author: GUIDRY, J. KIMBALL, C. J., WEIMER, J.,

text:
    Nakisha CREDIT and Kevin Credit, Sr., Individually and on Behalf of their Minor Children, Adrienne Breana Howard, Kaylin Howard and Kevin Credit, Jr. v. RICHLAND PARISH SCHOOL BOARD, State Farm Mutual Insurance Company, Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, Rayville High School, XYZ Duty Teachers, Gail McClain as the Mother of Courtney McClain, Richland Career Center at Archibald, and Amy Doe as the Mother of LeBaron Sledge.
    No. 2011-C-1003.
    Supreme Court of Louisiana.
    March 13, 2012.

      Hammonds & Sills, Linda Kay Ewbank, Courtney Terell Joiner, Neal Lane Johnson, Jr., Monroe, LA, Jon Keith Guice, Baton Rouge, LA, for Applicant.
    Davenport, Files & Kelly, Martin Shane Craighead, Monroe, LA, The Downs Law Firm, APC, Earl Ross Downs, Jr., La Koshia Reconda Roberts, The Jones Law Group, LLC, Rosalind D. Jones, The Law Firm of Eddie Clark & Associates, LLC, Eddie Montreal Clark, for Respondent.
   GUIDRY, J.

hWe granted certiorari in this case to determine whether the “statement made or action taken” language in La. R.S. 17:439(A) precludes a cause of action against school employees for negligent acts of omission and to ascertain whether an action may be filed pursuant to La. R.S. 17:439(D) directly against a school employee for the negligent operation of a motor vehicle to the extent his or her liability is covered by insurance or self-insurance. For the reasons that follow, we reverse the ruling of the court of appeal in part and hold that La. R.S. 17:439(A) precludes a cause of action against school employees for certain negligent acts, including acts of commission and acts of omission. We otherwise affirm the court of appeal’s ruling that La. R.S. 17:439(D) permits an action directly against a school bus driver for the negligent operation of a school bus to the extent the driver’s liability is covered by insurance or self-insurance. Finally, we remand the matter to the court of appeal for further proceedings.

| .FACTS AND PROCEDURAL HISTORY

Because this case involves a ruling regarding a peremptory exception of no cause of action, we begin with the allegations of fact pled in the plaintiffs’ petition, accepting them as true for the purpose of ruling on the exception of no cause of action. State, Div. of Admin., Office of Facility Planning and Control v. Infinity Sur. Agency, L.L.C. (“Infinity”), 10-2264, p. 1 (La.5/10/11), 68 So.3d 940, 941(citing Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641). Nakisha Credit, mother of Adrienne Breana Howard (“Breana”), filed the instant suit individually and on behalf of Breana’s half-siblings, Kaylin Howard and Kevin Credit, Jr. Plaintiffs allege in their petition that Breana was involved in an ongoing feud with Courtney McClain (“Courtney”). At the time of the alleged incident discussed below, Breana had been expelled from Rayville High School and was attending Richland Career Center at Archibald. According to the petition, on December 14, 2009, Breana was dropped off in the rear of Rayville High School after school had been dismissed for the day at Richland Career Center and began to walk home. Plaintiffs contend LeBaron Sledge subsequently instigated a fight between Breana and Courtney. Shortly thereafter, plaintiffs claim, the two began fighting on the sidewalk in the rear of the school. The petition alleges that, during the altercation, Breana was either pushed by Courtney or fell off the sidewalk, and was struck by an oncoming Richland Parish school bus driven by Samuel G. Hesser. Breana died as a result of her injuries. The petition further alleges Kaylin Howard and Kevin Credit, Jr., Breana’s younger half-siblings, were passengers on a bus immediately in front of the bus that struck and killed Breana. The bus was stopped and the two half-siblings were forced to exit the bus where they saw Breana’s injured body. Plaintiffs allege at the time of the accident there were no teachers on duty in or around the bus area of Rayville High School.

|3On March 1, 2010, Nakisha Credit, Breana’s mother, filed suit individually and on behalf of Breana, Kaylin Howard, and Kevin Credit, Jr., against: (1) the Rich-land Parish School Board; (2) State Farm Mutual Automobile Insurance Company (“State Farm”), the insurer of the school board; (3) Cathy Stockton, superintendent of the Richland Parish School Board; (4) Georgia Ineichen, principal of Rayville High School; (5) Larry Wright, Sr., assistant principal of Rayville High School; (6) Samuel G. Hesser, driver of the bus that struck Breana; (7) Rayville High School; (8) Richland Career Center at Archibald; (9) XYZ duty teachers; (10) Gail McClain, Courtney McClain’s mother; and (11) Amy Doe, LeBaron Sledge’s mother. Nakisha Credit asserted individual claims for wrongful death and survival damages. On behalf of Kaylin Howard and Kevin Credit, Jr., she brought claims for Lejeune damages pursuant to La. C.C. art. 2315.6.

Among other allegations, plaintiffs’ petition alleges defendants were negligent in a variety of ways by failing to supervise the children, failing to timely respond to the fight, and failing to adequately staff the bus area with teachers or school employees. Plaintiffs specifically allege Samuel G. Hesser, the bus driver, saw or should have seen the large gathering of students and the fight between Breana and Courtney and continued to operate his school bus near the large crowd without regard for the safety of the children around the school bus zone. Plaintiffs contend the mother of LeBaron Sledge is liable for damages caused by his role in inciting the fight and Gail McClain, as the parent of Courtney McClain, is liable for the damages caused by Courtney when she allegedly pushed Breana and caused her to fall.

|4On April 12, 2010, the eight defendants filed various exceptions, but the dispute before us today concerns the exception of no cause of action filed by Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., Samuel G. Hesser, and XYZ duty teachers. These defendants asserted plaintiffs have no cause of action against them pursuant to La. R.S. 17:439(A), which precludes a cause of action against any school employee based on “any statement made or action taken” within the course and scope of the employee’s duties and within specific guidelines for employee behavior. After a hearing on the matter, the trial court held that La. R.S. 17:439(A) prohibits causes of action against individual parish school board employees who are alleged to have committed negligent actions in the course and scope of their employment. Therefore, the trial court granted the exception of no cause of action as to Cathy Stockton, Georgia Ineichen, Larry Wright, and XYZ duty teachers.

As to Samuel G. Hesser, the trial court found La. R.S. 17:439(D) prohibited plaintiffs from bringing a claim directly against the bus driver. La. R.S. 17:439(D) states, “The provisions of this Section shall not apply to the negligence of any school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance.” The trial court reasoned that La. R.S. 17:439(D), by including the phrase “to the extent that liability is covered by insurance or self-insurance,” when read in conjunction with La. R.S. 17:439(B) defining “school employee” as including school bus drivers, prohibited a cause of action directly against Mr. Hesser, though it did permit suit directly against the driver’s insurer.

IsThe court of appeal reversed the trial court’s judgment that found plaintiffs had no cause of action against the school employees. Credit v. Richland Parish School Bd., 46,163, pp. 16-17 (La.App. 2 Cir. 4/13/11), 61 So.3d 861, 870-871. After .setting forth the applicable law on statutory interpretation, the court essentially found that the legislature in enacting La. R.S. 17:439(A) had created a qualified immunity from liability for school board employees for negligent acts of commission but not for negligent acts of omission. The court first cited the language of La. R.S. 17:416.4(A), which provides that, when school employees are sued for damages based upon any “action or statement” or “the omission of any action or statement,” the school board has the duty to defend and indemnify the school employees. The court then returned to La. R.S. 17:439(A), which precludes a cause of action against a school employee based upon any “statement made or action taken” by the school employee within the course and scope of his or her duties. The court found the legislative purpose in enacting La. R.S. 17:439(A) was to limit the liability of school employees for any “statement made or action taken.” By excluding the language regarding omissions in La. R.S. 17:439(A), which was included in La. R.S. 17:416.4(A), the court of appeal reasoned that the legislature did not intend to preclude a cause of action against school employees for negligent omissions. Because many of the plaintiffs’ allegations could be viewed as omissions, and because the plaintiffs failed to allege there were any “statements made or actions taken” which fall within the protections of La. R.S. 17:439(A), the court of appeal found a cause of action existed against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and the XYZ duty teachers.

The court of appeal also reversed the decision of the trial court regarding the cause of action against Samuel G. Hesser. It found under the clear wording of La. R.S. 17:439(D) an action could be brought directly against Mr. Hesser for his negligence in operating the school bus to the extent his liability is covered by | ¿insurance or self-insurance. The court of appeal noted its interpretation of La. R.S. 17:439(D) was consistent with the Direct Action Statute, La. R.S. 22:1269.

We granted the defendants’ application for a writ of certiorari to determine the correctness of the court of appeal’s ruling on the exception of no cause of action. Credit v. Richland Parish School Bd., 11-1003 (La.7/1/11), 64 So.3d 233.

LAW AND DISCUSSION

I. No Cause of Action Against School Board Employees

Defendants first contend the court of appeal erred in finding the plaintiffs’ petition stated a cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers. To determine the merits of defendants’ arguments we must apply La. R.S. 17:439, which has not been interpreted by any Louisiana court prior to the lower courts’ rulings. Therefore, this court is presented with a question of law to be reviewed under a de novo standard. Red Stick Studio Dev., L.L.C. v. State ex rel. Dep’t of Econ. Dev., 10-0193, p. 9 (La.1/19/11), 56 So.3d 181, 187 (citing Thibodeaux v. Donnell, 08-2436, p. 3 (La.5/5/09), 9 So.3d 120, 122).

The purpose of the peremptory exception of no -cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Veroline v. Priority One EMS, 09-1040, p. 4 (La.10/9/09), 18 So.3d 1273, 1275 (citing Scheffler, 06-1774, p. 4, 950 So.2d at 646). No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts the well-pleaded allegations of fact as true. Infinity, 10-2264 at 9, 63 So.3d at 946 (citing Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114, 118; Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La.5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993)).

The appropriate starting point in the interpretation of any statute is the language of the statute itself. Red Stick Studio, 10-0193 at 10, 56 So.3d at 187 (quoting M.J. Farms, Ltd. v. Exxon Mobil Corp., 07-2371, p. 13 (La.7/1/08), 998 So.2d 16, 27). When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; La. R.S. 1:4. The meaning and intent of a law is to be ascertained by a consideration of the entire law as well as all other laws on the same subject matter and by placing a construction on the law that is consistent with the express terms of the law and with the obvious intent of the legislature enacting the law. City of DeQuincy v. Henry, 10-0070, p. 3 (La.3/15/11), 62 So.3d 43, 45 (citing SWAT 24 Shreveport Bossier Inc., 00-1695, p. 11 (La.6/29/01), 808 So.2d 294, 302; Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1129).

With these rules for statutory interpretation in mind, we turn to the language of La. R.S. 17:439, adopted by Acts 1999, No. 689, which provides:

Except as otherwise provided in this Section, no person shall have a cause of action against any school employee based on any statement made or action taken by the school employee provided that the action or statement was within the course and scope of the school employee’s duties as defined by the school board in which the school ^employee is employed and was within the specific guidelines for school employee behavior as established by that school board. (Emphasis added).

Thus, La. R.S. 17:439(A) has a threefold requirement which must be met before a school employee may successfully assert a peremptory exception of no cause of action. In order for a school employee to receive personal immunity from a tort suit, La. R.S. 17:439(A) requires: (1) the cause of action against any school employee must be based on a statement made or action taken by the school employee; (2) the action or statement must be made within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed; and (3) the action or statement must be within the specific guidelines for school employee behavior as established by the school board.

The court of appeal, urged on by the plaintiffs, found the legislature intentionally created a dichotomy in which a school employee’s act of omission is provided no personal immunity from liability, yet his or her act of commission is provided such immunity. As noted above, the court of appeal relied on La. R.S. 17:416.4(A), which requires the school board to defend and indemnify school |9board employees who are sued for “any action or statement or the omission of any action or statement....” La. R.S. 17:416.4(A), adopted by Acts 1982, No. 593, and subsequently amended by Acts 1983, No. 378, and Acts 1997, No. 619, provides:

In addition to the provisions of R.S. 17:416.1(0, 416.3(B) and (C)(2)(a), and 416.6(B), should any public school employee be sued for damages by any student or any person qualified to bring suit on behalf of any student based on any action or statement or the omission of any action or statement by such employee when in the proper course and scope of his duties as defined by the school board employing such employee, then it shall be the obligation of said school board to provide such defendant with a legal defense to such suit including reasonable attorney fees, investigatory costs, and other related expenses. Should any such employee be cast in judgment for damages in such suit, it shall be the obligation of the school board employing such defendant to indemnify him fully against such judgment including all principal, interest, and costs, except that the school board shall not be responsible for any costs which the court stipulates are to be borne by a party other than the employee or school board. (Emphasis added).

We disagree that the “statement made or action taken” language in La. R.S. 17:439(A) by its very wording excludes qualified personal tort immunity for negligent acts of omission. First, the omission/commission distinction is not set forth in the text of La. R.S. 17:439. Second, neither plaintiffs nor the court of appeal has cited to any Louisiana case making a similar distinction. Indeed, Louisiana courts have long interpreted the word “act” or “action” in a statute to refer to both acts of commission and acts of omission. La. Civ.Code art. 2315, the foundation of all tort law in Louisiana, states: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” (Emphasis supplied.) The word “act” in Art. 2315 has consistently been interpreted to refer to acts of both commission and omission. E.g., Smith v. Travelers Ins. Co., 430 So.2d 55, 58 (La.1983); Lee v. City of Baton Rouge, 243 La. 850, 147 So.2d 868, 871 (1962); see also Dowling v. Mutual Life Ins. Co., 168 So.2d 107, 116 (La.App. 4th Cir.1964), writ denied, 247 La. 248, 170 So.2d 508 (1965) (“It is so well established in the jurisprudence of this state as not to require citation of authority that persons are liable for acts of omission under La. Civ.Code arts. 2315 and 2316, as well as for acts of commission.”) Thus, we find the plain wording of La. R.S. 17:439 to be clear and unambiguous, surely so when viewed in the light of both our Civil Code and longstanding jurisprudence, that the language “action taken” therein, like the word “act” in La. C.C. art. 2315, refers to both acts of commission and acts of omission. Interpretation of La. R.S. 17:439(A) in this manner certainly does not lead to absurd consequences, because La. R.S. 17:439(A) merely precludes a cause of action against a school employee for negligent conduct for which the school board would otherwise have defended and indemnified the employee under La. R.S. 17:416.4; thus, we need not look to legislative intent to determine the meaning of the statute.

Nonetheless, in reaching a contrary conclusion, the court of appeal focused on the language found in La. R.S. 17:416.4, and the fact that it and La. R.S. 17:439(A) are located in Chapter 2, titled “Teachers and Employees,” under Part 1, “General Provisions,” in Title 17. The court of appeal relied on La. C.C. art. 13, which provides that “[l]aws on the same subject matter must be interpreted in reference to each other.” Reading the statutes in pari materia, the court of appeal essentially reasoned that the legislature, when it enacted La. R.S. 17:439 with knowledge of La. R.S. 17:416.4, must have made a policy decision in 1982 to indemnify school board employees for their “actions or statements or the omission of any action or statement” but chose in 1999 to provide additional immunity from suit only for their “statements made or actions taken.”

However, the fundamental question in all cases of statutory construction is legislative intent. SWAT 24 Shreveport Bossier, 00-1695 at 11, 808 So.2d at 302; Succession of Boyter, 99-0761 at 9, 756 So.2d at 1128. Other than the particular language of these statutes, no party has directed us to any legislative history ^evidencing the legislature’s intent to make a distinction between acts of commission and acts of omission with regard to immunity from personal tort liability for school board employees. Had the legislature intended to make such a distinction, it could have done so expressly in the text of Lá. R.S. 17:439. Instead, the legislature was surely aware of our settled jurisprudence that an “act” applies to both acts of commission and acts of omission, and could expect that La. R.S. 17:439 would operate to grant personal immunity to school employees in either case. At any rate, the legislative history available to the court supports the conclusion the legislature intended to provide school teachers and other school employees with personal immunity from tort claims arising from the performance of their duties, provided they do not act maliciously, willfully, or with deliberate intent to injure the student.

Finally, we point out that the interpretation given to La. R.S. 17:439(A) by the appellate court violates settled rules of statutory construction and interpretation, because to apply the immunity statute only to acts of commission, rather than also to acts of omission, renders the statute meaningless and leads to absurd results. As we noted above, a school board has the duty under La. R.S. 17:416.4 to defend and indemnify its teachers and employees against any judgment arising from the negligent performance of their duties regardless of whether the negligence is based on an alleged commission, omission, or statement. Thus, teachers and school employees under the interpretation given to La. R.S. 17:439(A) by the appellate court would still not be liable for any resulting judgment even if the plaintiffs’ suit could proceed against the school employee personally. The plaintiffs would have no greater rights under the appellate court’s interpretation, because their recovery, 11gif any, would remain the responsibility of the school board, either by a finding that the school board was at fault or through the indemnity provisions and the doctrine of respondeat superior. It is a cardinal rule of statutory interpretation that “it will not be presumed that the Legislature inserted idle, meaningless or superfluous language in the statute or that it intended for any part or provision of the statute to be meaningless, redundant or useless.” ABL Mgmt., Inc., v. Board of Supevisors of Southern Univ., 00-0798 (La.11/28/00), 773 So.2d 131, 135. In our view, as more fully set forth below, the court of appeal’s interpretation of La. R.S. 17:439(A) providing for a heretofore unrecognized dichotomy between acts of commission and acts of omission effectively renders the statute meaningless and superfluous in light of La. R.S. 17:416.4.

The appellate court’s interpretation of La. R.S. 17:439 would provoke confusion in the lower courts, invite creative drafting of petition allegations, and lead to absurd results, because the distinction between an act of commission and an act of omission can be difficult to define. It certainly can be envisioned that any negligent act can be described either as an act of commission or as an act of omission, depending on context:

Use of the term “failure to act” ... may be misleading. If, for example, an automobile driver fails to notice an errant pedestrian and does not apply his brakes, he has, from a purely physical standpoint, failed to act, i.e., he has failed to notice and has failed to brake. But he did “act” previously when he engaged in the activity — driving the automobile — that foreseeably could expose the victim to a risk of harm.

Maraist and Galligan, La. Tort Law, Sect. 5.07 (2004 ed.).

For instance, the petition alleges the school employees acted negligently “in failing to provide competent supervision,” but it is unclear whether this is meant to be an allegation of omission or commission: either the teacher supervised the students, but did so inadequately, or the teacher failed to do something which she should have done. The omission/commission dichotomy thus encourages plaintiffs |1sto draft their petitions to describe alleged negligence as “a failure to do something” rather than as an action. Finally, such a distinction could lead to absurd results, as, for example, when a teacher accidentally releases a push cart, which then passes in front of another teacher before it ultimately strikes and injures a student. The teacher who negligently pushed or released the cart would potentially have immunity under the appellate court’s interpretation of La. R.S. 17:439, while the teacher who failed to stop the cart as it passed by would not. Such a result would seem to be both illogical and unintended by the legislature. Thus, the appellate court’s interpretation of La. R.S. 17:439 does nothing to further the intended purpose of the statute, which is to free school employees from the constant threat of litigation.

In conclusion, we find the “statement made or action taken” language in La. R.S. 17:439(A) precludes a cause of action against school employees for both acts of commission and acts of omission committed, as well as statements made, within the course and scope of their duties as defined by the school board and within the specific guidelines for employee behavior established by that school board. Applying this holding to the allegations in the plaintiffs’ petition, we find the court of appeal erred in resolving the exception of no cause of action based on its interpretation of La. R.S. 17:439(A). In plaintiffs’ second supplemental, amended, and restated petition for damages, plaintiffs alleged defendants, including Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers, failed to use ordinary and necessary care by various acts and omissions, each of which singularly or in combination with others listed, was a proximate cause of the occurrence in question. Because the alleged acts of negligence on the part of these defendants, including the alleged omissions, fall within the meaning of “statement made or action taken” set forth in La. R.S. 17:439(A), we find the court of appeal 114erred in concluding otherwise and reversing the district court’s ruling on the exception of no cause of action on that basis.

II. No Cause of Action Against the School Bus Driver, Samuel G. Hes-ser

We next address whether plaintiffs have a direct cause of action against Samuel G. Hesser, the driver of the Rich-land Parish school bus alleged to have struck Breana. As noted earlier, the appropriate starting point in the interpretation of any statute is the language of the statute itself. Red Stick Studio, 10-0193 at 10, 56 So.3d at 187 (quoting M.J. Farms, Ltd., 07-2371 at 13, 998 So.2d at 27). La. R.S. 17:439(D) states, “The provisions of this Section shall not apply to the negligence of any school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance.” The language of La. R.S. 17:439(D) is clear and unambiguous, and its application does not lead to absurd consequences; therefore, an action alleging negligent operation of a motor vehicle may be brought directly against Mr. Hesser to the extent he is covered by insurance or self-insurance, and only up to the policy limits thereof.

Although the defendants argue the Direct Action Statute, La. R.S. 22:1269, should not determine whether an action may be filed against the school bus driver, when La. R.S. 22:1269 is read concurrently with La. R.S. 17:439(D), the two statutes lead to consistent outcomes. Both statutes allow an action to be brought directly against Mr. Hesser, as well as his insurer, lending further support to this court’s and the appellate court’s interpretation of La. R.S. 17:439(D). Plaintiffs’ petition alleges State Farm issued a policy of liability insurance to Richland Parish | ^School Board, which covered Mr. Hes-ser’s alleged acts of negligence. Because Mr. Hesser was insured at the time of the accident, we find the plain language of the statute provides for a direct cause of action against him to the extent liability for his alleged negligent actions in operating the motor vehicle is covered by the State Farm insurance policy or self-insurance. Pursuant to La. R.S. 17:416.4(A), the Rich-land Parish School Board will be required to indemnify and defend Mr. Hesser for any liability in excess of his insurance or self-insurance limits.

CONCLUSION

For the reasons set forth above, we find the “statement made or action taken” language in La. R.S. 17:439(A) precludes a cause of action against school employees for certain negligent acts, including acts of omission. Therefore, the court of appeal applied an incorrect interpretation of La. R.S. 17:439(A) to reverse the district court’s ruling on the exception of no cause of action against Cathy Stockton, Georgia Ineichen, Larry Wright, Sr., and XYZ duty teachers. However, because the court of appeal pretermitted resolving whether the petition adequately stated a cause of action with regard to the remaining elements of La. R.S. 17:439(A) precluding a cause of action against a school employee, we remand the matter to the court of appeal to consider whether the plaintiffs’ petition sufficiently alleges that the defendants’ statements or actions were not “within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed and [were not] within the specific guidelines for school employee behavior as established by that school board.” La. R.S. 17:439(A). We further find the court of appeal was correct in holding plaintiffs have a direct cause of action against Samuel G. Hesser pursuant to La. R.S. 17:439(D), to the extent liability for his alleged negligent actions in operating the motor vehicle is covered by insurance or self-insurance. Thus, we reverse the 11r,ruling of the court of appeal in part, affirm that ruling in part, and remand the matter to the court of appeal for further proceedings.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

KIMBALL, Chief Justice, dissents in part for the reasons assigned by WEIMER, J.

JOHNSON, Justice, dissents.

WEIMER, Justice, dissents in part and assigns reasons.

KIMBALL, C. J.,

dissents in part.

I dissent in part from the majority opinion for the reasons assigned by Justice Weimer.

WEIMER, J.,

dissents in part and assigns reasons.

[ ]While I prefer the result reached by the majority, I am constrained to dissent based on the statutory language the legislature expressed in La. R.S. 17:439(A) which limits immunity to acts of commission.

Based on the plain meaning of the words “statement made or action taken” in La. R.S. 17:439(A) when referring to that which merits immunity, the legislature has limited immunity to acts of commission. This plain meaning is confirmed by comparing the words “statement made or action taken” in La. R.S. 17:439(A) to the wording of other statutes the legislature has enacted involving similar topics. For example, La. R.S. 17:416.11(A) provides that certain employees are shielded from personal liability “for any act or failure to act in the directing of or disciplining of school children.” Furthermore, La. R.S. 17:416.1(C) provides a duty to defend and indemnify “based upon the act or omission” of a school employee.

|2If the legislature had intended the scope of immunity in La. R.S. 17:439(A) to be broad enough to extend to both omissions and commissions, then the legislature could have employed terms identical or similar to the terms cited from La.R.S. 17:416.11(A) or La. R.S. 17:416.1(0).

Interpreting the language the legislature employed in La. R.S. 17:439(A) to mean that immunity extends only to acts of commission would not lead to an absurd result. It may be that the legislature intended to reward decisive behavior (acts of commission) and discourage passive behavior (acts of omission). Reporting misconduct and attempting to correct the mistakes of other school employees are concrete examples of decisive behavior that the legislature may have intended to reward by granting immunity.

It is not the role of this court to substitute its own policy decisions for those expressed by the legislature. See Sensebe v. Canal Indem. Co., 2010-0703, p. 7 (La.1/28/11), 58 So.3d 441, 446 (“[S]tatuto-ry provisions ... recite the public policy of Louisiana”). This court is also bound to strictly construe the wording of La. R.S. 17:439(A) because it is an immunity statute. See Weber v. State, 635 So.2d 188, 193 (La.1994), (“Immunity statutes must be strictly construed against the party claiming the immunity.”). Finding a plausible and legitimate policy was expressed in the plain wording of La. R.S. 17:439(A), I must respectfully dissent from the majority’s more expansive interpretation.

However, I agree with the majority that a direct cause of action against the bus driver may be maintained at this stage of the proceedings and that, pursuant to La. R.S. 17:416.4(A), the school board will be required to indemnify and defend the bus driver for any liability in excess of his insurance or self-insurance limits.

      . La. C.C. art. 2315.6 provides that certain persons, including brothers and sisters of the injured person, who view an event causing injury to another person, or who come upon the scene of the event soon thereafter, may recover damages for mental anguish or emotional distress that they suffer as a result of the other person's injury. See Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990).

      . "School employee” is defined in La. R.S. 17:439(B), which provides:
      As used in this Section, the terms "school employee” means any school employee who has direct contact with students in the course and scope of the school employee’s duties as defined by the school board by which the school employee is employed, and includes but is not limited to school-based administrators, classroom teachers, coaches, librarians, counselors, teachers’ aides, clerical employees, lunchroom workers, custodial workers, school bus drivers, and school bus drivers’ aides, (emphasis added).

      . La. R.S. 22:1269(B) provides:
      (1) The injured person or his survivors or heirs mentioned in Subsection A of this Section, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Code of Civil Procedure Art. 42 only; however, such action may be brought against the insurer alone only when at least one of the following applies ....

      . La. R.S. 1:4 states, "When the wording of a Section is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit.”

      . Sections (B),(C),(D), and (E) of La. R.S. 17:439 provide:
      B.As used in this Section, the terms "school employee” means any school employee who has direct contact with students in the course and scope of the school employee's duties as defined by the school board by which the school employee is employed, and includes but is not limited to school-based administrators, classroom teachers, coaches, librarians, counselors, teachers' aides, clerical employees, lunchroom workers, custodial workers, school bus drivers, and school bus drivers’ aides.
      C. The immunity from liability established by this Section shall not apply to any action or statement by a school employee that was maliciously, willfully, and deliberately intended to cause bodily harm to a student or to harass or intimidate a student.
      D. The provisions of this Section shall not apply to the negligence of any school employee operating a motor vehicle, to the extent that liability for such negligence is covered by insurance or self-insurance.
      E. The provisions of this Section are not intended to supersede or repeal any other provision of this Part and are intended to supplement the other provisions of this Part.

      . A review of the legislative history demonstrates the legislature intended to give teachers personal tort immunity to the fullest extent possible: "The teacher’s role should not be molded by the fear of lawsuits. Faculty meetings and professional development should not be centered around the constant fear of liability.” Testimony of Mrs. Cathy Severns, before the Committee of Civil Law and Procedure in support of House Bill No. 172, April 19, 1999.

      . The district court specifically found that the negligent actions allegedly committed by the defendants were done so while in the course and scope of their employment with the Rich-land Parish School Board. The court of appeal pretermitted resolving whether the petition adequately stated a cause of action with regard to the remaining elements of La. R.S. 17:439(A) precluding a cause of action against a school employee, that is, whether the employee's action or statement was "within the course and scope of the school employee’s duties as defined by the school board in which the school employee is employed and was within the specific guidelines for school employee behavior as established by that school board.” La. R.S. 17:439(A). Accordingly, we will remand the case to the court of appeal for it to consider these pretermitted issues.


source: Caselaw Access Project

author: JOHNSON, J.

license: Public Domain

text:
    STATE of Louisiana v. Reginald Ray HANDLEY.
    Nos. 2011-KK-2087, 2011-KD-0804.
    Supreme Court of Louisiana.
    April 9, 2012.
    JOHNSON, J., would grant for reasons originally assigned.
   JOHNSON, J.

| Johnson, J., would grant relator’s application for rehearing for the reasons articulated in her dissent in State v. Handley, 11-2087 (La.02/01/12), 79 So.3d 1010, (applying Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010)).

On November 8, 1983, the Defendant, Reginald Handley, (relator herein) was tried by a jury, and convicted of aggravated rape, which he committed when he was 16 years old. He was sentenced to a term of life imprisonment, without parole.

The United States Supreme Court’s historic decision in Graham v. Florida, 560 U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) held that “for a juvenile offender who did not commit homicide, the Eighth Amendment forbids the sentence of life without parole.” Graham, 560 U.S. at -, 130 S.Ct. at 2030. Prior to Graham, the United States was the only nation in the world still adhering to the practice of sentencing juvenile offenders to life imprisonment without the possibility of parole for non-homicide offenses. In the United States, only a | ^handful of jurisdictions still impose life sentences without parole on juvenile offenders. Louisiana is one of eleven states wherein juveniles are currently serving life sentences, without parole, for non-homicide offenses. When Graham was decided, there were 129 juveniles in the United States serving life sentences, without parole, for non-homicide offenses. Of those, seventy-seven juveniles were serving sentences imposed in Florida. Of the remaining 53, who were imprisoned in just ten states, 17 were serving life sentences imposed in Louisiana for non-homicide offenses.

Graham makes clear that the ad hoc exercise of the executive’s power of commutation does not afford juveniles sufficient protection, and such inmates have nowhere else to go for relief other than the judiciary. There is no way to calculate a parole eligibility date for a life sentence. To satisfy the dictates of Graham, I would remand this case to the district court, and order that relator be re-sentenced to a fixed term of years, which can be used as the basis for calculating the eligibility date for parole.

      . Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison, 42 U.S. F.L.Rev. 983, 989-1007 (2008)

      . The eleven states which impose juvenile life sentences without parole for non-homicide crimes are; Florida, Louisiana, Mississippi, Virginia, Oklahoma, South Carolina, Iowa, California, Nebraska, Delaware, and Nevada.

        . Graham, supra. P.G. Armino, D.W. Rasmussen, & C.B. Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to the Nation, Public Interest Law Center, College of Law, Florida State University (2009).


author: PER CURIAM.

text:
    In re David John ROGERS.
    No. 2012-B-0565.
    Supreme Court of Louisiana.
    April 9, 2012.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

h The Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent has twice been charged with operating a motor vehicle while under the influence of alcohol. Prior to the institution of formal charges, respondent and the ODC submitted a joint petition for consent discipline. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that David John Rogers, Louisiana Bar Roll number 33342, be suspended from the practice of law for a period of one year and one day. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that 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.

       Chief Justice Kimball not participating in the opinion.


author: PER CURIAM

text:
    In re Marcia Denise JORDAN.
    No. 2012-OB-0551.
    Supreme Court of Louisiana.
    April 9, 2012.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM

|,In this matter, petitioner, Marcia Denise Jordan, reapplies for admission to the bar after three previous denials. For the reasons set forth, we again deny her application, and we shall permanently prohibit her from reapplying in the future.

UNDERLYING FACTS AND PROCEDURAL HISTORY

Petitioner enrolled in law school in 1993. During the 1995-96 academic year, petitioner, then a third-year law student, served as president of the Student Bar Association (“SBA”). Petitioner graduated from law school in May 1996, and thereafter she successfully passed the February 1997 Louisiana bar examination. However, on April 17, 1997, the day before the admissions ceremony, petitioner’s law school rescinded her Dean’s Certifícate in the wake of allegations that she had embezzled student funds during her tenure as SBA president. Without a Dean’s Certificate, petitioner was no longer eligible for admission to the bar, and accordingly, the Committee on Bar Admissions (“Committee”) filed a motion in this court seeking to withdraw its certification of petitioner for admission. This court granted the motion and thereafter appointed a commissioner to take character and fitness evidence.

^Following the proceedings before the commissioner, we determined that petitioner had misappropriated or converted student and SBA funds to her own use. The record also revealed that after the law school began its investigation into petitioner’s SBA activities, she destroyed the financial records in her possession relating to her tenure on the SBA. She also failed to cooperate with the investigation and forged the signature of her attorney on a letter directing her bank not to comply with a subpoena issued by the law school. After considering these facts, we denied petitioner’s first application for admission in In re: Jordan, 97-1564 (La.2/12/99), 730 So.2d 873 (“Jordan I”).

In 2000, petitioner filed a second application for admission. In that matter, petitioner essentially re-argued the Loyola incident, and thus raised the same issues we had considered and rejected in Jordan I. Accordingly, on December 15, 2000, we denied petitioner’s application for admission, and stated that she could “reapply only upon a showing of changed circumstances or evidence not previously submitted to this court warranting our reconsideration of the order rendered in” Jordan I. In re: Jordan, 00-3006 (La.12/15/00), 775 So.2d 1065 (“Jordan II”).

In 2004, petitioner filed her third application for admission to the practice of law. Petitioner argued that she had demonstrated a significant change in circumstances since our prior decisions denying admission, including her payment of “remuneration” to the law school, following which the law school issued a new Dean’s Certificate in 2003.

In response to petitioner’s third application, we transferred the matter to the Office of Disciplinary Counsel (“ODC”) for investigation and appointed a commissioner to take character and fitness evidence. The commissioner conducted a hearing and thereafter recommended that petitioner be admitted to the bar. The Committee filed an objection to the commissioner’s recommendation, and accordingly, the case was set on the docket for oral argument.

| oDuring oral argument, questions were raised whether petitioner had engaged in the unauthorized practice of law and/or had improperly shared the attorney’s fees paid to New Orleans attorney Richard Garrett, the lawyer for whom she was then working as a legal assistant. Because these issues were not addressed in the commissioner’s report, we remanded the matter for a supplemental hearing before the commissioner to consider the fee sharing issue and “any other matter that is germane to petitioner’s good moral character and fitness to practice law.” Following the supplemental hearing, the commissioner filed his report with this court, recommending that petitioner be denied admission to the bar because she engaged in the unauthorized practice of law and participated in a fee-sharing arrangement prohibited by the Rules of Professional Conduct.

Meanwhile, the ODC had instituted disciplinary proceedings against Mr. Garrett, alleging that he facilitated petitioner’s unauthorized practice of law and improperly shared attorney’s fees with her. On May 5, 2009, we unanimously ordered that Mr. Garrett be disbarred for this conduct. In re: Garrett, 08-2513 (La.5/5/09), 12 So.3d 332. On the same date, we unanimously denied petitioner’s application for admission to the practice of law, finding that she had negotiated personal injury settlements on behalf of Mr. Garrett’s clients, represented the clients during recorded statements taken by insurance companies, and entered into an impermissible fee sharing arrangement with Mr. Garrett. In re: Jordan, 04-0542 (La.5/5/09), 12 So.3d 346 (“Jordan III”). Rehearing applications filed by both Mr. Garrett and petitioner were denied on June 19, 2009.

Petitioner now reapplies to this court for admission.

DISCUSSION

Three years ago, we rendered our most recent judgment denying petitioner admission to the bar. At that time, we were confronted with evidence ^demonstrating that petitioner had repeatedly engaged in the unauthorized practice of law and had entered into an improper agreement to share the legal fees paid to her then-employer, Richard Garrett. This conduct began in 1999 and did not cease until 2006, when the ODC filed formal charges against Mr. Garrett. In addition, it is undisputed that petitioner committed serious misconduct when she was the president of her law school’s SBA and during the investigation of her conduct conducted by the first commissioner this court appointed to take character and fitness evidence. Standing alone, the unauthorized practice of law conclusively demonstrates that petitioner lacks the moral fitness to be admitted to the bar. The improper fee-sharing and the conduct arising out of the incident in law school simply serve to underscore the conclusion that petitioner possesses serious and fundamental character flaws.

Given the egregious nature of petitioner’s wrongdoing, as well as her pattern of conduct occurring over many years, we can conceive of no circumstance under which we would ever grant her admission to the practice of law in this state. | -Accordingly, we will deny her application for admission. Furthermore, no applications for admission will be accepted from petitioner in the future.

DECREE

After reviewing the evidence and considering the law, we conclude that petitioner has failed to meet her burden of proving that she has good moral character and fitness to practice law. See Supreme Court Rule XVII, § 5(D). Accordingly, it is ordered that the application for admission be denied. Pursuant to Supreme Court Rule XVII, § 9(D)(13), we hereby order that petitioner shall be permanently precluded from seeking admission in the future.

ADMISSION DENIED.

       Chief Justice Kimball not participating in the opinion.

      . Pursuant to Supreme Court Rule XVII, § 3(E), a written certification of graduation and fitness to practice law is required of all applicants for admission to the bar. Such a certificate must be issued by the dean or chancellor of the law school from which the applicant graduated, and hence is commonly referred to as a "Dean’s Certificate.”

      . This court routinely denies admission to bar applicants who were found to have engaged in conduct constituting the unauthorized practice of law. See, e.g., In re: Leon A. Maryland, 09-2470 (La.4/5/10), 32 So.3d 219; In re: Carleen Vincent Maryland, 03-1173 (La.9/24/04), 882 So.2d 548; In re: Woodard, 01-1281 (La.12/14/01), 803 So.2d 969; In re: Baylis, 99-2903 (La.12/15/00), 775 So.2d 1065; In re: Silva, 97-1004 (La.12/1/98), 721 So.2d 893.
      In addition, the unauthorized practice of law by a suspended or disbarred attorney has resulted in the permanent disbarment of numerous Louisiana attorneys. See In re: Calahan, 10-2729 (La.2/11/11), 55 So.3d 782; In re: Hammond, 10-0419 (La.1/19/11), 56 So.3d 199; In re: Petal, 10-0080 (La.3/26/10), 30 So.3d 728; In re: Matthews, 09-2416 (La.3/26/10), 30 So.3d 737; In re: Cofield, 09-2203 (La. 1/29/10), 26 So.3d 729; In re: Engolio, 09-0193 (La.5/5/09), 7 So.3d 1162; In re: Jackson, 08-2424 (La.2/13/09), 1 So.3d 454; In re: LaNasa, 08-2294 (La. 1/9/09), 998 So.2d 73; In re: Lindsay, 07-1813 (La.3/7/08), 976 So.2d 1261; In re: Thomas, 07-1616 (La.1/16/08), 973 So.2d 686; In re: Patrick, 07-1222 (La.12/14/07), 970 So.2d 964; In re: Williams, 07-0504 (La.10/26/07), 967 So.2d 1141; In re: Brown, 06-1893 (La.9/15/06), 937 So.2d 844; In re: Melton, 05-0409 (La.6/17/05), 905 So.2d 281; In re: Dyer, 05-0522 (La.4/29/05), 900 So.2d 824; In re: Yaeger, 05-0035 (La.3/18/05), 897 So.2d 571; In re: Armant, 04-2232 (La.11/19/04), 888 So.2d 768; In re: Wilson, 04-1734 (La.9/24/04), 882 So.2d 547; In re: Martin, 04-0444 (La.9/3/04), 883 So.2d 392; In re: Jefferson, 04-0239 (La.6/18/04), 878 So.2d 503; In re: Gros, 03-3076 (La.4/23/04), 871 So.2d 1091; In re: Quaid, 03-1876 (La.10/31/03), 865 So.2d 28; In re: Lewis, 03-1245 (La.10/3/03), 856 So.2d 1191; In re: Gibson, 03-0582 (La.9/26/03), 856 So.2d 1173; In re: Crittenden, 03-0321 (La.9/5/03), 854 So.2d 318; In re: Guidry, 02-3006 (La.6/27/03), 849 So.2d 525; In re: Wyche, 02-2800 (La.6/20/03), 849 So.2d 508; In re: Crawford, 02-2680 (La.4/21/03), 843 So.2d 1091; In re: Caver, 03-0653 (La.3/28/03), 841 So.2d 770; In re: Hilbum, 01-2330 (La.1/24/03), 840 So.2d 471; In re: Elbert, 01-2345 (La.1/24/03), 840 So.2d 494.


text:
    Rev. James SMART, III, etc. v. Cesar J. VAZQUEZ, Esq., et al.
    No. 2011-OC-1228.
    Supreme Court of Louisiana.
    April 13, 2012.
    JOHNSON, J., dissents and assigns reasons.
    WEIMER and CLARK, JJ., would deny the writ.
   JOHNSON, J.

|,JOHNSON, J., dissents from the majority’s ruling to grant with order for the same reasons assigned in her dissent in Jenkins v. Starns, 2011-1170 (La.1/24/12), 85 So.3d 612, 628-29:

[T]he continuous representation rule should be applied similarly to the “continuous treatment” rule in medical malpractice cases. The continuous treatment rule provides that prescription in a medical malpractice case is suspended as long as the defendant health care provider continuously treats the plaintiff in an effort to improve the plaintiffs condition allegedly caused by negligent treatment. See Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. This Court has found the time periods in the medical malpractice act to be prescriptive, rather than peremptive. However, failure to apply the continuous representation rule in legal malpractice cases leads to absurd results.
As I stated in my dissent in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, “if a client is required to file suit against his attorney while the suit is being litigated and before a judgment is | ¡.definitive, the client is placed in the untenable position of asserting that a judgment is both valid and invalid.” Reeder, 701 So.2d at 1300. The failure to apply the continuous representation rule leads to absurd results because an “attorney need only litigate a claim past the three (8) year preemptive period to avoid all consequences of his malpractice.” Id.


text:
    George OSBORN v. ERGON MARINE & INDUSTRIAL SUPPLY, INC.
    No. 2012-CC-0183.
    Supreme Court of Louisiana.
    April 13, 2012.
   PER CURIAM.

| ¶ Plaintiff, George Osborn, filed the instant Jones Act suit against Ergon Marine & Industrial Supply, Inc. (“Ergon”), alleging he was injured while working as a seaman on a Ergon vessel located in Mississippi territorial waters. In his petition, plaintiff alleged Ergon is a “foreign corporation registered to do and doing business in the State of Louisiana.”

Ergon responded by filing a Motion to Dismiss Without Prejudice for Forum Non Conveniens, pursuant to La.Code Civ. P. art. 123(B). In support, Ergon submitted the affidavit of its Vice-President, stating Ergon was a Mississippi corporation registered in Louisiana, but “has never operated an office in Louisiana.” Ergon further argued Civil District Court is an inconvenient forum, and Mississippi is a more convenient, available forum. In support, it argued plaintiff is domiciled in Mississippi, and the only eyewitness is a Mississippi resident. It further pointed out six of plaintiffs eight treating physicians practice in Mississippi, and the other two practice in the New Orleans area.

After a contradictory hearing, the district court denied the motion, and the court of appeal denied writs. Ergon’s application to this court followed.

The plaintiffs initial choice of forum is entitled to deference, and the burden is on the party seeking a transfer to show why the motion should be granted. Holland v. Lincoln General Hosp., 10-0038 (La.10/19/10), 48 So.3d 1050. However, a 12“plaintiff may not, by choice of an inconvenient forum, ‘vex,’ ‘harass,’ or ‘oppress’ the defendant by inflicting on him expense or trouble not necessary to his own right to pursue his remedy.” Id. at p. 7, 48 So.3d at 1055 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).

In the instant case, we recognize Louisiana is a proper forum for plaintiffs Jones Act claim. Nonetheless, the undisputed facts indicate the case has virtually no connection with Louisiana. The accident occurred in Mississippi territorial waters, plaintiff and the sole eyewitness reside in Mississippi, and the majority of plaintiffs treating physicians reside in Mississippi. Under very similar facts, the federal court in Allen v. Ergon Marine & Indus. Supply, Inc., 08-CV-04184, 2008 WL 4809476 (E.D.La.2008) transferred a Jones Act claim from Louisiana to Mississippi, based on a finding that Mississippi was a more convenient forum. Thus, we conclude the district court abused its discretion in denying Ergon’s motion to dismiss.

Accordingly, the writ is granted. The judgment of the district court is reversed. The motion to dismiss is granted, and plaintiffs suit is dismissed without prejudice, pursuant to La.Code Civ. P. art. 123(B).


text:
    GIBSLAND BANK AND TRUST COMPANY v. KITCHENS BENTON KITCHENS & BLACK (APLC), Melanie F. McCullough, and First Mercury Insurance Company.
    No. 2011-CC-2254.
    Supreme Court of Louisiana.
    April 13, 2012.
    JOHNSON, J., dissents and assigns reasons.
    WEIMER, J., would grant and docket.
    CLARK, J., would deny.
   JOHNSON, J.

| TJOHNSON, J., dissents from the majority’s ruling to grant with order for the same reasons assigned in her dissent in Jenkins v. Starns, 2011-1170 (La.1/24/12), 85 So.3d 612, 628-29:

[T]he continuous representation rule should be applied similarly to the “continuous treatment” rule in medical malpractice cases. The continuous treatment rule provides that prescription in a medical malpractice case is suspended as long as the defendant health care provider continuously treats the plaintiff in an effort to improve the plaintiffs condition allegedly caused by negligent treatment. See Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. This Court has found the time periods in the medical malpractice act to be prescriptive, rather than peremptive. However, failure to apply the continuous representation rule in legal malpractice cases leads to absurd results.
As I stated in my dissent in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, “if a client is required to file suit against his attorney while the suit is being litigated and before a judgment is definitive, the client is placed in the untenable position of asserting that a judgment is both valid and invalid.” Reeder, 701 So.2d at 1300. The failure to apply the continuous representation rule leads to absurd results because an “attorney need only litigate a claim past the three (3) year preemptive period to avoid all consequences of his malpractice.” Id.


text:
    Rev. James SMART, III, et al. v. Cesar J. VAZQUEZ, et al.
    No. 2011-OC-1416.
    Supreme Court of Louisiana.
    April 13, 2012.
    JOHNSON, J., dissents and assigns reasons.
    WEIMER and CLARK, JJ., would deny the writ.
   JOHNSON, J.

|, JOHNSON, J., dissents from the majority’s ruling to grant with order for the same reasons assigned in her dissent in Jenkins v. Starns, 2011-1170 (La.1/24/12), 85 So.3d 612, 628-29:

[T]he continuous representation rule should be applied similarly to the “continuous treatment” rule in medical malpractice cases. The continuous treatment rule provides that prescription in a medical malpractice case is suspended as long as the defendant health care provider continuously treats the plaintiff in an effort to improve the plaintiffs condition allegedly caused by negligent treatment. See Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. This Court has found the time periods in the medical malpractice act to be prescriptive, rather than peremptive. However, failure to apply the continuous representation rule in legal malpractice cases leads to absurd results.
As I stated in my dissent in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291, “if a client is required to file suit against his attorney while the suit is being litigated and before a judgment is definitive, the client is placed in the untenable position of asserting that a judgment is both valid and invalid.” Reeder, 701 So.2d at 1300. The [¿failure to apply the continuous representation rule leads to absurd results because an “attorney need only litigate a claim past the three (3) year preemptive period to avoid all consequences of his malpractice.” Id.


text:
    STATE of Louisiana v. Paul S. HOLLAND.
    No. 2011-KO-2138.
    Supreme Court of Louisiana.
    March 9, 2012.
   In re Holland, Paul S.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court, Nos. 121536, 121538, 124827; to the Court of Appeal, Third Circuit, No. KW 10-01507.

Denied.

GUIDRY, J., would grant writ but deny relief on the merits.


text:
    STATE of Louisiana v. Tanesha HARDY.
    No. 2011-KO-2386.
    Supreme Court of Louisiana.
    March 9, 2012.
   In re Hardy, Tanesha; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court, No. C16019; to the Court of Appeal, Third Circuit, No. 11-267.

Denied.


text:
    STATE ex rel. Ira Joe MIMS v. STATE of Louisiana.
    No. 2011-KH-1549.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Mims, Ira Joe; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Winn, 8th Judicial District Court, Nos. 129511B, 108130, 108618; to the Court of Appeal, Second Circuit, No. 46,641-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Johna HAYNES, Sr. v. STATE of Louisiana.
    No. 2011-KH-1550.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Haynes Sr., Johna; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. B, No. 11-WCR-051; to the Court of Appeal, First Circuit, No. 2011 CW 0543.

Denied.


text:
    STATE ex rel. Eddie J. ARMANT v. STATE of Louisiana.
    No. 2011-KH-1567.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Armant, Eddie J.; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. James, 23rd Judicial District Court Div. D, No. 2584; to the Court of Appeal, Fifth Circuit, Nos. 08-WR-1134,10-KH-683.

Denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2011-KH-1677.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 10-1277; to the Court of Appeal, Fifth Circuit, No. 11-K-719.

Denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2011-KH-1715.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedí1 al Writs, Parish of Jefferson, 24th Judicial District Court Div. F, Nos. 10-1601, 10-1277; to the Court of Appeal, Fifth Circuit, Nos. 11-K-646, 11-K-679, 11-K-737.

Denied.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2011-KH-2360.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Jefferson, 24th Judicial District Court Div. F, Nos. 95-105, 96-4842, 10-1277, 10-1601; to the Court of Appeal, Fifth Circuit, No. ll-K-918.

Denied.


text:
    STATE of Louisiana v. Terry McELVEEN and Thatcher McElveen.
    No. 2011-K-2567.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re McElveen, Terry; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 434-604; to the Court of Appeal, Fourth Circuit, No. 2010-K-0172.

Denied.


text:
    STATE of Louisiana v. TERRY McELVEEN and Thatcher McElveen.
    No. 2011-K-2578.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re McElveen, Thatcher; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. J, No. 434-604; to the Court of Appeal, Fourth Circuit, No. 2010-K-0172.

Denied.


text:
    STATE of Louisiana v. Ivan E. GOUDEAU.
    No. 2011-KO-2596.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Goudeau, Ivan E.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 20122-09; to the Court of Appeal, Third Circuit, No. 11-0473.

Denied.


text:
    STATE of Louisiana v. Gregory J. REAUX.
    No. 2011-KO-2597.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Reaux, Gregory J.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 471010; to the Court of Appeal, First Circuit, No. 2011 KA 0443.

Denied.


text:
    STATE of Louisiana v. Raymond DECKELMAN.
    No. 2011-K-2601.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Deckelman, Raymond; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 475289; to the Court of Appeal, First Circuit, No. 2011 KA 0296.

Denied.


text:
    STATE of Louisiana v. Charles A. CUMMINGS, Jr.
    No. 2011-K-2607.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Cummings Jr., Charles A.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 09-373; to the Court of Appeal, Fifth Circuit, No. 10-KA-891.

Denied.


text:
    STATE of Louisiana v. Simon LEWIS.
    No. 2011-KO-2662.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Lewis, Simon; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 118832; to the Court of Appeal, Third Circuit, No. 11-357.

Denied.


text:
    STATE of Louisiana v. Leonidas Dean LOWRY.
    No. 2011-KO-2663.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Lowry, Leonidas Dean; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. B, No. 11-361; to the Court of Appeal, Third Circuit, No. 11-361.

Denied.


text:
    STATE of Louisiana v. Felton D. BUTLER.
    No. 2011-KO-2686.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Butler, Felton D.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. I, No. 493046; to the Court of Appeal, First Circuit, No. 2011 KA 0595.

Denied.


text:
    STATE of Louisiana v. Michael NICHOLAS.
    No. 2011-KO-2702.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Nicholas, Michael; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 10-08-0702; to the Court of Appeal, First Circuit, No. 2011 KA 0641.

Denied.


text:
    STATE of Louisiana v. Quentin Levar JAMES.
    No. 2011-KO-2703.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re James, Quentin Levar; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 468225; to the Court of Appeal, First Circuit, No. 2011 KA 0668.

Denied.


text:
    STATE of Louisiana v. Jason Lee BROWN.
    No. 2011-K-2715.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Brown, Jason Lee; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 08-FELY-530571; to the Court of Appeal, First Circuit, No. 2011 KA 0365.

Denied.


text:
    STATE of Louisiana v. Terry J. DAVIDSON.
    No. 2011-KO-2719.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Davidson, Terry J.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 499511; to the Court of Appeal, First Circuit, No. 2011 KA 0534.

Denied.


text:
    STATE of Louisiana v. Alexander Emery HOOKS.
    No. 2011-K-2725.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Hooks, Alexander; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 08-07-0452; to the Court of Appeal, First Circuit, No. 2011 KA 0661.

Denied.


text:
    STATE of Louisiana v. Robert STEWARD.
    No. 2011-KO-2729.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Steward, Robert; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 531,849; to the Court of Appeal, First Circuit, No. 2011 KA 0477.

Denied.


text:
    STATE of Louisiana v. Willie O’Neal COUSIN.
    No. 2011-KO-2730.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Cousin, Willie O’Neal; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. C, No. 504,642; to the Court of Appeal, First Circuit, No. 2011 KA 0615.

Denied.


text:
    VICKSBURG HEALTHCARE, LLC d/b/a River Region Health System v. STATE of Louisiana through the DEPARTMENT OF HEALTH AND HOSPITALS and Alan Levine in his capacity as Secretary of the Louisiana Department of Health and Hospitals.
    No. 2012-C-0200.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re State of Louisiana Through the Department of Health and Hospitals; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 571268; to the Court of Appeal, First Circuit, No. 2011-CA-0488.

Denied.

VICTORY, J., would grant.


text:
    STATE ex rel. Vincent Mark CASTILLO v. STATE of Louisiana.
    No. 2012-KH-0246.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Castillo, Vincent Mark; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, Jefferson Parish First Court, Nos. F1789838, F1808684, F1808683, F1808685, F1859335, F1859969, F1870547; 24th Judicial District Court; to the Court of Appeal, Fifth Circuit, Nos. ll-K-990, ll-K-1025.

Denied.


text:
    Newell NORMAND, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson v. Nick RANDAZZO and Gretna Career College Inc.
    No. 2012-C-0285.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Gretna Career College Inc.; Ran-dazzo, Nick et al.; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 690^476; to the Court of Appeal, Fifth Circuit, No. ll-CA-308.

Denied.

VICTORY and GUIDRY, JJ., would grant.


text:
    Wayne Wright THIBODEAUX v. McMORAN EXPLORATION COMPANY, et al.
    No. 2012-CC-0334.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Freeport-McMoran Energy LLC; McMoran Exploration Company; McMo-ran Oil & Gas LLC; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div., No. C-327-11; to the Court of Appeal, Third Circuit, No. CW 11-01117.

Denied.


text:
    STATE of Louisiana v. Jamal HOWARD.
    No. 2012-KK-0340.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 481-282; to the Court of Appeal, Fourth Circuit, No. 2011-K-1692.

Denied.

CLARK, J., would grant.


text:
    Nicole P. COWART and Scotty D. Cowart v. Donna R. RICE and GEICO Indemnity Company, Herman Addison Jr. and the Parish of East Baton Rouge, Department of Public Works.
    No. 2012-C-0349.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Addison, Herman Jr.; East Baton Rouge Parish Department of Public Works; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 576,745; to the Court of Appeal, First Circuit, No. 2011 CA 0492.

Denied.


text:
    TEXAS GAS EXPLORATION CORPORATION v. LAFOURCHE REALTY COMPANY, INC., et al. CSX Oil and Gas Corporation v. Lafourche Realty Company, Inc., et al. Total Minatome Corporation v. Lafourche Realty Company, Inc., et al. Lafourche Realty Company, Inc. v. Total Minatome Corporation, et al.
    No. 2012-OC-0360.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Energen Resources Corporation; — Plaintiff; Applying For Writ of Cer-tiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. D, Nos. 52468, 59486, 65168, 79707; to the Court of Appeal, First Circuit, Nos. 2011 CA 0520, 2011 CA 0521, 2011 CA 0522, 2011 CA 0523.

Denied.


text:
    Roger VESTAL, Emanuel Hammonds, and Johnnie O’Hara v. Cynthia D. KIRKLAND, Schneider National Carriers, Inc. and INS Insurance Company.
    No. 2012-C-0362.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re State of Louisiana Department of Transportation and Development; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Allen, 33rd Judicial District Court Div. C, Nos. 2007-455, 2007-566, 2007-567; to the Court of Appeal, Third Circuit, Nos. 11-419, 11-420, 11-421.

Denied.

VICTORY, J., would grant.


text:
    Assistant Chief of Livingston Parish Fire Protection District 5, Brian Cecil BALLARD v. LIVINGSTON PARISH FIRE PROTECTION DISTRICT 5; Joe Koczrowski, President; Mark Cheairs, Vice President; Jim Lieux, Secretary; John Spink, Board Member.
    No. 2012-C-0364.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Livingston Parish Fire Protection District 5; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. G, No. 121,207; to the Court of Appeal, First Circuit, No. 2011 CA 1053.

Denied.


text:
    Angela PIERCE v. Lisa TADLOCK and the Family Counseling Center.
    No. 2012-C-0366.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re King, Christopher; Pierce, Angela; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. C584899; to the Court of Appeal, First Circuit, No. 2010 CA 1656.

Denied.


text:
    Ronald WEBER and Linda Weber v. CANAL INDEMNITY COMPANY, Sears, Roebuck and Co., Elite A/C Service LLC and Clayton Bourgeois.
    No. 2012-C-0372.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Sears Home Improvement Products, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2010-2059; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0852.

Denied.

VICTORY and CLARK, JJ., would grant.


text:
    Wendy LAKER, Janice Isaac, Andree K. Sullivan, Theresa B. Wilson, Kathleen B. Falcone, Daryl Duplessie, Joycelyn Labostrie, Arthur C. Short and Joe M. Riddle v. Robert KAZIK, in his Official Capacity as Judicial Administrator of Criminal District Court for the Parish of Orleans and Honorable Raymond C. Bigelow, Chief Judge, in his Official Capacity as Chief Judge of Criminal District Court in and for the Parish of Orleans.
    No. 2012-C-0378.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Duplessie, Joycelyn; Falcone, Kathleen B.; Labourdette, Sandy; Laker, Wendy et al.; Sullivan, Andree K.; Wilson, Theresa B.; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 2007-2710; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0853.

Denied.


text:
    John VITAL v. STINE, INC.
    No. 2012-C-0393.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Stine, Inc.; — Defendant; Applying For Writ of Certiorari and/or Review Office of Workers’ Compensation District 8, No. 06-06820; to the Court of Appeal, Third Circuit, No. 11-1088.

Denied.


text:
    Carl FALCONER v. SAFEWAY INSURANCE COMPANY OF LOUISIANA, Carl Wayne Hood, S.E.T. Enterprises, Inc., B.R.T. Enterprises, Inc., Ron Thomas d/b/a Sentinel Security, DEF Insurance Company, ABC Insurance Co., and XYZ Insurance Co.
    No. 2012-C-0394.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re B.R.T. Enterprises Inc. D/B/A Sentinel Security; Progressive Security Insurance Company, et al.; Thomas, Ron; — Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. A, No. 120153; to the Court of Appeal, First Circuit, No. 2011 CA1159.

Denied.


text:
    Donald DAVIS, Individually and on Behalf of his Deceased Mother, Cynthia Tucker v. CANADIAN NATIONAL RAILWAY, City of Kenner, State of Louisiana through the Department of Transportation and Development, Denver F. Dickens, and Chad Bishop.
    No. 2012-CC-0405.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re City of Kenner; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 690-322; to the Court of Appeal, Fifth Circuit, No. 11-C-1065.

Denied.


text:
    Bonnie Ann Blanchard BIGGERS v. Steven Paul BIGGERS.
    No. 2012-CC-0408.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Biggers, Bonnie Ann Blanchard;— Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. F, No. 703-106; to the Court of Appeal, Fifth Circuit, No. ll-C-1182.

Denied. ■


text:
    FIRST AND GOAL CONSTRUCTION, L.L.C. v. KLP SUGARMILL APARTMENTS, L.P. et al. First and Goal Construction, L.L.C. v. KLP Sugarmill Apartments, L.P., NE Construction L.L.P., Coltin Construction, L.L.C. and Safeco Insurance Company of America.
    No. 2012-CC-0410.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re NE Construction, L.L.P.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of W. Baton Rouge, 18th Judicial District Court Div. D, No. 38,201; to the Court of Appeal, First Circuit, Nos. 2011 CW 1099, 2011 CW 1108.

Denied.


text:
    SANDERS FAMILY, LLC NO. 1 and Larry L. (“Tay”) Taylor, III as Agent for Linda Sue Sanders, Individually and Derivatively v. Colton Alaine SANDERS, Deborah Sanders, and Claiborne Timber, LLC.
    No. 2012-C-0414.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Claiborne Timber LLC; Sanders, Colton Alaine et al.; Sanders, Deborah;— Defendant(s); Applying For Writ of Cer-tiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. C, No. 124934; to the Court of Appeal, Second Circuit, No. 46,476-CA.

Denied.


text:
    Zoltan BOKA v. Dr. John W. OLLER, Jr.
    No. 2012-CC-0415.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Boka, Zoltan; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. F, No. 2009-7288-F; to the Court of Appeal, Third Circuit, No. CW 11-01481.

Denied.


text:
    JEFFERSON PARISH v. Paul SANCHEZ and Susan Sanchez.
    No. 2012-CC-0418.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Sanchez, Paul et al.; Sanchez, Susan; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 702-807; to the Court of Appeal, Fifth Circuit, No. ll-C-1069.

Denied.


text:
    Charles H. THIBODEAUX v. MARITIME SYSTEMS, INC.
    No. 2012-C-0419.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Thibodeaux, Charles H.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. Tammany, City Court of Slidell, No. 2007 C 04817; to the Court of Appeal, First Circuit, No. 2011 CA 1816.

Denied.


text:
    Terry CARTER, et ux. v. RAPIDES PARISH SCHOOL BOARD.
    No. 2012-C-0420.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Carter, Terry, et ux.; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 226,362; to the Court of Appeal, Third Circuit, No. 11 01136-CA.

Denied.


text:
    Dennis GARCIA, et ux. v. Anthony STALSBY, et al.
    No. 2012-C-0422.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Stalsby, Anthony et al.; Ventare Transport Logistics Holdings LLC; Ven-tare Transport Logistics LLC; Zurich American Insurance Company; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2008-002953; to the Court of Appeal, Third Circuit, No. 11-350-CA.

Denied.


text:
    WOODLANDS DEVELOPMENT, L.L.C., Anthony Reginelli, Jr., Shauna Landry Reginelli, Peter R. Steur, and Lee R. Steur v. REGIONS BANK, Soundra J. Temple and Johnson Property Group, L.L.C.
    No. 2012-C-0424.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Reginelli Jr., Anthony; Reginelli, Shauna Landry; Steur, Lee R.; Steur, Peter R.; Woodlands Development, L.L.C. et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. O, No. 668-408;to the Court of Appeal, Fifth Circuit, No. ll-CA-263.

Denied.


text:
    Terence CZOP v. Ervin WHITE, Jr. and Pathfinder Insurance Company. Ryder Truck Rental, Inc., Ryder Transportation Services v. Ervin White Jr., Avis Rent a Car System, LLC, Pathfinder Insurance Company.
    No. 2012-C-0425.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Avis Rent A Car System, LLC; Pathfinder Insurance Company; — Defendants); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, Nos. 673-353, 673-786; to the Court of Appeal, Fifth Circuit, Nos. ll-CA-310, ll-CA-311.

Denied.


text:
    Kathy Richmond ZEITOUN, Wife of/and Abdulrahman Zeitoun v. The CITY OF NEW ORLEANS, C. Ray Nagin, Individually and as Mayor of the City of New Orleans, the State of Louisiana, through its State Police, et al.
    No. 2012-C-0426.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Zeitoun, Abdulrahman; Zeitoun, Kathy Richmond et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2006-09676; to the Court of Appeal, Fourth Circuit, No. 2011-CA-0479.

Denied.


text:
    Roy JENKINS, Crystal Jenkins, Stephanie Jenkins, Latasha Jenkins, and Ashley Jenkins v. WASHINGTON & WELLS, L.L.C., Alex J. Washington and Continental Casualty Company.
    No. 2012-C-0427.
    Supreme Court of Louisiana.
    April 9, 2012.
   In re Jenkins, Ashley; Jenkins, Crystal; Jenkins, Latasha; Jenkins, Roy et al.; Jenkins, Stephanie; — Plaintiffs); Applying For Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. B, No. 130098-B; to the Court of Appeal, Second Circuit, No. 46,825-CA.

Denied.


text:
    STATE of Louisiana v. Shandrika LEWIS.
    No. 2012-KK-0770.
    Supreme Court of Louisiana.
    April 11, 2012.
   In re State of Louisiana; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 508-015; to the Court of Appeal, Fourth Circuit, No. 2012-K-0394.

Granted. The bonds issued in this case do not comply with La.Code of Crim. Proc. art. 342. The judgment denying the State’s Motion to Correct Illegal Bond is reversed and vacated, and the matter is remanded to the trial court to cure the defects in the bond order. See State v. Martin, 12-473 (La.App. 4 Cir. 4/2/12) (unpublished).


text:
    Daniel MORENO v. ENTERGY CORPORATION, Entergy Gulf States, Inc., Entergy Louisiana, LLC., Eagle Enterprises of Jefferson, Lafayette Insurance Company, Walgreen Louisiana Co. Inc., ABC Insurance Company and the Parish of Jefferson.
    No. 2012-C-0097.
    Supreme Court of Louisiana.
    April 13, 2012.
   In re Entergy Louisiana, LLC.; — Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 640-321; to the Court of Appeal, Fifth Circuit, No. 09-CA-976.

Granted.


author: SUSAN M. CHEHARDY, Judge.

text:
    Newell NORMAND, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson v. Nick RANDAZZO and Gretna Career College Inc.
    No. 11-CA-308.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Kenneth C. Fonte, Golden & Fonte, Attorney at Law, Metairie, LA, for Plaintiff/Appellant, Newell Normand.
    Michelle E. Seott-Bennett, Justice for All Law Center, LLC, Attorney at Law, Gretna, LA, for Defendants/Appellees, Nicholas Randazzo and Gretna Career College, Inc.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

|PThis appeal arises out of a rule for taxes filed by Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson (“the Sheriff’). The Sheriff appeals a judgment that dismissed the proceeding for failure to comply with statutory procedures. We reverse and render.

On July 27, 2010, the Sheriff filed a summary proceeding (“rule for taxes”) against Nick Randazzo and Gretna Career College, Inc. (collectively referred to as “GCC”) to recover delinquent sales and use taxes, pursuant to La. R.S. 47:337.45 and 47:337.61. The Sheriff alleged that GCC had failed to pay taxes totaling $34,737.49 for the period “from January 2008.” The Sheriff sought the amount of the taxes plus interest, penalties, attorney’s fees and costs. The Sheriff also sought an injunction to prohibit the defendants from operating the business until the delinquent taxes and other amounts have been paid in full.

GCC filed an answer denying it engaged in transactions that require it to collect and pay over to the Sheriff sales and use taxes. The answer also raised several affirmative defenses and incorporated an exception of prematurity. The exception of prematurity pertained to the Sheriffs request for an injunction to prevent GCC from operating pending payment of the delinquent tax debt.

|sThe rule for taxes was tried on November 8, 2010. The district court denied the exception of prematurity from the bench.

Counsel for the Sheriff acknowledged that he had the burden of proof. The Sheriff asserted that books, uniforms and equipment provided to students at GCC were items for which sales tax is owed. GCC contended the books, uniforms and equipment are included in the tuition and are not sold separately. After testimony from several witnesses and introduction of documentary evidence, the court took the case under advisement and allowed the parties to file post-trial memoranda.

On January 10, 2011 the court rendered a judgment in favor of GCC, finding that “plaintiff failed to properly notice defendants of their rights and remedies with the April 6, 2010 letter as outlined in La. R.S. 47:337.51(A).”

In reasons for judgment that were incorporated into the judgment, the court stated,

LA. R.S. 47:337.61 provides for the collection of taxes by summary proceeding on behalf of the tax collector and LA R.S. 47:337.51 outlines the proper notification that must be sent to the tax payer. Defendants argue that plaintiff failed to comply with LA R.S. 47:337.51 and did not allow the defendants the time frame allowed by statute to exercise the rights and remedies available to them before plaintiff filed this rule for taxes.
On November 30, 2009 plaintiff sent a “Notice of Delinquent Taxes Proposed Assessment” letter to defendants.... It gave defendants 30 days to file a ■written protest and also allowed for a hearing if defendant so desired.
On December 28, 2009 defendants sent a protest letter to plaintiff and requested a hearing. However, on December 29, 2009, a day before defendants’ 30 day period expired, plaintiff sent a “Notice of Delinquent Taxes Formal Assessment” letter to defendants .... The letter informed defendant that the notice was being mailed in accordance with LA-R.S. 47:337.51 and that defendant had 60 days from the date of the notice to a) pay the amount of the assessment; b) request a hearing 14with the collector or; c) pay under protest pursuant to LA-R.S. 47:337.63. If defendant did not take any of these actions within 60 days the assessment would become final.
Although plaintiff argued that defendants’ protest letter dated November [December] 28, 2009 wasn’t “under oath,” they agreed to hold a hearing with the collector on January 25, 2010. After a hearing, the collector sent a letter to defendant on April 6, 2010 ... advising him that the findings of the audit would remain un-adjusted. It further advised defendant that, “All rights and remedies afforded to you are outlined in the Formal Assessment dated December 29, 2009.”
Defendant argues that he was not given sufficient time to exercise his statutory rights and remedies, since at the time the April letter was received, the 60 days from the December 29, 2009 letter had expired.
This court finds that plaintiff failed to properly notice defendants of their rights and remedies with the April 6, 2010 letter as outlined in LA R.S. 47:337.51(A). Therefore, the assessment never became final.

The Sheriff has appealed, raising two assignments of error:

(1) The district court erred by rejecting the Sheriffs tax claim based on a finding that he failed to notify GCC of rights and remedies as provided by La. R.S. 47:337.51(A); and

(2) The district court erred by failing to grant judgment in favor of the Sheriff against GCC for the full amount of the tax claim, together with interest, penalties, attorney fees and costs.

LAW AND ANALYSIS

La. R.S. 47:337.45 provides several alternative remedies for the tax collector to recover delinquent taxes:

(1) Assessment and distraint, as provided in R.S. 47:337.48 through 337.60.
(2) Summary court proceeding, as provided in R.S. 47:337.61.
U(3) Ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations.

La. R.S. 47:337.45(A).

“The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceeding initiated by the collector....” La. R.S. 47:337.45(B). “[T]he fact that the collector has initiated proceedings under the assessment and dis-traint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation.” Id.

The Sheriff contends he is not required to comply with La. R.S. 47:337.51 as a condition precedent to the enforcement and collection of sales taxes by a summary proceeding pursuant to La. R.S. 47:837.45 and 47:887.61.

In opposition to the appeal, GCC asserts that the Sheriffs failure to file the affidavit required by La. R.S. 47:1574 caused the burden of proof to shift from the defendant to the plaintiff. Hence, the case is in a different procedural posture from most tax-collection cases.

La. R.S. 47:337.51(A) provides that the tax collector must notify the taxpayer of his remedies. The statute specifically states that the notice from the tax collector “shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with R.S. 47:337.63.”

GCC asserts that because the Sheriff did not provide that notice, the trial court correctly found that the assessment, which is the basis for the rule for taxes, | (¡never became final. GCC contends the Sheriff failed to meet the burden of proof at trial.

GCC does not argue that the notice requirement of La. R.S. 47:337.51(A) is a condition required before the tax collector can seek summary relief. GCC asserts, however, that in this case “the collector began with the assessment method and used the alleged ‘formal assessment’ as the basis for the summary proceeding; therefore, the tax collector could not simply disregard the notice requirement and file a summary rule for collection.”

“[L]aws regulating the collection of taxes are sui generis and comprise a system to which general provisions of the law have little, if any, relevance.” Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089, p. 22 (La.6/29/05), 914 So.2d 533, 549.

Here, the district court erroneously linked the notice provisions of La. R.S. 47:337.51(A) with the alternative summary proceeding tax enforcement remedy of La. R.S. 47:337.61. La. R.S. 47:337.51(A) is applicable only to the assessment and dis-traint tax enforcement remedy. The district court cited no authority for its conclusion that a taxpayer must be given notice pursuant to La. R.S. 47:337.51(A) before the tax collector seeks or obtains relief by summary proceeding under La. R.S. 47:337.61.

Rather, La. R.S. 47:337.45(B) expressly grants the tax collector the right and discretion to enforce and collect sales and use taxes by summary proceeding, notwithstanding the requirements applicable to the assessment and distraint remedy, even when the collector has initiated assessment and distraint procedures.

The trial court’s interpretation of the availability of relief under La. R.S. 47:337.61 as dependent upon compliance with the notice requirements of La. R.S. 47:337.51(A) is inconsistent with the statutory classification of the summary 17proceeding as an “alternative” remedy in “addition to any other procedure” for the enforcement and collection of sales and use taxes.

In Collector of Revenue v. Olvey, 238 La. 980, 117 So.2d 563 (1959), our supreme court considered and rejected the argument that the availability of a tax collector’s summary proceedings remedy is conditioned upon compliance with the procedures for making a formal assessment. The statutes considered in Olvey were substantially similar to those under consideration in this case. The Olvey court found,

The procedure outlined in R.S. 47:1562-1565 for distraint and sale does not in anywise limit or curtail the right and option given to the Collector by R.S. 47:1561 to collect the taxes claimed due by ordinary or summary process, as provided by law, nor is he required to formally assess the tax when he seeks its collection by suit or rule.

117 So.2d at 567-.

Similarly, in Collector of Revenue v. Frost, 240 La. 1067, 127 So.2d 151 (1961), our supreme court found that the statute providing for a summary proceeding to enforce and collect taxes, La. R.S. 47:1574, did not require a prior assessment.

If a prior assessment is unnecessary to a tax collector employing summary proceedings, then compliance with the notice provisions applicable to a formal assessment cannot be a condition precedent.

We note, further, the district court erred in considering GCC’s defense challenging the Sheriffs right to file the rule for taxes on the basis that he deprived GCC of administrative rights under La. R.S. 47:337.51 applicable to a formal assessment. That defense was raised not in GCC’s answer or exception, but in its post-trial memorandum. That violated the requirement of La. R.S. 47:337.61(2), which states:

All defenses, whether by exception or to the merits, made or intended to be made to any such claim, Rmust be presented at one time and filed in the court of original jurisdiction prior to the time fixed for the hearing, and no court shall consider any defense unless so presented and filed.

Accordingly, the trial court erred in ruling in favor of the defendants. Instead, the court should have ruled in favor of the Sheriff.

The audit report establishes that the principal amount of the sales taxes owed by GCC for the relevant tax periods is $20,284.61. In addition, the audit report showed that GCC owes penalties in the amount of $5,175.47. Accrued interest through the date of the report was $7,654.69, and interest continues to accrue on the unpaid tax balance at the rate of one percent per month. Thus, the total accrued interest through April 2011 is $10,909.23.

The Sheriff also is entitled to recover attorney’s fees at the rate of 10% of the principal amount of taxes, and upon penalties and interest, under La. R.S. 47:337.13.1(A)(2). The Sheriff seeks additional attorney’s fees for the work on this appeal, as well an award for all costs.

GCC presented no evidence challenging the accuracy of the Sheriff’s audit report, nor did GCC object to the introduction of the audit report in evidence. Both the auditor who performed the audit and the Sheriff’s audit manager testified to and substantiated the findings.

GCC argued that its transfers of books, uniforms, equipment and supplies are components of a charge for educational services. The uncontradicted evidence is that transactions charging students for books, uniforms, equipment and supplies are accounted for separately from tuition and education services. Hence, the fees GCC charges its students are in substance a “sales price,” pursuant to La. R.S. 47:301(A)(13)(a).

|9The district court should have rendered judgment in favor of the Sheriff for the taxes, penalties, interest, together with continuing interest, attorney’s fees, and costs.

La. R.S. 47:337.13.1 provides for payment of attorney fees when private counsel is hired to collect taxes, as follows in pertinent part:

A. (1) The local collector is authorized to employ private counsel to assist in the collection of any taxes, penalties, or interest due under this Subtitle, or to represent him in any dispute, contest, or other controversy involving the determination of sales and use tax due, or in any other proceeding under this Subtitle....
(2) If any taxes, penalties, or interest due and final under this Subtitle are referred to an attorney at law for a collection action, an additional charge for attorney fees, in the amount of ten percent of the taxes, penalties, and interest due, except with respect to amounts timely paid under protest with a return that is not delinquent, ... shall be paid by the taxpayer to the local collector; provided, however, that the amount paid for attorney fees shall be subject to the discretion of the court as to reasonableness.
(3) A taxpayer shall not be subject to the payment of attorney fees unless the local collector is the prevailing party entitled to reimbursement of attorney fees and costs as provided for in Subsection B of this Section.
B. (1) Except as otherwise provided for in Paragraph (3) of Subsection A of this Section, the prevailing party in a dispute, contest, or other controversy involving the determination of sales and use tax due shall be entitled to reimbursement of attorney fees and costs, not to exceed ten percent of the taxes, penalties, and interest at issue, unless the position of the non-prevailing party is substantially justified. The prevailing party is defined as the party which has substantially prevailed with respect to the amount in controversy or substantially prevailed with respect to the most significant issue or set of issues presented. A position is substantially justified if it has a reasonable basis in law and fact. The reimbursement amount for attorney fees and costs shall be subject to the discretion of the court as to reasonableness.

| Tn“A taxpayer must clearly, unequivocally, and affirmatively establish his entitlement to a tax exemption provided by law.” Mallard Bay Drilling, Inc. v. Kennedy, 2004-1089, p. 15 (La.6/29/05), 914 So.2d 533, 545.

DECREE

Considering the foregoing, the judgment is reversed.

Judgment hereby is rendered in favor of the plaintiff, Newell Normand, Sheriff and Ex-Officio Tax Collector for the Parish of Jefferson, and against the defendants, Nick Randazzo and Gretna Career College Inc., in the principal amount of $20,284.61, together with penalties in the amount of $5,175.47, interest accrued through April 2011 in the amount of $10,909.23 and continuing to accrue thereafter on the principal sum at the rate of 1% per month until paid, and attorney’s fees in the amount of 10% of the total principal, penalties and interest, and for all costs. In addition, the plaintiff is awarded additional attorney’s fees of $2,500.00 for this appeal.

REVERSED AND RENDERED

      . Subsequent pleadings and the evidence adduced at trial established that the period for which taxes are sought is from January 1, 2005 through June 30, 2008.