text:
    Toni NIZZO v. Phyllis Forest WALLACE.
    No. 11-CA-467.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      C.A. Fleming, III, Attorney at Law, Me-tairie, LA, for Plaintiff/Appellant.
    James L. Donovan, Jr., Attorney at Law, Metairie, LA, Joel A. Levy, Attorney at Law, Marrero, LA, for Defendant/Ap-pellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

|2PIaintiff, Toni Nizzo, appeals two judgments of the trial court. The first judgment granted defendant, Phyllis Forest Wallace’s, motion for partial summary judgment, reasoning that Nizzo could not withdraw the parties’ previous stipulation that Wallace was in the course and scope of her employment at the time she allegedly committed a tort against Nizzo. The second judgment granted Wallace’s motion for summary judgment, effectively dismissing Nizzo’s tort suit against her, reasoning that under Louisiana Civil Code article 2320, Nizzo’s full release of Wallace’s employer from all liability resulting from an altercation between Wallace and Nizzo effectively also amounted to a full release of Wallace individually, even though Nizzo had specifically reserved all rights against Wallace individually in the release she executed in favor of Wallace’s employer. For the following reasons, we affirm.

| ¿FACTS AND PROCEDURAL HISTORY

This case arises out of an altercation that occurred between Toni Nizzo and Phyllis Forest Wallace on March 15, 2005 on the business premises of Renal Care Group, Inc., where both Nizzo and Wallace were employed as nurses. Apparently, Wallace became unhappy with her patient assignments for that particular day, got into an argument with Nizzo, and allegedly struck Nizzo, allegedly injuring her. Niz-zo filed suit against Wallace on January 30, 2006. On March 9, 2006, Nizzo filed a First Supplemental and Amending Petition, adding Renal Care Group, Inc. as a defendant, alleging that Wallace was in the course and scope of her employment with Renal Care Group at the time of the altercation, and that Renal Care Group was thus vicariously liable for the actions of Wallace under the doctrine of respondeat superior. Wallace answered the First Supplemental and Amending Petition, specifically admitting Nizzo’s allegations that she was in the course and scope of her employment with Renal Care Group at the time of the altercation. Nizzo later also brought Zurich American Insurance Company into this litigation, as insurer of Renal Care Group, alleging that Zurich would also be responsible for the vicarious liability of Renal Care Group, as employer of Wallace.

Prior to Nizzo’s later settlement with Renal Care Group and Zurich discussed below, Renal Care Group and Zurich moved for summary judgment to establish that Wallace was not in the course and scope of her employment with Renal Care Group at the time of the altercation. Niz-zo opposed that motion, arguing facts to show that Wallace was indeed in the course and scope of her 14employment with Renal Care Group at the time of the altercation, concluding that “The jurisprudence mandates a finding that the employer [Renal Care Group] is vicariously liable for the actions of Nurse Wallace because the dispute was employment-rooted.” That motion for summary judgment was denied after the trial court found genuine issues of material fact were outstanding.

Also, pertinent to this appeal, on February 11, 2008, the parties (plaintiff Nizzo and defendants Wallace, Renal Care Group, and Zurich) filed a Joint Pretrial Order. Therein, in subsection d) of Section F, which was entitled “Stipulations Regarding Facts and Exhibits,” Nizzo and Wallace clearly stipulated that the altercation between Nizzo and Wallace occurred during the course and scope of Nizzo and Wallace’s employment with Renal Care Group.

In 2010, Nizzo reached settlements with Renal Care Group and Zurich, settling all alleged claims against them, including both her workers’ compensation and tort claims, for a total settlement amount of $262,696.89. As part of these settlements, Nizzo entered into written settlement and release agreements with Renal Care Group and Zurich, releasing all of her alleged claims against them in full, specifically reserving however any and all rights she had against Wallace individually. Thereafter, in a subsequent Pre-Trial Order filed on November 10, 2010, Nizzo attempted to withdraw the prior stipulation regarding Wallace’s being in the course and scope of her employment with Renal Care Group at the time of the altercation.

| ¿Wallace then moved for a partial summary judgment, asserting that because Nizzo had alleged in her petition and had stipulated in the previous Joint Pretrial Order that Wallace was in the course and scope of her employment at the time of the altercation, had prosecuted her case according to that legal position, and had settled her claims with defendants Renal Care Group and Zurich based upon that legal premise, and further because the parties had relied upon that stipulation, she was now precluded from withdrawing it. The trial court agreed and granted partial summary judgment on that issue on February 4, 2011.

After the partial summary judgment was granted, Wallace then moved for a second summary judgment, this time requesting a dismissal of Nizzo’s entire case against Wallace, citing the provisions of La. C.C. art. 2320 and La. R.S. 9:3921, arguing that as a matter of law, since an employer is liable in full for the torts of its employee committed during the course and scope of employment, Nizzo’s settlement and release of her claims against the employer herein, Renal Care Group, effectively extinguished any claims she might still have had against the employee herein, Wallace, notwithstanding her reservation of rights to proceed against Wallace individually. On March 1, 2011, a hearing was held on the motion for summary judgment. At the conclusion of the hearing, the trial court again agreed with Wallace and granted summary judgment in favor of Wallace, effectively dismissing Nizzo’s suit against her. This appeal followed.

| fiLAWAND ANALYSIS

Appellate courts review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Hines v. Garrett, 04-0806 (La.6/25/04), 876 So.2d 764, 765. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966. In ruling on a motion for summary judgment, the judge’s role is to determine whether there is a genuine issue of triable fact with all doubts being resolved in the non-moving party’s favor. Hines, 876 So.2d at 765. A material fact is one that potentially insures or prevents recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

Review of First Summary Judgment

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it. La. C.C. art. 1853. A judicial confession is a party’s express acknowledgement of the correctness of a fact or an act charged against him by his adversary. First Homestead Federal Savings and Loan Ass’n v. Coleman, 446 So.2d 551 (La.App. 3 Cir.1984). The effect of a judicial confession is to waive evidence as to the subject of the admission or to withdraw the matter from issue. Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979). For these effects to be imposed, however, the other party must have been led to believe the fact was not at issue or he must have relied on the statement to his detriment. Id.; Cranford v. Deshotels, 359 So.2d 118 (La.1978). Otherwise, the party making the admission can withdraw the statement. Jones v. Gillen, 564 So.2d 1274, 1279 (La.App. 5 Cir.1990), writ denied, 568 So.2d 1080 (La.1990), and rehearing denied, 568 So.2d 1081 (La.1990).

A stipulation is an agreement between the parties that establishes the existence or non-existence of facts relevant to the litigation between them. 19 La. Civ. L. Treatise, Evidence And Proof § 4.6 (2011). A stipulation has the effect of a judicial admission or confession which binds all of the parties and the court to the stipulation, if it is not prohibited by law. Id., citing R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600 (La.1983); Triche v. Allstate Ins. Co., 96-575 (La.App. 1 Cir. 12/20/96), 686 So.2d 127. It sometimes is called “the highest form of proof.” See, e.g., Stelly v. Guy Scroggins, Inc., 96-401 (La.App. 3 Cir. 10/9/96), 682 So.2d 782.

Nizzo’s allegation in her supplemental and amending petition that Wallace was in the course and scope of her employment at the time of the altercation was merely just that at the time of its assertion, an allegation that still needed to be proven. The allegation became a judicial confession, however, when Wallace admitted it in her answer. Later, both Nizzo and Wallace jointly stipulated as to this fact in their Joint Pretrial Order filed on February 11, 2008. Thereafter, Nizzo settled her claims, both in workers’ compensation and in tort, against Wallace’s employer and its insurance carrier. Nizzo later sought to withdraw the stipulation and proceed against Wallace individually in tort. Wallace opposed this position, arguing that both she and Nizzo had relied upon the stipulation, which in turn produced the settlement between Nizzo and Wallace’s employer, and as such, Nizzo could not now unilaterally withdraw the joint stipulation and proceed against | «Wallace individually and now assert that she was not in the course and scope of employment at the time of the altercation.

Upon review, we find without question that both Nizzo and Wallace relied upon the judicial confession and joint stipulation. At the very least, Nizzo relied upon the judicial confession and joint stipulation to lessen her burden of proof, to enhance her settlement possibilities with the employer, and to enhance her collection opportunities from the employer and its insurer, if the matter went to judgment. Likewise, at the very least, Wallace relied upon the judicial confession and joint stipulation to enhance her defenses to the claims being made against her by Nizzo, and to enhance the possibility that her employer would be made financially responsible for payment of any judgment that Nizzo might successfully obtain against her over and above the total amount of the settlement Nizzo had reached with Renal Care Group and Zurich. As the trial court aptly put it:

Counsel, I appreciate your argument. I’m going to grant the motion, all right. I think that a party is bound by their stipulations, especially if it gains them something and there’s no doubt as to what it gained her.
If there was a calculated legal risk in doing that, I have to assume that plaintiff was aware of the risk and wanted a bird in the hand instead of, you know, a risk in the bush. And that’s what she did.

We agree with the trial court’s judgment. The parties jointly stipulated that Wallace was in the course and scope of her employment at the time of Wallace’s alleged tort against Nizzo. Though this position was initially opposed by Renal Care Group and Zurich in their motion for summary judgment on this issue, notably Niz-zo vehemently opposed that motion for summary judgment, specifically arguing facts that showed that Wallace was indeed in the course and scope of her employment at the time of the altercation. The trial court denied that motion for summary judgment and the case proceeded to settlement against Renal |9Care Group and Zurich in Nizzo’s favor. We also take note of the fact that all of this took place in the same proceeding, rather than in separate proceedings. Because of the judicial confession and joint stipulation, Nizzo is now accordingly prevented from unilaterally withdrawing the judicial confession and joint stipulation she made that Wallace was in the course and scope of her employment at the time of the altercation and is now bound by its effects. As such, we find no error as a matter of law in the trial court’s grant of the partial summary judgment under review herein.

Review of Second Summary Judgment

Nizzo also appeals the trial court’s second summary judgment grant that dismissed her tort suit against Wallace individually with prejudice. Nizzo argues that the release of one solidary obligor (the employer) does not automatically result in the release of another solidary obligor (the employee). She argues that the various releases she signed in this case specifically reserve any and all rights she had against Wallace individually. She cites the case of Sampay v. Morton Salt Company, 395 So.2d 326 (La.1981) as authority for her position.

In Sampay, the Supreme Court held that the derivative nature of the employer’s liability does not preclude the plaintiff victim’s recovery against the employer even though the victim has settled with and released the employee, if the victim has reserved rights against the employer. Citing Louisiana Civil Code article 2320, the court held that an employer and an employee are not joint tortfeasors; the employer’s liability for damage occasioned by an employee is secondary or derivative in the sense that the employer is not himself a wrongdoer or tortfeasor. However, the court found that an employee and an employer are solidary obligors because they are obligated to the same thing, the total reparation |10of damages to the victim. The derivative nature of the employer’s liability is of no concern to the victim, and he can compel either the employer or the employee to compensate him for the whole of his damages. The court thus found that the victim was not precluded from recovering from the employer even though he had released the employee, where he had reserved rights to proceed against the employer.

In opposition, Wallace argues that Sam-pay is not applicable herein because in that case, the plaintiff victim settled with the employee and reserved all rights to proceed against an employer. Wallace correctly points out that this case, however, involves the opposite scenario. In this case, the plaintiff victim (Nizzo) settled fully with the employer (Renal Care Group) and reserved all rights to proceed against the employee (Wallace) individually. Thus, Wallace argues, the ruling of Sampay is not controlling herein. As set forth below, we find merit to Wallace’s arguments.

In granting the motion for summary judgment, the trial court based its ruling upon its appreciation of the strong public policy behind the legal relationship between an employee and an employer and the protections granted to the employee by Article 2320. The trial court stated the following:

All right, compelling case. However, I find that the codal article [Article 2820] regarding master and servant establishes a relationship so compelling that I’m not persuaded that the defendant, or rather the plaintiff, can simply enter into a contractual arrangement whereby the employer is released based upon an apparent agreement between plaintiff and the employer that the defendant was in course and scope and leave the defendant swinging. That is so that the defendant can be held responsible for going forward with trial. I don’t believe that that’s the intent of the codal article.
Public policy in my opinion that drove that article into existence afforded protection not only to the employee for being a good employee, or perhaps a bad one, but nevertheless cloaked that employee with protection. It does not allow the defendant employer to strip that protection merely for the purpose of settling the case and |uallowing the employee to swing at the hands of fate either before a bench or before a jury.

Article 2320, relied on by the trial court, defines the relationship between an employer and an employee regarding liability for the employee’s torts committed during the course and scope of employment. It provides, in pertinent part:

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.

We have found no reported cases addressing the legal effect of Article 2320 on a victim’s tort claims against an employee, who was acting within the course and scope of employment, where the victim has settled fully with the employer and has reserved all fights to proceed against the employee individually. Thus, the issue before us herein appears to be res nova.

Normally, solidary obligors have the right of contribution from one another in proportion to their virile shares. La. C.C. art. 1804. However, the relationship between the employer and employee under Article 2320 is different in that the employer’s liability does not arise from it being a tortfeasor; its liability is derivative and arises solely from its employment relationship with the tortfeasor employee. Thus, under most circumstances, unless the employer itself has been shown to be a tortfeasor, there are no virile shares; the employer is vicariously liable for the entirety of the damages owed to a victim as a result of the employee’s tort. There has been no showing in this case that the employer, Renal Care Group, was liable to the plaintiff as a tortfeasor, nor has there been any admission of fault or liability on its behalf.

| i2Upon thorough review of this matter, based on the particular facts of this case and the applicable law as set forth herein, we find that irrespective of her reservation of rights to proceed against Wallace individually, by releasing Wallace’s employer, Renal Care Group, from all liability, Nizzo has effectively and for all practical purposes also released Wallace’s rights under Louisiana Civil Code article 2320 and La. R.S. 9:3921 to have her employer, Renal Care Group, be made “answerable for the damage occasioned by” its employee, Wallace, “in the exercise of the functions in which [she was] employed.” In other words, Wallace’s rights to seek indemnity and reimbursement from her employer, Renal Care Group, of any damages over and above the total amount of the settlement Nizzo had reached with Renal Care Group and Zurich ($265,696.39) that Wallace may individually be found liable to Nizzo for resulting from the altercation in question, which occurred during the course and scope of her employment, has effectively and for all practical purposes been released as a result of Nizzo’s execution of her full release of Wallace’s employer, Renal Care Group.

Accordingly, because of the clear public policy of this State as set forth in Article 2320, as recognized by the trial court, that employers are answerable for the damage occasioned by their employees in the exercise of the functions in which they are employed, we find that the trial court did not err as a matter of law in granting the second summary judgment under review herein.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s grants of summary judgment herein.

AFFIRMED

      . Specifically, paragraph 3 of Nizzo's First Supplemental and Amending Petition makes the following allegations:
      Renal Care Group is vicariously liable for the actions of and injuries caused by its employee, Phyllis Forest Wallace, under the doctrine of respondeat superior because the acts were reasonably incidental to the performance of the employee’s duties and the tortuous act was primarily employment rooted.

      . The pertinent paragraph of the Joint Pretrial Order provides as follows:
      "The plaintiff and defendant Wallace stipulate that the incident occurred in the course and scope of employment.”

      . In her workers’ compensation settlement approval petition, Nizzo specifically reserved rights against Wallace as follows:
      "Toni Nizzo specifically reserves her right to pursue her tort claim against Phyllis Forest Wallace; Wallace is excluded from this release and settlement.”
      Likewise, in her general release of Renal Care Group, Nizzo specifically reserved rights against Wallace as follows:
      "Furthermore, Toni Nizzo, plaintiff, reserves all rights she has or may have to proceed over and against Phyllis Forest Wallace."
      Finally, in her general release of Zurich and Renal Care Group, Wallace is specifically excluded from the release.

      . In her written motion for partial summary judgment, Wallace argued that as a result of Nizzo’s stipulation, she was entitled to a credit against any judgment Nizzo may obtain against her personally for up to the total amount of the settlement Nizzo had reached with Renal Care Group and Zurich ($265,-696.39). However, at the hearing on the motion for partial summary judgment, the parties mainly argued the issue of Nizzo’s right to withdraw her stipulation. The transcript of the hearing on the motion for partial summary judgment reveals that the trial court agreed with Wallace’s arguments and granted partial summary judgment to the effect that Nizzo would not be allowed to withdraw her stipulation that Wallace was in the course and scope of her employment with Renal Care Group at the time of the altercation.

      . Further, La. R.S. 9:3921, provides, in pertinent part:
      ... [E]very master or employer is answerable for the damage occasioned by his servant or employee in the exercise of the functions in which they are employed. Any remission, transaction, compromise, or other conventional discharge in favor of the employee, or any judgment rendered against him for such damage shall be valid as between the damaged creditor and the employee, and the employer shall have no right of contribution, division, or indemnification from the employee nor shall the employer be allowed to bring any incidental action under the provisions of Chapter 6 of Title I of Book II of the Louisiana Code of Civil Procedure against such employee.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge. ROTHSCHILD, J.,

license: Public Domain

text:
    Reynold Paul HERNANDEZ v. Nicole Mary HERNANDEZ.
    No. 11-CA-526.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee.
    Joel A. Levy, Attorney at Law, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

| .¿Nicole Hernandez appeals from a judgment granting her former husband, Rey-nold Hernandez’s, motion to decrease and modify child support, arguing that the trial court erred in finding that Reynold bore his burden of proof that there was a change in circumstances warranting a modification of his child support obligation. Nicole also argues on appeal that the trial court erred in not including the expenses of private school in the child support calculations. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

On July 31, 2009, Reynold Hernandez filed a petition for divorce against Nicole Hernandez. Nicole answered the petition and filed a reconventional demand against Reynold, seeking a divorce from him. In their respective pleadings, both Reynold and Nicole also sought relief for incidental matters pertaining to the dissolution of their marriage. On November 2, 2009, Reynold and Nicole entered into a Consent Judgment regarding the issues of custody and | ¿support of their two minor children born of the marriage. By judgment rendered and signed on November 6, 2009, Reynold was granted an absolute divorce from Nicole.

In the Consent Judgment, Reynold and Nicole agreed to equally share physical custody of the children, with both of them being designated as co-domiciliary parents. The judgment also reflected that neither Reynold nor Nicole would pay child support to the other, but that each would respectively provide for the children’s needs during their respective physical custody periods. They agreed to equally share all tuition, registration fees, supply fees, uniform costs, summer camp costs and aftercare costs for the children. Further, Reynold agreed to maintain health and hospitalization insurance coverage on the children, while Nicole agreed to maintain dental and vision insurance coverage on the children. They also agreed to be equally responsible for any uninsured medical bills incurred on behalf of the children.

On October 7, 2010, Reynold filed a Motion to Decrease and to Modify Child Support, alleging that there had been a “significant change in circumstances” which warranted a decrease in Reynold’s child support obligation and a modification of the parties’ child support obligations. Specifically, Reynold alleged that the children’s expenses had increased, as had Nicole’s income. He also alleged that he had exhausted his savings and could no longer afford private school tuition and expenses for the children, and that Nicole had been overcharging him for the children’s expenses. He prayed that his support obligation be decreased, and that the parties’ child support obligations be modified and set in accordance with the Louisiana Child Support Guidelines for shared custody arrangements.

|4On November 12, 2010, the trial court held a hearing on the motion. It heard testimony from the parties and received evidence regarding their finances and expenses. After taking the matter under advisement, the trial court rendered a judgment on November 16, 2010 finding that there had been a change in circumstances supporting the granting of Rey-nold’s motion. The court noted that the income of both parties had increased, but also that there had been an increase in school tuition and related costs, as well as transportation and health care costs. The parties were allowed to continue enjoying joint physical custody of the children on a shared custody basis, but Nicole was ordered to pay child support to Reynold in the amount of $209.96 per month, beginning in January of 2011. The judgment also stated that after January of 2011, “tuition and registration fees shall not be shared between the parties, but as to all matters, the judgment remains unchanged.” This timely appeal followed.

On appeal, Nicole argues that the trial court erred in finding that there was a change in the parties’ circumstances, and in not including the expenses of private school in the calculation of child support.

ANALYSIS

In Hall v. Hall, 11-60 (La.App. 5 Cir. 5/24/11), 67 So.3d 685, at 638, this Court set forth the applicable standard of review in child support actions:

Generally, the standard of appellate review of factual findings in a civil action is a two-part test: (1) the appellate court must find from the record there is a reasonable factual basis for the finding of the fact finder, and (2) the appellate court must further determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal absent manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the trial court’s “findings are reasonable in light of the record reviewed in its entirety, [fithe court of appeal may not reverse.... ” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Stobart v. State, DOTD, 617 So.2d 880, 883 (La.1993).
With respect to this case, a district court’s order of child support is entitled to great weight. Carmouche v. Carmouche, 03-1106 (La.App. 5 Cir. 2/23/04), 869 So.2d 224. “[A]n appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error.” State, D.S.S. ex rel. D.F. v. L.T., 05-1965, p. 6 (La.7/6/06), 934 So.2d 687, 690. Deviations by the district court from the child support guidelines shall not be disturbed on appeal absent a finding of manifest error. La. R.S. 9:315.17.

The Louisiana Child Support Guidelines set forth the method for implementation of the parental obligation to pay child support. La. R.S. 9:315, et seq. The guidelines are to be used in any proceeding to establish or modify child support. La. R.S. 9:315.1(A).

The standard for modification of a child support award is set forth in La. C.C. art. 142 and La. R.S. 9:311(A)(1). La. C.C. art. 142 provides, “An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.” La. R.S. 9:311(A)(1) provides, “Am award for support shall not be modified unless the party seeking the modification shows a material change in circumstances of one of the parties between the time of the previous award and the time of the rule for modification of the award.”

The trial court found that Reynold bore his burden of proving a material change in circumstances since the previous Consent Judgment. Specifically, the trial court found that both parties’ individual incomes had increased, but also that the children’s private school tuition and related expenses had increased, as well as Reynold’s transportation costs and the cost of the children’s health insurance, which this Court notes is borne 100% by Reynold according to the Consent [fiJudgment. The trial court proceeded to calculate the support award pursuant to La. R.S. 9:315.9, the guidelines for shared custody arrangements, as evidenced by the trial court’s worksheet in the record.

Reynold’s testimony at the hearing showed that the family health care premiums increased by $60 per month. Reynold also testified that his transportation costs increased by $150 to $180 per month. Previously, when the children were in his custody, he transported them each morning from his home in LaPlace to their school in Metairie in his company van. However, as a result of objections made by Nicole, he is now required to transport the children to school in Metairie in his personal vehicle, and then return home to LaPlace to get his company van before proceeding to work in Metairie.

Reynold testified that Nicole “overcharged” him regarding the children’s school expenses, specifically stating that she overestimated the costs of uniforms, school supplies, and other related expenses that she would be required to pay, and then improperly billed him for his share in an “average” monthly fashion. However, Reynold presented no documentation to support this. Nicole testified that whereas some of the expenses were lower than she originally had estimated, the discrepancy was much lower than claimed by Reynold and he had a “credit” with her of less than $100 at the time he stopped paying her for these expenses. The record further reflected that tuition costs increased by approximately $300 per year. Aftercare and summer camp costs also increased. Rey-nold also testified that when he had physical custody of the children, he picked them up before aftercare; accordingly, they were only in aftercare while they were with Nicole, something |7she didn’t challenge or dispute. Reynold explained, however, that the actual day-to-day living expenses for the children had not changed.

Reynold claimed that he had just about exhausted his savings trying to meet his part of the children’s expenses, that his personal vehicle was old and in need of repairs, and that he could no longer afford private school tuition for the children. Reynold submitted his bank statements into evidence. Besides showing that Nicole’s W-2 income was substantially higher than his (according to the trial court’s worksheet calculations, approximately $14,000 higher per year), he claimed that she also made at least $1,500 per month in a cake business she owned, though she disputed this amount, claiming that she had closed her business and only made cakes on an occasional basis for friends. His supporting documentation consisted of several order forms for cakes in 2009 and some entries that Nicole made in 2009 on her Facebook page describing some of the activities of her cake business.

Reynold also claimed that Nicole had inherited $30,000 after the parties’ divorce, which was reflected in her bank statements that were entered into evidence. Nicole explained that she used this money for a down-payment on a house in Metair-ie, and as well as for other expenses related to establishing a new household. (Rey-nold received the former family home in the property settlement.)

We find that the evidence presented by the parties, taken as a whole, supports the trial court’s finding that Rey-nold’s child support obligation should be decreased by the amount calculated in the trial court’s worksheet. Nicole does not dispute any of the figures used to calculate the award. Instead, she argues that Rey-nold failed to show a “material” change in his circumstances. We disagree. Reynold presented sufficient proof of the increase in expenses he bore 100% of (transportation and health insurance), increases in the expenses they shared jointly |s(tuition and school related expenses), plus a depletion of his savings relative to meeting his obligations under the Consent Judgment. The record likewise showed that Nicole’s income was greater than his by approximately $14,000 per year, although some income disparity between the parties did exist prior to rendition of the Consent Judgment.

Upon thorough review of the record, we find that there is a reasonable factual basis for the trial court’s child support ruling, and that the record establishes that this ruling is not clearly wrong or manifestly erroneous. We thus decline to disturb the trial court’s award of child support from Nicole to Reynold in the amount of $209.96 per month, beginning in January of 2011.

Next, Nicole argues that the trial court erred in not adding the costs of school tuition and school related expenses to the basic child support obligation, and in decreeing that these expenses would no longer be shared by the parties as per the Consent Judgment. Her argument is basically that the trial court erred in this regard because the parties agreed, when they were married, to send the children to private school, and the children should continue to attend their school for continuity and to meet their emotional needs. She also argues that the increase in tuition, aftercare, and summer camp were “nominal.”

Formerly, under the Consent Judgment, the parties shared these expenses equally despite some disparity in their incomes. La. R.S. 9:315.6 provides that by agreement of the parties or order of the court, the expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child incurred on behalf of the child may be added to the basic child support obligation. This language is permissive and not mandatory. Therefore, failure to include it in the child support calculations is not per se error.

|9It is noted that although the judgment in question does not require that the children change schools, it does appear by default to require that Nicole bear the children’s tuition and registration fees in full effective January, 2011 (assuming the children remain in private school). This Court has already found above that Rey-nold sufficiently proved a material change in circumstances so as to allow an award of child support to him from Nicole. All things considered, particularly the overall changes in the circumstances of the parties since rendition of the Consent Judgment as detailed above, we find that there is a reasonable factual basis for the trial court’s ruling that the children’s tuition and registration fees would no longer be shared by the parties, and further that the record does not establish that the trial court abused her broad discretion or was manifestly erroneous in this ruling. Accordingly, we also find no error in this portion of the judgment.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

ROTHSCHILD, J., dissents in part.

ROTHSCHILD, J.,

dissents in part.

hi must respectfully dissent from the decision of the majority insofar as it upholds the trial court’s decision to exclude the expenses of private school in the child support calculation. Based on a review of the record and applicable law, I find that the trial court abused its discretion in ruling that the private school expenses would no longer be shared by the parties after January of 2011.

The parties in this case were divorced by judgment rendered in November 2009 and at that time consented to share custody and expenses for the children, including to equally share all tuition, registration fees, supply fees, uniform costs, and aftercare costs. One year later, in October of 2010, Mr. Hernandez filed a motion to decrease and to modify child support. Specifically, Mr. Hernandez alleged that Mrs. Hernandez’ income had increased, that the children’s expenses had increased, and that Mr. Hernandez could no longer afford private school tuition.

By judgment rendered on November 16, 2010, the trial court found that although both parties experienced an increase in income, there was an increase in school tuition and other expenses for the children. The trial court ordered Mrs. Hernandez to pay child support in the amount of $209 per month, and also held that Mr. Hernandez was no longer required to share in expenses of private school tuition. Although I have no disagreement with 12the increase in the child support award, I find that the record fails to support the trial court’s ruling on the issue of private school tuition.

A trial court may award child support for expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child. La. R.S. 9:315.6(1). This statute was amended in 2001, removing the language requiring that a “particular educational need” to attend the special or private school be shown. As stated in the comments following the statute, the needs of the child include needs for stability or continuity in the child’s educational program. A trial court’s determination of whether to include private school tuition in a basic child support obligation will not be disturbed absent an abuse of discretion. The court’s decision must be based on consideration of the best interest of the children.

At the hearing in this matter, Mr. Hernandez stated that he was unable to afford to continue to contribute to private school tuition for his children. However, Mr. Hernandez admitted that his income had increased during the year since the divorce. Further, the record indicates that the school tuition for the 2010 school year only increased in the amount of $300 over the 2009 school year, and that registration fees, supply fees and uniform fees were not increased at all.

Mrs. Hernandez testified that at the time of the hearing the children were 9 and 10 years old, and that they had attended St. Angela Merici school for 6 and 8 years, respectively. She stated they enjoyed the school and that it was “the most stable constant wonderful thing in their lives right now.” Mrs. Hernandez stated that she and Mr. Hernandez selected the school together, and that both she and Mr. Hernandez attended Catholic school and always intended to send their children to Catholic school. She testified that |sMr. Hernandez spoke to the children about leaving the school, and “they were crushed at the thought of being moved from their current school.”

In the present case, the record indicates that both parties’ income was increased during the previous year, and the school expenses only sustained a moderate increase. The adjustment in the child support amounts adequately covers any additional expenses sustained by Mr. Hernandez in supporting the children. More importantly, the record clearly shows that the children’s needs for stability and continuity would be best served by remaining in the school their parents chose for them and that they have attended for years. Considering these circumstances, I find the trial court abused its discretion in failing to include private school tuition in the child support calculations. I would therefore reverse this part of the judgment, and apportion the payment of the tuition based on the parties’ respective incomes.

      . Nicole objected to the children riding to Metairie each morning in Reynold's company van, which did not have seats equipped with seatbelts for each child. Only the front seat had a seatbelt; apparently, the second child sat in a seat in the back of the van that did not have safety restraints.


author: MARC E. JOHNSON, Judge.

text:
    Karen PLEASURE v. LOUISIANA ORGAN PROCUREMENT AGENCY (LOPA). Karen Pleasure v. West Jefferson Medical Center.
    Nos. 11-CA-175, 11-CA-176.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 28, 2011.

      Richard T. Gallagher, Jr., Attorney at Law, Metairie, LA, for Plaintiff/Appellant.

      Guice A. Giambrone, III, Cart T. Conrad, Richard E. Gruner, Jr., Attorneys at Law, Metairie, LA, for Defendant/Appellee (Jefferson Parish Hospital District No. 1, d/b/a West Jefferson Medical Center).
    Rodney A. Seydel, Jr., Attorney at Law, New Orleans, LA, for Defendant/Appellee (Southern Eye Bank).
    Maryann G. Hoskins, Sidney W. Degan, III, Richard C. Badeaux, Attorneys at Law, New Orleans, LA, for Defendant/Ap-pellee (Louisiana Organ Procurement Agency).
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|sThis is an appeal by Karen Pleasure, plaintiff-appellant, from a judgment sustaining exceptions of prematurity urged by Louisiana Organ Procurement Agency (LOPA) and West Jefferson Medical Center (WJMC), and also sustaining an exception of prescription urged by Southern Eye Bank. For the following reasons, we affirm the judgments.

These cases arise out the death of plaintiff’s husband at WJMC on February 8, 2008, after suffering a heart attack. One year later, plaintiff filed a pro se petition against WJMC alleging that she requested that all life support be terminated after her husband was declared brain dead, but that the hospital continued those treatments while it determined whether his organs were viable for donation. She asserts that these continued treatments caused her unnecessary mental and emotional pain and suffering. The next day she filed a second petition against LOPA, alleging the same facts as to WJMC. The two cases were consolidated in the district court.

|4In the action against it, WJMC urged a dilatory exception of prematurity based on its assertions that it is a medical provider for purposes of the Medical Malpractice Act (MMA) and that all of its treatment of plaintiffs husband constituted medical services under the Act. Because plaintiff had not convened a medical review panel prior to filing suit, it asserted that her suit had to be dismissed without prejudice. Plaintiff argued that because her husband was actually dead before the life support systems were turned off, this treatment could not have constituted a medical service. The trial judge sustained the exception on December 15, 2009, and plaintiff appealed that judgment to this court.

This court ruled that all of the treatments rendered by the hospital were indeed “medical services,” citing La. C.C. art. 2322.1 and La. R.S. 9:2797, both of which provide unambiguously that the process of transplanting organs, including screening and procurement, are for all purposes whatsoever considered “medical services.” This court thus affirmed the judgment sustaining the exception of prematurity and dismissing without prejudice the suit against WJMC. Pleasure v. Louisiana Organ Procurement Agency (LOPA) c/w Pleasure v. Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center (WJMC), 10-294, 10-295 (La.App. 5 Cir. 2/15/11) 62 So.3d 163, writ denied, 2011-0550 (La.4/25/11), 62 So.3d 97.

It appears from the record that also on December 15, 2009, plaintiff, now represented by counsel and with leave of court, filed an amended petition which reiterated the allegations of the original petition, added allegations that WJMC and LOPA harvested her husband’s eyes without her permission, and added a third defendant, the Southern Eye Bank, to whom the eyes were eventually given. WJMC re-urged its exception of prematurity and LOPA urged a similar motion for |fithe first time. Southern Eye Bank urged an exception of prescription. On July 12, 2010, the court sustained all three exceptions. This appeal followed.

We first address the judgment as it pertains to WJMC. Plaintiff appealed the December 15, 2009, judgment. Upon the granting of an order of appeal and furnishing of an appeal bond, the jurisdiction of the trial court is divested over all matters reviewable in the appellate court (with certain exceptions inapplicable here). La. C.C.P. art. 2088. When the judgment at issue here was rendered on July 12, 2010, the previous appeal was pending in this court and the district court was without jurisdiction to render that judgment as to WJMC. As a consequence, that judgment as to WJMC is an absolute nullity. Moreover, the ruling of this court affirming the district court judgment sustaining the exception of prematurity as to this party is now final, and plaintiffs action against WJMC now stands dismissed without prejudice.

The next question is whether the exception of prematurity urged by LOPA was properly sustained. This entity is a qualified health care provider. It is thus in an identical position as WJMC in regard to the necessity for plaintiff to convoke a medical review panel before filing suit. We have already considered the issue of whether the treatment of plaintiffs husband constituted a medical service under the MMA, and concluded that it did. We therefore adopt the reasoning and holding of Karen Pleasure v. Louisiana Organ Procurement Agency (LOPA), supra, to the present appeal and affirm the judgment sustaining the exception of prematurity and dismissing without prejudice plaintiffs suit against LOPA.

The final issue is whether the exception of prescription urged by Southern Eye Bank was correctly sustained. This entity was not made a party to the suit until December 15, 2009, well beyond the one year prescriptive period. It also represents that it is not a health care provider for purposes of the MMA. Plaintiff | (iargues that Southern Eye Bank is jointly and solidarily liable with WJMC and LOPA, and that the filing of suit against these latter parties interrupted prescription as to Southern Eye Bank.

In LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, the court ruled that in the medical malpractice context the filing of suit prior to convoking a medical review panel does not interrupt or suspend the running of prescription. It is only the convening of a medical review panel which suspends prescription until 90 days after the panel issues its report. Because the suits against WJMC and LOPA before convening a medical review panel did not interrupt prescription as to these parties, there was no interruption which could have accrued to plaintiffs benefit against Southern Eye Bank. We also note that La. R.S. 40:1299.47 A(2)(l) provides that the convening of a medical review panel “shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.” It is clear that the convening of a medical malpractice panel is the only means of suspending prescription as to all parties involved in the alleged malpractice, whatever their status, and that the filing of suit prior to convening a panel neither interrupts nor suspends the running of prescription. In these circumstances, we hold that the claim against Southern Eye Bank was prescribed when it was named as a party, and the judgment sustaining the exception was correct.

Plaintiff also argues that she was unaware of Southern Eye Bank’s participation in the treatments until shortly before naming it as a defendant in her amended petition on December 15, 2009, and therefore the doctrine of contra non 17valentem should be applied. Under this jurisprudential doctrine, prescription is suspended in four circumstances:

1. Where there was some legal cause which prevented the courts from acting;
2. Where there was some condition coupled with a contract or the proceedings which prevented action;
3. Where the debtor has done some act to prevent the creditor from acting; or
4. Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

Fontenot v. ABC Ins. Co., 95-1707 (La.6/7/96), 674 So.2d 960.

Only the fourth circumstance might be applicable here. Plaintiff asserts that because she was unaware of Southern Eye Bank’s involvement in the incident giving rise to the suit, she did not know of the cause of action against it; thus, prescription did not run. We disagree. Plaintiff knew that she had allegedly suffered at the hands of the institutions treating her husband. The record does not show that she made any effort to ascertain if there were any additional entities involved in these treatments, nor does it contain evidence which might show that the information was not reasonably discoverable. In these circumstances, we decline to apply the exception of contra non valentem to these proceedings.

For the foregoing reasons, the judgment sustaining the exception of prematurity as to WJMC is declared an absolute nullity. In all other respects, the judgment is affirmed.

AFFIRMED