panel because they failed to prove that Ms. Buelle was a “patient” of Dr. Periou so as to satisfy the MMA’s definition of “malpractice.” Our conclusion is buttressed by policy that dictates strict construction of the MMA against coverage because it is special legislation in derogation of the general rights of tort victims. Delcambre, 2004-0561 at p. 13, 893 So.2d at 31.

[¡/Because we have concluded that Ms. Buelle was not a “patient” of Dr. Periou, it is unnecessary to apply the six factors set forth in Coleman v. Deno, 2001-1517, 2001-1519, 2001-1521, pp. 17-18 (La.1/25/02), 813 So.2d 303, 315-16, for determining whether allegations of injury constitute “malpractice” under the MMA. Delcambre, 2004-0561 at p. 13, 893 So.2d at 31.

DECREE

For the foregoing reasons, Dr. Thomas Periou’s motion to strike is granted. Additionally, the judgment of the trial court overruling the defendants’ dilatory exceptions raising the objection of prematurity is hereby affirmed. Costs of this appeal are to be borne equally by defendants, Thomas Periou, M.D., and Fireman’s Fund Insurance Company.

MOTION GRANTED; JUDGMENT AFFIRMED.

      . In Ms. Buelle’s petition, Kenneth S. Smith also joins as a plaintiff and asserts a claim for loss of consortium. There is no indication within the petition whether Mr. Smith has the requisite relationship to assert such a claim. See La. C.C. arts. 2315 and 2315.2. However, the merits of Mr. Smith's claim are hot before this court. Therefore, for the sake of clarity and because his claim is merely derivative, all references to "plaintiff” within this opinion refer solely to Robin Buelle.

      . In brief, Ms. Buelle maintains that this court does not have jurisdiction to entertain this appeal. We disagree. A judgment overruling a dilatory exception of prematurity and requiring a health care provider to forgo the benefit of a medical review panel is considered appealable in that the panel proceedings cannot be adequately replicated after reversal on appeal. McKnight v. D & W Health Services, Inc., 2002-2552, p. 3 (La.App. 1st Cir. 11/7/03), 873 So.2d 18, 21.