author: DANIEL L. DYSART, Judge. TOBIAS, J.,

text:
    Karen LAGASSE, Individually, and on Behalf of her Deceased Mother, Merle Lagasse v. TENET HEALTH SYSTEM MEMORIAL MEDICAL CENTER, INC., Rene Goux, Roy J. Culotta, Richard Deichmann, and Jane Doe.
    No. 2011-CA-0782.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      A. Remy Fransen, Jr., Eric M. Daigle, Fransen & Hardin, A.P.L.C., New Orleans, LA, for Plaintiff/Appellant.
    James D. “Buddy” Caldwell, Attorney General, Patricia A. Traína, Karen B. Sher, Special Asst. Attorneys General, Berrigan Litchfield Schonekas Mann & Traína LLC, New Orleans, LA, for Defendant/Appellee/Dr. Roy J. Culotta.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

Lin this appeal, plaintiff avers the trial court erred in sustaining defendant’s exception of prematurity. For the reasons set forth below, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Karen Lagasse, filed suit against Dr. Culotta and Tenet Health System Memorial Medical Center, Inc. (“the Hospital”) and others after her mother, Merle Lagasse, died at the Hospital during Hurricane Katrina. Merle Lagasse suffered from terminal lung cancer and end-stage chronic obstructive pulmonary disease, and was hospitalized for “intractable pain” at that time. Plaintiff brought survival and wrongful death actions alleging that defendants were solidarily liable due to their combined negligent acts of failing to have an adequate evacuation plan for their patients, and in removing and failing to replace her deceased mother’s oxygen mask. Later, on November 30, 2010, plaintiff filed a third supplemental and amending petition adding an allegation that Dr. Culotta euthanized her mother.

|2In his deposition, Dr. Culotta, a pulmonary specialist, testified that after he determined that Merle Lagasse was “actively dying,” he gave her pain medication, not to hasten her death, but rather to relieve her discomfort.

On October 26, 2010, defendants filed an Exception of Prematurity, asserting that plaintiffs claims sounded in medical malpractice, and therefore should have first been presented to a Medical Review Panel. The trial court agreed and dismissed plaintiffs claims pending submission to a Medical Review Panel. Plaintiff subsequently filed this appeal.

DISCUSSION

Plaintiff asserts that the trial court erred in concluding that her claim was covered by La. R.S. 40:1299.41 et seq., the Louisiana Medical Malpractice Act (“LMMA”). Plaintiff argues that she is alleging an intentional act, euthanasia, the practice of intentionally ending a life in order to relieve pain and suffering, which is not included under the LMMA.

Medical malpractice is defined under the act as:

“... any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, and also includes all legal responsibility of a health care provider arising from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.”

La. R.S. 40:1299.41 A(13).

Under this statute, the tort must arise from health care or professional services rendered. Health care is broadly defined as:

|s“... any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.”

La. R.S. 40:1299.41 A(9).

Plaintiff states in her brief that “at no time has [she] ever intended to assert a claim of simple medical malpractice.... Pure and simple, she is asserting an intentional tort founded on euthanasia, or, at the very least, gross or willful and wanton conduct on the part of the defendant-physician.”

Plaintiff alleges that Dr. Culotta intentionally injected her mother with a lethal dose of narcotics in order to bring about her death. We find the allegation of euthanasia to be an intentional tort that is not covered by the LMMA. Therefore, this claim need not be presented to a Medical Review Panel.

Plaintiffs original, first, and second supplemental and amending petitions contained allegations of negligence and medical malpractice. Plaintiff did not remove these allegations of negligence in her third supplemental and amending petition when she added a claim of euthanasia; rather, she states that she “re-avers and re-alleges each and every allegation” made in the previous petitions. As such, the claims for negligence and medical malpractice remain.

Plaintiffs petitions allege two separate causes of action: one for an intentional tort of euthanasia, and one for medical malpractice. Although plaintiffs two causes of action are closely related, because plaintiff alleged an intentional tort, we must reverse the trial court’s judgment dismissing this claim. However, we find that the court properly dismissed plaintiffs suit without Lprejudice on the exception of prematurity concerning plaintiff’s claim for medical malpractice. See Leger v. Delahoussaye, 464 So.2d 1 (La.App. 3rd Cir.1984).

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed in part and reversed in part.

AFFIRMED IN PART AND REVERSED IN PART

TOBIAS, J., concurs and assigns reasons.

TOBIAS, J.,

concurs and assigns reasons.

| ,1 write separately because the majority omits certain facts that I find relevant to an full understanding of the issues, why we reach the conclusion that we do, and to alert an interested observer as to some looming issues that may arise in the future as facts and circumstances may warrant.

On 25 August 2006, the plaintiff, Karen Lagasse, filed her suit alleging medical malpractice committed upon her deceased mother, Merle Lagasse, following and arising out of the events immediately following Hurricane Katrina striking the New Orleans area on 29 August 2005. Prior to filing her suit, she failed to file her claim with the Louisiana Division of Administration seeking a medical review panel. See La. R.S. 40:1299.47. The defendant, Tenet Health System Memorial Medical Center, Inc. (“Tenet”), filed a dilatory exception of prematurity on 80 October 2006. The defendant, Roy J. Culotta, M.D., filed a decli-natory exception of insufficiency of service of process on 19 April 2007 that was subsequently overruled on 9 July 2007. On 27 September 2007, the plaintiff supplemented and amended her original suit. Dr. Culotta answered the original petition only on 8 October 2007. Thereafter, the defendant, Richard E. |2Deichmann, Jr., M.D. (“Deichmann”), filed a supplemental dilatory exception of prematurity to the plaintiffs supplemental and amended petition. On 7 November 2011, Tenet and the defendant, Rene Goux (“Goux”), filed a declinatory exception of prematurity to the supplemental and amended petition. Reserving their rights as to the dilatory exceptions, Tenet and Goux answered the petition as supplemented and amended on 6 June 2008. Subsequently, Deichmann and Goux filed motions for summary judgment. See La. C.C.P. art. 966 A. On 1 September 2010, the plaintiff again supplemented and amended her petition, by adding an allegation that Dr. Culotta had injected Merle Lagasse with a lethal dose of unknown narcotics. Dr. Culotta filed a further dilatory exception of prematurity to this new supplementation and amendment on 26 October 2010 to which was attached a certificate from the Division of Administration, showing that he was a qualified health care provider under La. R.S. 40:1299.41, et seq. (the Medical Malpractice Act). Finally, on 30 November 2010, the plaintiff filed a third supplemental and amending petition alleging euthanasia by Dr. Culotta. A judgment was rendered on 18 February 2011, sustaining only Dr. Culotta’s exception of prematurity; such is the only judgment presently before this court on appeal.

In my view, this case is driven by the Louisiana Supreme Court’s decision in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, (and its progeny), wherein the Court held that the filing of suit against a qualified health care provider in the district court neither suspends nor interrupts the one year | ^prescriptive period for filing medical malpractice claims. LeBreton makes clear that a party asserting a claim of medical malpractice must assume that the allegedly malpracticing health care provider is a qualified health care provider under the Medical Malpractice Act. Before LeBreton, a person had a right to assume that his or her health care provider was not necessarily covered by the Medical Malpractice Act and could file a suit in the district court that would interrupt prescription. Thereafter, if the health care provider was determined to be a qualified health care provider, the district court suit would be deemed premature and had to be dismissed. Thus, because Dr. Culotta was a qualified health care provider at the time of his treatment of Merle Lagasse and the plaintiff failed to first submit her claim to the Division of Administration such that it could be reviewed by a medical review panel, the case against Dr. Culotta is now prescribed. To, so-to-speak, circumvent the problem, the plaintiff in oral argument stated to this court that she abandons all of her claims against Dr. Culotta for medical malpractice except for the intentional tort of euthanasia.

Louisiana has a strong public policy against euthanasia. See La. Const. Art. I, § 20; La. R.S. 40:1299.35.9, 40:1299.58.10 and 40:1299.64.6.

By making a claim for only euthanasia, the plaintiff is trying to plead her way out of the medical malpractice act, as the majority notes. La. R.S. 40:1299.41 A(13) defines malpractice within the context of the Medical Malpractice Act as

any unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising from acts or omissions during the procurement of blood or blood components, in the training or supervision of health care providers, or |4from defects in blood, tissue, transplants, drugs, and medicines, or from defects in or failures of prosthetic devices implanted in or used on or in the person of a patient.

See also LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La.9/5/07), 966 So.2d 519.

In Coleman v. Deno, 01-1517, 01-1519, 01-1521, p. 17-18 (La.1/25/02), 813 So.2d 303, 315-16, the Louisiana Supreme Court set forth a six-part test to determine whether a claim sounds in medical malpractice and must first be presented to a medical review panel:

(1) whether the particular wrong is “treatment related” or caused by a dereliction of professional skill,
(2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached, ...
(3) whether the pertinent act or omission involved assessment of the patient’s condition....
(4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform,
(5) whether the injury would have occurred if the patient had not sought treatment, and
(6) whether the tort alleged was intentional.

The Court further alludes to the issue of whether “the particular wrong is treatment related? or caused by a dereliction of professional skill.”

Ergo, a narrow conflict exists between our jurisprudence and statutory law. The Supreme Court has stated that if the medical malpractice claim (ie., medical treatment) is a tort and intentional, it still must be submitted to a medical review panel under the Medical Malpractice Act. Yet the law states that malpractice is an unintentional act. Our consideration in the case before us is complicated by the plaintiffs pleadings and more particularly, her supplemental and amending petition of 30 November 2010 that reaffirmed and re-alleged by incorporation all | fiof her allegations set forth in her original and earlier filed supplemental and amending petitions.

To reach the conclusion to which the majority arrives and to fall within the narrow gap between the statutory definition of malpractice and the decision in Coleman v. Deno, we must assume that the plaintiffs claim of “euthanasia” against Dr. Cu-lotta is not in any way related to medical malpractice but is a claim for wrongful death caused by a homicide. But not merely any ordinary homicide, but one that constitutes first degree murder, second degree murder, or manslaughter. La. R.S. 14:29, relative to the crime of homicide, defines homicide as

... the killing of a human being by the act, procurement, or culpable omission of another. Criminal homicide is of five grades:
(1) First degree murder.
(2) Second degree murder.
(8) Manslaughter.
(4) Negligent homicide.
(5) Vehicular homicide.

Obviously, the plaintiff by saying that her claim no longer relates to medical malpractice contemplates that the physician did not act negligently (cf., La. R.S. 9:5628), taking her case out of the ambit of negligent homicide (criminal or non-criminal). Thus we have by our holding narrowed the plaintiffs claim for the wrongful death of Merle Lagasse against Dr. Culotta as a homicide, purely, simply, and regardless of whether it is couched in the term: euthanasia. The opinion of this court must be read to exclude from the plaintiffs claim anything relating to medical malpractice to exclude the cause of action from the ambit of Coleman v. Deno, supra, and the ambit of the definition of malpractice in La. R.S. 40:1299.41 A.

|r,I am troubled by this, especially because plaintiffs counsel repeatedly said that the only claim he was asserting against Dr. Culotta was euthanasia as an intentional act. Certainly, the question of the medications that Dr. Culotta injected into Merle Lagasse has medical considerations and indicia that will require medical testimony to explain to the trier of fact why the medication can and does cause death. The medicinal questions certainly sound as within the fair and reasonable grist of a medical review panel’s jurisdiction if the plaintiffs claim remained in medical malpractice.

That which is reserved for another day is if the plaintiff fails to prove her now very limited claim for the intentional tort of homicide (euthanasia), does she and her counsel open themselves up to a subsequent tort claim by Dr. Culotta of defamation?

We have done by our decision that which the plaintiff requested. My concerns as expressed above cause me to respectfully concur, albeit reluctantly, with the majority.

      . All declinatory and dilatory exceptions must be raised at the same time. La. C.C.P. arts. 925 C and 926 B. The filing of an answer waives the right to plead declinatory and dilatory exceptions unless the exception is pleaded in the answer. La. C.C.P. art. 928 A.

      . Apparently, Dr. Deichmann filed an earlier dilatory exception of prematurity which is not part of the record on appeal.

      . Apparently, like Dr. Deichmann, Goux had filed an exception of prematurity that does not appear in the record on appeal. Goux is apparently the CEO of Tenet.

      . Deichmann?s motion for summary judgment was granted on 24 September 2010 and he was dismissed from the case.

      . All matters against Tenet have been stayed by the trial court, including the issue of Tenet?s exception of prematurity.

      . LeBreton has been applied retroactively. Sherman v. Touro Infirmary Hospital, 00-1365. 00-1366. 00-2573. 00-2574. 02-1058. 02-1059 (La.App. 4 Cir. 10/30/02), 832 So.2d 334.


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Emett BARBE, Jr., et al. v. AMERICAN SUGAR REFINING, INC., Amstar Corporation, Amstar Sugar Corporation, Tate & Lyle North American Sugars, Inc., and Domino Sugar Company.
    No. 2011-CA-0544.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 2011.

      J. Wayne Mumphrey, Mumphrey Law Firm, LLC, New Orleans, LA, J. Burton Leblanc IV, Baron & Budd, P.C., Baton Rouge, LA, Bruce Steckler, S. Ann Saucer, Baron & Budd, P.C., Dallas, TX, for Plain-tifi/Appellee.
    John J. Rabalais, Janice B. Unland, Ra-balais Unland & Lorio, Covington, LA, Norman C. Sullivan, Jr., Fowler Rodriguez Valdez-Fauli, Richard C. Stanley, William M. Ross, Stanley Reuter Ross Thornton & Alford, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. MeKAY, III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   MICHAEL E. KIRBY, Judge.

| ¶ Defendant, American Sugar Refining, Inc. (f/k/a Domino Sugar Corporation, f/k/a Tate & Lyle North American Sugars, Inc., f/k/a Amstar Corporation, f/k/a Amstar Sugar Corporation), appeals the trial court judgment in favor of plaintiffs, Leico Anthony Assevedo, John Hayward, Jack Oal-mann, Tommy Smith and Edgar Wood-ridge. For reasons that follow, we affirm.

Plaintiffs, all former long-time employees of the defendant, filed suit against the defendant for damages for hearing loss allegedly caused by long-term exposure to hazardous industrial noise at the defendant’s facility in Arabi, Louisiana. The length of time these plaintiffs worked for the defendant ranged from twenty (20) to thirty-eight (38) years. The plaintiffs in whose favor judgment was rendered represent the “first flight” of a larger group of plaintiffs with similar claims. Following a nine-day trial, the trial court found the defendant liable to each of the five plaintiffs, and awarded damages for hearing loss.

On appeal, the defendant has alleged five assignments of error:

(1) the district court committed legal error by charging Domino with the burden of disproving contra non \9valentem, and ruling that the plaintiffs’ claims are not prescribed,
(2) the district court’s conclusion that Domino is liable to the plaintiffs in negligence and strict liability cannot be reconciled with either the record evidence regarding breach of duty or causation, or the district court’s other findings of fact regarding prescription,
(8) the district court committed legal error by failing to apply any standard, much less the proper standard, to the plaintiffs’ strict liability claims,
(4) the district court committed legal error by holding that the plaintiffs’ claims for occupational hearing loss are not barred by the exclusivity provision of the Louisiana Worker’s Compensation Act, and
(5) the district court committed legal error by limiting the testimony of plaintiff Edgar Woodridge, and excluding testimony that is highly relevant to prescription and should have been admitted into evidence.

Taking the fourth assignment of error first, i.e. that plaintiffs’ claims for long-term occupational hearing loss are barred by the exclusivity provision of the Louisiana Worker’s Compensation Act (“LWCA”), we note that this Court addressed this same issue in its recent decision of Becker v. Murphy Oil Corp., 2010-1519 (La.App. 4 Cir. 6/2/11), 70 So.3d 885. As in the instant case, the Becker case also involved former employees suing their former employer for damages for hearing loss allegedly caused not by a single traumatic event, but by long-term occupational noise exposure. In ruling that the plaintiffs’ claims against their former employer were not barred by the exclusivity provision of the LWCA, the Becker court stated:

[w]e conclude that gradual hearing loss resulting from occupational noise exposure over a period of many years simply cannot meet the definition of an ‘accident’ under |sany version of the LWCA. Likewise, the trial court did not err in finding that Mr. Barcia’s claims are not a basis for recovery under the LWCA as an occupational disease.

Subsequent to this Court’s rendition of the Becker opinion, Murphy Oil applied for writs with the Louisiana Supreme Court. On November 23, 2011, the Louisiana Supreme Court denied writs. Becker v. Murphy Oil Corporation, 2011-1750 (La.11/23/11), 76 So.3d 1154. Thus, the Becker decision of this Court is now final and definitive. La. C.C.P. Article 2166 E. Following the holding in Becker v. Murphy Oil Corporation, 2010-1519 (La.App. 4 Cir. 6/2/11), 70 So.3d 885, we hold that plaintiffs’ claims in the instant case of damages for hearing loss caused by long-term occupational noise exposure are not barred by the exclusivity provision of the LWCA. This assignment of error is without merit.

On the issue of prescription, the defendant first contends that the standard of appellate review should be de novo in this case, rather than the usual manifest error/clearly wrong standard. According to the defendant, the trial court committed legal error by charging it with the burden of disproving that the doctrine of contra non valentem applied in this case. Plaintiffs respond that the trial court correctly charged plaintiffs with the burden of proving the applicability of the contra non va-lentem doctrine, and therefore, the manifest error/clearly wrong standard of review applies.

The law regarding the burden of proof on the issue of prescription was summarized by this Court in Grant v. Tulane University, 2002-0848, p. 3 (La.App. 4 Cir. 4/23/03), 853 So.2d 651, 652-653, as follows:

|4A party generally must assert a del-ictual claim within one year from the date the injury or damage is sustained. La. C.C. art. 3492. Hoerner v. Wesley-Jensen, 95-0553, p. 3 (La.App. 4 Cir. 11/20/96), 684 So.2d 508, 510. When it is not obvious from the face of the petition that the claim is prescribed, the burden rests on the defendant or party pleading prescription. Stett v. Greve, 35,140, pp. 7-8 (La.App. 2 Cir. 2/27/02), 810 So.2d 1203, 1208. However, if the face of the petition shows that the prescriptive period has already elapsed, the plaintiff has the burden of establishing that suspension, interruption or renunciation of prescription has occurred. Lima v. Schmidt, 595 So.2d 624 (La.1992).
Under the judicially created doctrine of contra non valentem, prescription is suspended (1) when there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action; (2) when there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of this cause of action; and (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. Landry v. Blaise, 2002-0822 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, citing Corsey v. State of Louisiana, Through the Department of Corrections, 375 So.2d 1319, 1321-22 (La.1979).

In this case, the trial court found that the fourth prong of the contra non valentem doctrine applied, i.e. that the plaintiffs did not know or could not reasonably know of their cause of action against the defendant until less than one year from the time each filed suit against the defendant. A reading of the reasons for judgment as a whole shows that the trial court properly charged the plaintiffs with the burden of proving that the doctrine of contra non valentem applied to suspend the running the prescription. The defendant has singled out one sentence in the reasons for judgment in support of its claim that the trial court improperly charged the defendant with the burden of disproving the applicability of contra non | ¿valentem. The sentence in question is: “Defendants seek to show the Plaintiffs had constructive knowledge of their hearing loss and its cause.”

We find no merit in the defendant’s argument that this statement shows the trial court improperly charged it with the burden of disproving contra non valentem. Rather, this statement in the trial court’s reasons merely describes efforts made by the defendant to rebut evidence offered by plaintiffs to show that contra non valen-tem operated to suspend the running of prescription. Because we find no error of law committed by the trial court on the issue of burden of proof regarding the applicability of the contra non valentem doctrine, the trial court’s ruling on this issue is not subject to a de novo review.

The standard of review on the issue of prescription was recently summarized by this Court in Chef Menteur Land Company, Ltd. v. Sandrock, 2011-0497, p. 2 (La.App. 4 Cir. 10/19/11), 78 So.3d 146, as follows:

“[T]he trial court’s findings of fact on the issue of prescription are subject to the manifest error-clearly wrong standard of review.” London Towne Condo. Homeowner's Ass’n v. London Towne Co., 2006-401, p. 4 (La.10/17/06), 939 So.2d 1227, 1231 (citing Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267). Pursuant to this standard, “a factual finding cannot be set aside unless the appellate courts [sic] finds that it is manifestly erroneous or clearly wrong.” London Towne Condo. Homeowner’s Ass’n, p. 4, 939 So.2d at 1231 (citing Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). Appellate courts should not re-weigh the evidence or substitute its own factual findings. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Likewise, “[w]here there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Id.

| (¡Because the trial court reached the issue of the applicability of contra non valentem, he obviously found that plaintiffs’ claims are prescribed on the faces of their respective petitions. We agree. In reviewing the trial court’s ruling that the doctrine of contra non valentem operated to suspend the running of prescription as to the five plaintiffs in this case, we have examined the evidence offered on this issue, and present the following summary.

Leico Assevedo

Leico Assevedo worked for the defendant for nineteen (19) years, from 1976 to 1995. He had a fourth (4th) grade education. When Mr. Assevedo began his employment with the defendant, his hearing was tested and determined to be “good” or “perfect.” For the first ten (10) years of Mr. Assevedo’s employment, there were no signs at the plant recommending hearing protection for the workers. In 1986, Mr. Assevedo’s hearing was tested again, and he was told that he had a hearing loss and needed to wear earplugs to protect him from further hearing loss, which would be permanent. He was never told to wear muffs over the earplugs. Mr. Assevedo testified that, while employed by the defendant, he attributed his hearing problems to the aging process, and not to his work experience.

Mr. Assevedo testified that he had ringing in his ears while at work, but the ringing went away when he was at home. Therefore, he assumed the problem of the ringing in his ears was only temporary. When asked at trial if he thought his hearing problems were related to his work while he was still employed by the defendant, his response was, “I might have thought that at the time. I don’t recall. But I thought it was, yeah.” But he insisted that no one at work ever told him that noise in the workplace was a possible cause of his hearing loss. Defendant’s 17attempts to impeach Mr. Assevedo’s credibility with his earlier deposition testimony were complicated by Mr. Assevedo’s limited ability to read due to the fact that he did not receive formal education past the fourth (4th) grade.

Mr. Assevedo alleges that he was first notified that he had noise-induced hearing loss on July 18, 2005, by letter from Dr. Phillip L. Wilson, an audiologist retained by one of the law firms representing him in this matter. Dr. Wilson stated in the letter that he reviewed audiometric data relating to Mr. Assevedo, and determined that he had “a moderate high frequency hearing impairment consistent with noise-induced hearing loss.” Mr. Assevedo filed his lawsuit against defendant on March 15, 2006.

John Hayward

John Hayward worked for the defendant for thirty (30) years, from 1972 to 2002. An audiogram performed approximately four (4) years into his employment showed no problems with his hearing. In the 1980’s, Mr. Hayward began noticing warning signs regarding noise at his workplace. These signs also indicated that employees were required to wear hearing protection. He was issued a muff to wear at work in 1984. A document signed by Mr. Hayward in December 1996, and offered into evidence by defendant is entitled, “Audom-etric [sic] History and Examination.” In this two-page document, sections were checked indicating that the employee had a hearing loss and never wore hearing protection. At trial, Mr. Hayward acknowledged signing this document, but denied providing such information or filling in these notations on the form, which he claimed were not true. A review of this document shows that the handwriting on the document, other than the signature of Mr. Hayward, appears to be that of the signature nurse.

|8In January 1997, Mr. Hayward received a “Notice of Hearing Shift” from industrial audiologist Dr. Clifton Istre, who was retained by the defendant. In that notice, Mr. Hayward was advised to “[w]ear ear protectors at your place of work to prevent further hearing change.” Several other audiograms were performed on Mr. Hayward in 1998. He signed documents relating to these, but testified at trial that he did not provide some of the information that appears on these forms and denied their accuracy. An audiogram, conducted in October 2000, showed that Mr. Hayward had a moderate hearing loss for high-pitched sounds. Mr. Hayward acknowledged that he was told of this hearing loss, but testified that he did not at that time associate the hearing loss with his employment. He said he “just thought it was life and age at that time.”

Mr. Hayward received a letter, dated July 18, 2005, from Dr. Wilson advising him that audiometric data supplied by one of the law firms representing Mr. Hayward indicated that he had “a moderate high frequency hearing impairment consistent with noise-induced hearing loss.” Mr. Hayward filed suit against the defendant on March 15, 2006.

Jack Oalmann

Jack Oalmann worked for the defendant for thirty (30) years, from 1971 to 2001. He had an eighth (8th) grade education, and was sixty-seven (67) years old at the time of trial. He was tested for hearing loss in 1976, and his signature appears at the bottom of a form indicating the results of that test. On this form, a section is checked indicating that Mr. Oalmann was exposed to noise in previous jobs for fifteen (15) years. At trial, Mr. Oalmann denied checking that section or providing that information, which he claims is false. Mr. Oalmann’s signature appears at the bottom of a listing of the numerical results of a hearing test, conducted in 1985, but 1 flthis form did not offer an explanation of the results. Mr. Oalmann testified that he did not understand the test results and no one explained the results to him. He testified that the first time he was offered hearing protection while working for the defendant was in the late 1980’s or early 1990’s. He testified that he regularly wore hearing protection while at work from the time his employer offered it until he retired.

According to the defendant, Mr. Oal-mann was sent a “Notice of Hearing Shift” from Dr. Istre dated December 26, 1991. On this notice, Mr. Oalmann was instructed to “[w]ear ear protectors at your place of work to prevent further hearing change,” and to “[r]etest and forward results.” Mr. Oalmann testified that he never received the December 26, 1991 notice. Additional hearing examinations were performed in 1996 and 1997, and the forms signed by Mr. Oalmann indicated a history of hearing loss and exposure to noise at previous jobs. Mr. Oalmann acknowledged signing the forms beneath the statement, “I have been counselled and made aware of the results of my hearing examination,” but claims other parts of the forms include numerous errors and misinformation that he did not provide and to which he did not agree. He gave similar testimony about other forms signed by him following hearing examinations conducted during his employment with defendant.

At trial, Mr. Oalmann was presented with his earlier deposition testimony in which he stated that another employee of the defendant, Mr. Geoff Willard, who is described as the “refinery nurse,” advised him that he had hearing loss in 1999. Mr. Oalmann stated in his trial testimony that he did not recall that conversation. In any event, he insisted that no one employed by the defendant ever told him that noise in the workplace was causing him to suffer hearing loss. When he had a | shearing test performed in the office of a physician for whom his wife worked in 2005, the results showed hearing loss, but Mr. Oal-mann attributed that to the aging process. The physician did not discuss the results with Dr. Oalmann. After that test, he was examined by a physician, Dr. Ross Roeser, who was referred to him by his attorney. He testified that his first knowledge that the noise at his place of employment with the defendant caused his hearing loss was during his visit with Dr. Roeser. Mr. Oal-mann filed his lawsuit against defendant on January 17, 2006.

Tommy Smith

Tommy Smith worked for the defendant for twenty-three (23) years, from 1976 to 1999. Mr. Smith passed away prior to trial, so his pre-trial deposition was introduced into evidence. He testified that he dropped out of school in the eighth (8th) grade. He voluntarily started wearing earplugs at work in 1977, stating that he did so because the noise bothered him. He said no one employed by the defendant ever told him to wear hearing protection. He recalled having only two (2) hearing tests at work. The second test was in 1995, and Mr. Smith was told afterward by Geoff Willard that he should have further testing because he had some hearing loss. He stated that at that time, he did not make a connection between the noise at work and his hearing loss. Rather, he attributed the hearing loss to the aging process.

In 2008, four (4) years after Mr. Smith retired from his employment with defendant, he noticed his hearing worsening, but did not seek medical attention at that time and did not relate the hearing loss to noise at his former employment. Mr. Smith testified that his first knowledge that his hearing loss was related to noise exposure at work was when he went for testing with an audiologist recommended to him by his lawyer. Dr. Phillip Wilson sent Mr. Smith a letter | ndated February 14, 2005, stating that his review of testing performed on Mr. Smith showed a severe high frequency hearing impairment consistent with noise-induced hearing loss. Mr. Smith filed suit against defendant on January 17, 2006.

Edgar Woodridge

Edgar Woodridge worked for the defendant for thirty-eight (38) years, from 1971 to 2009. He said that early in his career with the defendant, there was no hearing protection offered. When the noise became too bothersome, he would put cotton in his ears. He said that when he went home after work, his hearing seemed to return to normal. When hearing protection was offered by his employer, he wore it and continued to do so until he retired. The defendant first conducted a hearing test on Mr. Woodridge in 1976. At that time, he had normal hearing in his right ear, and slight high frequency sensorineural hearing loss in his left ear. He testified that no employee of the defendant explained to him the results of the test conducted in 1976, or of any of the subsequent hearing tests he underwent during his employment. With regard to forms signed by him following hearing tests, including ones in 2000, 2001 and 2003, Mr. Wood-ridge acknowledged signing the forms but denied authorship of the marks, checks and insertion of some information on those forms.

With regard to an audiogram conducted on October 10, 2000, which indicated that he had mild loss of hearing in his right ear and mild to moderate loss in his left ear, Mr. Woodridge testified that he was never informed of the test results. As for an audiogram conducted on him at Chalmette Medical Center on November 20, 2003, Mr. Woodridge stated that he was never made aware of test |12results, which showed that he had a mild to moderate hearing impairment. He also reported ringing in his ears at that time. He testified that he “probably asked questions” at Chalmette Medical Center, but could not recall what they were. He stated that no one employed by defendant ever informed him that he had hearing loss caused from exposure to noise at the workplace.

Mr. Woodridge consulted with audiologist Dr. Phillip Wilson, who informed him by letter dated July 18, 2005, that he had “a moderate high frequency hearing impairment in which occupational noise exposure is more likely than not a contributory factor.” Mr. Woodridge filed suit against the defendant on March 15, 2006.

In Becker v. Murphy Oil Corp., 2010-1519, p. 89 (La.App. 4 Cir. 6/2/11), 70 So.3d 885, 911-12, writ denied, 2011-1750 (La.11/23/11), 76 So.3d 1154, this Court, citing Guillot v. Daimlerchrysler Corp., 2008-1485, pp. 4-5 (La.App. 4 Cir. 9/24/10), 50 So.3d 173, 180, discussed the doctrine of contra non valentem, and specifically, the law regarding the provision of the doctrine that allows prescription to be suspended when the cause of action is not known or reasonably knowable by the plaintiff:

This Court has held that “[prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong.” Hoerner v. Wesley-Jensen, Inc., 95-0553, pp. 3-4 (La.App. 4 Cir. 11/20/96), 684 So.2d 508, 510 (quoting Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La.1987)). Rather, prescription begins to run against a claimant when he obtains actual or constructive knowledge of facts indicating a cause of action. Campo v. Correa, 2001-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510. Constructive knowledge of facts “is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry.” Campo, 2001-2007 [2001-2707], p. 12, 828 So.2d at 510-11. Constructive knowledge is also “tantamount to knowledge or notice of | ^everything to which a reasonable inquiry may lead,” and is sufficient to commence the running of prescription. Id., p. 12, 828 So.2d at 511. Mere apprehension that something could be wrong, however, is not considered constructive knowledge sufficient to begin the running of prescription. In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La.1991); Cordova v. Hartford Accident & Indemnity Co., 387 So.2d 574, 577 (La.1980). (Emphasis added).

In reasons for judgment, the trial court summarized the testimony of two of plaintiffs’ witnesses, Dr. Lawrence Weprin, an otolaryngologist, and Dr. Ross Roeser, an audiologist, as follows:

Hearing loss from chronic occupational exposure to loud noise is gradual and insidious and develops imperceptibly over time. The hearing loss is painless, progressive and permanent and not obvious to the individual Plaintiffs. Exposure to loud occupational noise may cause ringing in ears, but it subsides, allowing recovery when the source of the noise is no longer present. A threshold shift may follow unknown to the employee. This may go on for years and then finally you don’t recover, but you are not aware of it.

As the trial court further noted:

Even if an employee knows or should have known he was suffering from hearing loss, the cause of such a hearing loss or, at least, a significant contribution to a hearing loss may be caused by a variety of conditions or maladies. A plaintiff cannot be charged with knowledge of a medical condition simply because he has become aware that his condition could have been caused due to one of various causes. Cole v. Celotex, 620 So.2d 1154 (La.1993).

The trial court considered the plaintiffs’ limited education and medical sophistication, and determined that they were unable to discern the cause or relationship between their hearing loss and their employment before they were informed of this connection by an audiologist referred to them for consultation by their attorney in 2005. Whether or not they were informed by their employer that | 14they had hearing loss, which some of the plaintiffs dispute, the trial court accepted that plaintiffs’ testimony that they were never told that their hearing loss was caused by long-term exposure to noise in the workplace. Most of the plaintiffs testified that they attributed their hearing loss to the aging process. As for documents signed by plaintiffs indicating the results of hearing tests conducted on them while employed with the defendant, the trial court accepted plaintiffs’ testimony that either the test results were not explained to them or certain information listed on the forms was not there when the forms were signed.

With the exception of plaintiff, Tommy Smith, who died prior to trial and whose testimony was offered by deposition, the trial court observed the plaintiffs as they testified and found each to be credible. Because the trial court was in the best position to evaluate the credibility of the witnesses, we cannot say that his determination was unreasonable.

We are mindful of the fact that our standard of review is not whether we would have weighed the evidence differently; rather, the standard is whether the trial court’s determinations were manifestly erroneous or clearly wrong. Adhering to that standard, we do not find that the trial court’s ruling that the doctrine of contra non valentem operated to suspend the running of prescription in this case was manifestly erroneous or clearly wrong.

Defendant further argues that the trial court erred in finding the defendant liable to plaintiffs under theories of negligence and strict liability. The trial court noted that the concepts of negligence and strict liability are embodied in the Louisiana Civil Code under Article 2815, pertaining to negligence, and under 115ArticIes 2317 and 2322, pertaining to strict liability and liability of a premises’ owner or custodian. The trial court found the defendant liable in strict liability as the owner and custodian of a defective thing that causes injury or damage, and further found the defendant negligent for breaching its duty to provide plaintiffs with a safe place to work, and found that this breach caused damage to plaintiffs.

Before discussing the issue of liability, we must state that we find no merit in defendant’s argument that the trial court’s reasons show that he did not apply any standard, much less the proper standard, to the plaintiffs’ strict liability claims. The trial court mentioned the applicable code articles, and clearly followed the law under these articles. In any event, because there is ample evidence to support the trial court’s finding of negligence on the part of the defendant, we need not reach the issue of whether the defendant is also liable under a strict liability theory of recovery.

In Perkins v. Entergy Corp., 2000-1372, 2000-1387, 2000-1440, p. 7 (La.3/23/01), 782 So.2d 606, 611, the Louisiana Supreme Court set forth the elements necessary to prove a negligence claim, as follows:

Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis. The determination of liability under the duty/risk analysis usually requires proof of five separate elements: (1) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element). Boykin v. Louisiana transit Co., Inc., 96-1982, pp. 8-9 (La.3/4/98), 707 So.2d 1225, 1230 (citing David W. Robertson et al., Cases and Materials on Torts 83-84 (1989); Fowler v. Roberts, 556 So.2d 1 (La.1989) (on original hearing)). See also Roberts v. Benoit, 605 So.2d 1032, 1051 (La.1991). If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. See Mathieu v. Imperial Toy Corporation, 94-0952, p. 11 (La.11/30/94), 646 So.2d 318, 326.

At trial, the defendant provided voluminous evidence as to its “Hearing Conservation Program” and its alleged compliance with federal requirements of the Occupational Safety and Health Administration (“OSHA”). Defendant argues that it has, for decades, protected its workers from the risk of hearing loss from noise exposure. According to the defendant, the measures it has taken toward protection of its workers include: 1) audiograms of employees, 2) sound surveys of areas of the refinery, 3) provision of multiple forms of hearing protection, 4) training and counseling, 5) signs indicating areas where hearing protection is mandated, and 6) the employment of on-site nurses at the refinery.

While acknowledging that the defendant took some steps to address noise exposure in its workplace, the trial court found that the defendant did not do enough to protect its workers from noise-induced hearing loss. Even assuming arguendo that the defendant complied with federal OSHA regulations, which is disputed by plaintiffs, the trial court found that such compliance will not necessarily preclude a finding of negligence under Louisiana civil law.

After hearing the differing expert testimony offered by plaintiffs and defendant, the trial court noted that while the defendant presented testimony that noise levels at the refinery were well below the permissible OSHA levels, plaintiffs presented testimony that the sound surveys conducted by the defendant grossly [ ^underestimated the noise levels at the refinery. Plaintiffs’ evidence also questioned the validity of the sound surveys conducted by the defendant, and the effectiveness of hearing protection measures taken by defendant.

On the issue of causation, the trial court was faced with conflicting expert witnesses, including that of otolaryngologist, Dr. Lawrence Weprin, who testified for plaintiffs and opined that the plaintiffs’ hearing loss was substantially caused by their occupational noise exposure at defendant’s refinery, and of Dr. Alvin Katz, who testified for the defendant and opined that the type of hearing loss suffered by at least four of the five plaintiffs was inconsistent with long-term occupational noise exposure, and that noise at the defendant’s refinery was not the cause of plaintiffs’ hearing loss. All of the plaintiffs in this case have been diagnosed with high frequency bilateral hearing loss. The trial court accepted the testimony that the defendant was negligent in breaching its duty to provide a safe workplace for its employees with regard to noise exposure, and that this breach of this duty caused plaintiffs to suffer hearing loss. We do not find those determinations to be manifestly erroneous or clearly wrong.

Finally, the defendant argues that the trial court erred in limiting the testimony of plaintiff, Edgar Woodridge, and excluding testimony that is relevant to the issue of prescription. When defense counsel attempted to question Mr. Woodridge as to whether he was aware that several other employees at the refinery had filed lawsuits, plaintiffs’ counsel objected on the grounds that the question was irrelevant. The trial court sustained the plaintiffs’ objection.

The issue of whether evidence is relevant lies within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent clear abuse of discretion. Seddon v. Simpson, 2001-2873, p. 19 (La.App. 4 Cir. 4/17/02), 816 So.2d 915, 924-925, citing Ibieta v. Star Casino, Inc., 98-0314, p. 6 (La.App. 4 Cir. 10/7/98), 720 So.2d 143, 146. We find no abuse of the trial court’s discretion in this evidentiary ruling.

For the reasons stated above, the trial court judgment is affirmed.

AFFIRMED

      . Mr. Woodridge continued his employment with the defendant for three (3) years following the filing of his lawsuit in 2006.

      . We agree with the trial court that the case of Sellers v. Lykes Bros. Steamship Co., Inc., 94-1107 (La.App. 4 Cir. 12/28/94), 648 So.2d 496, is distinguishable from the instant case. The plaintiff in Sellers waited twenty (20) years after he retired to sue his former employer, and presented no evidence as to when he discovered that his hearing loss might be reasonably connected to his former employment.


author: PETERS, J. COOKS, J.,

text:
    SUCCESSION OF Melba Mitchell GRIGGS.
    No. 11-0172.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 2011.
    Rehearing Denied Feb. 1, 2012.
    Brandy McClure, Smith, Taliaferro & Purvis, Jonesville, LA, for Plaintiff/Appellant, Francis Clyde Griggs.
    Brent Stafford Gore, Attorney at Law, Ferriday, LA, for Defendants/Appellees, Katheryne Belinda Hoover Tyson, Glennell Hoover Byrd, Rita Bolyer.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, JIMMIE C. PETERS, J. DAVID PAINTER, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

11 Francis Clyde Griggs appeals a trial court judgment rendered against him in these succession proceedings finding him liable to the purported heirs of his deceased wife in the amount of $23,000.00. For the following reasons, we find that the purported heirs have no right or interest in instituting this suit and reverse the judgment.

DISCUSSION OF THE RECORD

This litigation began as a September 25, 2008 petition by Katheryne Belinda Hoover Tyson, Glennell Hoover Byrd, and Rita Bolyer (hereinafter sometimes referred to as “the Hoover heirs”) to be placed in possession of the property belonging to their deceased mother, Melba Lee Mitchell Griggs. Their original petition asserts that their mother died intestate on June 9, 2000; that she had been married twice, first to Charles Ray Hoover, from whom she was divorced in February of 1971, and then to the defendant in these proceedings, Francis Clyde Griggs; that they were born of the marriage to Charles Ray Hoover; and that at the time of her death their mother was still married to Mr. Griggs. Of critical importance to the posture of the matter now before us, the Hoover heirs asserted in their petition to be placed in possession that “[n]o administration of this estate be [sic] required or is necessary.” A notation at the end of the petition requested personal service on Mr. Griggs.

The Hoover heirs attached a three-page detailed descriptive list to their petition to be placed in possession. The attachment lists property both movable and immovable that they assert comprises the community property belonging to the deceased and Mr. Griggs, as well as two items of movable property that they claim were the separate property of their mother. The item at issue in this litigation is one of the two items of purported separate property and is described in the detailed 12descriptive list as a “Guitar in possession of Harley Humphrey. Claim to be filed for return of guitar.” The guitar’s value is listed at $28,000.00.

The succession proceeding lay dormant for almost a year before the next filing occurred. On August 20, 2009, the Hoover heirs filed an amended detailed descriptive list wherein they again referred to the guitar along with other assets. The amended list described the guitar as follows:

Guitar in or formerly in possession of Harley Humphrey. The Guitar was improperly and wrongfully in possession of Harley Humphrey by Francis Clyde Griggs. Francis Clyde Griggs or Harley Humphrey owes the Succession for return of guitar or its fair market value.

(Emphasis added.)

The listed value of the guitar remained at $23,000.00.

On that same day they amended the detailed descriptive list, the Hoover heirs filed a pleading entitled “PETITION TO RETURN FUNDS TO THE SUCCESSION.” In this pleading, the Hoover heirs sought to name Harley Humphrey as a defendant in the proceedings. They asserted that Mr. Humphrey was Mr. Griggs’ brother-in-law and that after their mother died Mr. Griggs had given Mr. Humphrey the guitar. The pleading sought a judgment against Mr. Humphrey ordering him “to return the guitar or funds equal to the amount of the guitar, to be administered and distributed pursuant to the orders of this Court.” (Emphasis added.) Attached to the petition was an interrogatory addressed to Mr. Humphrey requesting that he produce an appraisal of the guitar that he purportedly had in his possession.

Mr. Griggs finally became a party to the litigation on October 7, 2009, when he filed a motion to traverse the Hoover heirs’ detailed descriptive lists. In his pleading, Mr. Griggs asserted that various items not at issue in this appeal were not properly described and/or valued. In reference to the guitar, Mr. Griggs stated: |3“Guitar was given to Harley Humphrey. The guitar did not work at the time of Mrs. Griggs’ death. The value is incorrectly listed; the correct value is $0.”

After a number of attempts to settle the disputes raised by Mr. Griggs’ October 7, 2009 motion, those issues finally came before the trial court for hearing on March 8, 2010. However, before the beginning of the hearing on Mr. Griggs’ traversal, the trial court allowed the Hoover heirs to confirm a default judgment against Mr. Humphrey based on the August 20, 2009 filing seeking recovery of the guitar or its value.

In the confirmation proceedings, Rita Bolyer testified on behalf of the Hoover heirs. After hearing Ms. Bolyer’s testimony and after considering internet information with regard to the value of a vintage Martin guitar, which she suggested was the same brand as the guitar at issue in the litigation, the trial court rendered judgment against Mr. Humphrey in the amount of $67,500.00. The written judgment signed on March 26, 2010, awards the amount to the three Hoover heirs as “heirs to the estate of Melba Lee Mitchell Griggs.”

The hearing concerning the disputes between the Hoover heirs and Mr. Griggs began immediately after confirmation of the default judgment against Mr. Humphrey. Ms. Bolyer was again the only witness for the Hoover heirs. With regard to the guitar, she attempted to use the same internet information to establish the value of a vintage Martin guitar, but the trial court sustained Mr. Griggs’ hearsay objection. She then testified that Mr. Griggs had informed her that Mr. Humphrey had told him that he (Mr. Humphrey) had a written appraisal reflecting the guitar’s value at $23,000.00. The trial court rejected Mr. Griggs’ hearsay objection to this testimony. When questioned concerning how she knew that the 14 guitar at issue was a Martin guitar, Ms. Boelyn stated that “[w]e were raised with the guitar and my brother-in-law is an expert on musical instruments and he said it was a Martin guitar and Mr. Humphrey’s attorney stated it was a Martin guitar in one of his letters corresponding to Mr. Gore [the Humphrey heirs’ attorney].”

Mr. Griggs acknowledged that the guitar at issue was the separate property of his deceased wife, but also testified that the guitar was never in very good condition despite his wife’s attempts to fix it. He denied knowing the brand of the guitar or its value, and claimed that his wife had given the guitar to Mr. Humphries before her death. Mr. Griggs asserted that he had never heard his wife’s son-in law play the guitar and had no idea of its value.

Upon completion of the evidence, the trial court took the matter under advisement. On June 17, 2010, the trial court entered a judgment addressing all the issues raised at the March 8, 2010 hearing. With regard to the guitar, the judgment stated the following:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be Judgment herein in favor of the Succession of MELBA LEE MITCHELL GRIGGS and against Defendant, FRANCIS CLYDE GRIGGS, in the amount of $28,000.00, together with legal interest thereon from date of judicial demand until paid, for the wrongful conversion of one Martin guitar owned by the Succession of MELBA LEE MITCHELL GRIGGS and given by Defendant, FRANCIS CLYDE GRIGGS, to Defendant’s brother-in-law, one Harley Humphrey, without the knowledge of or consent of KATHERYN BELINDA HOOVER TYSON, GLENNELL HOOVER BYRD, and RITA BOLYER.

(Emphasis added.)

By a judgment signed on October 19, 2010, the trial court rejected Mr. Griggs’ motion for new trial on the guitar issue and this appeal followed. Mr. Griggs asserts in his one assignment of error that “[t]he trial court erred in its | ^conclusion that the value of the guitar in the Succession of Melba Lee Mitchell Griggs is $23,000.00.”

OPINION

The initial pleading filed by the Hoover heirs appears on the surface as nothing more than an attempt to take advantage of the provisions of La.Code Civ.P. arts. 3001-3008, which address a succession proceeding where the parties seek to be placed into possession of the assets of an intestate succession involving no underlying issues requiring an administrated succession. While nothing within that process contemplates its use to litigate disputed issues, the Hoover heirs make it clear in their initial detailed descriptive list that conflicts exist between their mother’s estate and Mr. Griggs. That being the case, the proper approach to address the conflicting claims is by placing the succession under administration pursuant to La.Code Civ.P. art. 3091, et seq., using the duly qualified succession representative appointed by the court as the proper plaintiff to enforce any right the succession may have against Mr. Griggs. See La.Code Civ.P. art. 685 and the comments that follow that Article.

That being the case, the Hoover heirs have no standing to pursue this claim through the succession proceeding as it now stands. Acting on the authority of La.Code Civ.P. art. 927(B), we grant an exception of no right of action as provided for by La.Code Civ.P. art. 927(A)(6) to reverse the trial court judgment and remand the matter to the trial court for further proceedings consistent with this opinion.

DISPOSITION

IfiFor the foregoing reasons, we reverse that part of the trial court judgment rendered against Francis Clyde Griggs and remand the matter to the trial court for further proceedings consistent with this opinion. We assess all costs of this appeal to Katheryne Belinda Hoover Tyson, Glen-nell Hoover Byrd, and Rita Bolyer.

REVERSED AND REMANDED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

h The three children and only heirs of the intestate decedent filed a petition for possession without administration. A Detailed Descriptive List showing the assets and debts of the succession was also filed. The decedent’s separate and community property assets are listed, totaling an estimated $249,356.50 plus an undetermined amount of interest earned during the marriage on stock dividends, security funds and investments owned by Francis Clyde Griggs (Mr. Griggs). The total debts of the Succession are listed as $76,583.00 which includes a mortgage in the amount of $11,780.00; funeral expenses totaling $10,803.00; attorney fees and court costs $4,000.00; and $50,000.00 medical bills. The succession is not under administration. No creditor petitioned for an administration, and neither did Mr. Griggs or any of the three children. The heirs were willing to accept the succession and be placed in possession without the benefit of an inventory or appraisal of assets. Counsel for plaintiffs and defendants both admitted in oral argument that an administration is not needed.

Article 3001 of Code of Civil Procedure provides that heirs may be put in possession without an administration when all of the heirs are competent and all accept the succession and when “the succession is relatively free of debt”. The code defines a succession as “relatively free of debt” when “its only debts are administration expenses, mortgages not in arrears, and debts of the decedent that are small in comparison with the assets of the succession”. La.Code Civ. P. art. 3001(A). Based on the representations in the detailed descriptive list, and the amended list, the heirs of this succession could be sent into possession without an | ^administration. Leaving out the mortgage which is not in arrears, and administration costs, the debts of the decedent are small in comparison with the assets. See for example Succession of Pyle, 434 So.2d 523 (La.App. 2 Cir., 1983) wherein the court found that a succession was “relatively free from debt” where it had assets of $45,706.97 and debts of $28,845.51. The ratio of assets to debts in the succession before us is much greater.

The Louisiana Civil Code provides in Article 934 “Succession occurs at the death of a person” and in Article 935 provides “Immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.” La.Civ.Code Art. 935 further provides “Prior to qualification of a succession representative only a universal successor may represent the decedent with respect to the heritable rights and obligations of the decedent.” La.Civ.Code Art. 936 provides “The succession of the decedent is transferred to his successors, whether testate or intestate, whether particular, general, or universal legatees. A universal successor continues the possession with all its advantages and defects, and with no alteration in the nature of the possession.” Particularly relevant to the issue before us are the further provisions of the Louisiana Civil Code in Article 938 which provides: “(A) Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole. (B) If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate.”

The three heirs in this case acted prior to the qualification of a succession representative and under the express provisions of La.Civ.Code Art. 938(A), they have standing and they enjoy the right to exercise their rights as owners in any “thing” belonging to the estate, such as a guitar, or as to their interest in the whole Restate. It is true, as the majority points out, that La. Code Civ. P. art. 685 (emphasis added) provides in part: “Except as provided by law, the succession representative appointed by a court of this state is the proper plaintiff to sue to enforce a right of the deceased or of his succession, while the latter is under administration.” However, when read with the aforementioned Code articles it is clear that Article 685 applies only after a succession representative has been appointed. It is not necessary in this case to appoint a succession representative as acknowledged by all parties concerned. The administration of this relatively small succession will needlessly deplete the assets. For these reasons I do not agree with the majority’s granting an exception of no right of action on our own motion. I believe the heirs have a legal right to proceed, and we must review their appeal. For these reasons I must respectfully dissent.

      . Counsel for Mr. Griggs objected to Ms. Bo-lyer’s use of the internet information in establishing the value of the guitar, and the trial court made it clear that anything presented to confirm the default was not to be considered a part of the Hoover heirs’ proof in the disputes between them and Mr. Griggs.

      . While Ms. Boelyn never identified her brother-in-law by name, it is apparent from the record that this is Freddie Joe Tyson.

      . While the default judgment rendered against Harley Humphrey suffers from the same defect, that issue is not before us.