author:
KUHN, J.
      GUIDRY, J.,

text:
    Robert ABLE, Michael Adams, Norman Adams, Valerie Adams, Jerry Adkins, Jessie J. Aguillard, II, Rudy J. Albarado, Sr., Clayton Albritton, Terry J. Alford, Hayward Allemand, Jerry Allen, Lloyd Allen, Marcus Allen, Miquel Alvarez, Mark Amar, Marcos Andujo, Hector D. Antunez, Jason J. Arnold, Daniel Aucoin, Igneta Auila, Dale Babin, Samuel Baham, Donald Baker, Donald Jason Baker, Heath Baker, Carolyn Ballard, Matthew R. Ballard, Jr., Christopher Bankston, Roy Bankston, Jr., Henry W. Barber, Louis Barber, Stephen Barlow, Craig Barrilleaux, Eric Bateman, Jason Battleson, Christopher Bayonne, James Bell, Wendall Bell, Bruce Bennett, Yancy Benoit, Bonnie Bertrand, Chester J. Bertrand, Sr., Randy Blakey, Jamie Blalock, Wayne Blanchard, Whitney Blanchard, Jr., Adam Bordelon, Cody James Boudreaux, Elaine Boudreaux, Gregg Boudreaux, Dana Bourgeois, Kody Bourgeois, Kristin Bourgeois, Sebron Bovia, Jacqueline Bracken, Scott P. Brady, Casey Braud, Corey Braud, Darlene Braud, Danny Breaux, Sr., Anthony Brown, Courtney Brown, Leonard Brown, James Buchanan, Kelly Buhler, Glenn A. Burge, Jr., Edward C. Burgess, Bernard Bush, Heather Butler, Ronnie Lee Butler, Panfilo Campos, Gaitino Canzoneri, Daniel W. Carter, David Caston, Sr., Leo C. Causey, Larry Celestine, Jr., Allen Champagne, Isaac Chatman, Tronquell Chatman, Jorge S. Chavez, Glen Chenier, Sr., Jody Chiasson, Dale Clark, Jessie Clark, Jr., Michael Clouatre, Wendy Clouatre, Wayne Cobb, Jerome Cockron, Leroyal Cole, Patrick Collier, Homer Collins, Mickey Comeaux, Leah H. Conn, Dustin Cook, Kendrick Cook, David C. Core, Mark Cormier, Boyd Cortez, Bruce Cortez, Faron Cortez, Trevor Cortez, Herbert B. Coupel, Don Courtney, Carlton Crocker, Perry Cross, Wallace Cryer, Michael Cypriar, Jeffrey S. Dabney, Kevin J. Daigle, Sr., Daryl Dampier, Billy H. Daniel, Acbert Davis, Joey D. Davis, Joyce Davis, Leo Davis, Jr., Jeffery A. Delaune, Michael Dement, John Denham, Paul Devillier, Jorge Diaz, Leslie Dillon, Robert Dissoe, Vickie Dixon, Weldon Dobbs, Forrest Douglas, Kevin Dowdy, Alton Downcereaux, Toby Dozier, Jr., Corey Duet, Oliver J. Duncan, Tony Dunn, Nathaniel Dupree, Roy Dyson, David Easlick, Hyacinth Emmanuel, Yancey Ernest, Jonathan Erwin, Joseph Eskins, Veronica Espinoza, Gail M. Fields, Robert Fields, Roland Fiffie, Jr., Alan Finch, Derek J. Foreman, Kevin Foshee, Jacqueline Fosselman, Henry Foster, Henry Foster, Jr., Larry Fowler, Rogers Frazier, Jr., Thomas Freeman, Lorenzo Fuentes, Nathanael Galvan, Scott Gant, Anthony Garcia, Elvis M. Garcia, Darrell Garner, John W. Gates, Tahlia Gautreau, Corey Gautreaux, Kim Geason, Roberto Godinez, Erick Gomez, Darren Gore, David Graves, Katina Green, Marcus Green, Marion Green, Reno Gregoire, Jr., Benjamin Griffin, Donald Gros, Norris J. Gros, Jr., Rickey Gros, Sr., Ryan Gros, Travis Guedry, Troy Guitreau, Joy Gulotta, Margie E. Guy, Sharon Guy, Jackie Hall, Nathan L. Harrell, George Harris, Robert Harris, Dannie Hartley, Jr., Cristiano Haywood, Jody Hebert, Jody Hebert, Michael Henderson, Jr., Michael Henderson, Sr., Cesar Hermosilio, Jerry Hidalgo, Al Murray Hill, Michel Honore, Connie S. Hoover, Jason Hoover, Terry Hoover, Scott Hudnall, Larry Hudson, Tate Hue, John Hunt, Bradley Hutcherson, Randall E. Hyatt, Andrew Jackson, Dexter Jackson, Kendall Jackson, Weldon Jasper, Roy Jefferson, Jason Johnson, Nathaniel Johnson, Racquel Johnson, George Jones, Sr., Janice Jones, Dwan Joseph, Ruby Joshua, Simone Joshua, Ernie Jumonville, Ryan Kelson, Clinton Keplinger, Melinda Kimble, Stacy Kohn, William Krumholt, Hershel Kysar, Jr., Irvin Lachney, Kai Lagrange, Carter Lambert, James E. Lanclos, Brent Landry, Dale Landry, Jr., Charles Lanier, Jr., Michael Larkin, Jr., Adrian Laroe, Anthony Lashlee, Sheila Lashlee, Ronald Lassere, Jr., Chuckie Leblanc, Kenneth Leggion, Jr., Martin Leggion, Crystal Lejeune, Calvin Leonard, Raymond J. Leonard, Levi Lessard, Bobby Level, Sr., Rodney Levron, Jr., Carolyn Lewis, Jason Loupe, Jaime Lujan, Sigifredo Lujan, Irma Luna, Daniel Madden, Raynell R. Madison, Lyntrell Malancon, Derek Manchack, Juan Martinez, Lonnie Matherne, Sr., Kenneth D. Matthews, Keith McCollister, Daniel McCon, Johnnie McGee, III, William McGregor, Sean McHughes, Russell McLin, Jeffrey McMillan, Ronnie McMillan, Lance Meadors, Annette Meggs, Rita Melancon, Randy Mendoza, Trace E. Merideth, Jai Miles, Jerry Miller, Kevin Miller, Stephen Miller, William Miller, Elaine Mitchell, Horace Mitchell, Troy Mitchell, Kenneth Moore, Perry Moore, Manuel Moreno, Troy Morrell, Vickie Morales, Danny Moran, Earl Moran, Sr., Charles Morris, James Morris, Jason Morris, Zachary Moseley, Ellis Mulkey, William Murray, Vernon Nicholas, Jr., Beth Niquipoho, Ronald Palmer, Jack Pape, Edward Parker, Pentral Paul, Maurice Pena, Charles Penton, Jr., James Penton, Michael Perkins, Kehvn S. Petrig, David Phelps, Michael Phillips, Malinda Pierce, Donald Pleasant, David Populus, Alexander Porter, Jr., Arthur Porter, Herman Posada, Adam Radford, Jose C. Ramirez, Lorena Ramos, Jeremy C. Ramsay, Corey Ray, Rickey Reed, Warren S. Reed, Sr., Heidi Repp, James Rhodus, Bryan Richard, Randy Richard, Shannon Richard, Glover C. Ricks, Lidia Rodriguez, Dana Rowell, Michael Rudolph, John Rushing, Shane Russell, Euston Sanchez, Phil J. Sanchez, Sr., Thomas Sanders, Robert Schwab, Jr., Michael Shannon, Ted Sheets, Daryl Skinner, Carolyn Smith, Charles D. Smith, Christina Smith, Freddy Smith, Joshua Wayne Smith, Richard Smith, Leonce Solar, Jr., Lloyd Solar, Jr., Karla G. St. Ament, Brooklyn Stafford, Jennifer Stafford, Steven Stafford, William Stafford, Kevin Steib, Roger Stevens, Warren Stevens, Derek Steveson, Benjamin Stewart, James Stewart, John Stewart, Morgan Stout, Donald Strate, Jr., Ken Swims, Shawn Syverson, Russell Tate, Leanette Taylor, Hiram Taylor, III, Randy Theriot, Austin Z. Thomas, Torry Thomas, Bernard Thompson, Debra Thorgeson, George Threadgill, Jezreel Todd, David L. Trautman, Bradley Travis, Donald Turbeville, Doyle Turner, Jr., Charles Ursin, III, Aaron Valet, Johnny Vedros, Jr., Verna C. Vedros, Edward Watson, Wilson Watts, Brandon Whetstine, Bobbie White, John W. White, Jr., Tommy Wilcox, Joey Wilkinson, Cathy Williams, Cheryl Ann Williams, Frank Williams, Jr., Fred Williams, III, Jason Williams, Jeanette Williams, John Williams, Louis Williams, Marvin Williams, Michael Williams, Richard C. Williams, Ronald Williams, Telford Williams, James Willis, Edward Wilson, Cardarian Wire, David Wolf, Johnny T. Wolinski, Jr., Darrin Davis, Torrie Turner-Davis, Darrin Harrison, Fred L. Hastings, Jr., Brandon K. Hynum, Robert Kinabrew, Michael C. Lacey, Robert Noland, Michael Riddle, Terry Sterling, and Damon Westbrook v. VULCAN MATERIALS COMPANY, International Maintenance Corporation and Industrial Coatings Contractors, Inc.
    No. 2011 CA 0448.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 8, 2012.

      Charles Shelby Norris, Jill R. Carter, Vidalia, LA, for Plaintiffs-Appellants Leslie Dillon, April Dillon and Matthew Dillon.
    Bradley C. Myers, Baton Rouge, LA, for Defendant-Appellee Vulcan Materials Company.
    John Dale Powers, Andrew P. Sellers, Jr., Baton Rouge, LA, for Defendant-Ap-pellee Industrial Coating Contractors, Inc.
    Before WHIPPLE, KUHN, GUIDRY, pettigrew, McClendon, jj.
   KUHN, J.

14Plaintiffs-appellants, Leslie Dillon and his major children, April and Matthew, (collectively the Dillons), appeal the trial court’s judgment entered in conformity with a jury verdict awarding $5,225.00 in general and special damages to Leslie Dillon against defendants, Vulcan Materials Company (Vulcan) and Industrial Coating Contractors, Inc. (ICC) for his exposure to a chemical release, which occurred at the Vulcan plant in Geismar, Louisiana. Because we conclude the trial court erred by requiring the Dillons to use the same jury used in previous consolidated cases arising out of the same chemical release, we vacate the judgment and remand the case for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On April 3, 2001, a chemical release occurred at the Vulcan plant in Geismar, Louisiana. A Shell Chemicals facility, located adjacent to the Vulcan plant, was downwind of the chemical release. Plaintiff, Leslie Dillon, was working as a pipe welder on the Shell Chemicals premises at the time of the release. After the release, over 3,000 claims were filed against defendants Vulcan and ICC. The Dillons’ claims were included in the suit entitled Able v. Vulcan Materials Co., docket number 72,084, which was filed on April 3, 2002.

During the pre-trial process, the trial judge granted a joint motion that consolidated all of the April 3, 2001 chemical release cases for pre-trial | ¡¡proceedings into a single litigation entitled In Re: Vulcan Litigation, April 2001 Incidents. Additionally, a steering committee was created to lead the plaintiffs’ litigation. Daniel Becnel, Jr. and Robert Schmolke were designated as the co-lead counsel for the plaintiffs.

In December of 2003, the court approved a trial procedure wherein the claims of ten plaintiffs would be presented in the first trial, with the plaintiffs and defendants each selecting five plaintiffs. Pursuant to the approved procedure, the jury would hear testimony related to the event to decide fault and then would decide medical causation and individual damages for those first ten plaintiffs. Thereafter, the causation and damage claims of the remaining plaintiffs would be tried in subsequent trials if settlements were not reached. The Dillons acknowledge that the co-lead counsel for plaintiffs entered into a stipulation agreeing to use the same jury for the consolidated cases. A status conference in October of 2002 shows that it was plaintiffs’ co-lead counsel who suggested the use of the same jury for all subsequent plaintiffs.

Before the first trial, Vulcan and ICC stipulated to their respective percentages of fault. Five plaintiffs stipulated that their damages did not exceed $50,000.00. Those claims were heard by the trial judge alongside those presented to the jury.

The trial began on July 6, 2004, and took 18 days to try (“the McLeon trial”). Due to voluntary dismissals and a settlement, only four claims were submitted to the jury and one to the trial judge. During the voir dire, the trial | ¿judge permitted both the attorneys for defendants and attorneys for those plaintiffs to question the potential jurors. Throughout the trial, there was excessive attorney commentary, generally involving the defense counsels’ persistent characterization of the litigation as a “money grab” orchestrated by plaintiffs’ attorneys and the plaintiffs’ co-lead counsel’s repeated use of inappropriate inflammatory commentary. The jury also heard commentary during opening statements about certain judge-trial plaintiffs who voluntarily dismissed their claims before the trial even concluded.

|7On August 17, 2004, the jury rendered verdicts and awarded damages as follows: (1) Robert Noland, $16,646.12; (2) James Penton, $29,557.00; (3) Sheila Piper, $13,500.00; and (4) Ronnie Vallery, $138,972.00. The trial court entered a judgment in conformity with the jury verdict and awarded plaintiff, Benjamin Our-so, $3,042.10. The trial court’s judgment was affirmed on appeal. See McLeon v. Vulcan Chemicals, 2006-0662 (La.App. 1st Cir.9/14/07), 2007 WL 2684987 (unpublished), writ denied, 2007-2250 (La.1/25/08), 973 So.2d 757.

As the trial of the second set of ten plaintiffs commenced, plaintiffs’ co-lead counsel filed an expedited writ, asserting that the trial court had abused its discretion when it re-seated the jury from the first trial because more than two years had elapsed since the first trial. This court denied the writ “on the showing made.” See In re: Vulcan Litigation-April, 2001 Incidents, 2006-2504 (La.App. 1st Cir.1/5/07) (unpublished writ action). Thereafter, all the remaining parties reached a settlement agreement with the exception of the Dillons. The trial court 1 ¿permitted the Dillons to “opt out” of the settlement and to pursue their claims in a stand-alone case. In its January 18, 2008 response to plaintiffs’ motion for leave to amend their lawsuit to add April and Matthew Dillon as party plaintiffs (to personally assert their claims upon reaching the age of majority), Vulcan not only agreed that the Dillons “timely and properly opted-out,” but also agreed to the amendment of the pleadings to add new and additional named plaintiffs. Furthermore, in the January 18, 2008 response, Vulcan clearly acknowledged that the Dillons were not included in any settlement class. The defendants have therefore acquiesced in the fact that the plaintiffs, by “opting-out,” are not bound by any agreement amongst the defendants and the plaintiffs in the “settlement class.”

After opting out of the settlement, the Dillons retained new counsel and filed an amended complaint on November 13, 2007. Leslie Dillon averred that his exposure caused injuries including insomnia, reduced lung function, heat intolerance, headaches, depression, and anxiety. His doctor declared him disabled from work in 2002. April and Matthew averred that their father’s condition had negatively impacted their society and companionship with him.

In December of 2008, the trial judge ordered that the jury chosen for the consolidated litigation appear before the court on March 23, 2009, to ascertain whether they were still eligible and available to serve. On March 18, 2009, the Dillons filed a motion for a new jury. The motion averred in pertinent part:

2.
Initially class counsel made an agreement with defendants to use the same jury in multiple trials arising from the Vulcan litigation.
19^-
Dillon was never aware of, advised, nor consulted about such procedure and did not agree.
4.
In the ensuing years, the case has settled in the community and it is highly unlikely that the prior jurors are not aware of these settlements.
5.
The purpose of using the same jury stated at the time of the agreement was to assist in settling the case. That goal was accomplished and is no longer a justification.
6.
At the time the second Vulcan group was slated to be tried, the court brought in the original jury. Several expressed great reluctance to serve again and counsel’s memory is that the foreman was frustrated and rebellious about having to be placed in such a position. None of that was the fault of, nor due to anything done by Mr. Dillon.
7.
In the case tried, the original jury was exposed to very prejudicial evidence irrelevant to the Dillon case, but very relevant to the Vulcan defense. This evidence included:
(a) Evidence of people who were making judge trial claims that had cases of such questionable merit that they-were dismissed on the second day of trial. However the jury was exposed to these questionable and prejudicial claims.
(b) Lead counsel for the class advised the jury in opening statement that his case was settled and that he had no dog in the hunt....
(c) The defendants were able to argue without objection that the plaintiffs counsel involved in the first trial were engaged in a “money grab” and that the case itself in terms of damages was exaggerated and lawyer created.

The plaintiffs, therefore, asserted that use of the same jury would violate their fundamental right to a fair and impartial jury. The motion was scheduled to be heard on March 23, 2009, on the same day that the trial judge was to meet with the jurors from the consolidated litigation.

|10On the morning of March 23, 2009, the trial judge informed the attorneys that he intended to interview each juror individually with the attorneys present and to ask them whether they still lived in the parish, whether they found out anything about the case, and whether they could still be fair. The attorneys were not permitted to ask any questions, but could give specific questions to the trial judge to ask. During the interviews, five of the twelve jurors indicated they had heard discussions of a Vulcan settlement since the first trial. One of those five heard that a plaintiff “refused to settle.” Another juror indicated that she had moved out of the parish. The parties agreed to “waive” this impediment. When the plaintiffs’ counsel expressed concern about the responses of some of the jurors, the trial judge instructed counsel to make his argument after the completion of the juror interviews. None of the jurors were dismissed. After the juror interviews, the trial judge heard arguments on the motion for a new jury and issued a ruling denying the motion.

Immediately prior to trial, the trial judge met with the jurors again. He began by informing them of the anticipated dates of the trial and asking whether “anyone [has] any problem with that, think that will be a difficulty or a hardship on you in this case?” Three jurors responded that it would; no jurors were dismissed. The trial judge then instructed each juror to introduce themselves to the attorneys and then he introduced the plaintiffs and their counsel to the jury, asking whether anyone on the jury knew them. Then the trial judge asked:

Since you’ve been recessed from that first trial have any of you heard anything more or learned any more information, acquired any knowledge about anything involving this case since our last trial? Read anything about it? Heard anything about it? Anything like that?
|nAny of you know of any reason why you can’t be a fair and just juror for this particular plaintiff in this trial?

After a discussion with one juror who asked whether his job might create a conflict of interest, the trial judge proceeded to give the jury instructions.

The Dillons’ five-day trial began in January of 2010, more than five years after the first trial in the Vulcan consolidated cases. The defendants stipulated their liability for the release and admitted that the released chemicals can cause “adverse health effects.” Although the parties agreed that the plume had passed over the Shell Chemicals plant, they disputed whether the plume had passed over Leslie Dillon’s particular location at the plant and whether he had been otherwise exposed to the chemicals that day. After the presentation of evidence, the jury found there was medical causation but awarded Leslie Dillon only $5,225.00 in damages. The jury did not award any damages to either April or Matthew for their respective losses of consortium. The trial judge signed a judgment in conformity with the jury’s verdict that the Dillons now appeal.

DISCUSSION

The Dillons assert that the trial court violated their fundamental right to a fair and impartial jury by requiring them to use the same jury that was utilized for the trials in the consolidated litigation. The Dillons urge that the length of time that elapsed since the first trial, the jury’s exposure to prejudicial evidence irrelevant to their case but relevant to the defense’s strategy, and the fact that their suit is separate and distinct from the consolidated litigation all weigh in favor of | ^allowing their claims to be heard before a new jury.

The issue of whether the Dillons’ right to a fair and impartial jury was violated by the trial judge’s decision to utilize the same jury from the consolidated case is a question of law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. In re Mashburn Marital Trust, 2004-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, 246, writ denied, 2006-1034 (La.9/22/06), 937 So.2d 384.

There is a statutory right to a trial by jury in civil cases. See La. C.C.P. art. 1731. Article 1731 states in pertinent part that, “[ejxcept as limited by Article 1732, the right of trial by jury is recognized.” (Emphasis added.) The Official Revision Comments to Article 1731 further emphasize the inviolate nature of this right, stating:

This article serves the same purpose as Fed. Rule 38(a), which provides that the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.

The jurisprudence also establishes that the right of a litigant to jury trial is fundamental in character, and the courts will indulge every presumption against a waiver, loss, or forfeiture thereof. Champagne v. Am. S. Ins. Co., 295 So.2d 437, 439 (La.1974), (citing Hicks v. Bd. of Supervisors of Louisiana State University, 166 So.2d 279 (La.App. 1st Cir.1964); Arrington v. McCarty, 136 So.2d 119 (La.App. 3d Cir.1961), and Abercrombie v. Gilfoil, 205 So.2d 461 (La.App. 1st Cir.1967)). The Louisiana Supreme Court recently reaffirmed the right to a jury trial in a civil case, noting that the right is “favored in the law.” Pugeau v. Hebert, 2000-0875 (La.5/12/00), 760 So.2d 325, 326. This right inures to the benefit of both plaintiffs and defendants.

Justice Marshall wrote that the great value of a trial by jury lies in its fairness and impartiality. United States v. Burr, 25 F.Cas. 49, 50 (Circuit Court D. Virginia 1807). A jury should enter upon the trial with minds open to those impressions which the testimony and the law of the case ought to make, not with preconceived opinions which will resist those impressions. Id. More recently, the United States Supreme Court has stated that among the basic fair trial rights that can never be treated as harmless is the right to an impartial adjudicator, whether judge or jury. Gomez v. United States, 490 U.S. 858, 876, 109 S.Ct. 2237, 2248, 104 L.Ed.2d 923 (1989). Indeed, the Louisiana Code of Civil Procedure recognizes the importance of a jury’s impartiality, permitting a juror to be challenged for cause, “[w]hen the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial.” La. C.C.P. art. 1765. Safeguards of juror impartiality include voir dire and protective instructions from the trial judge. Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

The purpose of voir dire is to discover grounds for challenges for cause and to secure information for the intelligent exercise of peremptory challenges. State v. Mickey, 626 So.2d 24, 26 (La.App. 1st Cir.1993). The two basic reasons to challenge for cause are for a lack of impartiality or a lack of qualifications. 11 uFrank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure § 11:4 (2008). In civil cases, “[t]he parties or their attorneys shall individually conduct such examination of prospective jurors as each party deems necessary,” although the court may control the scope of their examination. La. C.C.P. art. 1763(B).

The qualification requirements for jurors in civil cases are governed by those standards set forth in the Code of Criminal Procedure. La. R.S. 13:3041(B) and 1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure § 11:4 (2008). Louisiana Code of Criminal Procedure article 401 provides in pertinent part:

A. In order to qualify to serve as a juror, a person must:
(1) Be a citizen of the United States and of this state who has resided within the parish in which he is to serve as a juror for at least one year immediately preceding his jury service. [Emphasis added.]

Based on the particular facts of this case and our review of the law, we find that this jury was improperly constituted and its use violated the Dillons’ fundamental right to a fair and impartial jury.

First, it was improper to use a juror who resided outside of Ascension Parish, the parish where the trial was conducted. Article 401 requires that each juror must be a resident of the parish where she will serve. Prior to the commencement of the Dillons’ trial, a prospective juror advised the court that she did not reside in Ascension Parish. While the attorneys may have stipulated their agreement to the juror’s use, a stipulation is only binding if it is not in derogation of the law. See Triche v. Allstate Ins. Co., 96-0575 (La.App. 1st Cir.12/20/96), 686 So.2d 127, 131. We conclude that the parties could not waive the residency | ^requirement by agreement where the court had notice of the issue prior to the commencement of the trial. See La. C.Cr.P. art. 401.

Second, the voir dire employed for the Dillons’ trial substantiated the plaintiffs’ concerns that certain members of the jury were no longer impartial. During the trial judge’s interview of the jurors, several indicated that they had observed media coverage regarding a Vulcan settlement. One juror heard there was a plaintiff who “refused to settle.” These statements confirm some of the concerns raised by the plaintiffs in their motion.

Furthermore, the trial judge did not permit counsel to conduct their own examination of the jurors as required by La. C.C.P. art. 1763. While the jury was properly vetted through voir dire for the McLeon trial, that vetting did not guarantee the jurors’ impartiality for the Dillons’ trial. There was a particular need for an adequate voir dire in this case given the excessive commentary that occurred throughout the McLeon trial, the media coverage of the settlement that occurred subsequent to the McLeon trial, and the fact that more than five years had elapsed since the first trial. The curtailing of the voir dire prevented the parties from obtaining additional evidence regarding the jurors’ impartiality and, therefore, was especially egregious. We also observe that the trial judge failed to summon any additional prospective jurors and he did not take any other definitive steps to provide for the not unlikely event that a juror from the McLeon trial was no longer qualified.

Defendants assert that the motion for a new jury was properly denied, emphasizing in particular the stipulated agreement of the co-lead counsel agreeing to use the same jury for all the consolidated cases. However, we note that the 11f,Dillons were permitted to opt out of the settlement and to bring their own stand-alone case. Therefore, they were allowed to and did in fact remove themselves from the earlier procedural agreements applicable to the consolidated cases. April and Matthew Dillon, new plaintiffs to the litigation, were not able to participate in the procedure established and have been totally denied an opportunity for a jury trial on their respective claims. Neither the Dillons nor their counsel could acquiesce to this procedure because it was an invalid procedure. A stipulation is binding only if it is not in derogation of the law. Triche, 686 So.2d at 131. While the stipulation among counsel may not have been inherently in derogation of the law, its efficacy is called into question here because it has the effect of sacrificing a party’s basic right to a fair and impartial jury.

During oral arguments, the defendants’ counsel also asserted that the plaintiffs waived their right to appeal the use of this jury by failing to seek supervisory review on the issue prior to trial, citing several cases in support. See Luquette v. Decker, 273 So.2d 570 (La.App. 1 Cir.1973), writ denied, 276 So.2d 702 (La.1973); Holmes v. Peoples State Bank, 796 So.2d 176 (La.App. 2d Cir.2001), writ denied, 808 So.2d 342 (La.2002), cert denied 537 U.S. 897, 123 S.Ct. 197, 154 L.Ed.2d 167 (2002); Gamble v. D.W. Jessen & Associates, 491 So.2d 483 (La.App. 3d Cir.1986), remanded on other grounds, 496 So.2d 319 (La.1986); Windham v. Security Insurance Company of Hartford 337 So.2d 577 (La.App. 4th Cir.1976), writ denied, 341 So.2d 407 (La.1977); and Brown v. General Motors Corp., 662 So.2d 531 (La.App. 5th Cir. 1995), writ denied, 667 So.2d 1055 (La.1996). However, these cases only involved a trial court’s decision to allow or to disallow a trial by jury. None involved the qualifications or | ^impartiality of the jurors themselves. In a case closer to that before us, the Louisiana Supreme Court held that a Batson/Edmondson challenge in a civil case may be reviewed by an intermediate appellate court on appeal. See Alex v. Rayne Concrete Serv., 2005-1457 (La.1/26/07), 951 So.2d 138, 146. Additionally, the Louisiana Supreme Court acknowledged therein that challenges for cause in civil cases are routinely reviewed on appeal. Id. Given the foregoing, we reject the notion that the Dillons have waived their right to appeal the use of this jury. This is underscored by the facts that the amendment agreed to by Vulcan in its January 18, 2008 response to plaintiffs motion for leave to amend their petition brought in new plaintiffs whose claims have never been presented to a jury, and that with the amendment agreed to by the defendants, the specifics of the claim asserted by the Dillons was changed.

Finally, the defense urges an application of the law-of-the-case doctrine. However, this principle is not applied to prevent a higher court from considering the correctness of a ruling. State v. Langley, 2006-1041 (La.5/22/07), 958 So.2d 1160, 1163, cert, denied, 552 U.S. 1007, 128 S.Ct. 493, 169 L.Ed.2d 368 (2007). Accordingly, we find that under the facts of this case, the use of this jury violated the Dillons’ right to a fair and impartial jury.

We additionally point out that the right to a jury is not preempted by this court’s power to review de novo. In the case before us, the Dillons never possessed a properly constituted jury because the jury was tainted from the inception of their trial both by the improper stipulation that attempted to sacrifice the parties’ basic rights to a fair and impartial jury and the seating of an unqualified juror. These errors impacted the entire framework of the trial from |1Rbeginning to end. See State v. Langley, 958 So.2d at 1168. Where there is a complete record, appellate courts will generally review the record without according any deference to the trial court and will render judgment on the merits based on the de novo review of the record, rather than remanding the case for a new trial. See 1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure § 14:15 (2008) and Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975). This court has previously noted, however, that Gonzales did not deal with a situation where the jury was improperly constituted. Nettles v. Bowlin, 417 So.2d 1192, 1198 (La.App. 1st Cir.), (on rehearing), writs denied, 422 So.2d 416, 417 (La.1982).

Where a jury is improperly constituted, the basic right to a fair jury trial requires remand. Nettles, 417 So.2d at 1198. An appellate court is empowered by La. C.C.P. art. 2164 to remand a case where it is necessary to reach a just decision and to prevent a miscarriage of justice. See Alex, 951 So.2d at 155. Whether or not any particular case should be remanded is a matter which is vested largely within the court’s discretion and depends upon the circumstances of the case. Id. However, considerations of judicial economy must yield to the greater legal principles involved. Id. at 156.

Moreover, in civil law jurisdictions such as ours, legislation is the superior source of law. See La. Civ.Code art. 1, comment (a). Legislation is the solemn expression of legislative will. La. Civ.Code art. 2. Custom may not abrogate legislation. La. Civ.Code art. 3.

|1flThe legislation implicated herein is the statutory right to a trial by jury given the improperly constituted jury. See La. C.C.P. art. 1731. In contrast, de novo review originated in the jurisprudence. See 1 Frank L. Maraist, Louisiana Civil Law Treatise, Civil Procedure § 14:15 (2008) and Gonzales v. Xerox Corp., 254 La. 182, 320 So.2d 163 (1975). Accordingly, this court’s power to review de novo cannot preempt the Dillons’ fundamental right to a jury. Finally, remand of this case will serve not only to protect the Dillons’ right to a fair jury, but also to protect the defendants’ right to trial by jury. For these reasons, this matter is remanded to the trial court for a new trial.

DECREE

The trial court’s January 21, 2010 judgment is vacated, and the case is remanded for a new trial with selection of a new jury in accordance with these principles. Appeal costs are assessed one-half to plaintiffs-appellants, Leslie, April and Mathew Dillon, and one-half to defendants-appel-lees, Vulcan Materials Company and Industrial Coating Contractors, Inc.

VACATED AND REMANDED.

WHIPPLE, J., concurs in the result.

GUIDRY, J., dissents and assigns reasons.

GUIDRY, J.,

dissenting.

[jAt issue in this appeal is not whether the Dillons were granted a jury trial, but whether they were entitled to a new jury. The opinion asserts that a party is entitled to a jury that continues to be qualified under the criteria required by law. As a preliminary matter, it is observed that on appeal, the appellants simply argued that they were prejudiced by the use of the same jury because of the jury’s knowledge of the evidence and arguments presented in the prior proceedings and the knowledge of some jurors regarding the settlements obtained following the previous trial. Nevertheless, the majority, sua sponte, raises the issue of the qualifications of the jurors as grounds for finding that the trial court erred in maintaining the same jury to decide the Dillons’ claims.

As for the merits of the majority’s determination, the cases and law cited all relate to when the jury is first impaneled; none relate to an already impaneled jury. The objectionable jury in this case consisted of twelve jurors and two alternates (Henry Millien and Eldriek Simon). Of the twelve, five, of the jurors indicated that they had heard or read about the case in the news. And one of the jurors had moved from the parish during the recess in the proceedings.

|2Louisiana Code of Civil Procedure article 1766(C) provides “[ajfter the entire jury has been accepted and sworn, no party has a right to challenge peremptorily.” Article 1767 further provides that “[a]l-though the entire jury may have been accepted and sworn, up to the beginning of the taking of evidence, a juror may be challenged for cause by either side or be excused by the court for cause or by consent of both sides, and the panel completed in the ordinary course.” (Emphasis added.)

In the present matter, the plaintiffs argue that they were entitled to challenge the entire jury for cause and have an entirely new jury impaneled. The voir dire conducted prior to the Dillons’ trial reveals that not all of the jurors were subject to being challenged for cause, and in fact, only one juror could actually be challenged for cause, and that was Michelle Dry, who had moved to Livingston Parish, and therefore, no longer resided in Ascension Parish. The remaining jurors acknowledged that they had heard news accounts regarding the case, but all were questioned by the trial court and unequivocally affirmed that they could render a fair and impartial decision. Such rehabilitation and acceptance of those jurors was well within the trial court’s discretion, and the majority’s contention herein that rehabilitated jurors are unfair and partial flies in the face of an entire body of civil and criminal jurisprudence holding otherwise. See e.g. La. C. Cr. P. art. 797(2); State v: Lindsey, 06-255, p. 3 (La.1/17/07), 948 So.2d 105, 107-08; Townes v. Liberty Mutual Insurance Company, 09-2110, p. 13 (La.App. 1st Cir.5/7/10), 41 So.3d 520, 530.

There are not many civil cases that address the issue of disqualification or dismissal of a juror once trial has commenced, which are the circumstances of this case. However, as observed by this court in Cavalier v. State, ex rel. Department of Transportation and Development, 08-0561, p. 11 (La.App. 1st Cir.9/12/08), 994 So.2d 635, 642-43, only nine jurors must concur to render a verdict in a jury | trial by twelve, unless the parties stipulate otherwise. La. C.C.P. art. 1797. In that case, the court held that the trial court did not err in choosing to proceed with a jury of 11, when one juror was not able to serve.

Moreover, in this matter, the plaintiffs objected to the jury utilized based on the length of time that had elapsed between the general trial on causation and the secondary trial of the specific damages sustained by the Dillons. In essence, the trial court recessed the case until the time any subsequent cases were ready to be tried. Typically, absent a showing of prejudice, a trial court’s decision to grant a recess falls within the discretion granted the court. See State v. Johnson, 529 So.2d 466 (La.App. 1st Cir.1988), writ denied, 536 So.2d 1238 (La.1989).

Furthermore, La. C.C.P. art. 1562(B) states that “[i]f a defendant has been found liable by a jury, the court shall proceed with the trial on the remaining issues before the same jury unless all parties consent to a trial before a different jury.” (Emphasis added.) The majority negates the fact that the parties stipulated to using the same jury by holding that the defendants’ acquiescence to the trial court’s action of permitting the Dillons to “opt-out” of the settlement equated to them acknowledging and/or agreeing that as a result, the Dillons were not bound by the jury stipulation previously entered into by the parties in the mass joinder. The majority offers no authority for holding that by agreeing to allow the Dillons to opt out of the settlement and have their damages assessed separately and apart implied that the defendants further agreed that the Dillons would not be bound by the trial procedures agreed to by the parties in the mass joinder. Moreover, the fact that April and Matthew Dillon originally appeared in the suit in a represented capacity, but were later allowed to individually assert their claims on attaining the age of majority does not make them “new plaintiffs” to the litigation, as asserted by the majority. See Giroir v. South Louisiana Medical Center. Division of Hospitals, 475 So.2d 1040, 1044 (La.1985) (“Where a plaintiff only seeks to change the capacity |4in which the action is brought ... there is no change in the parties....”) and Rainey v. Entergy Gulf States, Inc., 01-2414, p. 14 (La.App. 1st Cir.6/25/04), 885 So.2d 1193, 1204(on rehearing), writs denied, 04-1878, 04-1883, 04-1884 (La.11/15/04), 887 So.2d 478-79 (“Ordinarily, when substitution of a party pursuant to La. C.C.P. arts. 801-807, or 821, is necessary, the lawsuit continues in the procedural posture existing at the time substitution became necessary.”).

It has been held that “a waiver of one’s right to a jury trial may not bind a plaintiff, even if it is signed by plaintiffs attorney, if plaintiff did not authorize the waiver.” Rainone v. Exxon Corporation, 93-2008, p. 8 (La.App. 1st Cir.1/13/95), 654 So.2d 707, 711, writ denied, 95-0337 (La.3/24/95), 655 So.2d 1340. However, it should be pointed out that the Dillons were granted a jury trial, so the issue is not whether they were denied a trial by jury, but the efficacy of the jury trial provided to them. The majority asserts that the Dillons were not afforded a fair and impartial jury, which assertion as previously explained, is not legally established by the record. Moreover, the Dillons had the burden of proving, not merely alleging through argument of counsel, that the stipulation was reached over their objection or entered into without their knowledge. See Campbell v. Davenport, 35,128, p. 9 (La.App.2d Cir.11/2/01), 799 So.2d 1220, 1226.

The jury that tried the case, as agreed to by counsel, was fully voir dired and sworn prior to their service in the McLeon trial, and they were further voir dired by the trial court utilizing a procedure to which the parties did not object, prior to the Dillons’ trial. See La. C.C.P. art. 1635; Armant v. Wilkerson, 08-2287, p. 4 n. 2 (La.App. 1st Cir.5/8/09), 13 So.3d 621, 623 n. 2 (“Failure to object deprives the district court ... of the opportunity to correct a contested ruling and constitutes waiver of the issue on appeal.”). Thus, the majority errs when it raises the issue of the trial court not allowing counsel to conduct their own examination of the jurors in accordance with La. C.C.P. art. 1763.

| ¡¡Finally, although as previously stated I do not believe it was reversible error for the trial court to use the same jury to decide the Dillons’ claims, 1 further must disagree with the majority’s decision to remand this matter to the trial court for a new jury trial to correct the alleged error. Based on my review of the entire record in this matter and for the reasons recited above, I do not find that any structural error was committed in this matter that would require a remand of the case as opposed to this court exercising its authority of de novo review based on the complete record before us. See State v. Langley, 06-1041, p. 6 (La.5/22/07), 958 So.2d 1160, 1164; Alex v. Rayne Concrete Service, 05-1457, pp. 23-24 (La.1/26/07), 951 So.2d 138, 155-56; and Gonzales v. Xerox Corporation, 254 La. 182, 320 So.2d 163, 165 (1975).

For the for these reasons, I respectfully dissent.

      .The following chemicals were released from Vulcan’s chloromethanes unit: hydrogen chloride, methyl chloride, methylene chloride, chloroform, and carbon tetrachloride. The parties dispute whether chlorine was released.

      . Leslie Dillon was an employee of Shaw Constructors, Inc. at the time of the release.

      . International Maintenance Corporation was also named as a defendant, but was subsequently dismissed with prejudice in February of 2004.

      . See In re Vulcan Litigation-April 2001 Incidents, 2004-1486 (La.App. 1st Cir.7/2/04) (unpublished writ action).

      . During his opening statement, defense counsel stated:
      As we’ve already discussed, we now have 3,500 plaintiffs. And as I said earlier, we’ve been working on this case since the very day it happened. Because within the first four hours after this release happened, one of the lawyers, Ms. Grodner, who is here with her partner, Ms. Vinet, filed a lawsuit here in Judge Tureau’s court, within four hours, where she had gotten a bunch of people together to claim permanent injury and to file a lawsuit here within four hours. Within a couple of days of that, another of the plaintiffs’ lawyers, Mr. Ike Hawkins, who you met earlier, held a meeting over at the Cracker Barrel on I — 10. Plaintiff counsel objected. Plaintiffs’ co-lead counsel commented to one of the plaintiffs' witnesses: "Chlorine has been used in both World War I and by Saddam Hussein to gas thousands of people.” Defense counsel objected and requested a mistrial. During his cross-examination of one of the plaintiffs’ witnesses, defense counsel asked: “Isn’t it in fact true, doctor, that Mr. Noland was doing just fine psychiatrically until he was sent to Dr. Shamsnia, Nathan, Joyner, Brautbar and yourself, by Mr. Becnel?” During his cross-examination of a plaintiff, defense counsel asked: "Did you sign up with [Becnel] at this meeting he had at the Cracker Barrel restaurant?” The plaintiff responded, "No, sir.” Defense counsel then asked: "You knew other people that went to that meeting?” Plaintiffs' counsel objected and defense counsel withdrew the question. During his cross examination of one of the defense's witnesses, plaintiffs' co-lead counsel commented: "In fact, when a number of my clients were killed at the Exxon Refinery, you represented Kean Miller and Exxon in that case where the whole neighborhood was inundated from that explosion and fire that lasted days." Defense counsel objected and stated, "[hje's misstating the evidence. He knows that the plume went in the opposite direction of his clients." During his closing argument, defense counsel stated, "You can say with your verdict that this is not reasonable and fair compensation. This is a money grab. That's what it is. That's what they’re trying to do.”

      . During his opening statement, defense counsel described the claims of some of the plaintiffs whose claims were to be tried by the trial judge: "Ms. Moore is 24. She’s single with no children. She arrived at the Tánger Outlet Mall, which is not even in the path of the plume, two to four hours after the release. Didn't even hear about the release until the next day, and she filed a claim.... Ms. Feli-ta Wright is 30. She's single. She’s located on the map. She was not in the exposure zone. She had no dose. She saw no doctors .... Mr. McMillian was west of the railroad tracks_ Well, Mr. McMillian has given sworn testimony.... He testified quite clearly that he was not Kurt. He sought no medical treatment; that he was fine. He was honest enough to tell me anyone who was not hurt should not get an award of money."

      . The four plaintiffs with jury claims were in the following locations at the time of the release and averred the following injuries:
      a. Ronnie Vallery: at the Vulcan plant, asserting that he suffered from dry eye syndrome, conjunctivitis, continuous sinus complaints including congestion, postnasal drip, and headaches, twisted knee and ankle, and memory problems.
      b. Sheila Piper: at the Shell plant, asserting she suffered chronic bronchitis, asthma, congestion, postnasal drip, vomiting, nausea, exacerbation of her gastrointestinal complaints, and heartburn.
      c. James Penton: at the Shell plant, asserting he suffered chemical-induced bronchitis, shortness of breath, dry eye syndrome, congestion, edema, postnasal drip, headaches, erectile dysfunction, anxiety, and depression.
      d. Robert Noland: at the Shell plant, asserting that he suffered from sinusitis, reactive upper-airways dysfunction syndrome, headaches, nosebleeds, neurological sleep problems, and depression.

      . In the amended petition, April and Matthew Dillon were added as party plaintiffs to personally assert their loss of consortium claims as they had reached the age of majority.

      . The damages awarded to Leslie Dillon were allocated as follows: $1,725.00 for past medical expenses, $1,000.00 for past lost wages, and $2,500.00 for past and future mental anguish, fear and fright, stress, inconvenience and loss of enjoyment of life.

      . Louisiana Code of Civil Procedure article 2164 states in pertinent part, "The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

      . In light of our disposition, vacating the trial court's judgment rendered in conformity with the illegally constituted jury, we preter-mit discussions of the remaining assignments of error, challenging the quantum of damages.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Brent J. MENARD v. LOUISIANA DEPARTMENT OF HEALTH & HOSPITALS, et al.
    No. CA 11-1487.
    Court of Appeal of Louisiana, Third Circuit.
    April 4, 2012.

      Carol Stookey Hunter, Assistant Attorney General, Lafayette, LA, for Defendants/Appellees, State of Louisiana, Department of Health & Hospitals, Donna Poirrier.
    W. Glenn Soileau, Jacques P. Soileau, Breaux Bridge, LA, for Plaintiff/Appellant, Brent Menard.
    Court composed of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

h Brent Menard appeals a trial court’s grant of summary judgment in favor of the Louisiana Department of Health and Hospitals (DHH) and its employee, Donna Po-irrier. For the following reasons, we affirm the judgment of the trial court.

FACTS

Mr. Menard owns Menard’s Sewer & Drain Services and installs sewer systems. In August 2005, Mr. Menard installed a sewer system for Angela and Brandon Bo-din in Vermilion Parish for their mobile home. Shortly after Mr. Menard installed the system, the Bodins called him complaining that the system was backing up after the plumbing was installed.

During a deposition, Mr. Menard testified that he went to investigate the matter and he noticed that the field line had been driven over, crushing it and causing it to collapse. He ran his camera through the line to confirm that it had been crushed. Mr. Menard testified that he told Mrs. Bodin it would cost a certain amount of money to repair and she indicated that she wanted him to repair it. Mr. Menard also told Mrs. Bodin that he could not get to it quickly because he had a lot of other work to do.

On October 14, 2005, Mr. Menard received a “Notice of Violation” letter from Donna Poirrier indicating that she had inspected the Bodins’ property on September 20, 2005, and that she had contacted him by phone. Ms. Poirrier is the onsite wastewater program coordinator for Aca-dian Region IV for the DHH. She reinspected the property on October 14, 2005, and found that the field line was not draining properly because it was draining uphill rather than following gravity flow. She also noted that an aerator had not been connected to the mechanical unit. Ms. Poirrier sent this same letter again to Mr. Menard on October 26, 2005. |2Ms. Poirrier spoke to Mr. Menard on the phone on November B, 2005, and he indicated that he had connected the aerator. In a letter dated November 8, 2005, addressed to Mr. Menard, Ms. Poirrier explained that she had tried talking to him about the drain line issue but he hung up. She inspected the property another time on November 4, 2005; Ms. Poirrier performed another inspection of the sewage system, observing that the aerator had been connected but that the drain line was still not draining properly. The letter further indicated that a meeting was going to be held at the Vermilion Parish Health Unit on Wednesday, November 16, 2005, at 10:00 a.m. to discuss his noncompliance with the Louisiana Sanitary Code. Mr. Menard was asked to attend the meeting. Ms. Poirrier also indicated that Mr. Menard’s continued failure to comply with the code may result in suspension or revocation of his license to install individual sewerage systems.

An additional letter was mailed to Mr. Menard on December 21, 2005, noting that Mr. Menard failed to attend the conference. Ms. Poirrier also remarked that Mr. Menard had still not corrected the situation at the Bodins’ residence. The letter further stated that Mr. Menard had failed to correct an installation at an additional address. Ms. Poirrier then informed Mr. Menard that she was going to recommend that Mr. Menard’s license not be renewed.

Ms. Poirrier sent yet another letter to Mr. Menard on February 9, 2006, indicating that she had not received any information from him that he had remedied the code violations. She explained that his license expired on January 81, 2006, and that renewal would be withheld until he notified the office of compliance.

Stanley Clause, administrator of the on-site wastewater program, wrote a letter to Mr. Menard on March 8, 2006, indicating that he had received a recommendation not to renew his installer’s license due to a deficient system | ¡installation. Mr. Clause indicated that Mr. Menard’s license renewal would not be processed, rendering it suspended. Mr. Clause informed Mr. Me-nard that renewal of his license would be processed once he is deemed in compliance with the sanitary code.

Pursuant to La.Admin.Code tit. 51 § 735(F), an administrative hearing was held “to determine whether sufficient grounds for revocation exist.” The hearing was held on April 10, 2006, and on April 20, 2006, a decision was rendered. The administrative law judge issued the following ruling:

Therefore, the Department has the initial burden of proving that that [sic] a licensee committed a violation of the state sanitary code. The violation at issue is the improper slope of discharge lines. The Department’s witness testified, under cross, that she did not know whether Respondent improperly installed the discharge lines. Further, there was no showing that Respondent had an obligation under the sanitary code to correct the slope of the discharge lines; such that his failure to repair it would in itself constitute a violation of the sanitary code. Nor was there any showing that Respondent had otherwise committed a violation of the state sanitary code.
Accordingly, I find the Department has failed to carry its burden of proof under LAC 51:XIII.7S5(F).

The administrative law judge then denied the DHH’s proposed revocation of Mr. Me-nard’s license.

On April 24, 2006, Mr. Clause wrote a letter to Mr. Menard informing him that his license was temporarily restored pending receipt of his renewal application by May 24, 2006.

On November 27, 2006, Mr. Menard filed suit against the DHH and Ms. Poirrier alleging wrongful seizure of his license. On February 25, 2011, the DHH and Ms. Poirrier filed a motion for summary judgment claiming quasi-judicial immunity, discretionary immunity, and that Mr. Menard cannot carry his burden of proof at trial.

14A hearing on the matter was held on August 22, 2011. The trial court granted the motion for summary judgment, and judgment was signed on September 8, 2011. Mr. Menard then filed the present appeal.

SUMMARY JUDGMENT

Mr. Menard asserts that the DHH and Ms. Poirrier negligently suspended his license and are not entitled to the benefit of quasi-judicial or qualified immunity. Mr. Menard claims that there is ample evidence establishing that the Defendants acted negligently and/or intentionally in failing to properly and adequately inspect the claim of the Bodins and for wrongfully refusing to renew his installer’s license.

“Appellate courts review summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, and in the light most favorable to the non-movant.” Yokum v. 615 Bourbon Street, L.L.C., 07-1785, p. 25 (La.2/26/08), 977 So.2d 859, 876 (citing Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37). Louisiana Code of Civil Procedure Article 966(A)(2) states “[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action,” and this “procedure is favored and shall be construed to accomplish these ends.” “[I]f the pleadings, depositions,- answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact,” then judgment shall be granted as a matter of law in favor of the mover. La.Code Civ.P. art. 966(B) and (C). Defendants, as the movants herein, bear the initial burden of proof. See La.Code Civ.P. art. 966(C)(2). If Defendants successfully meet their burden, then the burden shifts to Plaintiff to present factual support adequate to establish that he will be able to satisfy his evidentiary burden at trial. Id. If, however, Plaintiff fails to produce the factual support necessary to establish that he will be able to satisfy | fihis evidentiary burden of proof at trial, then there is no genuine issue of material fact. Id.

Quasi-Judicial Immunity

The doctrine of judicial immunity extends absolute immunity to a judge from liability for all acts performed within his or her subject matter jurisdiction unless he or she acted outside his or her judicial capacity and his or her actions were based on malice or corruption. Viator v. Miller, 04-1199 (La.App. 3 Cir. 4/27/05), 900 So.2d 1135.

Quasi judicial is defined by Blace’s Law DiCtionary 1121, (5th ed.1979), as:

A term applied to the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.

In Amato v. Office of Louisiana Commissioner of Securities, 94-82 (La.App. 4 Cir. 10/3/94), 644 So.2d 412, writ denied 94-3024 (La.2/3/95), 649 So.2d 410, cert, denied, 515 U.S. 1144, 115 S.Ct. 2582, 132 L.Ed.2d 832 (1995), the court discussed whether the actions of a deputy securities commissioner with the Louisiana Securities Commission was entitled to absolute immunity. The fourth circuit recognized that absolute immunity from liability and damages for a judge attaches when the judge performs a function that is integral to the judicial process. The court noted that “[although immunity does not attach to an administrative (as opposed to judicial) act, ... the question of whether an act is judicial in character does not depend on whether it is discretionary or ministerial.” Id. at 418. The fourth circuit further noted that “‘[ijmmunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.’ ” Id. (quoting Forrester v. White, 484 U.S. 219, 227, 108 S.Ct. 538, 544, 98 L.Ed.2d 555 (1988)) (emphasis in original). The fourth [6circuit then went on to hold that the securities commissioner was absolutely immune from damages for refusing a stockbroker’s registration.

Later, in Durousseau v. Louisiana State Racing Commission, 98-442, p. 4 (La.App. 4 Cir. 12/9/98), 724 So.2d 844, 846, unit denied, 99-34 (La.2/12/99), 738 So.2d 582, the court recognized that, “[because many administrative boards and commissions have a quasi-judicial function when they adjudicate matters like licenses, ... it has .become common to recognize quasi-judicial immunity, equivalent to judicial immunity, for such boards and commissions (and their individual members) for their actions taken and decisions made in their adjudicative role.”

In Talbert v. Louisiana State Board of Nursing, 03-258 (La.App. 1 Cir. 12/31/03), 868 So.2d 729, the court found that the Louisiana State Board of Nursing was acting in its administrative adjudicatory capacity in suspending a nursing license. The suspension was eventually lifted by the full board after a hearing. The court explained that, “[ejxtending quasi-judicial immunity to the Board’s administrative adjudicatory decisions preserves the independence of judgment of the adjudicators by foreclosing any possibility of intimidation or deterrence through the threat or actuality of suits for damages.” Id. at 731.

As an installer of sewer systems, Mr. Menard is required to obtain a license from the DHH through the nearest parish health unit. La.Admin.Code tit. 51, § 735(B) and (D). Furthermore, “a license may be suspended upon determination by the state health officer of noncompliance with the requirements of this code.” La.Admin.Code tit. 51, § 735(F).

The evidence in the record indicates that Ms. Poirrier investigated the situation at the Bodin property and requested that Mr. Menard connect the aerator and correct the drainage issue. Mr. Menard did connect the aerator but failed to 17correct the drainage issue. After rein-spection and repeated requests to discuss the issue, Ms. Poirrier recommended suspension of Mr. Menard’s license due to violations of the sanitary code.

Mr. Menard argues that quasi-judicial immunity does not apply because he was intentionally deprived a living when the DHH continued to post notices that he could not install septic systems after his license was reinstated. The only evidence in the record indicates that this notice, which includes the names of other installers, was still in the office the day that notice was received that Mr. Menard’s license had been reinstated. This is not sufficient evidence to establish malice on the part of Ms. Poirrier or the DHH. We find that the DHH and Ms. Poirrier are entitled to absolute quasi-judicial immunity when making a judgment call as to whether or not to suspend a license for violations of the Sanitary Code.

Qualified Immunity

Even if Ms. Poirrier and the DHH were not immune from liability, the doctrine of qualified immunity shields them from liability. Qualified immunity protects government officials performing discretionary functions. McManus v. State, Dept, of Wildlife and Fisheries, 09-1158 (La.App. 3 Cir. 3/10/10), 33 So.3d 412, writ denied, 10-816 (La.6/18/10), 38 So.3d 323.

Qualified immunity for discretionary acts of public entities and their employees is provided for in La.R.S. 9:2798.1:

A. As used in this Section, “public entity” means and includes the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and political subdivisions and the departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, and employees of such political subdivisions.
B. Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts | swhen such acts are within the course and scope of their lawful powers and duties.
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
D. The legislature finds and states that the purpose of this Section is not to reestablish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana.

The supreme court explained qualified immunity for discretionary acts in Simeon v. Doe, 618 So.2d 848, 852-53 (La.1993), as follows:

In Fowler v. Roberts, 556 So.2d 1 (La.1989) (on rehearing), we set out a two step inquiry, derived from Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), to determine whether the policy-making or discretionary acts doctrine applied in a specific fact situation. First, a court must determine whether a statute, regulation or policy specifically prescribes the course of action for the employee or agency to follow. If so, there is no discretion on the part of the employee or agency and therefore no immunity. If a court determines discretion is involved, the court must then determine whether that discretion “is the kind which is shielded by the exception, that is, one grounded in social, economic or political policy.” Fowler, 556 So.2d at 15. If it is, then the doctrine applies and the employee or agency is insulated from liability; if it is not, the employee or agency is liable for any negligence.

In the present case, the law only provides that a state health officer can suspend a license upon determination that there has been non-compliance with the requirements of the sanitary code. La.Admin.Code tit. 51, § 735(F). There are no specific procedures to follow for making this determination. Therefore, we find that Ms. Poirrier’s actions were discretionary and that she and the DHH are entitled to qualified immunity.

l3For the above reasons, we find that the trial court was correct in granting the DHH’s and Ms. Poirrier’s motion for summary judgment and dismissing Mr. Me-nard’s claims against them. Costs of this appeal are assessed to Brent Menard.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Randy James RUDOLPH v. D.R.D. TOWING COMPANY LLC & Martin Operating Partnership.
    No. 11-CA-1074.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 24, 2012.

      Isaac H. Soileau, Jr., Ryan A. Jurkovic, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Bert M. Cass, Jr., Paul D. Hale, Isaac H. Ryan, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2This is plaintiffs’ second appeal from a trial court ruling granting defendants’ exception of res judicata dismissing the petition in this maritime action. For the reasons stated herein, we reverse the trial court’s ruling and remand for further proceedings.

Facts and Procedural History

On October 14, 2008, Randy James Rudolph filed this petition for damages against D.R.D. Towing Company, LLC, his employer, and Martin Operating Partnership L.L.P. Plaintiff alleged that on July 18, 2008, he was employed as a deckhand and member of the crew of the M/V RUBY E, which was operated by D.R.D. Towing. While on navigable waters, the M/V RUBY E was struck by the M/V MARTIN CHALLENGER, which was owned and operated by defendant Martin Operating Partnership. Plaintiff alleged that the collision between these vessels caused him to be thrown from his bunk where he was resting, sustaining personal injuries as well as loss of wages and impairment of future earning capacity. Plaintiff |3filed this suit in state court pursuant to the savings to suitors clause of the Jones Act, 28 U.S.C. § 1333, alleging that he is a Jones Act seaman and is entitled to maintenance and cure benefits.

D.R.D. Towing responded with an exception of res judicata and an answer denying the allegations of plaintiffs petition. D.R.D. Towing asserted that plaintiff had executed a receipt and release settling any and all claims within a few days of the incident. Plaintiff opposed the exception and submitted his own affidavit setting out his version of the signing of the release. Following a hearing on February 22, 2010, the trial court rendered judgment with reasons, granting the exception and dismissing the petition. Plaintiff appealed from this ruling, and a panel of this Court vacated the ruling on the basis that neither party had introduced any evidence into the record in support of or in opposition to the exception. The matter was remanded to the trial court for further proceedings. Rudolph v. D.R.D. Towing Co., LLC., 10-629 (La.App. 5 Cir. 1/11/11), 59 So.3d 1274.

On remand, plaintiff filed a supplemental petition naming his wife, Sheena Rudolph, as a plaintiff in this matter. Plaintiffs later filed a second supplemental petition adding a claim for punitive damages for D.R.D. Towing’s failure to satisfy its maintenance and cure obligation to Mr. Rudolph. Thereafter, D.R.D. Towing moved to reset its exception of res judicata for hearing, and attached exhibits thereto. Prior to the hearing, plaintiffs filed a third supplemental petition adding general maritime claims against several additional defendants. Plaintiffs also filed an opposition to D.R.D. Towing’s exception, and attached exhibits in support thereof, including a copy of Mr. Rudolph’s deposition.

I/The exception was heard by the trial court on April 8, 2011, and on the same day, judgment was rendered granting the exception. The trial court subsequently assigned reasons for judgment, finding that Mr. Rudolph had knowingly and voluntarily released all rights against his employer in a document executed on July 16, 2008.

Plaintiffs now appeal from this ruling, arguing that the trial court erred in upholding the validity of the seaman’s release. Plaintiffs also contend that the trial court improperly shifted the burden of proof in this case to Mr. Rudolph, and that the record contains insufficient evidence to support the granting of the exception by the trial court.

Applicable Law and Discussion

Under Louisiana law, a release executed in exchange for consideration is a compromise. Randall v. Martin, 03-1311, p. 4 (La.App. 5 Cir. 2/23/04), 868 So.2d 913, 915. A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship. La. C.C. art. 3071. A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express. La. C.C. art. 3076.

The compromise instrument is governed by the same general rules of construction applicable to contracts. Ortego v. State, Dept, of Transp. and Dev., 96-1322, p. 7 (La.2/25/97), 689 So.2d 1358, 1363. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words are clear and explicit and lead to no absurd Inconsequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

A valid compromise can form the basis of a plea of res judicata. Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 747, n. 7; Ortego v. State, Dep’t of Transp. & Dev., supra. On an exception of res judicata, the burden of proof is on the party who urges the exception to prove its essential elements by a preponderance of the evidence. Ortiz v. Ortiz, 01-1252, p. 4 (La.App. 5 Cir. 5/15/02), 821 So.2d 35, 37. The doctrine of res judicata is interpreted stricti juris, and any doubt regarding whether its requirements have been met must be resolved in favor of maintaining the action. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, 1215.

The standard of review of a ruling sustaining an exception of res judi-cata is manifest error when the exception is raised prior to the case being submitted and evidence is received from both parties. McKinnis v. Reine, 10-753, p. 7 (La.App. 5 Cir. 4/26/11), 65 So.3d 688, 692. The manifest error/clearly wrong standard authorizes an appellate court to reverse a trial court’s factual finding only if it finds from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). This standard requires that the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding; rather, the reviewing court must review the entire record to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id.

| ,;Also bearing on the granting of the exception in this case is the substantial federal jurisprudence recognizing the special status of seamen and defining the role of state courts in the application of the law with regard to seamen. According to federal law, the burden is upon the one who sets up a seaman’s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights. The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding. Garrett v. Moore-McCormack Co., 317 U.S. 239, 248, 63 S.Ct. 246, 252, 87 L.Ed. 239 (1942).

In Garrett, the United States Supreme Court also held that the Jones Act is to have uniform application throughout the country, and that state courts are bound to proceed in such a manner that all the substantial rights of the parties under controlling federal law would be protected. The court further restated the history by which Congress has sought to safeguard seamen’s rights:

They are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees.... If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction is, that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable.... And on every occasion the court expects to be satisfied |7that the compensation for every material alteration is entirely adequate to the diminution of right or privilege on the part of the seamen.
Garrett v. Moore-McCormack Co., supra at 246-247, 63 S.Ct. at 251. (Citations omitted.)

Federal courts have consistently applied the reasoning of Garrett. As explained by our Supreme Court in Neely v. Hollywood Marine, Inc., 530 So.2d 1116, 1121-22 (La.1988):

Seamen are wards of admiralty, and releases or settlements involving a seaman are subject to careful scrutiny. Wink v. Rowan Drilling Co., 611 F.2d 98 (5th Cir.1980), cert, denied 449 U.S. 823, 101 S.Ct. 84, 66 L.Ed.2d 26 (1980). The ultimate concern in cases involving the rights of seamen or their family members is not whether the seaman has received what the court believes to be adequate consideration, but, rather, whether the seaman relinquished his rights with informed understanding of his rights and a full appreciation of the consequences when he executed the release. Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599 (5th Cir.1986). A release is not valid unless it has been executed without deception or coercion. Durden v. Exxon Corp., 803 F.2d 845 (5th Cir.1986). The courts of appeal must be particularly vigilant to guard against overreaching when a seaman purports to release his rights to compensation for personal injuries. Borne v. A & P Boat Rentals No. 4, Inc., 780 F.2d 1254 (5th Cir.1986). Releases signed by seamen are given the most careful scrutiny and the burden is on the shipowner to show that the seaman signed the release with full understanding of his rights and the effect of his action. Halliburton v. Ocean Drilling & Exploration Co., 620 F.2d 444 (5th Cir.1980).

Louisiana state courts have also followed this line of reasoning, holding that substantive maritime law controls in state court and the state cannot, by its procedural practice, substantially alter the rights of litigants under substantive maritime law. Lavergne v. Western Co. of North America, Inc., 371 So.2d 807 (La.1979); Morris v. M/V Creole Belle, 394 So.2d 727 (La.App. 3 Cir.1981).

Is At the same time, the Fifth Circuit has cautioned that “if employers are denied any degree of confidence in the finality of settlement, seaman will lose the option to settle since employers will have little incentive to avoid full-scale trial on the merits.” Borne v. A & P Boat Rentals No. 4, Inc., 780 F.2d 1254, 1257 (5th Cir.1986). Thus, courts should not be unduly protective of a seaman who has signed a release fully comprehending the nature of his actions. Transocean Offshore USA, Inc. v. Catrette, 05-6328, 2007 WL 1557338, p. 1 (E.D.La. May 29, 2007), aff’d sub nom., Transocean Offshore USA Inc. v. Catrette, 256 Fed.Appx. 672 (5th Cir.2007).

With respect to the validity of a seaman’s release, courts generally look to four factors:

1. Adequacy of the consideration: Was the plaintiff fairly compensated given the extent of his injuries, and the inherent risk of trying the case?
2. The medical advice available and given to the plaintiff: Was the plaintiff fully advised of his injuries and future prognosis?
3. The legal advice available and given: Was the plaintiff fully advised of his rights?
4. The arms length of the parties: Was there overreaching? Id.

Applying these legal precepts to the case before us, the critical issue presented for our review is whether D.R.D. Towing, as the one who set up Mr. Rudolph’s release, met its burden of proving that the release was executed freely with a full understanding of his rights and the effects and consequences of his action.

In support of its exception of res judica-ta, D.R.D. Towing submitted a copy of a release form executed by Mr. Rudolph on July 16, 2008, three |9days after the incident herein. The “Release of All Rights” states that in exchange for $3,000.00, Mr. Rudolph agreed to release and forever discharge Four Marine, LLC, D.R.D. Towing, LLC and Zito Fleeting, LLC. The release contains a statement by Mr. Rudolph that he read the document from beginning to end and understood that the document was, in his words, a “release of everything.”

At the hearing of this matter, defendant also submitted the testimony of Jack Hoyle, who testified that in his role of consultant, he provides non-legal advice to primarily small boat companies in handling personnel matters involving crew injuries and maritime injuries including maintenance and cure. He stated that he was contacted by D.R.D. Towing in conjunction with the incident involving the M/V RUBY E. Mr. Hoyle stated that he met with D.R.D. Towing representatives and their counsel on the day of the incident herein, July 13, 2008. Three days later, on July 16, 2008, Mr. Hoyle, after being told that Mr. Rudolph wanted to settle his claims, met with Mr. Rudolph and executed a $3,000.00 release with him. Mr. Hoyle stated that he provided the blank form, which he had obtained from a publishing supply company, and that he instructed Mr. Rudolph to read the document and fill in the blanks in his own handwriting. Mr. Hoyle also stated that he recorded the interaction with Mr. Rudolph, and that his secretary made a written transcription of the recording.

Mr. Hoyle further stated that Mr. Rudolph told him during this meeting that he had an appointment with a doctor, although he also stated that he believed that Mr. Rudolph was deemed fit for duty prior to this meeting. He stated that Mr. Rudolph told him he was ready to return to work. Mr. Hoyle testified that the amount of compensation offered to Mr. | inRudolph was set by him as “compensation for the items that he surely lost on the boat, and it was compensation for the unpleasant experience of being involved in something like that.”

Mr. Hoyle stated that the release was in clear terms and self-explanatory, and that he does not give legal advice to seamen. Mr. Hoyle stated that although he read the document along with Mr. Rudolph, he did not explain anything to him regarding his rights of maintenance and cure or his rights for indemnity or medical benefits. Mr. Hoyle stated he was also aware that Mr. Rudolph was not represented by counsel, and would not have engaged him if he was. He stated he told Mr. Rudolph that if he had doubts, he should not sign the document. Further, Mr. Hoyle acknowledged that the witnesses who signed the document were not in the room when the release was executed, and that he did not make a copy of the check presented to Mr. Rudolph.

A copy of the transcript of this interaction was also submitted as a defense exhibit. In the exchange between Mr. Hoyle and Mr. Rudolph, Mr. Rudolph indicated that he had an appointment with a doctor, Dr. Melvin Schultz. Mr. Rudolph also stated he was scheduled to go back on a towboat the following week, and he believed he would be able to do that. The following exchange then occurred:

Q: Okay, and you lost your stuff on the boat, right?
A: Yes.
Q: And, I understand you lived on the boat. You stayed on the boat when you were running it, right?
A: Sometimes, yeah.
Q: Okay. So and your cell phone and you had some other stuff that was lost?
A: Yes sir.
Q: Okay. You and I reached an agreement for $3,000 is that correct?
A: Yes, sir.
InQ: And that’s agreeable to you?
A: Yes, it is.
Q: You understand that in exchange for that money, you are releasing any and all claims you have against DRD Towing Company?
A: Yes, sir.

Mr. Hoyle then read through the terms of the release with Mr. Rudolph and instructed him to write in the answers in the blanks on the form. Mr. Rudolph answered in the affirmative when asked whether he knew that signing the release document settles and ends every right or claim he had for damages as well as for past and future maintenance and cure and wages. Mr. Rudolph then dated and signed the agreement. However, a review of the transcript of the interaction fails to contain a statement by Mr. Hoyle that if Mr. Rudolph had any doubts he should not sign the document.

Following Mr. Hoyle’s testimony, counsel for both parties presented oral argument on the validity of the release. Further, plaintiffs’ counsel submitted exhibits, including a copy of the deposition of Mr. Rudolph taken by defendant.

In his deposition, Mr. Rudolph stated that he was told by his supervisor after the accident that his medical bills would be covered and that he could return to work after the injuries were taken care of. He stated he did not have a full understanding of the release document, and he believed that he was settling his claims for his possessions lost when the boat sunk. Mr. Rudolph stated that he believed by agreeing to a “release of everything,” he believed it was to compensate him for everything he lost on the boat. Mr. Rudolph stated he “was under a lot of pressure just to sign whatever papers they gave me with the assurance all of my doctors and, you know, stuff would be taken care of.” Mr. Rudolph stated that he 112was “coached” at how to complete the release document, and did not understand that he was releasing all of his future claims, including maintenance ánd cure.

Also attached to the copy of Mr. Rudolph’s deposition is a statement he made on July 16, 2008 to Rick Kessenich, an attorney representing D.R.D. Towing. This statement was made prior to the execution of the release. In that statement, Mr. Rudolph informed the attorney that his neck and back had been hurting since the accident and that he had an appointment with Dr. Melvin Schultz for later that day.

The record in this case clearly indicates that Mr. Rudolph was not represented by counsel at the time he executed the release, that he had not obtained legal advice at all, and that D.R.D. was aware of this fact. There is also nothing in the record to show that D.R.D. advised Mr. Rudolph of his right to obtain counsel. Further, the record indicates that Mr. Rudolph stated that he was experiencing health issues following the accident, that he had an appointment to see a doctor for these issues, and that D.R.D. was aware of this fact as well.

In its reasons for judgment, the trial court determined that actually seeking legal and medical advice is not a prerequisite to executing the release, but “the availability of said advice was key.” The trial court seems to hold that because plaintiff knew legal and medical advice were available, defendant met its burden of proving the release was valid. However, this holding ignores well-established jurisprudence regarding the special status of seaman which requires careful scrutiny of a release and a finding that the negotiations were at arm’s length and in good faith.

In the present case, the burden is on D.R.D. Towing to show that they discharged their obligations to Mr. Rudolph as articulated by federal and state | ^jurisprudence. After a careful review of the record, we find that D.R.D. Towing has not met its burden.

First, the settlement amount of $8,000 is obviously not adequate to cover Mr. Rudolph’s property losses as well as any medical expenses sustained in light of defendant’s knowledge that plaintiff may have been injured. Defendant was aware that plaintiff lost his personal computer, his cell phone, his car key, and other personal items when the boat sank. Further, at the time of execution of the release, Mr. Rudolph was not represented by counsel, and there was no proof presented that he was informed that he was free to hire counsel or to consult an attorney prior to signing the release. The settlement negotiations took place in defendant’s offices three days after the incident herein. Mr. Rudolph initially met with an attorney representing D.R.D. Towing, and, shortly afterwards, met with Mr. Hoyle, who had over 20 years of experience in settling claims and admittedly stated he does not offer legal advice to seamen.

In addition, a review of the transcript of the execution of the release, which was submitted as a defense exhibit, indicates that Mr. Hoyle read the release to Mr. Rudolph and instructed him on how to fill in the blanks. Although the release was written in layman’s terms, there was no explanation of the legal rights Mr. Rudolph was forfeiting by signing the release. As stated by the Fifth Circuit in Trans-ocean, a reading of the release contract to the seaman is not sufficient under Garrett to affect a valid release. Transocean Offshore USA Inc. v. Catrette, 256 Fed.Appx. 672, 674 (5th Cir.2007). Our review of the transcript of the negotiations fails to convince us that Mr. Rudolph relinquished his rights to future claims against D.R.D. Towing with informed understanding. Under these circumstances, we find that D.R.D. Towing failed to demonstrate that the release document was “executed | ufreely, without deception or coercion, and that it was made by the seaman with a full understanding of his rights.” Garrett, 317 U.S. at 248, 63 S.Ct. 246.

Secondly, both Mr. Hoyle and counsel for D.R.D. Towing were aware that Mr. Rudolph may have been experiencing medical issues following the accident, and although he had an appointment scheduled, he had not yet seen a doctor or obtained any medical advice. Nevertheless, Mr. Hoyle required Mr. Rudolph to read and rewrite in his own handwriting the following provision in the standard-form release document:

I know that doctors and other persons make mistakes, and I am taking the risk that what they may have told me is wrong. If that should be the case, it is my loss, and I cannot back out of the settlement.

Clearly, as Mr. Rudolph had not yet seen a doctor or been given any medical advice, this language in the document lends support to Mr. Rudolph’s claim that he did not fully understand that he was relinquishing all medical claims for any injuries he may have sustained. Further, there is no reference in the transcript of the negotiations as to Mr. Rudolph’s potential Jones Act claim for maintenance and cure, and nothing in the record indicates that this claim was explained to Mr. Rudolph prior to execution of the release.

Conclusion

Taking this entire factual situation into consideration, it is clear that Mr. Rudolph received no legal advice in accepting this inadequate settlement and that he had not obtained medical advice on his condition prior to executing the release document. Mindful of our duty to carefully scrutinize such a release, we are unable to find that Mr. Rudolph signed the release with full understanding and knowledge of his rights and a full appreciation of the consequences of the release. As a result, we find that D.R.D. Towing has failed to meet its burden of proving 11Bthe seaman’s release was valid. The release must therefore be found to be invalid and set aside, and we conclude that the trial court erred in granting defendant’s exception of res judi-cata which was based thereon. Accordingly, the judgment is hereby reversed and the matter is remanded to the trial court for further proceedings. D.R.D. Towing shall bear all costs of this appeal.

REVERSED AND REMANDED

      . Plaintiff apparently has a suit pending in federal court as well.

      . At the hearing, defense counsel objected to the introduction of this exhibit on the basis that Mr. Rudolph was not present at trial, but the trial court allowed it. Although defendant contends in brief that the exhibit was improperly admitted on the basis of La. C.C.P. art. 1450 and may not be considered as evidence, defendant failed to seek supervisory review of this ruling and does not answer the appeal or properly assign this as error. See, Uniform Rules, Courts of Appeal, Rule 1-3 and La. C.C.P. art. 2133. Accordingly, we will not address this issue herein.