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

text:
    Tenesha SMITH, Melvin Porter, Sr. and Wallace Dixon v. TRANSPORT SERVICES COMPANY, Protective Insurance Company and Dan Davis.
    No. 2010-CA-1238.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 4, 2011.

      Vernon P. Thomas, Judith A. DeFraites, New Orleans, LA, for Plaintiffs/Appellees Tenesha Smith, Melvin Porter, Sr. and Wallace Dixon, et al.
    J. Warren Gardner, Jr., Gregory S. LaCour, Christovich & Kearney, L.L.P., New Orleans, LA, for Transport Service Co. of Illinois and Dan Davis.
    John E. Galloway, Andrea Albert, Galloway, Johnson, Thompkins, Burr & Smith, New Orleans, LA, for Protective Insurance Company.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   DENNIS R. BAGNERIS, SR., Judge.

11 Transport Service Co. of Illinois, Dan Davis, and Protective Insurance Company (hereinafter collectively referred to as “Transport”), defendants/appellants herein, appeal from a district court judgment, which denied its peremptory exception of prescription and made a determination of liability and causation in favor of plaintiffs who claimed to be injured by an alleged chemical spill in August 2002. After reviewing the record and applicable law, we hereby affirm the denial of Transport’s peremptory exception of prescription, we reverse the district court’s determination of causation by applying the Housley presumption, and we remand the matter to the district court for further proceedings.

On August 7, 2002, Transport Service Co. of Illinois’ driver, Don Davis, hauled a load of spent caustic in a tank on a tractor/trailer from a Marathon Oil Company refinery in Illinois to Harvey, Louisiana. The entire product was pressure off-loaded at Delta Terminal, which had purchased the spent caustic from Marathon. Only residue remained in the tank. Mr. Davis then drove the traetor/trailer to Leonidas Street in New Orleans so that he could eat dinner with his parents. While Mr. Davis was eating dinner, a hissing sound was emitted from |2the top of the tractor/trailer’s dome area. Neighbors who heard the hissing sound called the police. The police arrived and did not deem an evacuation necessary.

The first lawsuit was filed on August 7, 2003, by Shirley Fulford et al. in the Civil District Court for the Parish of Orleans as a class action; a second lawsuit, also a class action, was also filed on August 7, 2003, in Civil District Court by Yolanda Abram (collectively referred to the “Ful-ford/Abram plaintiffs”).

Transport timely removed the Fulford and Abram lawsuits to the United States District Court for the Eastern District of Louisiana; the two suits were consolidated. Following a hearing, the plaintiffs’ motion for class certification was denied on June 1, 2004, with the order entered into the record on the same day. The Ful-ford/Abram plaintiffs filed a motion for reconsideration that was denied. The Ful-ford/Abram plaintiffs appealed to the United States Fifth Circuit, but subsequently dismissed their appeal.

Ms. Smith, Mr. Porter, and Mr. Dixon filed this current lawsuit on June 8, 2004, making the same class action allegations as contained in the Fulford/Abram lawsuits. On September 20, 2004, the trial court granted the defendants’ declinatory exception of lis pendens and, pursuant to La. C.C.P. art. 532, stayed the class action claims pending resolution of the federal actions. The trial court also ruled that Ms. Smith, Mr. Porter, and Mr. Dixon could proceed forward with their individual actions against Transport. As to other individuals not named in the lawsuit, the trial court ruled that they had thirty days from the judgment to file their individual actions but that the judgment did not affect any prescriptive periods that had already accrued.

|sOn October 4, 2004, plaintiffs filed an “Amended Petition” seeking to add five hundred new plaintiffs to the case. The trial court signed an order allowing them to become parties-plaintiffs in the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon.

Transport filed a peremptory exception of prescription on December 1, 2004, contending that the claims of the five hundred new plaintiffs had prescribed. On February 11, 2005, the trial court denied the exception of prescription. In the written reasons for judgment, the trial court stated that the earlier filed class actions interrupted prescription for the five hundred new plaintiffs. After these rulings, the parties agreed to bifurcate the issues of liability and damages, agreeing to first try only the issues of liability and general causation. In early December 2009, the trial court tried the limited issues of liability and general causation, at which eleven plaintiffs testified. In a March 12, 2010 judgment, the trial court relied on the Housley presumption and found that: “(1) Defendants were at fault in causing the August 7, 2002 chemical release; (2) Plaintiffs suffered damages as a result of defendants’ fault; (3) the chemicals released were capable of causing, and did cause, damage to the plaintiffs; and (4) Defendants are liable for all proved ^damages caused by the August 7, 2002 chemical release.” Based on the wording of the judgment, it appears that the trial court did not limit its findings to just general causation, as had been previously agreed to, but also ruled on specific causation for all plaintiffs, even though the vast majority of the plaintiffs did not testify at trial or submit any evidence to support their individual claims.

Transport filed a motion for new trial, which was denied. It then filed a timely petition for a devolutive appeal, which was granted. The plaintiffs sought to have the March 12, 2010 judgment designated as final pursuant to La. C.C.P. art. 1915, which motion was also granted.

Transport has assigned five errors for review:

1. The trial court erred by applying the old class action laws to this case when the newer class action laws govern this action;
2. The trial court erred by not applying the last enacted statute when determining whether the exception of prescription should be granted or denied;
3. The trial court erred when it did not find that the thirty days afforded by La. C.C.P. art. 596 began to run when the federal court order denying class certification was entered into the record;
4. The trial court erred in holding that the Housley v. Cerise, 579 So.2d 973 (La.1991) applied to this case to satisfy each plaintiffs burden of proof on causation;
5. The trial court erred in finding that causation was proven as to all plaintiffs when only eleven of the over five hundred plaintiffs actually testified at trial.

PRESCRIPTION IN THE CONTEXT OF LA. C.C.P. ART. 596

The first issue we address is prescription, which encompasses the first three errors assigned above. Appellate courts review the peremptory exception of prescription using the manifestly erroneous standard of review. Boykins v. Boykins, 07-0542, p. 3 (La.App. 4 Cir. 4/30/08), 984 So.2d 181, 184. If a review |5of the entire record demonstrates that the trial court’s factual findings were reasonable, the appellate court must affirm. Hammett v. GICILI, 07-0867, p. 2 (La.App. 4 Cir. 2/13/08), 978 So.2d 1022, 1024; Brumfield v. McElwee, 07-0548, p. 4 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, 238.

Prescription statutes require strict construction in favor of upholding the obligation sought to be extinguished. Boykins, 07-0542, p. 4, 984 So.2d at 184. The burden of proving prescription remains with the mover. Brumfield, 07-0548, p. 4, 976 So.2d at 238. However, when the plaintiffs claim appears prescribed, the plaintiff must prove suspension or interruption of prescription. Hammell, 07-0867, p. 2, 978 So.2d at 1024.

In its written reasons for judgment, the trial court stated:

Pursuant to La. C.C.P. art. 596, the prescriptive period of Class Action Suits is as follows:
... Prescription which has been suspended ... begins to run:
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class ... or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.
Pursuant to the Louisiana Civil Code, prescription runs against all persons, unless an exception is established by legislation. La. C.C. art. 3467. The class actions in this matter were filed on August 7, 2003. An interruption of prescription from the filing of a suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending. La. C.C. art. 3463.
Both the Fulford and Abram lawsuits are still pending in District Court. Thus, there has been a continuous interruption of prescription, which remained | ^suspended following the order of Judge Berrigan’s denial of the class certification. La. C.C.P. art. 596(3) provides that prescription remains suspended upon the filing of a class action until thirty (30) days after the putative class members are notified that a court has denied class certification. Therefore, the amended petition adding new plaintiffs was timely filed.

Transport argues that the trial court erred by failing to apply La. C.C.P. art. 596 to the issue of prescription; instead the court applied La. C.C. art. 3462, the earlier and more general statute. It argues that in this case, prescription was suspended and not interrupted. Transport contends that prescription began to run again on June 1, 2004, when the United States District Court entered the order denying class certification to the Ful-ford/Abram plaintiffs. Because the lawsuits were filed on the last day before prescription had run, all members had to be joined within the thirty-day window provided by subsection (3) of article 596. Thus, Transport argues that the claims of the five hundred plaintiffs added to the lawsuit on October 4, 2004 have prescribed.

Conversely, the plaintiffs assert that the thirty-day period began to run for putative class members on September 7, 2004, when notice was mailed to the putative class members and/or on September 19-24, 2004, when notice was published in the local newspaper. Therefore, they contend that the addition of the five hundred claimants on October 4, 2004, was timely.

A class action petition suspends prescription. Eastin v. Entergy Corp., 07-212, p. 12 (La.App. 5 Cir. 10/16/07), 971 So.2d 374, 381. Specifically, La. C.C.P. article 596 provides:

Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or | described therein. Prescription which has been suspended as provided herein, begins to run again:
(1) As to any person electing to be excluded from the class, thirty days from the submission of that person’s election form;
(2) As to any person excluded from the class pursuant to Article 592, thirty days after mailing or other delivery or publication of a notice to such person that the class has been restricted or otherwise redefined so as to exclude him; or
(3)As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

The trial court referred to an “interruption” based on La. C.C. art. 3463, rather than a suspension based on La. C.C.P. art. 596. However, the trial court relied on the correct statute (article 596), holding that the plaintiffs had thirty days from notice to join the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon.

In this case, the Fulford/Abram class actions were filed within one year of the incident, on August 7, 2003 and were removed to federal court. After the motion for class certification was denied on June 1, 2004, plaintiffs appealed this June 1, 2004 ruling, but were not successful. Plaintiffs, Ms. Smith, Mr. Porter, and Mr. Dixon, filed suit on June 8, 2004. However, the first notice to the putative class members of the denial of class certification, complying with La. C.C.P. art. 596(3), was on September 7, 2004 (when notice was mailed to the putative class members) and on September 19-24, 2004 (when notice was published in the New Orleans Times Picayune). Pursuant to La. C.C.P. art. 596, the liberative prescription that was suspended with the filing of the class action petition, commenced to run again thirty (30) days “after publication of notice” to the putative class members, or on October 7, 2004. See Taranto v. Louisiana Citizens Property Ins. Corp., 2010-0105 (La.3/15/11), 62 So.3d 721. After a hearing on Transport’s exception of lis pendens, the trial court ruled on September 20, 2004, that the plaintiffs were allowed to proceed forward individually as plaintiffs in the matter and further stated:

... plaintiffs have 30 days from the date of the signing of this Judgment, within which to amend their pleadings to add additional plaintiffs to this lawsuit, which additions will not affect or extend any prescriptive periods that have already run as to any new plaintiffs, with defendants reserving all available defenses and exceptions.

The trial court’s September 20, 2004 judgment allowed the plaintiffs to amend their pleading, naming additional plaintiffs before October 29, 2004; thus, the filing of the amended petition on October 4, 2004 was within the 30 days allowed by La. C.C.P. art. 596(3) and was also filed within the 30 days provided by the September 20, 2004 trial court judgment.

Transport cites to Smith v. Cutter Biological, 99-2068 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, for the proposition that the entry of an order by a federal judge provides sufficient notice to trigger the running of the suspended prescriptive period that denies class certification; however, as Transport correctly points out, this case was decided by applying the pre-1997 class action statutes, prior to the enactment of La. C.C.P. art. 596 and thus, does not take into effect La. C.C.P. art. 596(3) which requires “mailing or other delivery or publication of a notice to the class that the action has been dismissed ... or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.” Accordingly, we hereby affirm the district court’s ruling, which denied Transport’s exception of prescription.

\:iTHE “HOUSLEY” PRESUMPTION

We now turn to the trial court’s application of the Housley presumption to create a presumption of causation. After hearing the testimony of eleven of the five hundred plaintiffs, the trial court applied a presumption of causation made applicable to negligence cases in Housley v. Cerise, 579 So.2d 973 (La.1991). In Housley, the Supreme Court stated:

In Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977), this Court stated:
[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves after-wards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
Id. at 596. See also, Simpson v. Caddo Parish School Board, 540 So.2d 997 (La.App. 2nd Cir.1989); Petersen v. State Farm Auto. Insurance Company, 543 So.2d 109 (La.App. 3rd Cir.1989); Wisner v. Illinois Central Gulf Railroad, 537 So.2d 740 (La.App. 1st Cir.1988).

Id. at 980.

The record is devoid of any medical evidence submitted by plaintiffs to show a “reasonable possibility of causal connection between the accident and [plaintiffs’] disabling condition.” Because of this, we find Housley inapplicable to the case before us and remand this matter to the court below for further proceedings. In doing so, we reverse the trial court’s determination of causation in favor of plaintiffs.

CONCLUSION

Based on the foregoing, we hereby affirm the denial of Transport’s peremptory exception of prescription, we reverse the district court’s determination of causation by applying the Housley presumption, and we remand the matter to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

TOBIAS, J., concurs in part, dissents in part, and assigns reasons.

TOBIAS, J.,

concurs in part, dissents in part, and assigns reasons.

hi respectfully concur in part and dissent in part from the decision of the majority.

I agree with the majority’s analysis and conclusions relative to the trial court’s reversible error when it applied the Housley presumption. I dissent from the majority conclusion that the five hundred new plaintiffs’ claims are not prescribed; those five hundred plaintiffs’ claims are in fact prescribed under existing law and jurisprudence. The peremptory exception of prescription must be maintained. See, Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981).

In their summation of the facts, I note that the majority omits the following pertinent facts.

First, after the police arrived and did not deem an evacuation necessary, other emergency responders reported to the scene; at no time did any emergency responders wear a respirator at the scene, even when standing on top of the tractor/trailer.

| ySecond, the attorneys for Ms. Smith, Mr. Porter, and Mr. Dixon also represented the Fulford/Abram plaintiffs in federal court class action suit.

Third, when the trial court denied the exception of prescription and stated that the earlier filed class actions interrupted prescription for the five hundred new plaintiffs, supervisory writs were filed with this court and the Louisiana Supreme Court by Transport, both of which were denied. The majority fails to note the law respecting the effect of a denial of a writ application, to-wit: The denial of a writ application has no precedential value. State v. Davis, 09-0438, p. 19 (La.App. 4 Cir. 1/13/10), 30 So.3d 201, 211; Arceneaux v. Amstar Corp., 06-1592, p. 20 (La.App. 4 Cir. 13/07/07), 969 So.2d 755, 771; State v. Williams, 00-1725, p. 4 n. 3 (La.11/28/01), 800 So.2d 790, 795; St. Tammany Manor, Inc. v. Spartan Building Corp., 509 So.2d 424, 428 (La.1987); see also, Cavalier v. State ex rel. Dept. of Transp. and Development, 08-0561, p. 5 (La.App. 1 Cir. 9/12/08), 994 So.2d 635, 640 (“Application of the ‘law of the case’ principle to decisions made on supervisory writs is discretionary. Therefore, any prior ‘determination’ in a request for a supervisory writ is not necessarily binding on a subsequent appeal. Diamond B Const. Co., Inc. v. Department of Transp. and Development, 02-0573 (La.App. 1 Cir. 2/14/03), 845 So.2d 429, 434.”)

Generally, the denial of supervisory writs does not bar a different conclusion or reconsideration of the same issue argued in the writ application when an appeal is taken from a final judgment. Levine v. First Nat. Bank of Commerce, 06-394 (La.12/15/06), 948 So.2d 1051, 1056 n. 4; East Baton Rouge Parish School Bd. v. Wilson, 08-0536 (La.App. 1 Cir. 6/6/08), 992 So.2d 537, 543; Diamond B Construction, 845 So.2d at 434. Likewise, where a prior disposition is clearly erroneous and will create a grave injustice, it should be reconsidered. Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La.12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997).”)

Transport argues that the trial court erred by failing to apply La. C.C.P. art. 596 to the issue of prescription; instead the court applied La. C.C. art. 3462, the earlier and more general statute. It also argues that in this case, prescription was suspended and not interrupted. Thus, the addition of the approximate five hundred plaintiffs was untimely.

In LeBreton v. Rabito, 97-2221, pp. 5-6 (La.7/8/98), 714 So.2d 1226, 1228-29, the Supreme Court distinguished interruption from suspension:

Liberative prescription is a mode of extinguishing a legal claim that has not been filed by a creditor during a time period stipulated by law. La. Civ.Code art. 3447; G. Baudier-Lacantinerie & A. Tissier, TRAITE THEORIQUE ET PRATIQUE DE DROIT CIVIL, No. 25 (4th ed.1924), reprinted in 5 CIVIL LAW TRANSLATIONS at 15 (La. St. Law Inst. Trans.1972). The basis for prescription may be said to rest on three major policies. First, it promotes social and legal stability. Id., supra, No. 27, at 16-17. Second, prescription is based partially on a presumption of payment. Id., supra, No. 32, at 21. Third, when prescription extinguishes a debt it is usually because of the negligence of the creditor.
Prescription runs against all persons unless an exception is established by legislation. La.Civ.Code art. 3467. When a petition reveals on its face that prescription has run, the plaintiff bears the burden of establishing that the claim has not prescribed. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206. The three legislative principles on which plaintiff can rely to meet that burden are suspension, interruption, and renunciation. Id.
Because prescription adversely affects creditors, prescription may be suspended in favor of creditors who cannot enforce their claims. Suspension of prescription constitutes a temporary halt to its running. One doctrinal source aptly describes suspension as a period of time in which prescription slumbers. G. Baudier-Lacantinerie & A. Tissier, supra, No. 415, at 221-22. Prescription is suspended for as long as the cause of suspension continues. After the cause for the suspension ends, the prescriptive time begins running and the “time which precede[d] the suspension is added to the time which follows it to compose the necessary period; only the Lperiod of the suspension is deducted.” Id. At the root of the principle of suspension is the recognition that a creditor should not lose his legal claim during a period when enforcement of the claim is prevented. Id., Nos. 368, 389, at 193, 207-08.
In contrast to suspension, interruption not only stops the running of prescription, it “annuls the commenced prescription so that after the interruption ceases, a new prescription must commence.” Id., No. 415, at 221. Furthermore, unlike suspension which requires no act by the creditor, interruption results from an act by a creditor or a debtor’s renunciation. La. Civ.Code arts. 8462-66.

Article 596 suspends prescription; prescription is not interrupted. In the instant case, the Fulford/Abram lawsuits were filed on 7 August 2008, exactly one year from the date of the accident. Article 596 provides:

Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to all members of the class as defined or described therein. Prescription which has been suspended as provided herein, begins to run again:
(8) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class. [Emphasis supplied.]

The trial court below referred to an “interruption” based on La. C.C. art. 3463, rather than a suspension based on La. C.C.P. art. 596. However, it appears that the trial court relied in part on the correct statute (article 596), holding that the plaintiffs had thirty days from notice to join the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon.

Transport contends that prescription began to run again on 1 June 2004, when the United States District Court entered the order denying class certification to the Fulford/Abram plaintiffs. Because the lawsuits were filed on the last day before prescription had run, all members had to be joined within the thirty-day ^window provided by subsection (3) of article 596. Thus, Transport argues that the claims of the five hundred plaintiffs added to the lawsuit on 4 October 2004 have prescribed.

Conversely, the plaintiffs assert that the thirty-day period began to run for putative class members on 7 September 2004, when notice was mailed to the putative class members and/or on 19-24 September 2004, when notice was published in the local newspaper. Therefore, they contend that the addition of the five hundred claimants on 4 October 2004 was timely.

The real issue then is what type of notice is required as it is “notice” that begins the running of the thirty days.

Interestingly, article 596 makes no reference to actual notice or to the method that should be employed to give notice. In contrast, numerous statutes requiring notice are quite specific, for example:

• La. R.S. 12:71(2): notice shall be published in a newspaper published in the parish in which the registered office of the corporation is located.
• La. R.S. 22:2060(B)(1): notice by publication in a newspaper of general circulation shall be sufficient.
• La. R.S. 30:129.1: notice by publication in either the official journal of the state or in the Louisiana Register.
• La. R.S. 33:172(B): notice by publication shall be given once of the filing of the petition in a newspaper published or having general circulation in the municipality.
• La. R.S. 33:1882: public notice by publication, during thirty days, after the manner of judicial advertisements, in one newspaper published in the parish.
• La. R.S. 33:4720.60(D)(1): public notice, by publication twice in ten days in a newspaper having a general circulation in the community.
• La. R.S. 43:202(A): In the parish of Orleans, when advertisements are re-quii’ed to be made in relation to judicial proceedings, or in the sale of property under judicial process, or in any other legal proceedings of whatever kind, the advertisement shall be inserted in a daily newspaper published in an office physically located in the parish of Orleans and published in the English language, and which has been published as a daily paper for at least five years prior to the insertion of the advertisement or publication.
|6* La. C.C.P. art. 3229: notice of the application shall be published once in the parish where the succession proceeding is pending in the manner provided by law.

Quite clearly, if the legislature required actual notice and/or publication in the local newspaper as the only sufficient means by which to satisfy the notice requirement in La. C.C.P. art. 596(3), it would have so stated. It did not. And legislators are presumed to know the law. State ex rel. Varnado v. Louisiana Highway Commission, 177 La. 1, 7, 147 So. 361, 362 (La.1933); Theriot v. Midland Risk Ins. Co., 95-2895, p. 4 (La.5/20/97), 694 So.2d 184, 186.

The plaintiffs argue that notice did not occur, at the earliest, until their attorneys sent notice to some of the putative class in early September 2004 or, at the latest, when a notice was published by the local paper later in the month. However, under this theory, if notice by mail or publication never occurs, prescription could remain suspended indefinitely. This flies in the face of the purpose for prescriptive statutes.

An exception of prescription is intended to promote the avoidance of stale claims and the resultant loss or non-preservation of relevant evidence. In Demma v. Automobile Club Inter-Insurance Exchange, 08-2810, p. 13, n. 9 (La.6/26/09), 15 So.3d 95, 104, the Supreme Court stated that prescription statutes are also intended to protect defendants from the lack of notification of a formal claim within the prescriptive period. Taylor v. Babin, 08-2063, p. 13 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, 642. “The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and the loss or non-preservation of relevant proof.” Moore v. Gencorp, Inc., 93-0814 (La.3/22/94), 633 So.2d 1268.

17While I agree that the thirty-day period began to run once “notice” was given (a “federal district court sitting in diversity is bound to apply state law when calculating the ‘commencement’ date for purposes of the statute of limitations.” Glaze v. Ahmad, 954 F.Supp. 137, 139 (W.D.La.1996)), I find that the notice provisions of La. C.C.P. art. 596(3) do not apply here. In other words, an examination of what eon-stitutes article 596(3) notice is of no moment.

In a diversity case, a federal court must apply the substantive law of the state while following federal procedural rules. This principle applies equally when the case is originally filed in federal court or is later removed to federal court. Fed. R. Civ. Pro. 81(c) instructs the courts that the Federal Rules of Civil Procedure “apply to civil actions removed to the United States district courts from the state courts and govern procedure after removal” [emphasis supplied].

The Supreme Court’s first landmark decision and seminal case concerning when to apply federal or state law came in Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The Ene Court overruled its previous doctrine in Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842) that interpreted the Rules of Decision Act 1 Stat. 92 (1789) (current version at 28 U.S.C.A. § 1652 (1948)) as requiring a federal court faced with a choice of federal or state law in a diversity case to apply the rules and enactments promulgated by the state legislative authority instead of federal law. State decisional law would not govern in a federal diversity case under the Swift doctrine. Patricia M. Noonan, Note, State Personal Jurisdictional Requirements and the Non-Aggression Rule in Class Action, 1987 U. Ill. L.Rev. 445, 466 (1987) (hereinafter “Noonan”). The Erie Court declared that no federal general common law exists. Erie, 304 U.S. at 78, 58 S.Ct. 817. Thus, except in matters governed by the federal IsConstitution or by acts of Congress, Erie mandates that the court apply the law of the state. Id.; Noonan, supra, at 466.

The Erie decision, together with the Rules Enabling Act, which authorized the Supreme Court to draft and promulgate procedural rules for the federal courts, seemed to indicate that a federal court in a diversity case should apply the substantive law of the state in which it was located and the procedural law that the federal law prescribed. J. Friedenthal, M. Kane, A. Miller, Civil Procedure § 4.4 (1985) (hereinafter “Friedenthal”). The Supreme Court later rejected the substance versus procedural approach in Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). Instead, an outcome-determination analysis was applied: state law governs when applying federal law would significantly affect the result of the litigation. Id. at 109, 65 S.Ct. 1464; Noonan, supra, at 466. Subsequent Supreme Court decisions, such as Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949), Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949), and Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), followed York even though some argued that requiring federal courts to apply state law encroached on federal interests. Id. These decisions prompted concern over the viability of the federal rules in diversity actions. Byrd v. Blue Ridge Rural Electronic Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958) allayed this fear somewhat by suggesting that federal courts should no longer apply the outcome-determination test where significant federal policies need to be protected. Friedenthal, supra, § 4.4. This test proved confusing, however, because the significance of state and federal policies was difficult to measure. Id.; Noonan, supra, at 466

Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) conclusively established the Federal Rules’ viability by creating a presumption in favor of the federal rules. Noonan, supra, at 466; Friedenthal, supra, § 4.4. The Hanna Court arrived at its decision by separating, for purposes of analysis, the Rules of Decision Act, the Enabling Act, and the constitutional demands to which the Erie opinion had alluded. Ely, The Irrepressible Myth of Erie, 87 Harv. L.Rev. 693, 699 (1974). Where a federal rule is at issue, the Court held that the Rules Enabling Act, and not the Rules of Decision Act, controls whether federal or state law should apply. Ely, supra, at 718; Noonan, supra, at 466. Only where no federal rule directly governs the disputed matter, or when a court may apply both state and federal rules concurrently, do the Erie-York analysis and the Rules of Decision Act apply. Hanna, 380 U.S. at 466-67, 85 S.Ct. 1136. When a federal rule is involved, the Hanna Court followed the test outlined in Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941): the court must follow the federal rule and can refuse to do so only if the Advisory Committee, the Supreme Court, and Congress erred in their prima facie judgment that the rule transgresses neither the terms of the Enabling Act nor constitutional restrictions. Id. at 13-15, 61 S.Ct. 422. In other words, the federal rules are presumed to be a valid exercise of the Court’s authority to promulgate procedural rules for the federal courts. Noonan, supra, at 467. The Constitution in Erie contexts is treated no differently than its function in other areas of federal power. Ely, supra, at 706. The Constitution gives the national legislature wide discretion to carry out powers granted to it by the Constitution. Accordingly, the Court will find matters falling within the uncertain area between substance and procedure, if rationally capable of classification as either, to be within the congressional power to make rules governing the practice and pleading in the federal courts. Hanna, 380 U.S. at 472, 85 S.Ct. 1136; Noonan, supra, at 467.

Courts have considered the propriety of a class action under Rule 23 to be a question of procedural law. Noonan, supra, at 467. A procedural rule is designed to make the process of litigation a fair and efficient mechanism for the resolution of disputes. Id.; Ely, supra, at 724. Even under Louisiana law, a class action is a procedural tool wherein substantive facts are not considered when deciding the issue of certification. Pollard v. Alpha Technical, 08-1486, p. 15 (La.App. 4 Cir. 1/28/10), 31 So.3d 576, 582; Andry v. Murphy Oil, U.S.A., Inc., 97-0793 to 97-0800, pp. 2-3 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1129. See also Thomas v. Mobil Oil Corp., 08-0541, p. 18 (La.App. 4 Cir. 3/31/09), 14 So.3d 7, 18-19.

Procedural laws prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. Keith v. U.S. Fidelity & Guar. Co., 96-2075, p. 6 (La.5/9/97), 694 So.2d 180, 183. Substantive laws either establish new rules, rights, and duties or change existing ones. St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809 (La.1992).

Rule 23 of the Federal Rules of Civil Procedure was applied by the federal district court when determining whether the Fulford/Abram plaintiffs met the requirements of class certification. Thus, I look to Rule 23 and federal case law to determine what constitutes sufficient notice when class certification is denied. See e.g., Foradori v. Harris, 523 F.3d 477, 486 (5th Cir.2008).

Rule 23 requires a district court to give notice to absent class members of developments in the suit in only two situations. The first is when the court certifies a class under Rule 23(b)(3) because common issues of law or fact predominate over other aspects of the suit and render a class action the appropriate vehicle to resolve claims. The second is when a class action is to be dismissed or compromised. See Fed.R.Civ.P. 23(e); Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 812, cert. denied, 459 U.S. 1038, 103 S.Ct. 451, 74 L.Ed.2d 605 (1982).

However, clearly-established federal jurisprudence holds that no requirement exists to notify putative class members of the denial of class certification. In Rineheart v. Ciba-Geigy Corp., 190 F.R.D. 197 (M.D.La.1999), the court performed a thorough analysis of Fifth Circuit precedent to conclude that “no notice of a dismissal or settlement to asserted class members is required if there has been a judicial denial of class certification.” Id. at 200, citing Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir.1975) (“Hence, where a court has ruled under Rule 23(c)(1) that an action cannot properly be maintained as a class action the notice requirements of Rule 23(e) do not apply, at least where the dismissal and settlement of the action do not directly affect adversely the rights of individuals not before the court.”). A federal district court for the Eastern District of Louisiana specifically adopted the reasoning of Rineheart in denying a request for notice after the denial of class certification. Street v. Diamond Offshore Drilling, Civ. A. No. 00-1317, 2001 WL 883216, at *1 (E.D.La. July 30, 2001). See also Hervey v. City of Little Rock, 787 F.2d 1223, 1230 (8th Cir.1986) (“Finally, we note that notice of the decer-tification is required only to the extent necessary to reach those potential class members who received notice of certification and relied on being included in the class. [Emphasis added.]”).

This court also addressed this issue. In Smith v. Cutter Biological, 99-2068, p. 30 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, 409, we stated:

Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1382 (11 Cir.), cert. den., 525 U.S. 1019, 119 S.Ct. 545, 142 L.Ed.2d 453 (1998), found that “the tolling of the statute of limitations ceases as soon as the district court denies class certification.” The Armstrong opinion also states that:
[RJeliance on the possibility of a reversal of the court’s certification decision is ordinarily not reasonable. We therefore conclude that continued tolling of the statute of limitations after the district court denies class certification is unnecessary to protect any reasonable [emphasis original] reliance by putative class members on their former class representatives.
Id. at p. 1381. Based on this reasoning, to the extent that prescription may have been interrupted by the 1993 filing of Wadleigh, [v. Rhone-Poulenc Rorer, Inc., 157 F.R.D. 410 (N.D.Ill.1994), mandamus granted, Matter of Rhone-Poulenc Rorer, Inc. 51 F.3d 1293, 1296 (7 Cir.1995), cert. den, sub nom, Grady v. Rhone-Poulenc Rorer, Inc., 516 U.S. 867, 116 S.Ct. 184, 133 L.Ed.2d 122 (1995) ] that interruption ceased on March 11⅞16, 1995 when the Federal Appeals Court issued the mandamus to the district court to decertify the Wadleigh class. At the very latest, prescription began to run again when the district court judge (Grady) actually entered the order of decertification in January of 1996. Plaintiffs’ wrongful death claim was not filed until more than a year later, in March of 1997. [Emphasis supplied.]

In summary, when a class action based upon a Louisiana cause of action is tried in federal court, Louisiana substance law applies to issues involving the plaintiffs’ cause of action (in the case at bar, the plaintiffs’ claim for damages and the applicable prescriptive statutes). Federal procedural law applies to issues involving how proceedings are handled in the federal court. That is, a federal court applies the Federal Rules of Civil Procedure to pretrial, trial, and post-trial procedures. In the case at bar, La. C.C.P. art. 596 contains both substance and procedural parts. Reproduced below are relevant parts of article 596; the substantive portions of article 596 are italicized and the procedural portions are boldfaced:

Liberative prescription on the claims arising out of the transactions or occurrences described in a petition brought on behalf of a class is suspended on the filing of the petition as to a,ll members of the class as defined, or described therein. Prescription which has been suspended as provided herein, begins to run again:
(3) As to all members, thirty days after mailing or other delivery or publication of a notice to the class that the action has been dismissed, that the demand for class relief has been stricken pursuant to Article 592, or that the court has denied a motion to certify the class or has vacated a previous order certifying the class.

The fact that the giving of notice is a procedural matter is well-settled. In Organization of United Taxpayers and Civic Associations of Southeast Baton Rouge, Inc. v. The Louisiana Housing Finance Agency, 96-2406, p. 6 (La.App. 1 Cir. 11/7/97), 703 So.2d 107, 112, the court stated:

11sHowever, OUT did not raise in its lower court pleadings substantive issues regarding the extension of tax credits granted by LHFA; rather, OUT contended in the lower court that the LHFA action violated Louisiana’s Open Meeting Law for failure to give adequate notice-a procedural matter. [Emphasis added.]

In Swann v. Performance Contractors, Ltd., 271 So.2d 294, 296 (La.App. 3rd Cir.1973), while the court was discussing personal jurisdiction, it stated:

Nevertheless a reading of the comments under La. R.S. 13:3471 makes it clear that the draftsman intended 1) to provide for personal jurisdiction over nonresident corporate deféndants who have engaged in a business activity in this state and thereby avail the citizenry of the benefits of the relaxed substantive due process requirements in regard to in personam jurisdiction as announced by the United States Supreme Court in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); McGee v. International Life Ins. Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); and 2) to provide a means by which service of process could be made which would not offend the procedural due process requirement of notice reasonably designed to apprise the corporation of a pending lawsuit. [Emphasis added.]

In Michael H. Rubin and Stephen P. Strohchein, Security Devisest 55 La. L.Rev. 611, 651 (2005), the authors stated:

Invalidation of a sale under some state laws, however, may be due to procedural errors (e.g., the debtor or others had actual notice of the sale but the notice did not comply with state timing rules or wording rules) or substantive ones. [Emphasis added.]

In John O. McGinnis, The Bar Against Challenges To Employment Discrimination Consent Decrees: A Public Choice Perspective, 54 La. L.Rev. 1507, 1522 (1994), the author stated:

These systematic effects will thus form the nub of any due process chai-lenge to this provision of Section 108 by supporting the argument that notice without intervention offers insufficient procedural protection for substantive rights. [Emphasis in original.]

In Naquin v. Titan Indemnity Co., 2000-1585, pp. 4-5 (La.2/2/01), 779 So.2d 704, 708, the Court was discussing service of process but the comments are equally applicable to the notice provision in La. C.C.P. art. 596:

The rules governing service of process are procedural because they prescribe a method for enforcing a previously existing substantive right and relate to the form of the proceeding or the operation of the laws. As procedural rules, the provisions governing service of process do not create substantive rights. [Emphasis added; citations omitted.]

Likewise, reliance on actual notice by the attorneys or publication in a local newspaper of the denial of class certification is unreasonable: it could take months for either or both of these events to occur, as they did in this case. The plaintiffs have not pointed out any way that putative class members relied on any action of the federal district court, such as a denial of certification, which would prompt the need for notice.

The plaintiffs argue that the federal district court neither ordered that notice be given nor did Transport request that the court issue formal notice to the putative class members. However, based on Rule 23, no such notice is required and, under federal jurisprudence, such a request by either side may not have been granted. The United States Fifth Circuit Court of Appeals in In re Katrina Canal Breaches Litigation, 2010 WL 4561378 (5th Cir.2010), affirmed the district court’s denial of the plaintiffs request to order the defendants to give notice of the denial of the class certification, stating:

Finally, Plaintiffs argue that the district court erroneously denied their request to order Defendants to notify individual policyholders of the district court’s decision and the existence of their individual rights. They contend that the court was empowered to order such notice by Fed.R.Civ.P. 23(d)(1)(B). Even assuming that the district court had the power to issue such an order, which we do not decide, there is nothing that requires the court to order notice of the denial of class | ^certification, and we find no abuse of discretion in the court’s refusal to do so. See, e.g., Pearson v. Ecological Science Corp., 522 F.2d 171, 177 (5th Cir.1975) (“[W]here a court has ruled under Rule 23(c)(1) that an action cannot properly be maintained as a class action the notice requirements of Rule 23(e) do not apply....”); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 2153, 40 L.Ed.2d 732 (1974) (“The usual rule is that a plaintiff must initially bear the cost of notice to the class.”).

Id. at *2 (emphasis supplied). See also, Street, supra.

Finally, I find that the putative class members received notice of the federal court’s denial of class certification when the attorneys for the Fulford/Abram lawsuit received notice. Knowledge to the lawyer is knowledge to the lawyer’s client. One cannot know when the lawyers began to represent each of the five hundred plaintiffs added in October 2004. However, the lawsuit of Ms. Smith, Mr. Porter, and Mr. Dixon was filed on 8 June 2004, one week after the federal court judgment was entered into the record. These lawyers were already representing a number of the claimants in the consolidated federal cases and knew that the probability of additional claimants was very high. The moment a lawyer began representing a claimant, the lawyer’s knowledge of the federal court’s 1 June 2004 judgment refusing to certify the class is imputed to his client.

In Smart Document Solutions, LLC v. Miller, 07-670 (La.App. 3 Cir. 10/31/07), 970 So.2d 49, the court examined the relationship between an attorney and his client. It was most impressed by the analysis and conclusion from the North Dakota Supreme Court:

[T]he attorney-client relationship differs from the general agency relationship because the attorney-client relationship is subject to an established code of professional responsibility governing members of the Bar, and the attorney, not the client, is in charge of the litigation and determines the services necessary to promote the best interests of the litigation. See Judd & Detweiler v. Gittings, 43 App.D.C. 304 (1915); Molezzo Reporters v. Patt, 94 Nev. 540, 579 P.2d 1243 (1978); Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817 (1966); Monick v. Melnicoff, 144 A.2d 381 (D.C.Mun.App.1958); Roberts, Walsh & Co. v. Trugman, 109 N.J.Super. 594, 264 A.2d 237 (1970); Brown & Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 248 S.E.2d 631 (1978).
The rationale for this rule was perhaps best stated in Judd & Detweiler v. Gittings, 43 App. D.C. at 310-311:
“While it is true that an attorney is the agent of his client, the relation between them, we think, is such that it calls for some modification of the general rule which the law recognizes as existing between principal and agent. In ordinary transactions, the agent is subordinate to the principal, the principal standing out as the real actor, and the agent merely as a subordinate representative. But the relation between attorney and client is different. The attorney has complete charge of the litigation, is so recognized by the court, and, as such, dominates in all matters pertaining to the conduct of the litigation. ‘While in one sense the client is the principal and the attorney the agent, and while the attorney is professionally and constantly acting for clients, whose names from the records of the courts and other means of publicity are almost always known or may be so, yet there are peculiarities in his case which make it necessary to apply to it with some qualification the general principles of agency. In most cases of agency the principal is what the name imports,-the leading person in the transaction. The agent is, as the term implies, a mere subordinate, important only as the representative of the principal; often representing only one principal. An attorney at law, on the other hand, occupies a position of recognized importance in itself, not infrequently of great prominence before the public, in which he often has a large number of clients, his relations to whom are full of detail, and who are little noticed by the public.’ Heath v. Bates, 49 Conn. 342, 44 Am.Rep. 234. The attorney usually determines what steps are to be taken in his client’s interest, and the acts of the attorney in the conduct of litigation are binding upon the client. We therefore deem the just and equitable rule of law thus established to be that, in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of the litigation, may safely regard themselves as dealing with the attorney, instead of with the client.”

Id. at pp. 4-5, 970 So.2d at 51-52. I agree with the analysis above. The lawyers in the instant matter were in control of the litigation. They filed a timely suit on behalf of three claimants, yet chose to apparently “withhold” notice from the 117putative class members until early September 2004. Presumably, this gave them four months to enter into contracts of representation with the five hundred additional plaintiffs before adding them to the current proceedings. They now want to control the commencement of the thirty days afforded by La. C.C.P. 596(3) by sending notice when they were ready to do so, rather when the thirty days began under the law.

Therefore, I adhere to Cutter and the caselaw cited above and find that the putative class members had thirty days or until 1 July 2004 to file their individual claims.

Only Tenesha Smith, Melvin Porter, and Wallace Dixon filed timely claims. However, the plaintiffs additionally contend that the amended petition filed on 4 October 2004 relates back to the filing of the petition by Ms. Smith, Mr. Porter, and Mr. Dixon on 8 June 2004. I disagree.

La. C.C.P. art. 1153 states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth in the original pleading, the amendment relates back to the date of filing the original petition.

In Giroir v. South La. Med. Ctr., Div. of Hospitals, 475 So.2d 1040 (La.1985), the Supreme Court examined the jurisprudence applying Federal Rule of Civil Procedure 15(c), upon which La. C.C.P. art. 1153 is based, and concluded that “[a]l-though the [federal] Rule refers to ‘an amendment changing the party’ it has properly been held to sanction relation back of amendments which add or drop parties, as well as those substituting new parties for those earlier joined.” 475 So.2d at 1043 (collecting authorities). While acknowledging the “less difficult” legal analysis for the relation back of amendments involving a change of capacity, the court nonetheless set forth factors to consider for the relation back of an amendment adding or changing plaintiffs. Id. at 1044. Relying on Ray v. Alexandria Mall, 434 So.2d 1083 (La.1983), regarding amended petitions adding or substituting defendants, the Court set forth these factors in Giroir: “[a]n amendment adding or substituting a plaintiff should be allowed to relate back if (1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading; (2) the defendant either knew or should have known of the existence and involvement of the new plaintiff; (3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated; and (4) the defendant will not be prejudiced in preparing and conducting his defense.” Giroir, 475 So.2d at 1044.

Giroir has since been applied in various situations in the courts of appeal, with some courts finding that the added claims of a new plaintiff did relate back to the filing of the original petition and other courts finding to the contrary. However, the Supreme Court has pointed out that the enumerated Giroir factors are guidelines to be considered under the totality of the circumstances before an amendment adding a new plaintiff will be deemed to relate back pursuant to La. C.C.P. art. 1153. Warren v. Louisiana Medical Mut. Ins. Co., 07-0492, pp. 4-6 (La.12/2/08), 21 So.3d 186, 189-90.

Applying the Giroir factors to the instant matter, I find that the amended petition of 4 October 2004 does not relate back to the original timely-filed petition. While arguably two of the four criteria are met, the new and old plaintiffs are totally unrelated. Further, under Rule 23, Transport was entitled to rely on the 1 July 2004 deadline established in La. C.C.P. art 596(3) and make the logical assumption that it was defending the state court action against only three plaintiffs, not five hundred three plaintiffs.

And finally, the majority’s reliance on Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La.3/15/11), 62 So.3d 721, in any respect is misplaced. Taranto stands for the proposition that the filing of a lawsuit designated as a class action against an insurer suspends prescription until district court ruled on motion to certify the class. The entirety of Taranto involves decisions of Louisiana state courts and addresses the legislature’s extension of the prescriptive periods arising from damages due to Hurricane Katrina. Unlike the case at bar, the question of notice to class members was not at issue at all and, concomitantly, the issue of whether notice was required to be given to the putative class members when a federal court determines that no class exists is not discussed and is not an issue. More precisely, the Court held that:

... despite the language of the LCPIC insurance policy, which mandated a one year suit limitation, the Plaintiffs’ lawsuit was timely filed because prescription was suspended upon the timely filing of the pending class action suits, which included the Plaintiffs as putative class members.

Id., p. 1, 62 So.3d at 724. An attempt to expand the Taranto decision to the case at bar does not comport with appropriate jurisprudential interpretation; the facts are materially different.

Thus, the amended petition must be dismissed with prejudice.

      . Supervisory writs filed with this Court and the Louisiana Supreme Court were denied.

      . In Housley v. Cerise, 579 So.2d 973, 980 (La.1991), the court stated:
      [A] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
      This test has subsequently been called the "Housley ” presumption.

      . Before Housley, this presumption of causation had only been applied in workers’ compensation cases. In his concurrence in Detraz v. Lee, 05-1263, pp. 1-2 (La. 1/17/07), 950 So.2d 557, 567-68, Justice Victory stated:
      In my view, this Court erred in Housley v. Cerise, 579 So.2d 973 (La.1991), by applying this presumption to aid plaintiff in an ordinary negligence case. The Housley court did so without discussing the fact that the presumption had never been applied by this Court in a non-worker's [sic] compensation case. Housley erred in this regard because in negligence cases, plaintiff has the burden of proving causation, as well as all the other elements of his case. Fowler v. Roberts, 556 So.2d 1 (La.1989). The use of this presumption in an ordinary negligence case impermissibly shifts the burden of proof to the defendant to show that some other particular incident caused the injury. This Court has erred twice since Housley by applying the presumption in ordinary negligence cases. See Dabog v. Deris, 625 So.2d 492, 494 (La.1993) and Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.2/20/95), 650 So.2d 757, 761 (Victory, J., not on panel).

      . The plaintiffs argue that Transport knew that there were more people affected by the caustic release and, therefore, Transport is not prejudiced by the amended petition adding five hundred additional plaintiffs. On the contrary, defendants are entitled to know when a cause of action has prescribed. For Transport, on 2 July 2004, it could reasonably rely on the fact that it was only defending itself from the claims of three plaintiffs, not five hundred.

      . I note that Ms. Smith, Mr. Porter, and Mr. Dixon, represented by the same attorneys representing the plaintiffs in federal court and the five hundred plaintiffs added by amended petition, timely filed their lawsuit. Their attorneys cannot plead ignorance of the class-certification denial or of the law.

      . In both cases, the plaintiffs were requesting notice, not the defendants.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge.

license: Public Domain

text:
    Elveta DAIGRE, individually and as administratrix of the Estate of William R. Daigre III, and Scott Daigre, William Daigre IV, and Richard Daigre v. INTERNATIONAL TRUCK AND ENGINE CORPORATION, Fort Worth Fabrication, Inc., Louisiana Department of Transportation and Development, and Bowie Lumber Associates.
    No. 2010-CA-1379.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 5, 2011.

      Michael J. Mestayer, Michael J. Mes-tayer, A PLC, New Orleans, LA, for Plaintiff/Appellant, William R. Daigre IV, Individually and as Administrator of the Estates of William R. Daigre III and Elveta Daigre, and Scott Daigre and Richard Daigre.
    Andrew L. Plauché, Jr., James K. Orde-neaux, Attie B. Carville, Plauché Maselli Parkerson L.L.P., New Orleans, LA, for Defendant/Appellee, Foret Farms, Inc., Bowie Lumber Associates, and Louisiana Farm Bureau Casualty Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   JOAN BERNARD ARMSTRONG, Chief Judge.

11 Plaintiffs-appellants, William R. Daigre, IV, individually and as the administrator of the estates of his parents, Elve-ta Daigre and the tort victim, William R, Daigre, III, along with his brothers, Richard Daigre and Scott Daigre, appeal a judgment on the pleadings, dismissing with prejudice their claims against Bowie Lumber Associates, Inc. (“Bowie”), Foret Farms, Inc. (“Foret”), and Louisiana Farm Bureau Casualty Insurance Company (Foret’s insurer). For the reasons that follow, we affirm the judgment of the trial court.

The litigation arises out of the untimely death of William R. Daigre, III, from a single-vehicle accident in which his tractor-trailer left the road on a rural highway and rolled down a steep incline. The plaintiffs allege that the defendants were responsible for the hazard created by the steep incline either by having conducted farming operations within the highway right of way next to the shoulder of the road or by having allowed or failed to prevent the hazard created by the farming operations, depending on the different responsibilities of the different defendants. The plaintiffs allege that the farming operations cut away the “foreslope” adjacent to the shoulder, transforming what was and what was | ¡.supposed to be a “shallow uniform downgrade” into a “drastic drop off,” which caused the decedent’s tragic death.

The original petition filed on March 4, 2004, by the plaintiffs Elveta Daigre, individually and as the administratrix of the estate of her late husband, William R. Daigre, III, along with her sons, William R. Daigre, IV, Richard Daigre and Scott Daigre, named as defendants International Truck Engine Corporation (“International”), Fort Worth Fabrication, Inc. (“Fort Worth”), the Louisiana Department of Transportation and Development (“DOTD”) and Bowie.

In their First Amended and Supplemental Petition filed on November 5, 2004, the plaintiffs substituted William R. Daigre, IV, for Elveta Daigre as the administratrix of the estate of the decedent, in connection with the survival claims of the tort victim because Ms. Daigre died some time after the filing of the original petition. William R. Daigre, IV was also substituted for Elveta Daigre as the administrator of her estate in connection with her personal wrongful death claims for the death of her husband.

On October 12, 2006, the plaintiffs filed a motion to dismiss their claims against International on the basis of a settlement with that defendant, pursuant to which the trial court signed an order of dismissal with prejudice on October 17, 2006. The terms of this settlement are not part of the record.

In their Second Amended and Supplemental Petition, filed on March 3, 2007, the plaintiffs named as additional defendants, Foret and Louisiana Farm Bureau Casualty Insurance Company as Foret’s liability insurer.

On April 25, 2007, the plaintiffs filed a motion of partial dismissal to dismiss their claims against Fort Worth on the basis of a settlement with that |sdefendant, pursuant to which the trial court signed an order of dismissal with prejudice on May 7, 2007. The terms of this settlement are not part of the record.

On November 16, 2009, the trial court signed a consent judgment confirming a settlement between the plaintiffs and the DOTD in the sum of $450,000.

Bowie owned the land where the accident occurred. It had granted a right of way to the State of Louisiana for the construction of La. Hwy. 307 and had further granted a sugar cane farming lease for the adjoining land to Raceland Raw Sugar (“Raceland”) which in turn subleased the land to Foret. Under the terms of the sublease, Foret agreed to assume the Raceland lease terms and further agreed to defend Bowie from third-party claims.

Accordingly, Bowie filed a third-party demand against Foret. When Foret’s insurer, Louisiana Farm Bureau Casualty Insurance Company, finally agreed to assume the defense of Bowie, Bowie dismissed its third-party demand against Foret.

Bowie, as owner, and Foret, as lessee, pled the applicability of La. R.S. 9:2800.4, which provides immunity to owners and lessees of forest or farm land from damage claims asserted by those not lawfully on the property, with the exception of damage caused by the intentional acts or gross negligence of the owner or lessee.

The defendants moved for judgment on the pleadings. On 25 February 2010, Judge James Williams, sitting pro tem-pore, granted the defendants judgment on the pleadings, subject to plaintiffs’ right to amend within ten days to allege the inapplicability of the statutory immunity. The plaintiffs filed a third and a fourth ^supplemental and amending petitions, alleging facts that they contend deprive the defendants of the immunity provided by La. R.S. 9:2800.4.

Thereafter, Bowie and Foret renewed their Motion for Judgment on the Pleadings and also filed a Peremptory Exception of Res Judicata, contending that the applicability of La. R.S. 9:2800.4 had already been adjudicated and/or was the law of the case.

On June 21, 2010, Judge Paulette Irons granted the defendants’ motion for judgment on the pleadings, but denied their peremptory exception of res judicata, and dismissed the plaintiffs claims against the appellants with prejudice.

In her written reasons for judgment annexed to the second judgment on the pleadings rendered on June 21, 2010, the district judge set forth the basic facts of the case succinctly as follows:

Bowie is the landowner immediately adjacent to the highway and had leased the property for sugar cane farming operations to Foret. Bowie had also granted a 60 ft. right of way to DOTD in order to service the highway. The right of way extended 30 ft. from the centerline of the highway, and the lanes are approximately 10 ft. wide with a 2-3 ft. shoulder, leaving approximately 17-18 ft. beyond the shoulder under the right of way. In that 17-18 ft. area, DOTD had designed a “foreslope” area that allows for a gradual decline onto the farming property. However, that fores-lope was removed by the defendants Bowie and Foret, allegedly to allow more area for farming operations. Plaintiffs further allege that this created a drastic drop off that caused the tractor to roll over.

The parties have not disputed these facts for purposes of the review of the Judgment on the Pleadings. Therefore, we will proceed based upon these facts.

The case boils down to three key issues: (1) Did the district court err in concluding that the place where the accident occurred was farmland within the intendment of La. R.S. 9:2800.4? (2) Did the district court err, based on the record 15before it, pursuant to a motion for judgment on the pleadings, in concluding that the decedent was not “lawfully” on the property owned or leased by the defendants within the in-tendment of La. R.S. 9:2800.4? (3) Did the district court err in concluding that the decedent was not injured as a result of an “intentional act” or the “gross negligence” of the ownersAessees within the intendment of La. R.S. 9:2800.4?

La. C.C.P. art. 965, which provides for the motion for judgment on the pleadings, states in pertinent part that:

For purposes of [a motion for judgment on the pleadings], all allegations of fact in the adverse party’s pleadings shall be considered true.

In considering a motion for judgment on the pleadings, nothing beyond the pleadings may be considered; supporting evidence may not be considered. Gibbens v. Wendy’s Foods, Inc., 31,487, pp. 3-4 (La.App. 2 Cir. 1/20/99), 729 So.2d 629, 631-632, citing, inter alia, this Court’s opinion in Thomas v. Allstate Ins. Co., 367 So.2d 1300, 1301 (La.App. 4th Cir.1979). A motion for judgment on the pleadings neither requires nor permits supporting affidavits, and on such a motion a trial court is not at liberty to consider any matter not within the pleadings. Hygrade Inv., Inc. v. Leonard, 197 So.2d 702, 704 (La.App. 4 Cir.1967).

In the Memorandum filed by the plaintiffs in opposition to the defendants’ first motion for judgment on the pleadings, the plaintiff did not object to the consideration of matters beyond the face of the pleadings. In fact, the plaintiffs quoted extensively from the deposition of Rodney Foret, in which he appeared as Foret’s corporate representative.

|fiNor did the plaintiffs object to the consideration of matters beyond the face of the pleadings in their Supplemental Memorandum filed in opposition to the defendants’ motion for judgment on the pleadings.

However, in the final Memorandum filed by the plaintiffs in opposition to the defendants’ second motion for judgment on the pleadings, the plaintiffs specifically argued that the pleadings govern and the allegations in the plaintiffs pleadings must be taken as true, citing La. C.C.P. art. 965 and Hygrade Investments, supra. This is significant, because it is the defendants’ second motion for judgment on the pleadings that resulted in the judgment now before this Court. Therefore, it cannot be said that the plaintiffs waived any objections they might have had to the district court’s consideration of evidence outside of and in contradiction of their pleadings.

The district judge in her written reasons for judgment found that while res judicata did not apply, the law of the case doctrine did. The district judge concluded that:

As this court finds that La. R.S. 9:2800.4 is controlling, the rules of the game under the law of the case doctrine are that the plaintiffs must allege new facts that show Mr. Daigre’s departure from the roadway was not unlawful or that the defendants’ removal of the foreslope was not an intentional act or gross negligence on the part of the defendants.

The first judgment on the pleadings which led to the plaintiffs’ Third and Fourth Supplemental and Amended Petitions, by relying on La. R.S. 9:2800.4, in effect, determined that when the decedent left the roadway and entered upon the property being farmed by Foret, he entered upon the land “unlawfully” as the law requires him to drive upon the roadway. This interpretation of the first judgment on the pleadings is borne out by the transcript of the January 15, 2010 hearing in 17the district court which resulted in the first judgment on the pleadings, more particularly the following exchange between Mr. Andrew Plauche, defense counsel, and the district judge:

Mr. PLAUCHE:
And, Your Honor, the suggestion is based upon we need to know what the rules are for this third round of this litigation. I say that rules are the statute says that the farm is only liable for gross negligence or intentional acts. If that is the rule, then he wants to amend to bring that in. So my suggestion is you grant it and then give him leave to file the amendment, so we find out what the rules are.
THE COURT:
Okay. I’m going to grant the motion for leave to ... amend the petition to amend it to the manner in which you have indicated.

Based on the foregoing exchange between defense counsel and the district judge, it is clear that the district judge was granting the plaintiffs leave to amend in order to permit them to allege facts showing that the defendants were guilty of either an intentional act or gross negligence. However, this was based on the dual determination by the district judge that the location where the accident occurred was “farmland” and that the decedent was not “lawfully” on that land a,t the time the accident occurred.

The essence of the district judge’s reasoning in reaching the conclusion that the decedent was not lawfully on the land is to be found in the following rhetorical question the district judge asked of defense counsel:

Can drivers, vehicle drivers of any kind, leave this roadway and start driving on farmland, and that’s okay under the law?

| sIn reaching this conclusion, the reasons for judgment refer to Capone v. Ormet, 01-0060 (La.App. 1 Cir. 6/21/02), 822 So.2d 684. In Capone the court noted that:

A motorist shall not drive his vehicle off the pavement or main traveled portion of the highway. Thus, it is unlawful for a motorist to travel in his vehicle on the shoulder or in the roadside ditch. [Emphasis added.]

Id., 01-0060, p. 10, 822 So.2d at 692.

The plaintiffs contend that the trial court erred in placing the burden of proof on the plaintiffs. Plaintiffs argue that La. R.S. 9:2800.4 is an exceptional immunity statute, and, therefore, it must be strictly construed against immunity and in favor of general notions of tort liability under La. C.C. art. 2315. Weber v. State, 93-0062, (La.4/11/94), 635 So.2d 188, 193. Further, a party urging the immunity bears the burden of proving entitlement to the immunity. Banks v. Parish of Jefferson, 08-27, p. 9 (La.App. 5 Cir. 6/19/08), 990 So.2d 26, 30; Barabay Prop. Holding Corp. v. Boh Bros. Const. Co., L.L.C., 07-2005 (La.App. 1 Cir. 5/2/08), 991 So.2d 74, 79; See also Walls v. Am. Optical Corp., 98-0455, p. 6 (La. 9/8/99), 740 So.2d 1262, 1267.

In paragraph “II” of the plaintiffs’ Third Amended and Supplemental Petition, the plaintiffs allege that:

[T]he actions taken by defendants, Bowie Lumber Associates and Foret Farms, Inc., detailed in the Original, First, and Second Supplemental and Amending Petitions constituted “intentional acts” and/or “gross negligence” as those terms are defined in La. R.S. 9:2800.4.

The plaintiffs went on to allege that the defendants “intentionally usurped a portion of the foreslope and shoulder area of Hwy. 307 in order to increase their available farming acreage for the purpose of generating additional income.”

|9The plaintiffs further alleged that the action of the defendants in usurping the foreslope was done “without any effort being made to determine if such actions would destroy the highway’s design features for errant motorists who momentarily leave the roadway.” This was followed by an allegation that because these actions were done by the defendants in order to increase profits and without determining if the safety of the motoring public would be impacted that it constituted “intentional acts” or “gross negligence.”

In the plaintiffs’ Fourth Amended and Supplemental Petition, the plaintiffs alleged that the highway right of way granted by Bowie was for an unrestricted 60-foot right of way, 30 feet on either side of the center line, with the intention “to allow DOTD the ability to construct, service, repair, and maintain both the main roadway and the shoulder and foreslope regions of the highway structure, out to a point 30 feet from the center of the center-line of the Highway.”

The plaintiffs alleged that the defendants intentionally “usurped” this right of way for farming purposes “without any effort made to determine if such farming actions would adversely impact the highway’s design and safety features for errant motorists who momentarily leave the roadway.”

While admitting that the decedent left the roadway, the plaintiffs alleged that such a “momentary and inadvertent movement ... was not an unlawful act as that term is defined in La. R.S. 9:2800.4.”

This last allegation is one of the key issues in the case. The plaintiffs admit that the decedent was driving off the roadway when the accident occurred. From this admission, the district court, in essence, went on to conclude that as a matter of law that the decedent was not lawfully on the defendants’ land and that the fatal accident was not the result of either the intentional act or the gross negligence of |inthe defendants. It was within the province of the district court to determine, pursuant to the motion for judgment on the pleadings whether, as a matter of law, the decedent was not lawfully where the accident occurred within the intendment of La. R.S. 9:2800.4. As a conclusion of law, such a finding would be subject to de novo review by this Court.

The question of whether the acts of the defendants could be characterized as “intentional acts” or “gross negligence” within the procedural confínes of a motion for judgment on the pleadings is more difficult.

While La. C.C.P. art. 965 requires that “all allegations of fact in the adverse party’s pleadings shall be considered true,” this does not mean that it is sufficient to merely make the conclusory allegations that the acts of a defendant were either “intentional” or grossly negligent.

Here we have to determine whether there was sufficient information in the record that would be available for consideration by the district court under the procedural limitations of a motion for judgment on the pleadings, such that the trial court could reasonably have concluded that the actions of the defendants were neither intentional nor grossly negligent.

La. R.S. 9:2800.4 does not define intentional act. The plaintiff argues that when the defendants made the decision to conduct farming operations in the area of the foreslope, their conscious and knowing decision to do so constitutes an intentional act.

The trial court opted to adopt the analysis of the meaning of intentional act as found in Ables v. Minvielle, 09-364 (La.App. 3 Cir. 10/7/09), 22 So.3d 1129, which in turn adopted the definition enunciated by the Louisiana Supreme Court in |na worker’s compensation context in White v. Monsanto Company, 585 So.2d 1205 (La.1991):

LSA-R.S. 23:1032 makes worker’s compensation an employee’s exclusive remedy for a work-related injury caused by a co-employee, except for a suit based on an intentional act. The words “intentional act” mean the same as “intentional tort.” [Emphasis added.] The meaning of “intent” is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.
“Substantially certain to follow” requires more than a reasonable probability that an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.

Id. at p. 1208.

This analysis/definition of intentional act was also quoted and followed by the Louisiana Supreme Court (again in a worker’s compensation context) in Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208. Reeves is instructive in that it was a case wherein an employee was directed by his supervisor to move a piece of heavy equipment manually that should have been moved by a forklift according to OSHA standards, resulting in injury to the employee. The piece of equipment was required by OSHA to bear a sticker saying: “DO NOT MOVE MANUALLY.” The supervisor testified that he had requested a forklift, but one was not made available on the day of the injury. He 11?also testified that he feared that the manual moving of the equipment would eventually result in someone being injured. Thus, the injury to the employee was the foreseeable consequence of the violation of the OSHA rule, but the Louisiana Supreme Court, nonetheless, held in Reeves that it was not “intentional”:

In Bazley [v. Tortorich, 397 So.2d 475, 480 (La.1981) ], where the plaintiff did not allege that his co-employee either desired the consequences of his acts or believed they were substantially certain to follow his acts, we held that the co-employee’s acts of operating a garbage truck without a working horn, disregarding mechanical and electrical maintenance standards, failing to keep a lookout, failing to stop in a safe place and failing to warn plaintiff of danger did not amount to an intentional act. Id.
Since the Bazley case, this Court has continued to narrowly construe the intentional act exception. Under such narrow construction, we have held that “violation of a statute alone is not per se such an intentional act as will result in the employer’s tort liability if injuries are sustained by an employee because of the violation.”
Our courts of appeal have likewise narrowly construed the intentional act exception according to its legislative intent and have almost universally held that employers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipment. [Citations omitted.]
If the actor throws a bomb into an office occupied by two persons, but swears that he only “intended” to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.
Malone & Johnson, Louisiana Civil Law Treatise, Volume 14, Workers’ Compensation Law & Practice, § 365, p. 208. |1S“ ‘Substantially certain to follow’ requires more than a reasonable probability that an injury will occur and ‘certain’ has been defined to mean ‘inevitable’ or ‘incapable of failing.’ ” Jasmin v. HNV Cent. Riverfront Corp., [642 So.2d 311] supra at 312 [ (La.App. 4 Cir.1994) ]. “[A]n employer’s mere knowledge that a machine is dangerous and that its use creates a high probability that someone will eventually be injured is not sufficient to meet the ‘substantial certainty’ requirement.” Armstead v. Schwegmann Giant Super Markets, Inc., 618 So.2d 1140, 1142 (La.App. 4 Cir.1993), writ denied, 629 So.2d 347 (La.1993). “Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing.” Id. (citing Tapia v. Schwegmann Giant Supermarkets, Inc., 590 So.2d 806, 807-808 (La.App. 4 Cir.1991)).

Id., 1998-1795, pp. 6-10, 731 So.2d at pp. 211-213.

In applying this concept of “intentional act” to the pleadings in this case, the trial court employed the following reasoning:

Plaintiffs fail to allege (nor would they) that the defendants intentionally desired to kill or injure Mr. Daigle or other passerby motorists. The question becomes: were the defendants substantially certain that a tractor-trailer, or any other type of vehicle, was going to roll over when they cut away the foreslope? The answer is obviously no. It is not inevitable that a vehicle will travel at anytime onto the foreslope, especially since by law motorists are not supposed to go onto it. Furthermore, a vehicle may never come to pull over on the side of the road at anytime. If motorists use care when driving, vehicles may never need to even come near the shoulder. While the fact that Mr. Daigle’s tragic accident did happen, just because it did happen does not mean that it was inevitable. Had Mr. Daigle been able to maintain control of the tractor-trailer, the vehicle would never had gone onto the foreslope.

The district court found that the first judgment on the pleadings rendered by the district court held that La. R.S.9:2800.4 applied and that the decedent was not lawfully on the defendants’ property. We interpret this to mean that the property where the accident occurred should be considered farm land, i.e., the type of land 114to which La. R.S. 9:2800.4 applies. We further interpret the district court’s reasons for judgment in connection with the second judgment as finding that the decedent was not lawfully on the defendants’ farm land at the time of the fatal accident. The district court also found these two findings to be law of the case and, therefore, controlling at the time it rendered its second judgment on the pleadings. Therefore, the only issue remaining at the time of the rendering of the second judgment on the pleadings was whether the decedent had been injured by either the intentional act of the defendants or by the gross negligence of the defendants. In its written reasons for judgment in connection with the second judgment on the pleadings, the district court found that when the plaintiffs were granted leave to amend, it was for the limited purpose of alleging sufficient facts to constitute one of the two exceptions to the immunity provided by La. R.S. 9:2800.4, either gross negligence or an intentional act on the part of the defendant. The leave to amend was not granted for the purpose of, in effect, relitigating the questions of whether La. R.S. 9:2800.4 applied or whether the decedent was lawfully on the property at the time of the accident.

An excellent explanation of the law of the case doctrine is found in this Court’s opinion in Bank One, Nat. Ass’n v. Velten, 04-2001, pp. 5-6 (La.App. 4 Cir. 8/17/05), 917 So.2d 454, 458-59:

The law of the case doctrine refers to “(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case.” Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973); Louisiana Land and Exploration Co. v. Verdin, 95-2579, pp. 3-4 (La.App. 1 Cir. 9/27/96), 681 So.2d 63, 65. This doctrine “may bar redetermi-nation of a question of law or a mixed question of law and fact |lsduring the course of a judicial proceeding.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 6.7 (1999). Thus, the law of the case doctrine is the proper procedural principle, as opposed to res judicata, for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Posey v. Smith, 453 So.2d 1016 (La.App. 3 Cir.1984). The policy reasons behind this doctrine include: (i) avoiding relitigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (1971).
Unlike the statutory doctrine of res judicata, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly. “Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.” Petition of Sewerage and Water Bd., 278 So.2d at 83. In addition to the latter exception for palpable error, the jurisprudence has recognized two other contexts in which this discretionary doctrine will not be applied. First, it will not be applied to “supplant the Code of Civil Procedure provision which clearly permits a reconsideration of the overruling of peremptory exceptions.” Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 1094, 262 So.2d 328, 332-33 [(1972)]; Landry v. Blaise, Inc., 2002-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 666. Second, it will not be applied when the underlying, operative facts upon which the court’s prior decision was based have changed. Morrison v. C.A. Guidry Produce, 2003-0307 [2003-307] (La.App. 3 Cir. 10/01/02), 856 So.2d 1222, 1226-27. Under the “law of the case” doctrine, an appellate court ordinarily will not reconsider its own rulings of the law in the same case. See Liberty Bank and Trust Company v. Dapremont, 2002-1504 (La.App. 4 Cir. 2/11/ 03), 844 So.2d 877, (see p. 892); Evans v. Nogues, 99-2761, p. 4 (La.App. 4 Cir. 9/13/00), 775 So.2d 471, 474; Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1 Cir.[1992]). [Emphasis added.]

Id.

|1fiWe find that of the many facets of the law of the case considered in Velten, supra, the two that are relevant to the instant case are: (1) Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or applied so mechanically as to accomplish manifest injustice; and (2) it will not be applied when the underlying, operative facts upon which the court’s prior decision was based have changed.

Addressing the second factor first, we find that nothing presented by the plaintiffs in connection with their Third and Fourth Amending and Supplemental Petitions presents a change in the operative facts upon which the district court’s original judgment on the pleadings was based.

Nor do we find anything about the application of the law of the case that could be characterized as manifest injustice or palpable error. It is difficult to see where there is even any “mere doubt as to the correctness of the former holding.”

While the burden of proof is on the party asserting a claim of immunity, where it is uncontested that the plaintiff in this case was not where he was supposed to be, the burden shifts to him to show that he was “lawfully” where the accident occurred. Assuming for purposes of argument, that the decedent was forced off the road by the act of an oncoming vehicle that was unlawfully in his lane and assuming further for purposes of argument that this Court were to consider such a situation as having the effect of conferring upon the decedent the status of a constructive invitee such that he could be considered to be lawfully where he was at the time of the accident, then the plaintiffs could counter the defendant’s claim of immunity. However, we expressly do not decide this question. Moreover, in none of the plaintiffs’ petitions do they allege that the decedent was forced off the road, nor do they make any allegations that would |17have the equivalent legal effect. As a practical matter, in a single vehicle accident such as this, where the only witness is deceased, it is difficult to see how the plaintiffs could ever hope to establish the existence of such circumstances and there is no legal presumption in favor of the decedent in this regard. This is not a res ipsa loqui-tur situation and the plaintiffs do not contend that it is.

In any event, regardless of what the plaintiffs might be able to prove at a trial on the merits, after filing an original petition and then amending and supplementing it four times, they have still failed to make any allegations that would justify the decedent driving his truck onto the land the defendants were farming.

Therefore, this Court concludes that the district court was correct in applying the law of the case as the questions raised by the plaintiffs in regard to the first judgment of the district court cannot be said to equal or exceed reasonable doubt as to the correctness of the first judgment; nor can it be said that the first judgment contained palpable former error; nor did the district court’s rebanee on the first judgment in rendering the second result in manifest injustice. Velten, supra. Moreover, as pointed out by the trial court in the written reasons for judgment in connection with the second judgment, the operative facts upon which the district court’s prior decision was based did not change. Id. Therefore, we can find no error in the district court’s decision to treat the decedent, based on the first judgment, as having been unlawfully present where the accident occurred, thus bringing the defendants within the ambit of the immunity afforded by La. R.S. 9:2800.4, and leaving as the only issue the question of whether the defendants fall within the exceptions to the immunity by dint of gross negligence or intentional acts — and we find no reversible error in the reasoning of the trial court in 118concluding that as a matter of law that the plaintiffs had, after filing an original petition and four amendments thereto, failed as a matter of law to allege facts sufficient to demonstrate a possible claim based on an intentional act or gross negligence.

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

AFFIRMED


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF CHILDREN AND FAMILY SERVICES in the Interest of L.R. v. Christopher George HAINES.
    No. 11-CA-84.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 6, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, Joseph, K. McMahon, Jr., Ashley E. Amato, Assistant District Attorneys, Harvey, LA, for Plaintiff/Appellee.
    Christopher G. Haines, Independence, LA, in Proper Person/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2The defendant, Christopher George Haines, appeals from the September 13, 2010 juvenile court judgment that ordered Mr. Haines to pay monthly child support (and court costs) in the amount of $850 per month retroactive to the filing date of October 21, 2009; arrearages made executory in the amount of $8910; and, an extra $100 per month towards the arrearages until paid in full. Mr. Haines appeals, assigning as errors the juvenile court judge’s finding that his income was $70,000 per year, imputing income to him based on the Louisiana wage survey, denying his request for childcare costs; and, failing to give him credit against the child support arrearage from the date of judicial demand. For the reasons that follow, we vacate the judgment and remand to the juvenile court for further proceedings.

Upon review, we find the record before us is devoid of any evidence to support the judgment. It is impossible for this Court to determine,' on the record before us, any of the issues raised on appeal. Compare, State of Louisiana, Department of Social Services and Jessica Rareshide v. Lehman, 06-922 (La.App. 5 Cir. 4/11/07), 955 So.2d 738.

A determination of a child support award is made pursuant to La.R.S. 9:315.2. La.R.S. 9:315.2(A) pertinently provides that “[ejach party shall provide to the court a verified income statement showing gross income and adjusted gross income, together with documentation of current and past earnings.” None of these required documents were introduced at the September 13,. 2010 disagreement hearing that was held by the juvenile court judge. Furthermore, La.R.S. 9:315.2 provides the means for calculating the child support award. La.R.S. 9:315.2(D) provides: “The court shall determine the basic child support obligation amount from the schedule in R.S. 9:315.19 by using the combined adjusted gross income of the parties and the number of children involved in the proceeding, but in no event shall the amount of child support be less than the amount provided in R.S. 9:315.14.” Without the required documentation, this Court cannot determine whether the trial judge erred in calculating the child support award.

In addition, although the trial court found Mr. Haines to be in arrears and made the arrearage amount executory, again, the record contains no evidence to support that arrearage.

A court of appeal is a Court of review. It is limited in its review to the evidence submitted and entered into the record at the trial court level. State of Louisiana Department of Social Services in the interest of J.S., 05-1, p. 6 (La.App. 5 Cir. 4/26/05), 902 So.2d 516, 519.

|4Because we find that the record does not contain sufficient evidence for this Court to make a determination as to the proper amount of Mr. Haines’s child support obligation or the amount of arrearag-es, we must vacate the judgment. Importantly, the trial judge, on remand, should follow the dictates of La.R.S. 9:315.2 et seq. after the parties have submitted the requisite documentation.

Accordingly, the September 13, 2010 judgment is vacated and the matter is remanded to juvenile court for further proceedings consistent with the views expressed herein.

JUDGMENT VACATED; CASE REMANDED.