author: JAMES F. McKAY III, Judge. JONES, J.,

text:
    Michael L. BROWN and William C. Pritchard v. Marion Sullivan VanDenburgh SCHREINER and American Wholesale Fence Co., Inc. American Wholesale Fence Co., Inc. v. Marion VanDenburgh Pritchard and the Orleans Parish Levee District.
    Nos. 2010-CA-1436, 2010-CA-1437.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 2011.
    Rehearing Denied Dec. 20, 2011.

      David M. Hunter, Eric Michael Liddick, Jones Walker Waechter Poitevent Carrere & Denegre, LLP, New Orleans, LA, for Defendant/Appellee, Marion VanDenburgh Pritchard.
    Gerard G. Metzger, Charles T. Curtis, Jr., Gerard G. Metzger, APLC, New Orleans, LA, for Defendant/Appellee, The Orleans Parish Levee District.
    Randall A. Smith, J. Geoffrey Ormsby, Smith & Fawer, L.L.C., New Orleans, LA, for Defendant/Appellant, American Wholesale Fence Co., Inc.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

| fin this action, which involves a dispute over a lease, the plaintiffs, American Wholesale Fence Company, Inc., Michael L. Brown and William C. Pritchard, appeal the trial court’s granting of exceptions of no cause of action and prescription in favor of the defendants, Marion VanDenburgh Pritchard and the Orleans Parish Levee District. We affirm.

FACTS AND PROCEDURAL HISTORY

In 1972, Peter A.G. VanDenburgh, acting on behalf of American Wholesale Fence Company, Inc. (AWFC), leased Boathouse N-33 from the Orleans Parish Levee District. Mr. VanDenburgh passed away in 1987, and upon his death his interest in AWFC passed to his daughter, Marion, who continued to operate and control the company. At some point, Marion married William C. Pritchard; they later divorced. However, prior to the divorce, Mr. and Ms. Pritchard and Michael L. Brown all signed an agreement that they were equal owners of AWFC.

In late 1991, before the lease on the boathouse lapsed, Ms. Pritchard approached the Levee District in accordance with the lease terms and requested | fihat the Levee District allow the assignment of the lease from AWFC to her. The Levee District agreed to this and on December 20, 1991, it entered into an amended lease naming Ms. Pritchard as the lessee. Thereafter, Ms. Pritchard paid the boathouse rent and insurance premiums from her personal account. For the next fifteen years, she also paid the tax assessments.

In October of 2008, Mr. Brown and Mr. Pritchard, through AWFC, filed suit against Ms. Pritchard and the Levee District seeking a writ of mandamus directing the Levee District to cancel the lease with Ms. Pritchard and also directing the Levee District to renew the lease agreement in the name of AWFC as the lessee. Both Ms. Pritchard and the Levee District raised peremptory exceptions of no cause of action and prescription. In August of 2009, the trial court sustained the exceptions and dismissed the plaintiffs’ petition without prejudice. Thereafter, AWFC filed a motion for leave of court to file an amended, supplemental, and restated petition for petitory action and declaratory judgment. The trial court granted leave to file the amended petition.

The amended, supplemental and restated petition sought that the trial court declare the following: the transfer of the boathouse and/or the lease agreement into Ms. Pritchard’s name was void ab initio; that AWFC is the proper owner and/or proper lessee on the lease agreement; and that AWFC is the proper owner of the boathouse, as well as any other equitable relief the court deemed appropriate. Ms. Pritchard raised the peremptory exceptions of no cause of action and prescription. On January 12, 2010, the trial court sustained her exception of no cause of action |sbut granted the plaintiffs thirty (30) days to amend their petition. The plaintiffs then filed their second amended, supplemental and restated petition for declaratory judgment. Ms. Pritchard again filed an exception of prescription which the trial court granted and dismissed the case with prejudice on April 13, 2010. The plaintiffs now appeal.

DISCUSSION

On appeal, the plaintiffs raise the following assignments of error: 1) did the trial court err in finding that AWFC did not assert a cause of action for a writ of mandamus seeking invalidation of the transfer and with the issuance of a writ of mandamus to the Levee District to name AWFC as the proper lessee; 2) did the trial court err in granting the defendant/appellee Pritchard’s exception of no cause of action as to the petitory action; and 3) did the trial court err in granting defendant/appellant Pritchard’s exception of prescription as to the petition for declaratory judgment?

Mandamus

In their first assignment of error, the plaintiffs contend that the trial court erred in finding that the plaintiffs had no cause of action for a writ of mandamus seeking invalidation of the transfer of the lease or for the issuance of a mandamus to the Levee District to name AWFC as the proper lessee. This judgment was rendered on August 6, 2009 and a notice of judgment was issued on August 17, 2009. However, the plaintiffs did not appeal this judgment until May 7, 2010. Clearly, the appeal of this judgment is untimely. See La. C.C.P. art. 2087. |4Accordingly, the plaintiffs’ first assignment of error is not properly before this Court.

Petitory Action

In their second assignment of error, the plaintiffs contend that the trial court erred in finding that they had no cause of action as to the petitory action. This judgment was rendered on January 12, 2010 and a notice of judgment was issued on January 19, 2010. This was an interlocutory judgment which afforded the plaintiffs an opportunity to amend within thirty (30) days. The plaintiffs filed an amendment on February 11, 2010. Therefore, the matter then became moot. In any event, the plaintiffs did not appeal this judgment until May 7, 2010, which also makes it untimely. See La. C.C.P. art. 2087.

Prescription

In their final assignment of error, the plaintiffs contend that the trial court erred in finding that their claims against Ms. Pritchard had prescribed. This judgment was rendered on April 13, 2010 and was timely appealed.

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Katz v. Allstate Ins. Co., 2004-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444. When evidence is received on the trial of the exception, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard. Id. Louisiana law provides no prescriptive period specifically applicable to a declaratory judgment action. | ^Instead, courts must look to the cause of action that forms the underlying basis of the request in determining which prescriptive period applies, dela Vergne v. dela Vergne, 99-0364, p. 8 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271, 1275.

In the instant case, AWFC’s underlying claim sounds in tort for breach of fiduciary duty or fraud. These offenses have a li-berative prescriptive period of one year, which commences to run when the other party has knowledge of the wrongful act. See La. C.C. art. 3492; see also La. R.S. 12:1502.

Based on the record before this Court, we know that on June 14,1996, Mr. Pritch-ard obtained records from the Levee District showing that Ms. Pritchard had had the boathouse lease changed into her name as lessee. We also know that on June 9, 1997, Mr. Pritchard listed the boathouse as community property in his sworn descriptive list in connection with his divorce from Ms. Pritchard. Mr. Pritchard had knowledge of Ms. Pritchard’s alleged wrongful act on these dates. Accordingly, the one year prescriptive period began to run on June 14, 1996 or June 9, 1997 at the latest.

On November 10, 2003, Mr. Pritchard and Mr. Brown obtained a judgment recognizing them as co-equal owners of AWFC. Therefore, at this time, Mr. Pritchard and Mr. Brown, jointly, as sole officers of AWFC had actual knowledge that Ms. Pritchard had purloined the lease. However, they did not file suit until October of 2008. This is more than one year after having actual knowledge of what Ms. Pritchard did back in 1991. Their action against Ms. Pritchard had clearly prescribed.

^CONCLUSION

The plaintiffs’ appeal of the judgments for no cause of action regarding both the mandamus and petitory actions is untimely. There is no error in the trial court’s maintaining of the defendant’s exception of prescription. Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

JONES, J., concurs in part and dissents in part with reasons.

KIRBY, J., concurs in part and dissents in part for the reasons assigned by Judge JONES.

JONES, J.,

concurs in part and dissents in part with reasons.

|,I agree with the finding of the majority that the Appellant, American Wholesale Fence Company, Inc. (“AWFC”), untimely sought review of the judgments of the district court granting the exceptions of no cause of action of the Appellees, Marion VanDenburgh Pritchard and the Orleans Parish Levee District, as to the mandamus and petitory actions of AWFC. However, as to the third issue raised by AWFC, I would reverse the judgment of the district court.

The third issue raised on appeal by AWFC is that the district court erred in granting the exception of prescription of Ms. Pritchard as to the Petition for Declaratory Judgment of AWFC. The granting of an exception of prescription is reviewed by appellate court under the manifest error standard of review. An appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Parker v. B & K Const. Co., Inc., 06-1465, p. 2 (La.App. 4 Cir. 6/27/07), 962 So.2d 484, 485 (citing Katz v. Allstate Ins. Co., 04-1183 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444).

The Louisiana Supreme Court has explained that the right to seek a declaratory judgment does not itself prescribe. Church Point Wholesale Beverage Co., Inc. v. Tarver, 614 So.2d 697, 708 (La.1993). “Rather, prescription is only an issue in terms of the plaintiffs standing to seek the declaratory judgment.” Id. at 708. This Court has previously held that in order to decide whether a cause of action has prescribed, the nature of the cause of action has to be known. We noted:

[t]he nature of a cause of action must be determined before it can be decided which prescriptive term is applicable. Hampton v. Hibernia National Bank, 598 So.2d 502 (La.App. 2nd Cir.1992); State of Louisiana, Department of Highways v. City of Pineville, 403 So.2d 49 (La.1981). The character of an action disclosed in the pleadings determines the prescriptive period applicable to that action. Star[ri}s v. Emmons, 538 So.2d 275 (La.1989).

dela Vergne v. dela Vergne, 99-0364, p. 8 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271, 1275 (quoting Pineda v. Ruppel, 94-136 (La.App. 5 Cir. 6/28/94), 639 So.2d 858).

The district court determined that the claim of AWFC against Ms. Pritchard had prescribed. The record, however, does not indicate whether the district court applied a delictual prescriptive period under La. C.C. art. 3492, a statutory prescriptive period under La. R.S. 12:1502(C) or a personal prescriptive period under La. C.C. art. 3499, when it held that the case prescribed. Louisiana Civil Code article 3492, entitled Delictual Actions, states:

Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.

| oLa. R.S. 12:1502, entitled Actions against persons who control business organizations, provides in pertinent part:

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect.
D. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission.

Lastly, a personal action is defined as “one brought to enforce an obligation against the obligor, personally and independently of the property which he may own, claim, or possess.” La. C.C.P. art. 422; Parry v. Administrators of Tulane Educ. Fund, 2002-0882 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, 40, writ denied, 2002-2478 (La.12/19/02), 883 So.2d 346. In the absence of any applicable legislation, personal actions are subject to a liberative prescription of ten years. La. C.C. art. 3499. We have held that the introductory clause of La. C.C. art. 3499 is a “catch-all provision” that covers personal actions not specifically covered by any other prescriptive period. Parry v. Administrators of Tulane Educ. Fund, 2002-0382, p. 16 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, 40, writ denied, 2002-2478 (La.12/19/02), 833 So.2d 346.

This Court has recognized that the facts forming the basis of a cause of action may afford a plaintiff concurrent remedies. dela Vergne, 99-0364, p. 9, 745 So.2d at 1276 (citing Aetna Life & Cas. Co. v. Dotson, 346 So.2d 762 (La.App. 1 Cir.1977), writ den., 349 So.2d 1272). In the matter sub judice, I would find that the petition of AWFC is based on a lease, and actions grounded on a lease are personal actions. 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise-Property § 242 (4th ed.2010); Good v. Laird, 41,205, p. 7-8, (La.App. 2 Cir. 6/30/06), 935 So.2d 809, 813 [where the Second Circuit held that an action to nullify a lease is a personal right]. There are no other prescriptive periods for personal actions applicable to this matter.

The nature of the right that each litigant seeks to enforce determines the classification of an action as personal or real. 2 A.N. Yiannopoulos, Louisiana Civil Law Treatise-Property § 242 (4th ed.2010). Our jurisprudence distinctly recognizes that actions grounded on a lease are personal actions. In the matter sub judice, AWFC seeks to enforce the leasehold interest that originated in 1972, but was allegedly altered by the unauthorized ex parte actions of Ms. Pritchard. Other courts have held that a prescriptive plea has no standing against contracts charged to be without legal authority and null and void ab initio. See Caster v. Miller, 39 F.Supp. 120,125 (EJD.La.1941).

AWFC may very well have levied delic-tual and statutory claims against Ms. Pritchard; however, the allegations contained within the Second Amended, | ^Supplemental, and Restated Petition for Declaratory Judgment are primarily based on the lease. This is especially true when considering that the actual relief sought by AWFC is the clearing of its leasehold interest with the District. Other than describing the role of Ms. Pritchard in having the lease assigned and her actions subsequent thereto, AWFC does not seek any relief from Ms. Pritchard. Indeed, essentially the relief sought is for the Third and Fourth Lease Amendments to be declared void ab initio, and that AWFC is recognized as the proper lessee by the district court. Thus, I would apply a ten year prescriptive period to this matter under La. C.C. art. 3499.

A prescriptive period begins to run if the injured party has constructive knowledge of facts that would entitle him to bring a suit. Campo v. Correa, 2001-2707, p. 12 (La.6/21/02), 828 So.2d 502, 510-11. The Supreme Court explained that constructive notice:

... is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Ledet v. Miller, 459 So.2d 202 (La.App. 3 Cir.1984), writ denied, 463 So.2d 603 (La.1985); Bayonne v. Hartford Insurance Co., 353 So.2d 1051 (La.App. 2 Cir.1977); Opelousas General Hospital v. Guillory, 429 So.2d 550 (La.App. 3 Cir.1983).

Id., 2001-2707, p. 12, 828 So.2d at 510-11.

The earliest possible prescriptive period would have commenced in December of 1991, when the lease was assigned to Ms. Pritchard. From the time that the initial lease assignment was made in 1991, to the date that AWFC filed suit against Ms. Pritchard in 2007, over fifteen years passed. Mr. W. Pritchard was the secretary of AWFC in 1991, and both he and Mr. Brown co-owned AWFC with Ms. Pritchard, pursuant to the December 1987 contract. However, AWFC pled that the 1991 lease assignment was not approved by AWFC; consequently, it Rstands to reason that neither Mr. W. Pritchard, in his capacity as secretary, nor Mr. Brown knew of the alleged improper assignment at the time it occurred. Ms. Pritchard points out that Mr. W. Pritchard listed the disputed Boathouse as a Community Property asset in a 1997 Sworn Detailed Descriptive List. She also argues that in 1996, Mr. W. Pritchard made a Public Records Request to the District requesting to see the 1991 amended lease. This evidences that in 1996 or by 1997, Mr. W. Pritchard was aware that Ms. Pritchard claimed ownership of the Boathouse, otherwise he would not have known to list the property as a community asset. Thus, within five (5) or six (6) years of the lease assignment, either Mr. Brown or Mr. W. Pritchard knew about the 1991 lease amendment.

Either Mr. Brown or Mr. W. Pritchard contractually had the right to sue on behalf of AWFC when they discovered the alleged improper lease assignment because the men became shareholders of AWFC in 1987, pursuant to their agreement with Ms. Pritchard. A shareholder may sue to recover losses to a corporation secondarily through a shareholder’s derivative suit. See St. Bernard Optical Corp. v. Schoenberger, 05-0548, p. 6 (La.App. 4 Cir. 1/25/06), 925 So.2d 604, 608 (citing Pittman v. Beebe, 95-1342 (La.App. 3 Cir. 3/6/96), 670 So.2d 761). Thus, as shareholders of the corporation, both Mr. W. Pritchard and/or Mr. Brown could have timely filed suit against Ms. Pritchard on behalf of AWFC. Moreover, either man could have sued in their personal capacity to both enforce the 1987 contract and contest the alleged improper assignment. Nevertheless, by 2007 or ten years from 1997 — at the latest — under a liberative prescriptive period of ten years, AWFC, Mr. Brown or Mr. W. Pritchard should have filed suit against Ms. Pritchard with regard to the 1991 lease amendment. AWFC waited until October of 2008 to file suit.

However, the record shows that in March of 2004, Ms. Pritchard stipulated that AWFC has always been the owner of Boathouse # N-33. Such a stipulation ^appears to be an acknowledgement of the ownership interest of AWFC. Louisiana Civil Code article 3464 provides that “[prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.”

An acknowledgment sufficient to interrupt prescription may be made verbally, in writing, by partial payment, by payment of interest, or by pledge, or in other ways. In other words, it need not be in any particular form. It may be implicit or it may be inferred from the facts and circumstances. Richardson v. Louisiana Farm Bureau Mut. Ins. Co., 393 So.2d 200, 202 (La.App. 1 Cir.1980) writ denied, 398 So.2d 529 (La.1981) (citing Lake Providence Equipment Company v. Tallulah Production Credit Association, 257 La. 104, 241 So.2d 506 (1970)); Comment, Interruption of Prescription by Acknowledgment in Louisiana, 14 Tul.L.Rev. 430 (1940). “If prescription is interrupted, the time that has run is not counted, but commences to run anew from the last day of interruption.” La. C.C. art. 3466.

In the instant matter, the stipulation between the parties was executed within approximately eight (8) years of 1996. If the 2004 stipulation entered into by Ms. Pritchard is an acknowledgement, the ac-knowledgement was made within the ten (10) year personal prescriptive period that would have elapsed by 2007, at the latest. Consequently, I would remand this matter to the district court to determine whether prescription was interrupted against Ms. Pritchard as to any portion of the claims levied against her, and to further determine what effect, if any, such an interruption of prescription would have on the present litigation. Thus, I respectfully dissent in part from the opinion of the majority.


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Nancy Davis JUDSON, Secretary/Treasurer Hall’s Mortuary Inc., Plaintiff v. Hall DAVIS, IV, President, Hall’s Mortuary, Inc., Defendant.
    No. 2011 CA 0623.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Alfreda Tillman Bester, Ernest L. Johnson, Baton Rouge, LA, for Plaintiff/Appellant Nancy Davis Judson.
    Felicia F. Davis, Port Allen, LA, for Defendant/Appellee Hall Davis, IV.
    Davis B. Allgood, Christopher D. Martin, Baton Rouge, LA, for Appellee Edward J. Merrick, Jr.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   GAIDRY, J.

| aOnce again, this court must traverse the tangled procedural maze of this civil action relating to the dissolution of a close corporation. We conclude that most of the prior orders and judgments sought to be appealed by the appellant have long acquired the status of res judicata, that the present appeal of those orders and judgments is untimely, that the final decretal elements of the judgment appealed are unappealable by the appellant, and that the remaining interlocutory judgments appealed in connection with the final judgment demonstrate no abuse of the trial court’s discretion. We accordingly sustain the appellee’s exception of res judicata in part, overrule the exception in part, dismiss the appeal in part, amend the judgment, and affirm the judgment, as amended, in all other respects.

FACTS AND PROCEDURAL HISTORY

In an earlier reported decision in this matter, we described the “tortuous trail” of this litigation from its commencement in September 2002 though the summary judgment ordering the involuntary dissolution of the corporation in April 2004. Judson v. Davis, 04-1699, pp. 2-6 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1109-12, writ denied, 05-1998 (La.2/10/06), 924 So.2d 167. Since the rendition of our reported decision, the trail has only become more circuitous and the procedural maneuvers more contentious, and numerous attempted appeals and applications for supervisory writs have been filed by Ms. Judson, the original plaintiff. Our ^decision affirmed the summary judgment ordering the involuntary dissolution, granted on motion of Mr. Davis. We briefly summarize the relevant procedural history since our prior decision.

On March 10, 2004, an interpleader action was filed against Ms. Judson, Mr. Davis, and Hall’s Mortuary, Inc., the corporation at issue, by Conseco Life Insurance Company (Conseco) in the U.S. District Court for the Middle District of Louisiana. The subject of the action was the distribution of the proceeds of a life insurance policy on a key corporate employee, due to a dispute over whether Mr. Davis or the corporation was the policy beneficiary.

Ms. Judson answered the federal court complaint and also served a cross-claim against Mr. Davis and third-party claims against the liquidator, Edward J. Merrick, Jr., and his attorney, among others, alleging a conspiracy by the opposing parties to deprive her of property without due process of law. She also requested injunctive relief to stay the state court dissolution proceedings, alleging that the trial court’s “inordinate bias” rendered it “a foregone conclusion that it will dissolve her corporation without due process of law” if the requested injunctive relief were not issued. The federal district court declined to issue such relief. After nearly two years of contentious litigation in that court, the federal court ultimately rendered judgment on March 31, 2006, declaring the corporation, rather than Mr. Davis, the beneficiary of the life insurance policy. Conseco Life Ins. Co. v. Judson, 04-CV-155 (M.D.La.2006), reversed in part on other grounds, 214 Fed.Appx. 446 (C.A.5th (La.) 2007).

During the pendency of the federal court interpleader action, Ms. Judson attempted to interject unrelated issues relating to the dissolution proceeding in the federal interpleader action. It was necessary for the state)¿trial court, in defense of the exercise of its jurisdiction, to enjoin her from attempting to litigate any matters unrelated to the interpleader action in the federal district court. It accordingly issued an order to that effect on May 12, 2004.

In accordance with a detailed plan of liquidation, approved by the trial court, Mr. Merrick attempted to sell the business of the corporation, a funeral home, as a going concern. His efforts in that regard were unsuccessful, and he therefore followed the liquidation plan’s alternative course of selling the corporation’s tangible assets, including its immovable property. On motion of Mr. Merrick, following extensive evidentiary hearings on June 23, 2006, and July 31, 2006, the trial court approved the sale of the immovable property and payment of the real estate broker’s commission by judgment signed on August 23, 2006. That judgment also addressed a motion by Mr. Davis to require court approval of payment of liquidation fees and expenses and motions by Ms. Judson to distribute the Conseco insurance policy proceeds to the two stockholders (Mr. Davis and Ms. Judson) and to vacate the injunction of May 12, 2004. The trial court granted Mr. Davis’s motion, requiring the liquidator’s submission of ex parte motions for approval of payment of fees and expenses. The trial court denied Ms. Judson’s motions.

Ms. Judson attempted to appeal the judgment of August 23, 2006. Her motion for appeal expressly limited her appeal to “that part” of the judgment approving the sale of immovable property and “that part” of the judgment denying her motion seeking distribution of the proceeds of the Con-seco policy. We granted Mr. Merrick’s motion to dismiss the appeal on the grounds that the judgment was an interlocutory judgment for which an |sappeal was not expressly provided by law. Judson v. Davis, 2007 CA 1105 (La.App. 1st Cir.9/4/07) (unpublished opinion).

In the course of administering the liquidation proceeding, Mr. Merrick discovered certain suspicious financial transactions by Mr. Davis, suggestive of serious impropriety and breaches of fiduciary duty to the corporation on his part. Mr. Merrick filed a civil action for recovery of the corporate funds allegedly misused by Mr. Davis. After Mr. Merrick reported the suspected improprieties to the trial court, the erstwhile adversaries, Ms. Judson and Mr. Davis, joined to file a motion to remove Mr. Merrick as liquidator and to remove his counsel, who had been appointed by the trial court. The trial court granted that motion on February 11, 2008.

On February 22, 2008, Mr. Merrick filed a contradictory motion seeking court approval of his actions as liquidator and ho-mologation of his final accounting as liquidator. The motion was fixed for hearing on May 15, 2008, with notice issued to Ms. Judson and Mr. Davis. The hearing was converted to a status conference in chambers. In addition to excepting to and opposing the liquidator’s motion for homolo-gation, Ms. Judson filed a “Motion for Distribution,” seeking immediate distribution of her share of the net assets of the corporation and alleging that all corporate property had been sold and all debts and liabilities had been paid.

On April 9, 2008, Mr. Merrick deposited the corporation’s funds into the registry of the trial court.

|fiOn May 28, 2008, Mr. Merrick filed another motion seeking court approval and homologation of his amended and supplemented final accounting. The final hearing on that motion for homologation was eventually set for August 14, 2008.

On August 14, 2008, the final hearing was held on Mr. Merrick’s motion for ho-mologation of his final accounting. His motion was granted, the court expressly finding that “all of the [liquidator’s actions reflected therein have been valid, have been in the best interests of the [corporation and its shareholders and creditors, and have been consistent with the orders of this [cjourt, his fiduciary duty, and applicable law.” The trial court signed its judgment that day, homologating the final accounting as supplemented and amended. No timely appeal of that judgment was taken.

On October 22, 2008, Ms. Judson filed a “Motion for Final Judgment & Distribution of Funds With Incorporated Memorandum in Support.” On November 13, 2008, the trial court signed a judgment on those combined motions, prepared by Ms. Judson’s counsel, declaring Hall’s Mortuary dissolved; ordering the distribution of the sum of $861,879.22 to Ms. Judson and Mr. Hall, in equal proportions; ordering the disputed amount of $82,255.10 to be retained in the court registry; and ordering the transfer of the corporate records to the clerk of court. The judgment further declared that it was a “full and final judgment.”

Ms. Judson attempted to appeal the judgment of November 18, 2008, but we granted Mr. Merrick’s motion to dismiss the appeal on the grounds that the judgment was a partial judgment, in that it did not resolve the litigation as to the disputed sum of $82,255.10 remaining in the registry of the court, and as a partial judgment was not designated as appealable under La. C.C.P. art. 1915(B). Judson v. Davis, 2009 CA 1053 (La.App. 1st Cir.11/25/09) (unreported decision).

On April 29, 2010, Ms. Judson and Mr. Davis filed a “Notice of Partial Settlement; Joint Motion for Distribution & Order,” alleging that they had reached a settlement agreement “for the limited purpose of resolving the issue of distribution of certain funds” still in the registry of the court, amounting to $63,697.55, and requesting the trial court to order the distribution of those funds in accordance with the terms of the parties’ settlement agreement. The trial court granted their motion by order signed May 3, 2010. Ms. Judson then sought to appeal that order, characterizing it as a “Final Judgment.”

We dismissed the appeal on the grounds that the judgment was not properly ap-pealable as a judgment sought by and in which Ms. Judson acquiesced; lacked de-cretal language evidencing its dispositive nature; and as a partial judgment lacked the required determination of finality under La. C.C.P. art. 1915(B). Judson v. Davis, 2010 CA 1883 (La.App. 1st Cir.2/18/11) (unreported decision).

On February 22, 2011, Ms. Judson filed a “Motion & Order for Proper Decree of Final Judgment; Appeal & Designation of Record,” seeking the rendition of a “proper final judgment” and an immediate de-volutive appeal from that judgment. Filed with her motion (which did not incorporate an order, despite its caption) was a “Final Judgment” and an order of devolutive appeal. The “Final Judgment” was signed by the trial court on February 23, 2011.

On February 24, 2011, Ms. Judson filed a “Motion & Order to Amend Proposed Final Judgment,” seeking to correct a clerical error in its decretal language. An amended “Final Judgment” with the correction was prepared |8by Ms. Judson’s counsel and attached to the motion. Its language was identical to the February 23, 2011 judgment, except that the phrase “disposed of’ was substituted for the closing word “distributed” used in the February 23, 2011 “Final Judgment.” The amended “Final Judgment” was signed on February 24, 2011, the same day that the order of appeal was signed.

We quote the “Final Judgment” in its entirety:

CONSIDERING THE FOREGOING Motion & Order for Proper Decree of Final Judgment; Appeal & Designation of Record, it is ORDERED, ADJUDGED, AND DECREED that judgment be and is hereby rendered and/or reiterated in favor of Hall Davis, IV and against Nancy Davis Judson, specifically reasserting the prior judgments/orders of this court since the first final judgment was entered herein on April 23, 2004, and disposing of and/or dismissing this case in its entirety. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED and/or reiterated in accordance with the Judgments/orders entered herein, that Hall’s Mortuary, Inc. be and is Dissolved, and that all of the tangible assets of the corporation be and have been Liquidated. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED and/or reiterated that all issues before this court between the parties, Nancy Davis Judson and Hall Davis, IV, including the distribution of all remaining funds that were in dispute and in the registry of the Clerk of Court for West Baton Rouge Parish, be and have been disposed of.
Order signed at Port Allen, Louisiana on this 24th day of February, 2011.
/a/ J. Robin Free
J. Robin Free, District Court Judge

It is the February 24, 2011 “Final Judgment” that Ms. Judson purportedly appeals, and only this judgment is attached to her appellate brief.

| (According to the certificate of service of Ms. Judson’s brief, only Mr. Davis was served with a copy of her brief; Mr. Merrick was not served. Despite that omission on the part of Ms. Judson, Mr. Merrick has filed a timely opposition brief as appellee.

On May 17, 2011, Mr. Merrick filed a motion in this court to dismiss this appeal and a peremptory exception of res judica-ta. He contends that the “Final Judgment,” like the prior judgments addressed in the last two appeals, is not a final, appealable judgment, and that review of most of the particular rulings that Ms. Judson attempts to appeal is barred by res judicata.

On June 8, 2011, Ms. Judson filed a motion to strike Mr. Merrick’s appellate brief and for sanctions, on the grounds that he is not a party in the underlying action and therefore cannot be an appellee for purposes of this appeal. On September 20, 2011, less than an hour before the submission of this matter for decision on our docket (oral argument being waived), Ms. Judson filed a “Motion for Explicit Declaration of Status/Standing of Edward Merrick With Incorporated Memorandum.” In this motion, Ms. Judson states that she “is entitled to ... an explicit declaration of status and/or standing attributed to Merrick which gives him the rights of a party to this litigation!,] • • • inclusive of citation of the legal authority upon which such status is granted.” Her demand in that regard is directed to this court.

We referred our disposition of the foregoing motions to the determination of the merits of this appeal.

ASSIGNMENTS OF ERROR

Ms. Judson contends that the trial court “abused its discretion and/or committed manifest error” because it:

A. ordered the sale of the assets of Hall’s Mortuary, Inc. at a fraction of its [sic ] fair market value [by judgment signed on August 23, 2006].
hnB. conducted an impromptu, unorthodox, unauthorized, unannounced auction, or some hybrid thereof, in open court on June 23, 2006 and July 31, 2006 [resulting in the sale ordered by judgment signed on August 23, 2006].
C. held that the [liquidator could use the proceeds of the Cfonseco] Life Insurance [p]olicy for the debts of the beneficiary, Hall’s Mortuary, Inc. [by judgment signed on August 23, 2006].
D. [i]ssued [on May 14, 2004], then refused [by judgment signed on August 23, 2006] to vacate an errant “preliminary injunction” which was entered after final judgment, and which prevented [Ms. Judson] from litigating ripe and justiciable issues in the federal court.'
E. issued judgment [signed on August 14, 2008] on a summary motion of the non-party former liquidator, declaring the appropriateness/validity of the actions of the former liquidator.
F. failed to distribute all of the remaining assets of the corporation between the shareholders [by judgment signed on November 13, 2008], and made ex parte payments ($42,-797.08) to [Mr. Merrick’s counsel] after they had been removed from this case.
G. granted the ex parte motions of the non-party former liquidator for payments to said liquidator and/or his attorneys, when neither was clearly entitled to such payments without supporting proof — including at least one ex parte motion granted on December 28, 2009 while the case was on appeal and the trial court divested of jurisdiction in accordance with La. [C.C.P. art.] 2088.

LAW AND ANALYSIS

The voluminous record of this matter demonstrates that Ms. Judson’s circumlocutory pleadings and questionable procedural maneuvers; her unsupported accusations of judicial bias, prejudice, and procedural impropriety; her litany of vague invocations of constitutional rights; and |nher incessant (and consistently meritless) appeals and writ applications have created a veritable Gordian knot.

The Former Liquidator Is a Party and an Appellee

Ms. Judson has filed a motion in this court to strike Mr. Merrick’s appellate brief and to impose sanctions upon him and his counsel. She contends that because he is not a party to the underlying litigation, he cannot be an appellee and has no right to participate in this appeal. Despite several express and implicit rulings of this court rejecting her contentions in that regard, Ms. Judson’s counsel essentially ignore our rulings and obstinately re-urge their client’s novel but unsupported legal theory.

In our prior reported decision, we expressly rejected Ms. Judson’s challenge to Mr. Merrick’s standing as a party to this litigation. We explicitly held that as court-appointed temporary liquidator in an involuntary dissolution, or dissolution under court supervision, he clearly had standing to seek judicial approval of his discretionary actions of which Ms. Judson complained. Judson, 04-1699 at pp. 15-16, 916 So.2d at 1116-17. Insofar as Mr. Merrick’s actions undertaken in that capacity are concerned, our holdings on that issue constitute the law of the case. For similar reasons, we hold that Mr. Merrick, in his capacity as former liquidator, has standing | iaas a party in interest regarding his subsequent actions culminating in the judgment of homologation.

We offer the following succinct explanation of our reasoning. Following the rendition and appellate finality of the summary judgment on Mr. Hall’s recon-ventional demand, ordering the corporate dissolution, this civil action assumed, for all practical purposes, the character of a liquidation proceeding for involuntary corporate dissolution. All of the actions at issue in this appeal relate to proceedings in that dissolution action, not the original adversary mandamus action instituted by Ms. Judson against Mr. Davis, which became moot after the summary judgment ordering dissolution became final.

Once the dissolution action commenced, Mr. Merrick, first as temporary liquidator and later as liquidator, assumed the status of legal representative of the corporation for all purposes, including the dissolution action itself. See La. R.S. 12:141(0, 12:145(C), and 12:146. For procedural purposes, a liquidator is considered a “legal representative” of the entity whose assets are being liquidated. See La. C.C.P. art. 5251(10). A judicial liquidator in dissolution proceedings shall have full authority to retain counsel and auditors, and to prosecute and defend actions. La. R.S. 12:146(C). (Emphasis added.)

|1SA liquidator appointed for a domestic corporation by a court of this state is the proper plaintiff to sue to enforce a right of the corporation. La. C.C.P. art. 692. Such a liquidator may prosecute any action without special authorization from the court that appointed him. Id. Conversely, the liquidator is the proper defendant in an action to enforce an obligation owed by the corporation or by him as liquidator. La. C.C.P. art. 740. As liquidator, Mr. Merrick was thus unquestionably a party to the liquidation proceeding itself, as representative of the corporate entity undergoing dissolution. A legal representative, including a liquidator, may appeal any ap-pealable judgment rendered against him or affecting the property that he is administering, for the benefit of the person whose property he administers or whom he represents, whenever he considers an appeal necessary or advisable. La. C.C.P. art. 2084. It only stands to reason that a liquidator may also oppose the appeal of a judgment in his favor or affecting the property that he is administering.

Mr. Merrick’s earlier actions as to which Ms. Judson seeks appellate review were undertaken while he held the status of liquidator and exercised the powers and performed the fiduciary duties of that position. As former liquidator, he therefore has standing to defend his actions while serving as liquidator and is a party for those purposes of this appeal. As former liquidator, although technically removed from active status as liquidator at the time of the homologation, Mr. Merrick was nevertheless a party in interest for purposes of his required final accounting, its homol-ogation, and other related actions. He retains that status for purposes of this appeal. See, e.g., La. C.C.P. art. 2086. Ms. Judson’s repetitive contentions to the contrary are utterly without merit and are patently frivolous. Her motion to strike appellee’s brief and for sanctions is denied, as is her “Motion for]¿¿Explicit Deelaration of Status/Standing of Edward Merrick With Incorporated Memorandum.”

Because Mr. Merrick is unquestionably a party (and arguably the only true opposing party and appellee) for purposes of this appeal, the intentional failure of Ms. Judson’s counsel to serve him with copies of her appellate brief constitutes a flagrant violation of Rules 2-18, 2-14.1, and 2-14.2 of the Uniform Rules of the Louisiana Courts of Appeal. Ms. Judson has moved to strike Mr. Merrick’s brief and pleadings in this court, on the grounds that he is not a party, and she has routinely requested sanctions against him and his counsel in both the trial court and this court. As an appropriate sanction for her counsel’s deliberate violation of the rules of this court, we hereby strike and will not consider the argument section of her brief in rendering our decision herein. In doing so, we emphasize that we will not countenance such conduct on the part of Ms. Judson’s counsel, and any future deliberate violations of our rules may warrant less tolerance on our part.

The Judgment Denying the Motion to Vacate the Injunction Was an Ap-pealable Judgment, Was Not Appealed, And Is Res Judicata

The record of this matter shows that Ms. Judson did not seek a timely appeal of that portion of the August 23, 2006 judgment that denied her motion to vacate the injunction originally issued on May 12, 2004. The judgment was an appealable interlocutory judgment. She may not appeal it now. See n. 2, supra. Her fourth assignment of error is without merit.

| KThe Judgment of Homologation Was an Appealable Judgment, Was Not Appealed, And Is Res Judicata

A judgment is the determination of the rights of the parties in an action, and is either interlocutory or final. La. C.C.P. art. 1841. A judgment that determines the merits in whole or in part is a final judgment. Id. An appeahis “the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” La. C.C.P. art. 2082. A final judgment is ap-pealable in all causes in which appeals are given by law. La. C.C.P. art. 2083(A). An interlocutory judgment is appealable only when expressly provided by law. La. C.C.P. art. 2083(C).

The judgment of homologation of Mr. Merrick’s accounting as liquidator, signed on August 14, 2008, was a final, appealable judgment with “the authority of the thing adjudged” (res judicata). See In re Phoenix Bldg. & Homestead Ass’n, 203 La. 565, 573, 14 So.2d 447, 449-50 (La.1943), and Liquidation of Canal Bank & Trust Co., 211 La. 803, 830, 30 So.2d 841, 850 (La.1947). Neither Ms. Judson nor Mr. Hall appealed that judgment. Accordingly, all causes of action between the parties, including the former liquidator, addressed by the judgment of homologation, are res judicata, and all essential issues actually litigated and determined are conclusive as between those parties. See La. R.S. 13:4231. The issues actually litigated at the hearing on Mr. Merrick’s motion and determined by the judgment of homolo-gation included: (1) the sale of the immovable property, previously authorized by the trial court by the August 23, 2006 judgment; (2) the authority of the liquidator to use the Conseco insurance policy proceeds as funds belonging to the corporation, previously addressed by the August 23, 1^2006 judgment; (3) the payment of ongoing liquidation costs, including fees for professional services of the liquidator and accountants, attorney fees, and other expenses through the time of the judgment of homologation; (4) the handling of various legal matters involving the corporation and the liquidation proceeding, including the injunction against litigation in federal court, certain eviction proceedings, the status of insurance policies on the shareholders, and the defense of debt collection claims; and (5) the propriety of all of Mr. Merrick’s actions as liquidator in exercising his legal authority, performing his administrative duties, and undertaking the described transactions through the time of the judgment of homologation.

Additionally, we agree with Mr. Merrick that the federal district court judgment in the interpleader action, declaring the corporation the beneficiary of the life insurance proceeds, has res judicata effect under federal law as to any direct claim Ms. Judson asserted to any portion of the life insurance policy proceeds, apart from any general claim to the net corporate assets in which those proceeds may have formed a part.

It is well settled that when a trial judge signs a judgment and then signs another, the second judgment is a nullity and without legal effect. McGee v. Wilkinson, 03-1178, p. 4 (La.App. 1st Cir.4/2/04), 878 So.2d 552, 554. Insofar as the “Final Judgment” of February 24, 2011 purports to “reiterate” or “reassert” the trial court’s prior orders and judgments and its determination of issues previously addressed by the judgment of ho-mologation, it is of no effect whatsoever. And again, because the judgment of ho-mologation is final and unappealable, it is res judicata and renders the “Final Judgment” null as to the issues previously determined. See Bowers v. Jones-Journet, 316 So.2d 18, 21 (La.App. 4th Cir.1975). Ms. Judson cannot bootstrap a timely appeal of the judgment denying her 117motion to vacate the injunction four and a half years earlier, and the judgment of homolo-gation two and a half years earlier, by crafting a judgment that “reiterates” and “reasserts” the decretal language of “the prior judgments/orders of this court since the first final judgment was entered herein on April 23, 2004”. Her attempt to appeal the judgment of homologation and the August 23, 2006 judgment denying her motion to vacate the injunction is untimely, and that portion of this appeal must be dismissed. In summary, Ms. Judson’s first five assignments of error have no merit.

In accordance with our ruling herein, we amend the trial court’s judgment of February 24, 2011, to delete the phrases “and/or reiterated,” “specifically reasserting the prior judgments/orders of this court since the first final judgment was entered herein on April 23, 2004,” “and/or reiterated in accordance with the Judgments/orders entered herein,” and “and/or reiterated.”

The Judgment At Issue Is a Final, Appealable Judgment Under La. R.S. 12:148(A)(1)

Louisiana Revised Statutes 12:148(A)(1) provides that “[wjhen a corporation has been liquidated completely” in an involuntary dissolution proceeding “subject to the supervision of the court, the court shall make an order declaring the corporation to be dissolved.” The “Final Judgment” comports with that statutory requirement. Additionally, the “Final 11RJudgment” recites a declaration of finality, to the effect that “all issues before this court between the parties, Nancy Davis Judson and Hall Davis, IV, including the distribution of all remaining funds that were in dispute and in the registry of the Clerk of Court for West Baton Rouge Parish, be and have been disposed of.” Although Mr. Merrick emphasizes that certain peripheral matters, such as the lawsuit against Mr. Hall, remain unresolved, we conclude that for purposes of this appeal the “Final Judgment” sufficiently addresses the decretal defects described in our prior ruling of February 18, 2011. Judson, 2010 CA 1883.

Ms. Judson actively sought and acquiesced in the actual decretal elements of the “Final Judgment” (the dismissal of the action and declarations of liquidation of assets and dissolution) and she seeks no revision, modification, vacation, or reversal of those decrees. Insofar as the “Final Judgment” of February 24, 2011 purports to grant Ms. Judson’s motion dismissing the case in its entirety, declares the corporation’s tangible assets liquidated, and declares that it disposes of all issues between Ms. Judson and Mr. Davis (but with no mention of issues between Ms. Judson and Mr. Merrick), it is unappealable by her as a judgment “in favor of Hall Davis, IV and against Nancy Davis Judson” in which she “voluntarily and unconditionally acquiesced.” See La. C.C.P. art. 2085 and Judson, 2010 CA 1883.

The remaining issues on appeal relate to the trial court’s interlocutory judgment of November 13, 2008, denying Ms. Judson’s “Motion for Distribution,” which sought immediate distribution of all corporate funds then being held in the registry of the court, and its later interlocutory orders authorizing periodic interim payments of the fees and expenses of the former liquidator, including his attorney fees. When an unrestricted appeal is taken 119of a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. See Judson, 04-1699 at p. 8, 916 So.2d at 1112. To the extent that the described interlocutory judgments formed an integral part of the liquidation proceeding and have not acquired res judicata status, they may be considered as being procedurally merged into the “Final Judgment.”

The interlocutory judgment denying Ms. Judson’s “Motion for Distribution of Funds” in part (by ordering $82,255.10 to be retained in the court registry) was contained in the same combined “Final Judgment” of November 13, 2008 that was the subject of a prior appeal dismissed by this court as involving an uncertified partial final judgment. Judson, 2009 CA 1053. Nevertheless, we hold that it may properly be reviewed at this time in connection with the actual “Final Judgment” of February 24, 2011. In that regard, we have examined the record of this matter and find no abuse of the trial court’s discretion in ordering the described sum retained in the court registry pending the “Final Judgment” declaring dissolution of the corporation. Ms. Judson’s sixth assignment of error has no merit.

The trial court rulings relating to the liquidator’s actions, approved by the August 14, 2008 judgment of homologation, acquired the status of res judicata prior to rendition of the “Final Judgment.” Accordingly, any interlocutory judgments approving the liquidator’s actions and his payments of the liquidator’s fees and expenses prior to the foregoing date may not be appealed. However, the trial court’s interlocutory orders of September 10, 2008; November 17, 2008; November 24, 2008; December 28, 2009; and May 3, 2010, approving the former liquidator’s payment of fees and expenses, were issued after the judgment of homologation of August 14, |an2008. Given the context in which the described interlocutory judgments are presented, in relation to the “Final Judgment,” we conclude that Ms. Judson may at this juncture seek appellate review of them at this time.

In her assignment of error relating to those judgments, Ms. Judson challenges those payments on the grounds that most, if not all, of the fees and expenses were for services performed after the date of Mr. Merrick’s removal as liquidator, and that at least one interlocutory judgment was issued while the trial court was supposedly divested of jurisdiction due to a prior appeal (ultimately dismissed as improper). She offers no other substantive objection to any of the items of fees or expenses paid, but only a vague assertion that the fees and expenses were approved by the trial court “without supporting proof.”

After careful review of the record, we conclude that the payments were legally justified based upon the former judicial liquidator’s continuing duties in support of his prior administration of the corporate assets, and that adequate supporting proof was in fact presented to the trial court, as documented in the record. The trial court did not abuse its considered discretion under La. R.S. 12:146(C) and (D) in issuing its orders. The post-homologation interlocutory orders are affirmed. Ms. Judson’s seventh and final assignment of error has no merit.

DECREE

The motion to strike appellee’s brief and for sanctions of the plaintiff-appellant, Nancy Davis Judson, is denied. The plaintiff-appellant’s “Motion for Explicit Declaration of Status/Standing of Edward Merrick With Incorporated Memorandum” is denied. The argument section of the plaintiff-appellant’s brief is ordered stricken as a sanction for her intentional violation of Rules 2-13, 2-14.1, and 2-14.2 of the Uniform Rules of the |2i Louisiana Courts of Appeal. The peremptory exception of res judicata of the appellee, Edward J. Merrick, Jr., is sustained in part and overruled in part and his motion to dismiss the appeal is granted in part and denied in part. This appeal is dismissed in part as to all issues addressed in the prior judgment of homologation of August 14, 2008 and in the final decrees of dissolution, liquidation of assets, and dismissal of the action in the judgment of February 24, 2011. The final judgment appealed is amended to remove all language purporting to “reassert” or “reiterate” prior orders or judgments in this action. The remaining interlocutory judgments and orders appealed with the final judgment are otherwise affirmed in all other respects. All costs of this appeal are assessed to the plaintiff-appellant, Nancy Davis Judson.

MOTION TO STRIKE DENIED; MOTION FOR EXPLICIT DECLARATION DENIED; APPELLANT’S BRIEF STRICKEN IN PART; PEREMPTORY EXCEPTION SUSTAINED IN PART AND OVERRULED IN PART; APPEAL DISMISSED IN PART; JUDGMENT AMENDED AND AFFIRMED AS AMENDED IN ALL OTHER RESPECTS.

      . In our prior reported decision, we noted that "[t]he voluminous and convoluted state of the record demonstrates that Ms. Judson has repeatedly sought relief from various rulings of the trial court,” and that she was then seeking review of not only the summary judgment ordering dissolution, "but also review of other interlocutory judgments and orders, some of which have been the subjects of prior attempted appeals and supervisory writ applications.” Id., 04-1699 at pp. 7-8, 916 So.2d at 1112. Since our reported decision, Ms. Judson has sought appellate and supervisory review of various judgments and orders in this court on at least five additional occasions, not including the present appeal. Ms. Judson has unsuccessfully applied for writs to the supreme court on at least four occasions since our reported decision.

      . Arguably, the wording of our ruling may have been technically incorrect with regard to that portion of the August 23, 2006 judgment that denied Ms. Judson's motion to vacate the injunction against federal court litigation on the same subject matter. It is generally recognized that a party is entitled to an appeal as a matter of right from a judgment relating to a preliminary or final injunction. See La. C.C.P. art. 3612(B). But it is clear from her motion for appeal that Ms. Judson did not in fact seek review at that time of that portion of the judgment relating to the injunction.

      . Neither the judgment nor the trial court’s minute entry make any express disposition of Ms. Judson’s "Motion for Distribution.” Presumably, it was denied.

      . The order of appeal prepared by Ms. Judson for the trial court refers only to the original “final judgment” of February 23, 2011, not the amended "Final Judgment” of February 24, 2011. Because the order granting her appeal was signed on February 24, 2011, the same day that the amended "Final Judgment” was signed, and because appeals are favored in the law, we will disregard that technicality and treat this appeal as an appeal of the amended "Final Judgment.”

      . For example, in her appellate brief, Ms. Judson accuses the trial court of violating her "right to due process and equal protection of the law by denying her access to the courts for ‘an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury’ to her property rights, [sic]” In an "objection” to our order granting Mr. Merrick oral argument in this appeal, she claims that this court “ignores its obligation to assure that [she] is afforded Due Process and the Equal Protection of the Law in asserting her property rights.”

      . The "law of the case" doctrine embodies the rale that an appellate court will not consider its own rulings of law in the same case. Lejano v. Bandak, 97-0388, p. 23 (La. 12/12/97), 705 So.2d 158, 170, cert. denied sub. nom., Lejano v. K.S. Bandak Assuranceforeningen Gard, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998). The doctrine is the proper procedural principle, as opposed to res judicata, governing prior judgments by either trial or appellate courts on issues within the same case. Bank One, Nat'l Ass'n v. Velten, 04-2001, p. 6 (La.App. 4th Cir.8/17/05), 917 So.2d 454, 458-59, writ denied, 06-0040 (La.4/28/06), 927 So.2d 283, cert. denied, 549 U.S. 826, 127 S.Ct. 349, 166 L.Ed.2d 44 (2006). In addition to our ruling in our prior reported case, we have denied a motion (styled as a peremptory exception of no right of action) by Ms. Judson to strike an opposition brief by Mr. Merrick, based on the same grounds as her present exception, in a prior writ application. Judson v. Davis, 2006 CW 2237 (La.App. 1st Cir.2/22/07) (unpublished disposition), writ denied, 07-0622 (La.4/27/07), 955 So.2d 698.

      . Following the filing of her motion to strike Mr. Merrick’s brief and to impose sanctions, Ms. Judson filed a "Motion for Hearing on Appellant’s Pending Exception of No Right of Action & Motion to Strike 'Appellee' Brief & for Sanctions, With Incorporated Memorandum.” In the latter, she states: "[I]f Merrick is somehow found to be a party to this lawsuit and somehow entitled to file a brief and/or present oral argument herein, Appellant is entitled to and specifically demands that this Honorable Court issue an explicit order with citation of the legal authority upon which it relies to deny her access to the court and to grant Merrick party status.” (Emphasis in original.) She reiterates that demand of this court in her pending "Motion for Explicit Declaration of Status/Standing of Edward Merrick With Incorporated Memorandum.” We explain the legal basis of our holding simply to demonstrate its fundamental and sound basis in our law. In doing so, we do not acknowledge any right of Ms. Judson's counsel to “demand” that we provide them with “citation of the legal authority” that they are capable of finding themselves.

      . The fact that Mr. Davis, as purported adverse party to Ms. Judson, has hied no brief in this appeal lends convincing support to our conclusion that Mr. Merrick is the only interested appellee. It is quite evident that Ms. Judson's failure to serve a copy of her brief on Mr. Merrick was intentional, as she engaged in the same obstructive tactic in at least one earlier attempted appeal in this matter. See Judson v. Davis, 2009 CA 1053 (La.App. 1st Cir. 11/25/09) (unpublished disposition), writ denied, 10-0316 (La.4/16/10), 31 So.3d 1065. In addition to her repeated characterizations of him as a “non-party” and "interloper” in these proceedings, she expressly acknowledges in the certificates of service of her subsequent filings in this appeal that she has served him with copies only “out of an abundance of caution.” (Emphasis in original.)

      . See also, e.g., La. C.C.P. art. 4396 and Succession of Moffat, 577 So.2d 1210, 1212-13 (La.App. 4th Cir.), writ denied, 582 So.2d 1312 (La.1991).

      . In his brief, Mr. Merrick appropriately observes that the "Final Judgment” at issue "resembles a misguided attempt to style as a 'judgment' an unauthorized certification for appeal of all previous rulings in the case,” and that the record demonstrates "Ms. Judson's history of repeatedly trying to relitigate dead issues at tremendous cost to the parties and with tremendous waste of judicial resources." This is not the first time that Ms. Judson has used improper procedural maneuvers to attempt to get "a second bite at the apple” on previously determined issues. In our prior reported decision, we declined to consider an "overly broad, 'catchall' assignment of error,” raised for the first time on appeal, asserting an amorphous violation of constitutional rights. We observed that the "new ‘constitutional’ issues plainly represent a thinly-disguised attempt to resurrect two of the three subsidiary issues this court has already addressed in the context of prior writ application proceedings.” Judson, 04-1699 at p. 23, 916 So.2d at 1121.


author: CHARLES R. JONES, Judge. BONIN, J.,

text:
    Toni WANSLEY and Robert Selleck, on Behalf of their minor son, Taylor Ashtyn WANSLEY v. ABC INSURANCE COMPANY, INC., et al. Toni Wansley and Robert Selleck, as Tutors of their minor son, Taylor Ashtyn Wansley v. Health Care Indemnity, Inc. and Others. Toni Wansley and Robert Selleck, as Tutors and of their minor son, Taylor Ashtyn Wansley v. State of Louisiana, and Others.
    Nos. 2011-CA-0592, 2011-CA-0593, 2011-CA-0594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 2011.

      Walter Landry Smith, Baton Rouge, LA, for PlaintiffiAppellant.
    Nairda T. Colon, Peter E. Sperling, Fri-lot L.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge PAUL A. BONIN, and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Judge.

|, The Appellants, plaintiffs Toni Wansley and Robert Selleck, on behalf of their minor son Taylor Ashtyn Wansley (hereinafter the “Appellants”), appeal the granting of a motion for summary judgment in favor of the Appellees, defendants University Healthcare System, LC., d/b/a Tulane Hospital and Clinic, Tulane Hospital for Children, as part of Tulane University Hospital and Clinic, and Health Care Indemnity, Inc. (“TUHC”). Finding that the Appellants cannot establish that there is a genuine issue of material fact as to whether they can carry their burden of proof at trial, we affirm the judgment of the district court.

This is a medical malpractice lawsuit. The Appellants, the parents of the minor Ashtyn Wansley, are suing — individually and on behalf of their minor son — TUHC, as well as other healthcare providers affiliated with TUHC, for alleged negligent post-surgical treatment rendered to their son. Ashtyn, who was eight (8) years old at the time of his July 2000 surgery, had Factor VIII hemophilia, which is a largely inherited disorder in which one of the proteins needed to form blood clots is missing or reduced.

In July 1999, Ashtyn was a patient of orthopedist Dr. J. Ollie Edmunds, who recommended that Ashtyn have an arthroscopic synovectomy of his right knee. |2However, Ashtyn did not see Dr. Ed-munds again until June 20, 2000, when Ashtyn was having a recurrent bleed in his right knee. After having a FluoroScan of the knee performed, Dr. Edmunds noted that there were erosions in articular cartilage and marked narrowing of the joint space. Dr. Edmunds determined that Ashtyn’s condition now required an open synovectomy, and that post-operatively, Ashtyn would need a continuous passive motion device (“CPM”) of the smallest pediatric size to assist with his range of motion. The surgery was scheduled for July 10, 2000.

Prior to the scheduled surgery, Dr. Ed-munds’ clinic nurse, Donna George, contacted Stephen Johnson of Rehab Technologies to request the CPM ordered by Dr. Edmunds. Nurse George further provided Mr. Johnson with Ashtyn’s height and weight, and requested a CPM for someone of Ashtyn’s proportions. Mr. Johnson indicated that he had such a machine. Although Nurse George later informed Mr. Johnson that Ashtyn would be in for a preoperative visit on July 5, 2000, should Mr. Johnson want to measure or see Ashtyn, Mr. Johnson advised that he did not need to see Ashtyn.

Ashtyn was admitted to TUHC on July 10, 2000, and Dr. Edmunds performed a right radical knee joint synovectomy — the surgical removal of a part of the synovial membrane of a synovial joint — with bone arthroplasty, which is a surgery performed to relieve pain and restore range of motion by realigning or reconstructing a joint. Mr. Johnson met Ashtyn in the recovery room following the surgery with a Phoenix Knee CPM, which had an adjustable limb length from 20 to 42 inches. Dr. Edmunds also saw Ashtyn in the recovery room, where he adjusted the CPM machine to fit Ashtyn.

IsAshtyn was attached to the CPM from the night of July 10th to July 17th. During that time, he first began to complain of pain on July 11th. He was given a morphine PCA (Patient Controlled Analgesia) for the pain that day — as ordered by orthopedic resident Dr. Jeffery Morgan— and no further complaints were made. Ashtyn further complained of pain, specifically in his groin with a passive range of motion at 85°, on July 12th, as noted by orthopedic resident Dr. Jacob Friedmann. Ms. Wansley adjusted the machine to a flexion of 60° to relieve Ashtyn. There were no further complaints of pain. Ash-tyn began physical therapy on July 13th, and while no complaints of pain were made to healthcare providers that day, therapist Margaret Huber observed that Ashtyn had trouble keeping his lower extremity in a neutral rotation, and that the CPM was hitting his groin area. Therapist Huber advised Dr. Morgan of what she observed and he, in turn, ordered that the CPM could be left off during the day for physical therapy. Therapist Huber requested the medical team visually assess the CPM prior to night-time use.

On July 14th, Dr. Morgan noted that use of the CPM was not ideal; however, Ash-tyn did not complain of pain from the CPM that day. Furthermore, Ashtyn did not use the CPM all day either. Ms. Wansley removed the CPM prior to 7:30 a.m., on July 15th. Dr. Edmunds noted on that day that the CPM was too large even though it was the smallest available, and that an extension Dynasplint needed to be used to get more extension. Ashtyn was observed wearing the CPM that night, but a nurse later removed it at the request of Ms. Wansley. There is no note of Ashtyn being in pain on that day.

On July 16th, a nurse noted that in addition to the CPM being too big, Ashtyn was not using the CPM properly. Ashtyn was in pain with the range of motion on the CPM; thus, Dr. Edmunds adjusted Ashtyn in the CPM and also adjusted the 14ranSe °f motion on the CPM. Additionally, a physical therapy assistant noted that Ashtyn was having more pain that day secondary to drain removal, and that the pain was hindering his range of motion. The assistant further noted that the CPM was ineffective secondary to it being a poor fit.

July 17th, there were no complaints of pain made by Ashtyn. He had physical therapy at his bedside. Dr. Adams ordered a Dynasplint to assist with increasing extension in Ashtyn’s right knee. A Dynasplint is a splint used to increase range of motion rehabilitation. Dr. Ed-munds documented that the CPM was ill-fitted, and that the desired flexion and extension planned for the knee post-opera-tively was not achieved.

The CPM was eventually removed on or about July 17, 2000, and Ashtyn was discharged the following day. On July 24, 2000, he was later readmitted by Dr. Ed-munds for a closed manipulation of the right knee with long leg splinting and aspiration of his knee joint. The long leg splint was removed by Dr. Edmunds on August 1, 2000. X-rays of the knee showed that it was in almost full extension with about a 5-degree flexion contracture and a large anterior joint effusion most likely representing hemarthrosis, which is bleeding in a joint.

The Appellants lodged medical malpractice claims against Dr. Edmunds and TUHC, respectively, with the State of Louisiana, Patient’s Compensation Fund in PFC Number 2001-01810. A medical review panel was impanelled, and opined, in two separate opinions, that the evidence neither supported the conclusion that Dr. Edmunds deviated from the standard of care, nor that TUHC failed to comply with the appropriate standard of care. Additionally, the Appellants filed a malpractice claim with the State Medical Review Panel, which opined that the evidence did not support the conclusion that the State of Louisiana and Department of Health and | .^Hospitals deviated from the standard of care. Thereafter, the Appellants filed their respective petitions for damages against the following entities and persons:

July 2001 — ABC Insurance Company, Rehab Technologies, Inc. and Stephen Johnson;
August 2003 — TUHC, Health Care Indemnity, Inc., the Administrators of the Tulane Education Fund d/b/a/ Tulane School of Medicine; and
January 2004 — the State of Louisiana, Department of Health and Hospitals, individually and principle of and vicariously liable for the faults of Dr. Edmund, TUHC and Rehab Technologies.

TUHC later filed a Motion for Summary Judgment In November 2010, arguing that the Appellants could not succeed in their medical malpractice suit because they did not have an expert to testify as to the standards of care owed, Nor that TUHC breached the standards of care. After argument and review of briefs, the district court granted the motion for summary judgment and dismissed the Appellants’ case against TUHC with prejudice in January of 2011. The district court explained “the reason I’m granting that [motion for summary judgment] is that you [Appellants] have no expert testimony as to why the Joint Commission of Accredited Hospital Guidelines established a standard of care in a medical case.” The district court dismissed with prejudice all claims of the Appellants against University Healthcare System, LC., d/b/a Tulane Hospital and Clinic, Tulane Hospital for Children, as part of Tulane University Hospital and Clinic, and Health Care Indemnity, Inc., (“TUHC”), and reserved all claims against the remaining defendants.

The Appellants filed a Motion and Order for Devolutive Appeal, which was granted by the district court. This timely appeal followed.

The Appellants raise seven (7) issues on appeal:

|fil. The district court erred in ruling that there was no evidence of the standard of care of the Hospital where there was direct testimonial evidence of the standard of care of the Hospital by its designated representative and Vice President of Quality and Medical Affairs that reasonable care by hospital personnel required that they respond to a problem in the selection or fit of postoperative rehabilitation equipment in the in-patient setting by doing whatever they can to address the problem and to go up the chain of command of the hospital administration if necessary.
2. The district court erred in failing to recognize that statutory language and jurisprudence consider the opinion of the medical review panel as expert opinion evidence.
B. The district court erred in ruling that there was no expert opinion evidence on the standard of care of the Hospital where the panel opinion stated, “Hospitals are required to follow the orders submitted by the attending physician,” and the Hospital’s designated representative admitted plainly that the Hospital for five days before the admission took no action whatsoever to fulfill the written order of the surgeon for a “CPM post-operation (pediatric size)”, and for 8 more days in the hospital postoperatively took no action whatsoever to fulfill the written order when everyone could see that the CPM was adult size and was hurting the child.
4. The district court erred in failing to recognize evidence on the standard of care of the Hospital in the testimony of expert physician Dr. Handelsman that the hospital administrators do have responsibility to respond where the equipment ordered by the surgeon is not in place in the post-surgical period, coupled with an admission by the hospital administration that they did absolutely nothing to respond to the equipment crisis for a week once the adult size machine was put on the child in the recovery room.
5. The district court erred in failing to recognize evidence of the Hospital’s standard of care in the Standards of the Joint Commission for the Accreditation of Hospital, where the Hospital’s designated representative testified that the Hospital is accredited by such organization and that its policy is to follow such Standards.
|76. The district court erred in failing to recognize that a jury does not need an expert to understand that an administrative error such as obtaining the wrong size equipment is negligence, where the pediatric size CPM was ordered by the physician (thereby defining the Hospital’s duty), and an expert testified that the CPM was critical.
7. The district court erred, apparently believing that testimony is required from an expert physician saying the hospital breached the standard of care, when in fact the law provides a general duty of reasonable care by the hospital which a jury may apply as a factual issue, and the special provisions of La. R.S. 9:2794 apply only to “physicians, dentists, optometrists, or chiropractic physicians.”

Appellate court review of a summary judgment is de novo. Dominio v. Folger Coffee Co., 2005-0357 (La.App. 4 Cir. 2/15/06), 926 So.2d 16. Furthermore, a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). However, if the mov-ant will not bear the burden of proof at trial, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

While we recognize the arguments raised by the Appellants in support of their appeal, we pretermit discussion of same, finding that under a review of the | ¿record the Appellants cannot prevail in defeating the motion for summary judgment at issue because they cannot establish that there is a genuine issue of material fact as to whether they could meet their burden of proof in a medical malpractice suit against TUHC.

This matter involves a complex medical issue: did the post-operative use of an ill-fitting CPM exacerbate the hemophilic condition of an eight year-old boy, who had corrective surgery approximately one year after he was first advised to do so? The Appellants have to prove that the hospital owed a duty, which it breached, and, that this breach caused Ashtyn to sustain damages. The Appellants cannot meet all of these requirements.

“To prove medical malpractice, the plaintiff must show, by a preponderance of the evidence, the applicable standard of care, a breach of that standard of care by the defendants, causation and damages.” Taplin v. Lupin, 97-1058, p. 3 (La.App. 4 Cir. 10/1/97), 700 So.2d 1160, 1161 (La.Ct.App.1997)(citing Bradford v. O’Neill, 95-2449 (La.App. 4th Cir. 11/20/96), 688 So.2d 33, writ denied, 97-0803 (La.5/9/97), 693 So.2d 769. This is the four-pronged burden of proof that plaintiffs in medical malpractice suits must meet. Furthermore, we recently explained that in a medical malpractice lawsuit against a hospital, a plaintiff has the burden of showing that the hospital personnel negligently departed from the recognized standard of care afforded by hospitals in the area for the particular malady involved. Miller v. Tulane Univ. Hosp., 2009-1740, p. 5 (La.App. 4 Cir. 5/12/10), 38 So.3d 1142, 1145 (citing Dean v. Ochsner Medical Foundation Hospital, 99-466, p. 5 (La.App. 5 Cir. 11/10/99), 749 So.2d 36, 39. Lastly, our Court explained that expert testimony is necessary to establish the standard of care and whether that standard was breached, unless the negligence complained of was | flso obvious that a layperson can infer negligence without the guidance of expert testimony. Id. [Emphasis added]. Obvious examples of negligence, as set forth by the Supreme Court in Pfiffner v. Correa, 94-0992, 94-0963, 94-0924, p. 9 (La.10/17/94), 643 So.2d 1228, 1233, are fracturing a leg during an examination, amputating the wrong limb, or leaving a sponge in a patient’s body. Id.

The Appellants argue that they are not statutorily required to produce an expert to establish the standard of care owed by TUHC under the medical malpractice statute of La. R.S. 9:2794, which is not applicable to hospitals. While it is true that La. R.S. 9:2794 does not list hospitals therein, our jurisprudence as cited above evidences that in a suit against a hospital, an expert is required to establish negligence, unless the negligence complained of was so obvious that a layperson can infer negligence under Pfiffner.

ImThe record herein shows that Dr. Edmunds, his nurse and Mr. Johnson arranged for the CPM to arrive at the hospital. TUHC had no involvement in ordering or examining the equipment prior to surgery. Furthermore, Dr. Edmunds fitted Ashtyn with the CPM and opined that the non-pediatric CPM, produced by Mr. Johnson, would work. The hospital was neither involved in procuring the CPM for Ashtyn nor directing him to wear it. Considering that Ashtyn was already at an advanced stage of hemophilia at the time the subject surgery was performed, and that the hospital was not responsible for ordering the CPM machine and those principally charged with Ash-tyn’s care were not TUHC employees, the instant matter is not a case wherein negligence can be inferred by a layperson under Pfiffner.

Dr. John Handelsman is the only expert for the Appellants in this matter, and he did not testify as to what the standard of care was in this case. Furthermore, he did not testify that TUHC breached the standard of care, and that said breach caused Ashtyn to sustain damages. Indeed, Dr. Handelsman testified as follows:

Q. As I understood your testimony with Mr. Smith, when he asked the bottom line with respect to Tulane in your opinions, as I heard it — tell me if I’m wrong — that as you sit here today you have no opinions regarding the treatment, care and responsibilities of the hospital with regard to this patient?
A. No opinions as to what ?
Q. The care, the treatment or the responsibilities of the hospital with regard to Ashtyn Wansley?
A. I have to have some opinion. He was a patient in the hospital, so the hospital had some responsibility for him.
Q. Let me restate—
| UA. You are asking me specifically about the CPM machine, before you were talking about.
Q. Well, Mr. Smith had indicated that you haven’t rendered an opinion as to Tulane at all with respect to whether they had responsibility or not with the CPM, correct?
A. Yes, I don’t know that.
Q. So you have no opinion as to that issue correct, as you sit here today?
A. I have no knowledge, therefore, I can have no opinion.

Thus, the lack of an expert opinion establishing the standard of care owed by TUHC, and that TUHC breached the standard of care, further precludes the Appellants from establishing that TUHC’s actions caused Ashtyn to sustain injuries, and to prove damages thereof. Albeit that the Appellants argue that they established the standard of care owed by TUHC under the national standards of the Joint Commission for the Accreditation of Hospital, they are required under Miller to provide an expert opinion as to the standard of care owed by TUHC. Consequently, the medical malpractice claim of the Appellants against TUHC is rendered indemonstrable by the Appellants inability to provide supporting expert testimony. Thus, we find that the district court did not err in granting the motion for summary judgment of TUHC because the Appellants could not sustain their burden of proof by a preponderance of the evidence.

DECREE

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

AFFIRMED

BONIN, J., concurs with written reasons.

BONIN, J.,

concurs with written reasons.

|J respectfully concur in affirming the trial court’s judgment in favor of TUHC. I write separately, however, because my examination of the record indicates that plaintiffs allege that TUHC is vicariously liable both for its own negligent administrative actions as well as for the substandard actions of its qualified health care provider employees. A medical malpractice cause of action against a hospital’s administration is governed by a different analytical framework than the framework regulating medical malpractice actions against qualified health Reare providers, such as doctors, nurses, and physical therapists. Because the plaintiffs do not differentiate which causes of action (traditional duty/ risk based negligence or medical malpractice) they are pursuing against which set of actors (hospital administrators or qualified health care providers), an analysis of the plaintiffs’ appeal necessitates an examination of the record in light of both standards.

1

First, I examine the plaintiffs’ claims against the hospital administration for non-medical negligence. In such an action against a hospital, the plaintiff must prove, as in any negligence action, the defendant owed the plaintiff a duty to protect against this risk, the defendant breached that duty, the plaintiff suffered an injury, legal causation, and the defendant’s actions were a substantial cause in fact of the injury. McGlothlin v. Christus St. Patrick Hosp., 2010-2775, pp. 17-18 (La.7/1/11), 65 So.3d 1218, 1281-1232; Turner v. Massiah, 94-2548 (La.6/16/95), 656 So.2d 636, 639. A hospital is bound to exercise the requisite standard of care toward a patient that the particular patient’s condition may require and to protect the patient from external circumstances peculiarly within the hospital’s control. McGlothlin, 2010-2775, p. 18, 65 So.3d at 1232. Hospitals are held to a national, not local, standard of care. Austin v. St. Charles General Hospital, 587 So.2d 742, 746 (La.App. 4 Cir.1991). See also Keyworth v. Southern Baptist Hospitals, Inc., 491 So.2d 15 (La.1986) (“Locality rule does not apply to hospitals.”); Henderson v. Homer Memorial Hospital, 40,585 (La.App. 2 Cir. 1/27/06), 920 So.2d 988 (“Hospitals are held to a national standard of care. The locality rule does not apply to hospitals.”).

Whether a hospital has breached those duties depends upon the circumstances and facts of the case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745, 747 (La.1974). Moreover, the resolution of whether the alleged ^malpractice constitutes negligence as well as the assessment of factual conflicts, including those involving the contradictory testimony of expert witnesses, falls within the province of the trier of fact. Martin v. East Jefferson General Hasp., 582 So.2d 1272, 1277-78 (La.1991).

Here, the duty of TUHC is established by law. “A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require.” Hunt, 303 So.2d at 747. “It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control.” Id. And importantly, “[a] determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.” Id.

Traditionally the hospital’s duty has been limited: a hospital is not the insurer of a patient’s safety, and the rules of care are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. Austin, 587 So.2d at 746. The standard of care for hospitals in medical malpractice actions set forth in Hunt, supra, and Keyworth, supra, is applicable to hospitals in other causes of action based on negligence, e.g., wrongful death actions and tort actions for damages for mental pain and suffering. Austin, 587 So.2d at 746.

My review of the record indicates that while the plaintiffs can present some evidence as to the scope of TUHC’s administrative duties, they have not rebutted TUHC’s arguments with respect to breach of duty or causation, which are essential elements of their cause of action, by at least showing genuine issues of material fact. For example, the plaintiffs argue that the Medical Review Panel’s opinion and the Joint Commission on Accreditation of Healthcare Organizations’ hospital accreditation standards both establish the scope of TUHC’s duty and create ^genuine issues of fact with respect to the breach of duty issue. See Sibley v. Board of Supervisors of Louisiana State University, 490 So.2d 307 (La.App. 1 Cir.1986), which held that the standard of care in a case against a hospital should be based, among other things, on Joint Commission on Accreditation standards.

Specifically, the Medical Review Panel’s opinion provides: “Hospitals are required to follow the orders submitted by the attending physician.” Additionally, the plaintiffs point to the following Joint Commission standards as establishing the base line of care for the provision of equipment and rehabilitation services:

Planning and Providing Care
Standard TX. 1: Care, treatment, and rehabilitation are planned to ensure that they are appropriate to the patient’s needs and severity of disease, condition, or impairment, or disability.
Standard TX. 1.1: Settings and services required to meet patient care goals are identified, planned, and provided if appropriate.
Standard TX. 1.1.1: When care is not planned to meet all identified needs, this is documented in the medical record.
Standard TX. 1.2: Care is provided in an interdisciplinary, collaborative manner by qualified individuals.
Rehabilitation Care and Services
Standard TX. 6.1: Qualified rehabilitation professionals determine the scope of the functional rehabilitation assessment; provide rehabilitation ser-vicesand implement the rehabilitation plan with the patient and his or her family, social network, or support system.
Standard TX. 6.1.1: Discharge planning from rehabilitation services is integrated into the functional rehabilitation assessment.
Standard TX. 6.2: Reassessment of the patient receiving rehabilitation services is an ongoing process.
Standard TX. 6.8: An interdisciplinary rehabilitation plan and goals, developed by qualified professionals ... based on a functional assessment of patient needs, guide the provision of rehabilitation services appropriate to patient’s environment.
Standard TX. 6.4: Rehabilitation services are appropriate to the patient’s needs and severity of disease, condition, impairment, or disability.
| ¡¡Standard TX. 6.5: Rehabilitation outcomes are restoration, improvement, or maintenance of the patient’s optimal level of functioning ...

Despite the foregoing, the plaintiffs fail to point to any orders from Ashtyn’s physician that were directed to the hospital or its staff and that the hospital or its staff failed to follow. Further, the plaintiffs fail to explain how the foregoing Joint Commission standards apply to the facts of this ease, or to identify specifically the manner in which TUHC, or its administrative employees, failed to live up to these standards. Additionally, my review of the record indicates that the plaintiffs have not demonstrated a genuine issue of material fact with respect to causation. That is, even if one assumes that the plaintiffs have established a breach of one of the foregoing duties, the plaintiffs have not shown that there is an issue as to causation for the trier of fact to examine. Accordingly, I concur in the affirmation of the trial court’s motion for summary judgment with respect to the plaintiffs’ claims against TUHC for the non-medically based negligence of its employees.

2

Because the plaintiffs also assert that TUHC is liable for the medically based negligence of its employees, such as nurses and physical therapists, I turn now to examine that claim.

Nurses and physical therapists are defined as qualified health care providers under La. R.S. 40:1299.41(A)(1). A hospital is responsible for the medically based negligence of its provider employees under the respondeat superior doctrine. In re Triss, 2001-1921, p. 13 (La.App. 4 Cir. 6/5/02), 820 So.2d 1204, 1212. “[T]he liability imputed upon the hospital must be viewed in light of the nurses’ actions.” Id., citing Odom v. State, Dep’t of Health & Hospitals, 98-1590, p. 7 (La.App. 3 Cir. 3/24/99), 733 So.2d 91, 96. “Nurses and other health care providers are subject to the same standard as physicians.” Triss, 2001-1921, p. 13, 820 So.2d at 1212, citing Migues v. Sagrera, 620 So.2d 463, 465 (La.App. 3d Cir.1993). “It is a nurse’s duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case.” Id.

From this it follows that under La. R.S. 9:2794 the plaintiff must satisfy three requirements to establish the hospital’s liability for the negligence of its provider employees:

(1) the degree of skill ordinarily employed, under similar circumstances, by the members of the nursing or health care profession in good standing in the same community or locality;
(2) the employee either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and
(3) as a proximate result of this lack of knowledge or skill or failure to exercise this degree of care, the plaintiff suffered injuries that would not, otherwise, have occurred.

Triss, 2001-1921, p. 14, 820 So.2d at 1212. Thus, the plaintiff must establish the standard of care applicable to the provider employee, a violation by the provider employee of that standard of care, and a causal connection between the provider employee’s alleged negligence and the plaintiffs injuries resulting therefrom. See Pfiffner v. Correa, 94-0924, p. 8 (La.10/17/94), 643 So.2d 1228, 1233.

With respect to the present case, my review of the record indicates that the plaintiffs cannot meet the evidentiary burdens set out in La. R.S. 9:2794 applicable to this claim without testimony from appropriate medical experts. Thus, I concur with the majority, insofar as it concerns the liability of TUHC’s health-care provider employees, when it concluded that the instant matter is not a case wherein negligence can be inferred by a layperson under Pfiffner, supra.

17 3

TUHC is the movant in the motion for summary judgment, but it would not bear the burden of proof at trial. Thus, the hospital’s burden on the motion can be satisfied by pointing out to the court “that there is an absence of factual support for one or more elements essential to the adverse party’s claim.” See La. C.C.P. Art. 966 C(2). “Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id. Because the plaintiffs failed to produce factual support that the hospital received the physician’s orders and failed to follow them, summary judgment was appropriate on the claim for the hospital’s administrative negligence. Because the plaintiffs failed to provide expert testimony concerning the standard of care owed by the hospital’s own nurses and therapists, or that they deviated from the applicable standard of care, summary judgment was appropriate on the claim for medical malpractice against TUHC. There is, then, no remaining claim by these plaintiffs against TUHC, and I join in the affirmation of the trial court’s dismissal with prejudice of their suit against the hospital.

      . La. R.S. 9:2794, entitled Physicians, dentists, optometrists, and chiropractic physicians; malpractice; burden of proof; jury charge; physician witness expert qualification, provides in pertinent part:
      A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
      (1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.