author: STEPHEN J. WINDHORST, Judge. JOHNSON, J.,

text:
    Roy MARKS v. THIRD DISTRICT VOLUNTEER FIRE DEPARTMENT.
    No. 13-CA-383.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2013.

      Floyd J. Falcon, Jr., Daniel L. Avant, Attorneys at Law, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Ralph R. Alexis, III, Attorney at Law, New Orleans, Louisiana for Defendant/Ap-pellee.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

[{.Plaintiff, Roy Marks, appeals the trial court’s judgment sustaining defendant’s peremptory exceptions of no cause of action and no right of action, dismissing his suit with prejudice.

In his petition, Mr. Marks alleged that defendant, the Third District Volunteer Fire Department (“Third District”), is a non-profit corporation organized and existing under the laws of the State of Louisiana, and that it was under contract with Fire Protection District No. 3 for the Parish of Jefferson, to provide fire protection services for the unincorporated areas of the East Bank of Jefferson Parish. Mr. Marks further alleged that he was employed by the Third District as a “fire employee” until he was terminated and that his termination was illegal because the Third District failed to comply with La. R.S. 33:2181. Mr. Marks sought reinstatement of his position with the Third District as well as back pay, sick leave accrual, annual leave accrual and all other benefits of employment.

The Third District filed several exceptions, including the exceptions of no cause of action and no right of action. The Third District contended that Mr. Marks was not a “fire employee” under La. R.S. 33:2181. Instead, Mr. Marks was an “at will” employee of a private, non-profit corporation.

13After a hearing, the trial court sustained the exceptions of no cause and no right of action, and Mr. Marks appealed. The Third District answered this appeal, and contended that if this court were to reverse the trial court’s ruling, its exceptions of improper cumulation of actions and failure to join parties needed for a just adjudication should be granted. For the reasons that follow, we affirm the decision of the trial court.

The exceptions of no cause of action and no right of action are separate and distinct, with each serving a particular purpose with different procedural rules. Hurricane Fence C., Inc. v. Jensen Metal Products, Inc., 12-956 (La.App. 5 Cir. 5/23/13), 119 So.3d 683, 688. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a particular remedy against the particular defendant. Id., citing Badeaux v. Southwest Computer Bureau, Inc., 05-612 (La.3/17/06), 929 So.2d 1211, 1216-7.

An appellate court reviews a trial court’s rulings on exceptions of no cause of action and no right of action de novo because the exceptions raise questions of law. Badeaux, 929 So.2d at 1217; Lomark, Inc. v. LavigneBaker Petroleum, L.L.C., 12-389 (La.App. 5 Cir. 2/21/13), 110 So.3d 1107, writ denied, 13-654 (La.4/26/13), 112 So.3d 848. An exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641, 646. Accordingly, no evidence may be introduced to support or controvert an exception of no cause of action and the facts alleged in the petition must be accepted as true. La. C.C.P. art. 931. Conversely, evidence may be introduced to support or controvert an exception of no right of action. Mang v. Heisler Properties, L.L.C., 11-867 (La.App. 5 Cir. 5/22/12), 96 So.3d 521, 524, writ denied, 12-2083 (La.11/16/12), 102 So.3d 42. An exception of no right of action assumes the petition states a valid cause of action and questions whether the plaintiff has a legal interest in the subject matter of the litigation. Id. Any doubt as to the sufficiency of the petition to state a cause of action or whether a plaintiff has a right of action must be resolved in favor of the plaintiff. Scheffler, 950 So.2d at 647; Teachers’ Retirement System of Louisiana v. Louisiana State Employees’ Retirement System, 456 So.2d 594, 598 (La.1984).

Mr. Marks alleged in his petition that he was a “fire employee” and therefore entitled to certain procedural rights prior to termination, citing La. R.S. 33:2181. Mr. Marks contends that because the Third District did not comply with the provisions of La. R.S. 33:2181B, his termination is completely void.

La. 33:2181A(1) defines “fire employee” as

... any person employed in the fire department of any municipality, parish, or fire protection district maintaining a full-time regularly paid fire department, and who in under investigation with a view to possible disciplinary action, demotion, or dismissal.
La. R.S. 33:2181C provides that:
LNo fire employee shall be disciplined, demoted, dismissed or be subject to any adverse action unless the investigation is conducted in accordance with this Sub-part. Any discipline, demotion, dismissal or adverse action of any sort taken against a fire employee without complete compliance with the provisions of this Subpart is an absolute nullity.

In order to be classified as a fire employee, two factors must be met. First, the person must be employed in the fire department of a municipality, parish or fire protection district. Here, Mr. Marks does not allege that he was employed in the fire department of a political subdivision. Instead, he alleges that he was employed by a non-profit entity that contracted to provide fire protection services.

Second, the municipality, parish or fire protection district must maintain a full-time regularly paid fire department. Mr. Marks contends that Fire Protection District No. 3 “maintains” a full time regularly paid fire department by contracting with Third District to provide fire protection services.

In Heintz v. City of Gretna, 96-555 (La.App. 5 Cir. 11/26/96), 683 So.2d 926, writ denied, 97-0145 (La.3/7/97), 689 So.2d 1379, plaintiff filed a petition for mandamus, seeking civil service status for the municipality’s volunteer police and fire departments, alleging that the municipality “operated” these departments. See La. Const. of 1974, Art. X, § 16; La. R.S. 33:2471. This court found that a municipality that contracts with a non-profit corporation to provide fire protection does not operate a “regularly paid fire department.” Instead, volunteer fire departments were independent contractors, operated by their membership and not by the municipality, and that contractual arrangement did not constitute the operation of a regularly paid fire department.

In this case, Mr. Marks attempts to distinguish Heintz by arguing that the use of the term “maintain” in La. R.S. 33:2181, as opposed to the use of the word “operate” in La. R.S. 33:2471, requires a different result in this case. Mr. Marks | (iargues that even though defendant does not operate a regularly paid fire department, it “maintains” a full time regularly paid fire department by virtue of its contract with the Third District to furnish fire protection services. Mr. Marks cites no authority for this position, nor do we find any in our jurisprudence.

La. C.C. art. 9 provides that “When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La. C.C. art. 13 provides that “Laws on the same subject matter must be interpreted in reference to each other.”

Title 38 of the Revised Statutes pertains to police and fire departments. The legislature specifically referenced “employees of non-profit corporations under contract with a fire protection district” in those statutes that it intended to be applicable to non-profit corporations. See for example, La. R.S. 38:1991 and R.S. 33:2002. Had the legislature intended for La. R.S. 33:2181 to be applicable to employees of a non-profit organization contracting to provide fire protection services, it would have specifically included those persons in the statute.

We therefore find that Mr. Marks was not a fire employee as contemplated in R.S. 33:2181 and therefore the provisions of that statute were not applicable to the Third District Volunteer Fire Department. Accordingly, we find no error in the trial court’s judgment granting third district’s exceptions of no cause and no right of action.

Because we find no error in the rulings of the trial court granting defendant’s exceptions of no cause and no right of action, we find that defendant’s exceptions of improper cumulation of actions and failure to join parties needed for a just adjudication are moot.

17For the above discussed reasons, the trial court’s judgment granting defendant’s exceptions of no cause of action and no right of action is affirmed. Costs are assessed to plaintiff/appellant.

AFFIRMED.

JOHNSON, J., Dissents with Reasons.

JOHNSON, J.,

Dissents with Reasons.

hi respectfully disagree with the majority and would reverse the judgment of the trial court that sustained the Third District Volunteer Fire Department’s peremptory exceptions of no cause of action and no right of action.

Mr. Marks filed suit alleging that the Third District Volunteer Fire Department (“Third District”) illegally terminated his employment because it failed to comply with La. R.S. 33:2181. The Third District filed exceptions of no cause of action and no right of action claiming that Mr. Marks was not a “fire employee” for purposes of La. R.S. 33:2181 and, therefore, was not entitled to the protections afforded by the statute.

In its exceptions, the Third District maintained that Mr. Marks failed to allege he was employed in the fire department of a municipality, parish or fire protection district as required to be a “fire employee” under La. R.S. 33:2181, but rather only alleged he was employed by the Third District, which he asserted to be a nonprofit corporation that provided fire protection services to Jefferson Parish under a contract with Fire Protection District No. 3 (“FPD No. 3”). The Third District also contended that FPD No. 3 did not maintain a full-time regularly paid fire department by virtue of its contract with the Third District. Thus, the Third District alleged that Plaintiffs petition failed to state a cause of action. The Third 12District also alleged Plaintiff did not have a right of action under La. R.S. 33:2181 because he was not a “fire employee.”

A “fire employee” is defined by La. R.S. 33:2181(A)(1) as

... any person employed in the fire department of any municipality, parish, or fire protection district maintaining a full-time regularly paid fire department, regardless of the specific duties of such person within the fire department, and who is under investigation with a view to possible disciplinary action, demotion, or dismissal.

[Emphasis added.]

In his petition, Mr. Marks alleged that he was employed by the Third District from August 16, 2007, until he was terminated on September 20, 2011. He asserted that as a “fire employee” of the Third District, he was entitled to the rights and protections afforded by La. R.S. 33:2181. Mr. Marks further alleged that the Third District was under contract with FPD No. 3 to be the sole provider of fire protection services in the unincorporated areas of the East Bank of Jefferson Parish. He asserted that by virtue of this contract, FPD No. 3 “maintain[ed] a full-time regularly paid fire department.”

The basis of the Third District’s exception of no cause of action is that FPD No. 3 did not “maintain” a full-time regularly paid fire department by virtue of the contract between it and the Third District; therefore, Mr. Marks was not and could not be a “fire employee” as defined in La. R.S. 33:2181. The question of whether the Third District is “maintained” by a fire protection district for purposes of La. R.S. 33:2181 is a factual question that addresses itself to the merits of the case. Specifically, whether FPD No. 3 “maintains” a full-time regularly paid fire department will depend on the language of the contract between FPD No. 3 and the Third District, as well as consideration of how the fire department is organized, funded, and employed. Such an inquiry is inappropriate in determining whether a petition states a cause of action.

^Plaintiffs petition alleges he is employed by a fire department of a fire protection district that maintains a full-time regularly paid fire department. Accepting these allegations as true, I find that, on the face of Plaintiffs petition, the law affords a remedy. Thus, I believe the trial court erred in sustaining the Third District’s exception of no cause of action.

Additionally, I disagree with the majority’s reliance on Heintz v. City of Gretna, 96-555 (La.App. 5 Cir. 11/26/96); 683 So.2d 926, writ denied, 97-145 (La.3/7/97); 689 So.2d 1379. The majority relies on Heintz to conclude that a contractual arrangement between a volunteer fire department and a municipality does not constitute the operation or maintenance of a regularly paid fire department for purposes of La. R.S. 13:2181. I do not find this conclusion is supported by Heintz. I further believe Heintz is completely distinguishable from the present case.

In Heintz, this Court was faced with the issue of whether the City of Gretna was constitutionally mandated to institute a civil service system for its fire and police departments. After a trial on the merits, the trial court determined the evidence showed that the City did not “operate” a regularly paid fire department so as to require it to establish a civil service system under La. Const. Art. 10, § 16 and La. R.S. 33:2471. This Court affirmed the trial court’s determination that the City’s fire departments were independent contractors and, thus, the City did not “operate” a regularly paid fire department for purposes of the civil service mandates.

|4Here, we are not concerned with the constitutional and statutory mandates for a civil service system. Rather, we are concerned with whether Plaintiff has a cause of action under La. R.S. 38:2181, which falls under Title 83, Municipalities and Parishes; Chapter 4, Fire and Police Departments; Subpart H, Fire Employee’s Rights.

Additionally, the question in Heintz was whether the city “operated” the fire department, not whether the fire protection district “maintained” a full-time regularly paid fire department. Importantly, the conclusion in Heintz that the City of Gret-na did not “operate” a regularly paid fire department for purposes of the civil service mandates was a factual determination based on evidence submitted at trial relating to the organization of the fire departments within the City of Gretna, including the substance of the applicable contracts, the pay structure among the employees, the fire departments’ funding and budget, and the various duties of the employees. Here, the question of whether FPD No. 3, in Jefferson Parish, “maintains” a full-time regularly paid fire department is a factual determination that necessarily depends on the evidence relating to the organization of and relationship between FPD No. 3 and the Third District. Thus, our determination in Heintz that the City of Gretna did not “operate” a regularly paid fire department for purposes of the civil service mandate after considering the evidence presented at trial is not decisive of the issue of whether FPD No. 3 “maintains” a full-time regularly paid fire department for purposes of La. R.S. 33:2181.

Because I believe Plaintiffs petition states a cause of action, I also believe Plaintiff has a right of action. As an alleged “fire employee,” Mr. Marks is the proper party to assert a cause of action under La. R.S. 33:2181. Thus, I find the trial court erred in sustaining the Third District’s exception of no right of action.

LFor these reasons, I would reverse the trial court’s rulings on the Third District’s exceptions of no cause of action and no right of action and remand the matter for further proceedings, including consideration of the merits of the Third District’s exceptions of improper cumulation of actions and failure to join necessary parties.

      . Subsection B provides:
      B. Whenever a fire employee is under investigation, the following minimum standards shall apply:
      (1) Prior to commencing a formal investigation of a fire employee, the appointing authority shall notify the employee in writing of the nature of the investigation, of the identity and authority of the person conducting such investigation, and of the specific charges or violations being investigated.
      (2) The fire employee being investigated shall be informed in writing at the commencement of any interrogation of the nature of the investigation, of the identity and authority of the person conducting such investigation, of the identity of all persons present during such interrogation, and of the specific
      charges or violations being investigated. The fire employee shall be allowed to make notes.
      (3) Any interrogation of a fire employee in connection with an investigation shall be for a reasonable period of time and shall allow for reasonable periods for the rest and personal necessities of such fire employee.
      (4) All interrogations of any fire employee in connection with the investigation shall be recorded in full. The fire employee shall not be prohibited from obtaining a copy of the recording or transcript of the recording of his statements, upon submitting a written request to the fire chief.
      (5) The fire employee shall be entitled to the presence of his counsel or representative, or both, at any interrogation in connection with the investigation. The fire employee’s representative or counsel shall be allowed to offer advice to the employee and to make statements on the record at any interrogation in the course of the investigation.
      (6) The counsel or representative for the fire employee under investigation may call witnesses to testify on the employee's behalf.
      (7) No statement made by a fire employee during the course of an administrative investigation shall be admissible in a criminal proceeding.

      . La. Const. Art. 10, § 16 provides: “A system of classified fire and police civil service is created and established. It shall apply to all municipalities having a population exceeding thirteen thousand and operating a regularly paid fire and municipal police department and to all parishes and fire protection districts operating a regularly paid fire department.”

      . La. R.S. 33:2471 falls under Chapter 5, Civil Service, of Title 33, "Municipalities and Parishes” and provides in pertinent part: "This Part applies to any municipality which operates a regularly paid fire and police department and which has a population of not less than thirteen thousand nor more than two hundred fifty thousand....”


source: Caselaw Access Project

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

license: Public Domain

text:
    Diane Brown GARNER v. Bruce H. LIZANA and his Insurer, ABC Insurance Company, The Law Office of Bruce Lizana, a Professional Law Corporation and its Insurer, XYZ Insurance Company.
    No. 13-CA-427.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2013.

      Geraldine Broussard-Baloney, Abril B. Sutherland, Attorneys at Law, Laplace, Louisiana, for Plaintiff/Appellant.
    William E. Wright, Jr., Beverly A. De-laune, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, ROBERT A. CHAISSON, STEPHAN J. WINDHORST, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

|Jn this legal malpractice action, plaintiff, Diane Garner, appeals a trial court judgment granting an exception of per-emption filed by defendants, Bruce Lizana and the Law Office of Bruce H. Lizana, P.L.C. (“the Lizana defendants”), and dismissing her lawsuit. For the following reasons, we reverse the trial court judgment under review and remand this matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

In April of 2004, Diane Garner underwent back surgery at Kenner Regional Medical Center. When Ms. Garner was released from the hospital, La Bodega, Inc., d/b/a American International Healthcare (“La Bodega”), provided postoperative care to her. According to Ms. Garner’s petition, La Bodega repeatedly violated the post-operative service orders given to it by the hospital, resulting in Ms. Garner’s incurring a serious post-operative infection, additional surgery, and extensive medical care and resulting expenses.

IsMs. Garner consulted with an attorney, Bruce Lizana, and he agreed to represent her in a medical malpractice claim against La Bodega. On April 4, 2005, Mr. Lizana filed a petition for damages on Ms. Garner’s behalf in the 24th Judicial District Court against La Bodega. La Bodega responded by filing an exception of prematurity on the grounds that the lawsuit was filed prior to the filing of a request with the Louisiana Division of Administration for review of Ms. Garner’s medical malpractice claim by a medical review panel, as required under Louisiana law. On May 19, 2006, prior to the hearing on the exception of prematurity, Mr. Lizana filed a request with the Louisiana Division of Administration on Ms. Garner’s behalf for review of her medical malpractice claim by a medical review panel. On May 30, 2006, the trial judge granted La Bodega’s exception of prematurity and dismissed Ms. Garner’s suit against La Bodega without prejudice.

In November of 2006, Mr. Lizana withdrew as counsel of record for Ms. Garner. Ms. Garner then handled the matter before the medical review panel in proper person. Thereafter, on November 10, 2008, the medical review panel issued an opinion in Ms. Garner’s favor, finding that La Bodega had failed to comply with the appropriate standard of care and that La Bodega’s conduct resulted in damages to Ms. Garner. Ms. Garner then contacted Mr. Lizana to inform him of the medical review panel’s opinion; he agreed to represent her again.

On January 27, 2009, Mr. Lizana and another attorney, Richard Trahant, filed a new petition for damages on Ms. Garner’s behalf against La Bodega, again 14alleging claims of medical malpractice. La Bodega responded and filed an exception of prescription, arguing that Ms. Garner’s claims were untimely, under La. R.S. 9:5628(A), because the lawsuit was not filed within one year of the alleged medical malpractice or the discovery of the alleged malpractice. Accordingly to Ms. Garner, on or about September 17, 2009, Mr. Tra-hant advised her that her medical malpractice claim had probably prescribed on or about April 27, 2005. On October 26, 2009, the trial court granted La Bodega’s exception of prescription and dismissed Ms. Garner’s medical malpractice case with prejudice.

Ms. Garner filed the instant lawsuit against the Lizana defendants on September 16, 2010, alleging legal malpractice. She also filed an amended petition for damages on December 4, 2012. In her petition, as amended, Ms. Garner claimed that Mr. Lizana was negligent in the handling of her medical malpractice case, resulting in the dismissal of her claims against La Bodega as untimely. She further alleged that Mr. Lizana was aware that her medical malpractice claim had prescribed and that her first medical malpractice suit had been dismissed, but he fraudulently withheld this information from her. She specifically alleged in her amended petition that Mr. Lizana “consistently reported to [her] that her case was proceeding properly, when in fact the case had been dismissed,” “continued to report to [her] that her case was still proceeding,” and “continued to mislead [her] into believing that her case was still viable,” when in fact it had been dismissed. She also alleged that after Mr. Lizana was informed of the favorable medical review panel’s ruling, he advised her that the medical review panel’s ruling would “make her case stronger.”

The Lizana defendants filed a peremptory exception of peremption on April 26, 2012, seeking dismissal of Ms. Garner’s legal malpractice claims as untimely, 15based on the three-year peremptive period for legal malpractice claims set forth in La. R.S. 9:5605(A). In response, Ms. Garner filed an opposition memorandum, asserting that Mr. Lizana had fraudulently misrepresented and concealed from her that her medical malpractice case had been dismissed. Thus, she argued that the three-year peremptive period in Subsection A of La. R.S. 9:5605 did not apply due to the fraud exception set forth in Subsection E of that statute.

After hearing argument of counsel on January 15, 2013, the trial court orally granted the exception of peremption filed by the Lizana defendants and dismissed Ms. Garner’s legal malpractice suit against them. A written judgment to this effect was signed by the trial court on January 25, 2013. In his oral reasons for judgment, the trial court stated that fraudulently failing to disclose the fact that a claim has been dismissed is not the type of fraud intended in La. R.S. 9:5605(E). Rather, according to the trial court, the fraud exception in La. R.S. 9:5605(E) applies only when the original act of malpractice itself is fraudulent, rather than alleged fraudulent action by Mr. Lizana after his original act of malpractice. Accordingly, in this case, because the original act of malpractice by Mr. Lizana was his non-fraudulent failure to timely file Ms. Garner’s medical malpractice claim, the fraud exception of La. R.S. 9:5605(E) would not apply. Ms. Garner appeals.

On appeal, Ms. Garner argues that the trial court erred in failing to find that Mr. Lizana’s alleged fraudulent act of intentionally misleading her regarding the status of her case was a second, independent act of legal malpractice from his alleged original act of malpractice of failing to timely request a medical review panel to review her medical practice claim. She also argues that the trial court erred in failing to find that the fraud exception to the three-year peremptive period for legal malpractice cases, as set forth in La. R.S. 9:5605(E), applies in this case.

J¿AW AND ANALYSIS

Louisiana Revised Statute 9:5605 provides, in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless 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; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

Louisiana Civil Code article 1953 defines “fraud” as:

a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

Peremption is a time period fixed by law for the existence of a right, and the right is extinguished upon expiration of the peremptive period, unless it is timely exercised. La. C.C. art. 3458; Robert v. Robert Management Co. L.L.C., 11-406 (La.App. 4 Cir. 12/7/11), 82 So.3d 396, 399. Both the one- and three-year time periods in La. R.S. 9:5605 are peremptive, not merely prescriptive. Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919, 926. Per-emption cannot be renounced, interrupted, or suspended. La. C.C. art. 3461; Fenner v. DeSalvo, 01-2223 (La.App. 4 Cir. 4/17/02), 826 So.2d 39, 43. In addition, peremptive periods are not subject to interruption by the doctrine of contra non valentem. Reeder v. North, 97-239 (La.10/21/97), 701 So.2d 1291, 1298.

l7In accordance with La. R.S. 9:5605(A), Ms. Garner had three years from the date of the alleged act, omission, or neglect to file suit against the Lizana defendants for legal malpractice. The alleged medical malpractice occurred in April of 2004. Therefore, a request had to be filed with the Louisiana Division of Administration requesting that Ms. Garner’s medical malpractice claim be reviewed by a medical review panel no later than April of 2005. Mr. Lizana did not file a complaint with the Louisiana Division of Administration on Ms. Garner’s behalf within that time-frame. Accordingly, Mr. Lizana’s alleged legal malpractice in not timely filing a request for a medical review panel review of Ms. Garner’s medical malpractice claim occurred in April 2005 when Ms. Garner’s medical malpractice action prescribed. Pursuant to La. R.S. 9:5605(A), Ms. Garner had three years from April of 2005 to file suit against the Lizana defendants on her legal malpractice claim. The legal malpractice suit against the Lizana defendants was not filed until September 16, 2010, which is beyond the three-year per-emptive period. Ms. Garner admits that her action for legal malpractice against the Lizana defendants for the initial negligent act of failing to timely file her medical malpractice claim in 2005 is perempted under La. R.S. 9:5605(A). However, Ms. Garner’s petition contains specific allegations of fraud, as noted above, which she argues provide an exception to the imposition of the peremptive period under La. R.S. 9:5605(E). She also alleges that Mr. Lizana continued to mislead her after he filed the second petition for damages on her behalf on January 27, 2009.

At the hearing on the exception of per-emption, Ms. Garner argued that her legal malpractice claim for Mr. Lizana’s failure to timely file her complaint with the medical review panel was not perempted, pursuant to the fraud exception contained in La. R.S. 9:5605(E). However, the trial court rejected Ms. Garner’s argument, finding that fraudulently failing to disclose the fact that a claim has been dismissed is not the type of fraud intended in La. R.S. 9:5605(E). The trial court cited Brumfield v. McElwee, 07-548 (La.App. 4 Cir. 1/16/08), 976 So.2d 234, in support of its decision to grant the exception of per-emption, stating in its oral reasons for judgment:

All right, Counsel, Revised Statute 9:5605 does create a three year peremp-tive period with regard to legal malpractice. Paragraph E states that the three year peremptive period shall not apply in the case of fraud. That’s the issue before the Court today, whether or not this statute should apply because of the allegations of fraud that are cited in the petition. The Court must assume the allegations of the petition.
In reviewing the matter, the Court has reviewed the entire record of the matter, and the Court has also reviewed case law that has been, cited to the Court and through its own research, in particular, case law — the case of Brumfield versus McElwee, which I believe you’re familiar with, Counsel, which specifically states that if the fraudulent conduct is failure to disclose the fact that the claim has been dismissed, that is not the type of fraud that is included by the statute. When the statute talks about fraud not applying to the peremptive period, what it means is the malpractice itself. In this case the malpractice was the failure of Mr. Lizana to file the med mal claim timely. The fact that he, if the Court accepts the allegations of the petition, committed fraud thereafter by concealing from his client that the matter had been dismissed is of no moment. The exception of peremption is granted.

Accordingly, the trial court in the instant case held that post-malpractice, fraudulent concealment does not constitute fraud as contemplated in the exception set forth in La. R.S. 9:5605(E).

On appeal, Ms. Garner concedes that “the first act of malpractice, [Mr. Lizana’s] failure to file a complaint with the medical review panel, is time-barred by statute.” However, she contends that Mr. Lizana’s alleged fraudulent misrepresentation and suppression of the truth that her first medical malpractice ease had been dismissed in May of 2006 is a second act of malpractice, which is not time-barred, which resulted in the loss of her opportunity to assert a legal claim [ flagainst the Lizana defendants for failing to timely file a request for a medical review panel review of her medical malpractice claim.

In response to Ms. Garner’s appeal, the Lizana defendants argue that Ms. Garner’s argument on appeal that Mr. Lizana’s alleged fraudulent action (his alleged concealment and misrepresentation of his act of malpractice) is a separate act of malpractice (ie., separate from his original alleged act of malpractice in not timely requesting a medical review panel review of Ms. Garner’s medical malpractice claim and thus triggering a new peremptive period), was not previously argued by Ms. Garner, either in pleadings or orally, before the trial court, and accordingly is not properly before us on appeal. Upon review, we agree with the Lizana defendants’ position on this issue. Our review of the record confirms that Ms. Garner did not make this argument before the trial court, and accordingly, it is not properly before us on appeal. Treen Construction Co. v. Schott, 03-1232 (La.App. 5 Cir. 1/27/04), 866 So.2d 950.

Ms. Garner also argues on appeal that the trial court erred by failing to find that the fraud exception of La. R.S. 9:5605(E) applies in the instant case to bar the application of the three-year peremp-tive period to her legal malpractice claim. Upon review, we agree with Ms. Garner’s position on this issue.

We acknowledge that the trial court’s interpretation of La. R.S. 9:5605(E) has in fact been stated similarly in several opinions of the intermediate appellate courts of this state which have had the occasion to interpret the meaning of this statute, in-eluding several of the cases cited by the Lizana defendants in brief (particularly, Brumfield v. McElwee, 07-548 (La.App. 4 Cir. 1/16/08), 976 So.2d 234; Smith v. Slattery, 38,693 (La.App. 2 Cir. 6/23/04), 877 So.2d 244, writ denied, 04-1860 (La.10/29/04), 885 So.2d 592; and Atkinson v. LeBlanc, 03-365 (La.App. 5 Cir. 10/15/03), 860 So.2d 60). (Similarly, see also Andre v. Golden, 99-689 (La.App. 5 Cir. 12/21/99), 750 So.2d 1101, 1105, writ denied, 00-174 (La.3/17/00), 757 So.2d 643). However, we have not been able to find any Louisiana Supreme Court opinions giving such an interpretation to this statute.

Upon review, we find that this broad and, in our opinion, inaccurate interpretation of La. R.S. 9:5605(E), as applied to the particular facts of the instant case, would result in a gross inequity to Ms. Garner and a gross miscarriage of justice. Further, in our opinion, the cases noted above that addressed this issue, including those emanating from this Court, can be distinguished from the facts of the instant case.

In Brumfield, supra, the only allegation made by the plaintiff was that the defendant attorneys failed to communicate with her regarding the status of her case. In the instant case, however, as noted above, Ms. Garner specifically alleges that she made regular inquiries as to the status of her case and Mr. Lizana consistently reported to her that her case was proceeding properly, when in fact her case had been dismissed.

In Smith, supra, the court found that the information given to the plaintiffs by the defendant attorneys should have served as adequate warning to them to seek advice from another attorney as to whether they had a legal malpractice claim well in advance of the expiration of the prescriptive period. In the instant case, however, Ms. Garner filed the legal malpractice suit against the Lizana defendants lnwithin a year of being first informed that her medical malpractice petition had been dismissed as prescribed.

In Atkinson, supra, this Court specifically agreed with the trial court’s finding that the plaintiff did not establish her fraud exception (i.ethat the plaintiff did not prove that the defendant attorney had in fact committed fraud). As such, the statement made by this Court in Atkinson that “[t]he jurisprudence applying this article in cases of legal malpractice apply it in cases where it was the fraudulent act itself that constituted the malpractice, not as herein alleged, fraud in the actions taken after the legal malpractice has occurred”, is in our opinion obiter dictum. Atkinson v. LeBlanc, 860 So.2d at 65. In the instant case, however, the petition clearly alleges fraud.

Finally, in Andre, supra, this Court agreed with the trial court’s finding that the petition did not make allegations of fraud; rather, the claims sounded in negligence. Here, however, the petition clearly alleges fraud.

In contrast, we find that the facts of the instant case are more closely aligned with those in Jones v. Arias, 10-0165 (La.App. 4 Cir. 12/9/10), 2010 WL 8972257, writ denied, 11-369 (La.4/8/11), 61 So.3d 686, rather than those in Brumfield, supra, which as noted above was specifically relied on by the trial court as the basis for its decision to grant the Lizana defendants’ exception of peremption. In Jones, the plaintiff alleged that the defendant attorney repeatedly represented to him that his cases were proceeding forward, when in fact one action [ 12had never been filed. In reversing the trial court’s granting of the defendant’s exception of no cause of action based on peremption, the Jones court found that the plaintiff may be able to amend his petition to state specific allegations of fraud to defeat the peremption exception. The matter was remanded for such purposes.

Peremptive statutes are to be strictly construed against peremption and in favor of maintaining the claim. Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1083. Of the possible constructions of a peremptive statute, the one that maintains the claim rather than the one that bars prosecution of the claim should be adopted. Id.

If evidence is introduced at the hearing on an exception of peremption, the trial court’s findings of fact are evaluated under the manifest error standard of review. Schonekas, Winsberg, Evans & McGoey, L.L.C. v. Cashman, 11-449 (La.App. 5 Cir. 12/28/11), 83 So.3d 154, 158. If the trial court’s findings are reasonable in light of the record viewed in its entirety, an appellate court may not reverse, even if it is convinced that it would have weighed the evidence differently. Id. Here, the Lizana defendants introduced exhibits at the hearing on the exception, so we will review the trial court’s grant of the exception under the manifest error standard of review.

Upon review, we find that the allegations contained in Ms. Garner’s petition for damages, as amended, that Mr. Lizana consistently reported to her that her case was proceeding properly, when in fact the case had been dismissed, which for purposes of the exception of peremption herein are presumed to be true, fall under the fraud exception set forth in La. R.S. 9:5605(E). Accordingly, under the present posture of this case, we find that the trial court committed manifest error in not applying La. R.S. 9:5605(E) to the particular facts of this case as alleged by Ms. Garner in her petition for damages, as amended.

I ^CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court sustaining the exception of peremption filed by the Lizana defendants. This matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDHORST, J., dissents with reasons.

LILJEBERG, J., dissents with reasons.

WINDHORST, J.,

dissents with reasons.

hi respectfully disagree with the majority, and must dissent for the reasons which follow. While many of the facts of this case present equitable difficulties and beg for a result different than that reached by the trial court, the same can be said of most cases in which the finality of peremption is at issue. Finding the jurisprudence on the applicable statutory law to be convincing, legislative intent to support sustaining the exception, and a lack of evidence of actual fraud, I concur with the dissent of Judge Liljeberg, and offer additional reasons.

LEGISLATIVE INTENT and PREROGATIVES

It is clear from the record that the defendant was negligent in the handling of Mrs. Garner’s case, and that the three-year peremption period had expired. At issue now is whether the exclusion from peremption provided in La. R.S. 9:5605 E in “cases of fraud, as defined in Civil Code Article 1953” is limited to instances where the fraud itself constitutes the act of legal malpractice; or alternatively, whether the exclusion extends to fraud in the concealment of the malpractice. The former would follow the holdings the other Louisiana Courts of Appeal, which maintain the distinctions between prescription and the finality of peremption. The latter would, for the first time, apply the doctrine of contra non valentem to [2peremption, and would also apply La. C.C. art.l953’s broader definition of fraud, which includes mere silence.

Peremption has always been the legal means by which the legislature provides an absolute deadline which, unlike prescription, is not susceptible to suspensions, interruption, or exclusions. If it is now decided that by enactment of La. R.S. 9:5605 E the legislature also intended to exempt from peremption any fraud which occurs after the act of malpractice and in the concealment thereof, then such fraud would necessarily include “fraud by silence” as defined by La. C.C. art. 1953. If silence, or the simple failure to reveal a negligent act or omission is held to constitute fraud, then every unrevealed negligent act which may constitute legal malpractice would be exempt from the three-year peremption, and would be forever actionable. This would render the three-year peremptive period established by La. R.S. 9:5605 A permanently inapplicable, meaningless, and without effect. That cannot have been the intent of the legislature.

Moreover, given one interpretation which is reasonable, meaningful, and widely accepted in jurisprudence, courts should not choose an alternative interpretation which renders La. R.S. 9:5605 E meaningless and without effect. Champagne v. Am. Alternative Ins. Corp., 12-1697 (La.3/19/13), 112 So.3d 179, 183.

Jurisprudence interpreting La. R.S. 9:5605 E has consistently held that the fraud exclusion applies only where the fraudulent act itself constitutes the malpractice, and not to fraudulent acts or failures to act which occur thereafter. Courts have consistently rejected the claim that concealment of legal malpractice constitutes fraud for the purposes of La. R.S. 9:5605 E. Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P., 47,186 (La.App. 2 Cir. 8/22/12), 120 So.3d 281; Broadscape.com, Inc. v. Matthews, 07-545, p. 12 (La.App. 4 Cir. 3/5/08), 980 So.2d 140, 147; Brumfield v. McElwee, 07-548 (La.App. 4 Cir. 1/6/08), 976 So.2d 234. Jurisprudence of more than two decades since the enactment of La. R.S. 9:5605 E has been clear and consistent, and the legislature, which was free to amend the statute and legislatively overrule this jurisprudence, has chosen not to do so. As a further indication of its intent, the legislature has allowed the statute and the jurisprudence to remain as is, as should we.

I therefore respectfully dissent from the majority opinion.

NO EVIDENCE OF FRAUD

I am further concerned that before us are only general allegations of fraud which lack any real specifics. The trial court had no evidence before it, and this Court has no evidence or conclusions of fact to consider and to which to apply an alternative interpretation of La. R.S. 9:5605 E. There was no testimony by the Garner’s, Mr. Lizana, or any competent witness as to what was said or occurred which might show that fraud by a concealment of malpractice occurred. Basically, we have only a timeline of events.

For most exceptions, allegations of fact must be taken as true, but rulings on exceptions of peremption in legal malpractice cases involve and depend largely on determinations of fact. Therefore, in the absence of a stipulation of facts, hearings on exceptions of peremption in legal malpractice cases in which fraud is at issue may involve the taking of evidence. Coffey v. Block, 99-1221 (La.App. 1 Cir. 6/23/00), 762 So.2d 1181, writ denied, 00-2226 (La.10/27/00), 772 So.2d 651.

Because in this exception of peremption facts are relevant and evidence may be admitted at the hearing to overcome the exception, the Garners were entitled to offer evidence of fraudulent acts, but did not. The record does not reflect that the trial judge denied any request for an evi-dentiary hearing; the record indicates that no evidence was offered. Therefore, there is no evidence to support allegations of |4fraud in the record. In the absence of significant evidence of fraud and specificity of allegations, we should not consider disregarding well-settled persuasive jurisprudence in a case which thus far involves only general allegations.

CONCLUSION

This Court should not disregard what I believe is the inescapable — if not obvious— legislative intent of La. R.S. 9:5605 E. Nor should we disturb well-established jurisprudence, albeit persuasive, in a case in which no evidence of fraudulent acts has been presented, and in which even the allegations of fraud are general and lack specifics. Accordingly, I believe that the trial judge did not err in sustaining the exception of peremption.

LILJEBERG, J., dissents with reasons.

hi have considered the opinion of the majority and, based on the applicable jurisprudence as it stands at this point, I cannot agree. For the following reasons, I believe that the trial court properly granted defendants’ Exception of Peremption and dismissed plaintiffs lawsuit.

Ms. Garner asserts that after Mr. Liza-na’s first act of malpractice by failing to timely file a complaint with the medical review panel, Mr. Lizana committed a second act of malpractice when he fraudulently misrepresented and concealed the true status of her case. She argues that Mr. Lizana’s misrepresentation of the status of her case meets all of the elements of a legal malpractice claim, because it occurred during the existence of an attorney-client relationship, was based on negligent representation by Mr. Lizana below the standard of practice, and resulted in loss to Ms. Garner. Ms. Garner claims that Mr. Lizana owed a duty to her, as his client, to disclose the status of her case, and he breached this duty.

This Court has held that separate acts of malpractice shall be considered a single tort where the underlying factual basis is the same and the alleged acts occurred during continuous periods of representation. Gettys v. Sessions and Fishman, L.L.P., 00-1077 (La.App. 5 Cir. 10/31/00), 772 So.2d 874, 877, writ denied, 00-3555 (La.3/16/01), 787 So.2d 311. The Third Circuit reached the same conclusion in Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242.

In Dauterive, the plaintiff filed suit against the defendant law firm, alleging legal malpractice for the law firm’s failure to timely file a proof of claim in bankruptcy court. Id. at 1, 811 So.2d at 1245. The plaintiff also alleged that the law firm committed new, independent, and separate acts of malpractice by its actions after the discovered malpractice, which included the failure to inform the plaintiff that its claim was forever barred in bankruptcy, failure to inform of the legal malpractice or the time limitations associated with legal malpractice actions, and the failure of the law firm to comply with the rules of professional conduct. Dauterive, 01-1112 at 27-28, 811 So.2d at 1259. The Third Circuit rejected this argument, finding that there was only one act of fault here, namely, the failure to timely file the bankruptcy claim. The Coui't held that whether or not these acts constituted separate acts of malpractice or not, only one tort-legal malpractice-was alleged and it was occasioned by the one act of failing to timely file the bankruptcy claim. Id,

In the present case, Ms. Garner claims that Mr. Lizana’s misrepresentation of the status of her case constitutes a separate act of malpractice, independent of the malpractice in failing to file a complaint with the medical review panel. Although there may have been separate acts alleged, as in Dauterive, there was only tort occasioned by one act of fault. Here, the underlying factual basis is the same for both the failure to timely file a complaint with the medical review panel and Mr. Lizana allegedly misrepresenting the truth by concealing from Ms. Garner that her case had been dismissed. Both acts also occurred during a continuous | .-¡period of representation by Mr. Lizana. Thus, the one tort of legal malpractice alleged in this case was the failure to timely file Ms. Garner’s complaint with the medical review panel within one year of the alleged medical malpractice, or by April of 2005. Accordingly, in my view, the trial court did not err by failing to find that Mr. Lizana’s alleged fraudulent act of intentionally misleading Ms. Garner regarding the status of her case was a separate act of malpractice.

Ms. Garner further argues that the trial court erred by failing to find that the fraud exception of LSA-R.S. 9:5605(E) applies in this case to bar the application of the three-year peremptive period. LSA-R.S. 9:5605(E) has been primarily applied in cases where it is the fraudulent act itself that constituted the malpractice, and not for fraud in the actions taken after the legal malpractice has occurred. See Smith v. Slattery, 38,693, p. 8-9 (La.App. 2 Cir. 6/23/04), 877 So.2d 244, 249, writ denied, 04-1860 (La.10/29/04), 885 So.2d 592. Courts of this state have consistently rejected the idea that the concealment of legal malpractice constitutes fraud under LSA-R.S. 9:5605(E). See Brumfield v. McElwee, 07-548 at 7, 976 So.2d at 240; Broadscape.com, Inc. v. Matthews, 07-545, p. 12 (La.App. 4 Cir. 3/5/08), 980 So.2d 140, 147; and Andre v. Golden, 99-689, pp. 8-9 (La.App. 5 Cir. 12/21/99), 750 So.2d 1101, 1105, writ denied, 00-174 (La.3/17/00), 757 So.2d 643.

In Atkinson v. LeBlanc, 03-365, p. 9 (La.App. 5 Cir. 10/15/03), 860 So.2d 60, 66, this Court rejected the application of LSA-R.S. 9:5605(E) where the malpractice did not involve the fraudulent conduct at issue. In that case, Ms. Atkinson filed suit against her former attorney, Mr. LeBlanc, alleging legal malpractice for negligently representing her in a defamation action. Id. at 2, 860 So.2d at 61. Ms. Atkinson asserted that Mr. LeBlanc failed to take any action in her case for an extended period of time, resulting in the dismissal of her lawsuit on the grounds of abandonment. She further argued that although Mr. LeBlanc | ¿informed her that her case had been dismissed, he fraudulently made her believe that “something could be done” regarding her dismissed suit. Atkinson, 03-365 at 7, 860 So.2d at 65. Ms. Atkinson did not file her legal malpractice lawsuit within three years of the dismissal of her lawsuit as abandoned, but she claimed that the fraud exception in LSA-R.S. 9:5605(E) applied due to Mr. LeBlanc’s fraudulent conduct after her case was dismissed. This Court disagreed and found that the alleged legal malpractice occurred when Mr. LeBlanc neglected to timely take action in Ms. Atkinson’s case, resulting in its dismissal. Id. at 8, 860 So.2d at 65. The Court concluded that the allegations of fraud concerned only Mr. LeBlanc’s actions after the legal malpractice had occurred; thus, the fraud exception in LSA-R.S. 9:5605(E) was inapplicable. Id.

Similarly, in Corriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P., 47,186 (La.App. 2 Cir. 8/22/12), 120 So.3d 281, the defendant allegedly settled the plaintiffs’ case without authorization. The plaintiffs case was ultimately dismissed due to the defendant law firm’s failure to seek an extension to prevent dismissal when the settlement was not consummated. Id. at 2, 120 So.3d at 283. The plaintiff filed suit against the law firm asserting claims of fraud in that defendant settled the case without authority and “engaged in an elaborate campaign to obscure the truth.” However, the Second Circuit found that plaintiffs allegations of fraud did not preclude application of the three-year peremptive period in LSA-R.S. 9:5605, because the alleged malpractice was the settlement without authorization. Corriere, 47,186 at 11, 120 So.3d at 287. Consequently, the allegations that the defendant made substantial efforts to obscure the truth pertained to efforts to cover up the actual malpractice and, thus, they did not trigger the fraud exception under LSA-R.S. 9:5605(E). Id.

1 ^Considering the record before us, along with the applicable law, I do not believe that the trial court erred by finding that the fraud exception in LSA-R.S. 9:5605(E) does not apply to prevent peremption of Ms. Garner’s legal malpractice claims. In my view, we are bound by the applicable jurisprudence as it stands, and we cannot change the law when the result appears to be harsh to a particular litigant. Although I agree that the dismissal of Ms. Garner’s lawsuit was harsh under the circumstances of her case, I believe that the Exception of Peremption filed by the Lizana defendants was properly granted.

      . Diane B. Jackson v. La Bodega, Inc., d/b/a America International Healthcare, et al, No. 618-769, 24th Judicial District Court, Jefferson Parish, Louisiana.

      . See La. R.S. 40:1299.41, et seq.

      . Mr. Lizana’s withdrawal as counsel of record for Ms. Gamer was filed in the proceeding entitled: In Re: Medical Review Panel Claim of Diane B. Jackson Garner, No 634-774, 24th Judicial District Court, Jefferson Parish, Louisiana.

        . Diane B. Garner v. La Bodega, Inc., d/b/a American International Healthcare and United National Insurance Company, No. 669-052, 24th Judicial District Court, Jefferson Parish, Louisiana.

      . In Brumfield, the Fourth Circuit stated that "the jurisprudence applying fraud provisions in malpractice actions applied it in cases where the alleged fraudulent act itself comprised the malpractice, unlike the case herein, where the fraud occurred after the legal malpractice took place." Brumfield v. McElwee, 976 So.2d at 240.

      . In Brumfield, the court stated that Mr. Brumfield "simply alleges, without any specificity or corroborating evidence, the defendants failed to disclose to him the status of his case. The record is absent any evidence that the defendants knowingly and intentionally sought to deceive Mr. Brumfield and cause harm to him in any respect.” Brumfield v. McElwee, 976 So.2d at 240.

      . In Smith, the court found that "the particular allegations of fraud alleged by the Smiths concern only [defendant] Slattery’s actions after the alleged legal malpractice occurred, namely the neglect to take timely action in the medical malpractice case.... The record clearly shows that the Smiths were upset with [defendant] Slattery when he reported on the status of their case prior to December 10, 1999 [the date the Smiths knew or should have known that they had a potential legal malpractice suit], and therefore, they had adequate warning to place them on notice that they should seek the advice of another attorney long before the prescriptive period expired.” Smith v. Slattery, 877 So.2d at 249-250.

      . In Atkinson, this Court found that "[t]he trial judge found that Atkinson did not established [sic] her fraud exception and we find no such proof either.” Atkinson v. LeBlanc, 860 So.2d at 65.

      . In Andre, this Court quoted the trial court as stating in its reasons for judgment that "[a]ll of the allegations of fraud are essentially based on one foundation and that was the failure to disclose.... Even though fraud is alleged, the underlying facts for that fraud are the malpractice claims for failure, the misrepresentation for failure, and then where it is, the intentional failure to properly pursue zealously, the intentional failure to properly communicate. All of that's a failure. That, even though it's called fraud, it strikes a negligence, which 9:5605 does not apply to.” Andre v. Golden, 750 So.2d at 1103. This Court then went on to agree with the trial court, stating "[t]he trial [court] considered the claims and considered all of them to stem from the failure to disclose which sounds in negligence, rather than fraud. Our review of the claims made in plaintiffs' action force us to conclude the same.” Andre v. Golden, 750 So.2d at 1105.

      . In order to establish a valid legal malpractice claim, the plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. MB Industries, L.L.C. v. CNA Insurance. Co., 11-303, 11-304, p. 15 (La.10/25/11), 74 So.3d 1173, 1184.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Mark R. RICKS.
    No. 13-KA-612.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Vincent J. Paciera, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Lieu T. Vo Clark, Attorney At Law, Mandeville, Louisiana, for Defendant/Appellant.
    Mark A. Ricks, Olla, Louisiana, In Proper Person.
    Panel composed of Judges SUSAN M. CHEHARDY, STEPHEN J. WINDHORST and HANS J. LILJEBERG.
   STEPHEN J. WINDHORST, Judge.

^Defendant pled guilty to one count of simple burglary in violation of La. R.S. 14:62 and was sentenced as a second felony offender to six years at hard labor, without benefit of probation or suspension of sentence, concurrent with any other sentence he was serving. This appeal followed. We affirm defendant’s conviction and sentence.

Because this conviction is the result of a guilty plea, the underlying facts were not developed at trial. The bill of information charging defendant states that on July 12, 2012, defendant violated La. R.S. 14:64 in that he committed simple burglary of 24 Joyce Avenue in Jefferson, Louisiana.

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that she has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel requests to withdraw as counsel of record.

| «¿DISCUSSION

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if she finds her case to be wholly frivolous after a conscientious examination of it. The request must be accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The Court explained that an An-ders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. If, after an independent review, the reviewing court ^determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing the legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. State v. Bradford, 95-929 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

Defendant’s appellate counsel asserts that after a detailed review of the record, she could find no non-frivolous issues to raise on appeal. Counsel notes that no rulings have been reserved for appellate review, as defendant’s plea was not made pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Counsel also indicates that defendant was informed of the sentences that he would receive. Counsel states that defendant was advised of his Boykin rights and waived those rights.

Along with her brief, appellate counsel has filed a motion to withdraw as attorney of record which states she has mailed defendant a copy of her brief. Additionally, this Court sent defendant a letter by certified mail on August 6, 2013, informing him that an Anders brief had been filed. In addition, defendant has filed a pro se supplemental brief.

Our independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. The bill properly charged defendant. As required, it plainly, concisely, and definitely states the essential facts constituting the offense charged and cites the statute that defendant violated. It also sufficiently identifies defendant and the crime charged. Also, as reflected by the minute entries and commitment, defendant appeared at his |Barraignment, guilty plea proceedings, and sentencing. Further, defendant pled guilty as charged. If a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea and precludes review of such defects either by appeal or post-conviction relief. State v. Wingerter, 05-697 (La.App. 5 Cir. 3/14/06), 926 So.2d 662, 664. Once a defendant is sentenced, only those guilty pleas that are constitutionally infirm may be withdrawn by appeal or post-conviction relief. State v. McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120, 1124. A guilty plea is constitutionally defective if it is not entered freely and voluntarily, if the Boykin colloquy is inadequate, or when a defendant is induced to enter the plea by a plea bargain or what he justifiably believes was a plea bargain and that bargain is not kept. State v. Dixon, 449 So.2d 463, 464 (La.1984).

The record shows that defendant was aware he was pleading guilty to one count of simple burglary. On the waiver of rights form and during the colloquy with the trial court, defendant was advised of his right to a jury trial, his right to confrontation, and his privilege against self-incrimination. On the waiver of rights form, defendant initialed next to each of these rights and signed the form, indicating that he understood that he was waiving these rights by pleading guilty. During the colloquy with the trial court, defendant indicated that he understood that he was waiving these rights by pleading guilty. Defendant further indicated that he had not been forced, coerced, or threatened to enter his guilty plea.

Additionally, on the waiver of rights form and during the colloquy with the court defendant indicated that he understood the sentencing range for his crime, as well as the actual sentence he would receive, which was zero to twelve years, and that he would receive a sentence of six years. The defendant also indicated that he understood that he was to be billed as a second felony offender.

IfiAs to the habitual offender proceedings, defendant executed a waiver of rights form, in which he admitted that he was a second felony offender with a prior felony conviction as outlined in the habitual offender bill. The form reflects that a copy of the habitual offender bill was given to him and reviewed by him, as well as by his attorney. By means of this form, defendant indicated that he understood that he was giving up his right to have a hearing. The form explains what the District Attorney was required to prove at such a hearing. He also indicated that he understood that he had the right to remain silent throughout the hearing and that his silence would not be held against him. Defendant also placed his initials next to the rights which he was waiving. The form reflects that defendant faced a sentencing range of six to twenty-four years, and that he would receive 6 years with the “DOC.” Defendant indicated that he was satisfied with the way his attorney and the court explained the rights he was waiving and the consequences of his guilty plea. He indicated that he was not forced, coerced, or threatened to stipulate. He further indicated that he understood the possible legal consequences of pleading guilty and wished to plead guilty at the time. The form was signed by defendant, his attorney, and the judge, who indicated he was accepting the plea as knowingly, intelligently, freely, and voluntarily made by defendant.

During the habitual offender colloquy, defense counsel indicated that he had reviewed the habitual offender bill with defendant and was waiving a hearing on the habitual offender bill. Defendant stated that he wished to “plead guilty” to being a second felony offender. Defendant agreed that he had been given a copy of the habitual offender bill and that counsel had reviewed it with him. The court advised defendant he had a right to a hearing and explained what the State would be required to prove at the hearing, including that any former guilty plea had to contain an advisal regarding the right to remain silent. The court further explained 17that defendant had the right to remain silent through the habitual offender hearing and not have his silence held against him.

Just prior to when the trial judge accepted defendant’s stipulation, the court addressed defendant as follows: “Do you understand the possible consequences of pleading guilty to the Double Bill?” Defendant responded affirmatively.

Defendant indicated during the colloquy that he was satisfied with the manner in which the court and his attorney had handled his case and that he had not been forced, coerced, or threatened into making the stipulation. The court then accepted defendant’s stipulation to the habitual offender bill as knowingly, intelligently, freely, and voluntarily made by defendant. Defendant was also advised during the colloquy as to the sentencing range he faced as a second felony offender. He was also advised as to the sentence that would be imposed if his stipulation was accepted. He was told he would be sentenced to six years with the Department of Corrections, with credit for time served, to run concurrently with any other sentence he was serving, without benefit of probation or suspension of sentence.

After stipulating to the habitual offender bill, the trial judge vacated the original sentence on count one and imposed a sentence in conformity with the “plea agreement.” La.C.Cr.P. art. 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed. State v. Moore, 06-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 46.

Defendant’s sentence was within the sentencing range as well. The term of imprisonment for a second felony offender “shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.” See La. R.S. 15:529.1. A conviction under La. R.S. 14:62 carries a term of imprisonment at hard labor of not more than twelve years. Thus, 18as a second felony offender, defendant was subject to a sentencing range of six to twenty-four years of imprisonment. Because defendant’s enhanced sentence of six years is within the sentencing range and was imposed pursuant to the stipulation, the sentence does not present a non-frivolous issue to be raised on appeal.

Further, by stipulating to the habitual offender bill, defendant waived his right to a hearing and any possible non-jurisdictional defects were waived. As previously noted, defendant is barred from asserting on appeal that the State failed to produce sufficient proof at the habitual offender hearing when he waived the hearing. State v. Schaefer, 97-465 (La.App. 5 Cir. 11/25/97), 704 So.2d 300.

Considering the above stated reasons, we find defendant’s guilty plea, his guilty plea to the habitual offender bill and his enhanced sentence do not present any issues for appeal. Because appellant counsel’s brief adequately demonstrates by full discussion and analysis that she has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and our independent review of the record supports counsel’s assertion, we grant appellate counsel’s motion to withdraw as attorney of record.

Defendant has filed a pro se supplemental brief raising three assignments of error.

In his pro se assignment number one, defendant asserts that there was no physical evidence or corroborating evidence to support the charge of burglary. He further claims in pro se assignment number two that the “testimony” of the owner of the property was inconsistent and contradictory as it pertained to the victim’s identification of him. As previously noted, when a defendant pleads guilty, he normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. Wingerter, supra. A plea of guilty by its nature admits factual |9guilt and relieves the State of the necessity to prove it by a contested trial. State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 824 n. 3, writ denied, 08-927 (La.11/14/08), 996 So.2d 1088. Therefore, a defendant cannot challenge the sufficiency of the evidence after he pleads guilty. Id. See also State v. Robinson, 09-1269 (La.App. 4 Cir. 5/12/10), 38 So.3d 1138, 1141. Thus, we do not review defendant’s claims that the evidence was insufficient to support his conviction. These assignments have no merit.

In his third pro se assignment of error, defendant argues that he was not allowed sufficient time to hire private counsel after he refused a plea agreement. He further alleges ineffective assistance of counsel.

A review of the record contains no evidence that defendant sought new counsel at any time during the proceedings. However, the record does indicate that defendant acknowledged his satisfaction with his legal representation on the date of his guilty plea and habitual offender stipulation. Accordingly, defendant has not shown that he is entitled to relief.

Furthermore, to the extent that defendant raises the contention of ineffective assistance of counsel, he does not brief the issue, and therefore, we consider this specification abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4; State v. Fernandez, 03-987 (La.App. 5 Cir. 12/30/03), 864 So.2d 764.

We have reviewed the record for errors patent according to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975) and State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990), and find none which require corrective action.

For the above discussed reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: PAUL A. BONIN, Judge.

text:
    Leo POLLARD, JR., et al. v. ALPHA TECHNICAL, et al. Willie Williams, et al. v. Exxon Mobil Corporation, et al.
    Nos. 2013-CA-1239, 2013-CA-1240.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2014.
    Rehearing Denied Feb. 20, 2014.

      George F. Riess, Law Offices of George F. Riess & Associates, LLC, New Orleans, LA, Dwight Jefferson, Houston, TX, Larry Wright, Law Offices of Environmental Litigation Group, P.C., Birmingham, AL, for Plaintiffs/Appellants.
    Mary S. Johnson, Jill T. Losch, Ingrid M. Kemp, Johnson Gray Mcnamara, LLC, Mandeville, LA, Chad J. Moliere, Johnson Gray McNamara, LLC, Bettye A. Barrios, Gavin H. Guillot, Johnson Johnson Barrios & Yacoubian, Deborah D. Kuchler, Janika D. Polk, Michele Hale DeShazo, Kuchler Polk Schell Weiner & Richeson, LLC, Michael R. Phillips, Louis M. Grossman, Richard S. Pabst, Julie Parelman Silbert, Kean Miller LLP, Christoffer C. Friend, Susan R. Laporte, Lauren E. Godshall, Megan E. Smith, Curry & Friend, APLC, New Orleans, LA, R.A. Osborn, Jr., Osborn & Osborn, Harvey, LA, for Defendants/Appellees.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   PAUL A. BONIN, Judge.

It Some plaintiffs in these consolidated appeals, claiming to represent the interests of about two thousand five hundred persons, appeal the district court’s granting of the defendants’ motion to withdraw from a previously-filed Joint Motion for Preliminary Approval of Settlement and Certification of Settlement Class, as well as the district court’s corollary ruling that the plaintiffs’ motion to enforce the terms of the joint motion was rendered moot. Because we find that the complained of rulings are interlocutory, and not within the scope of La. C.C.P. art. 592 A(3)(b), we dismiss the appeals and remand for further proceedings. We explain our decision in more detail below.

Jbi

We first considered this case on appeal from a judgment which denied class certification. While the appeal was pending, an initial Joint Motion for Preliminary Approval of Settlement and Certification of Settlement Class was filed in, and approved by, the district court. Exercising our supervisory jurisdiction, we vacated the ruling and stayed further proceedings pending the finality of the judgment to be rendered on appeal. See Pollard v. Alpha Technical, unpub., 10-0250 (La.App. 4 Cir. 2/23/10). Not long after, we rendered judgment affirming the denial of class certification. See Pollard v. Alpha Technical, 08-1486 (La.App. 4 Cir. 1/28/10), 31 So.3d 576. We also refused to attempt to redefine a class or remand for the trial court to craft a more narrowly defined class because we found the deficiencies of the plaintiffs’ case as to commonality “so enormous” that redefining the class in this unique factual scenario would not help to maintain the class. Id. at pp. 19-20, 31 So.3d at 591.

Following that judgment, the Joint Motion for Preliminary Approval of Settlement and Certification of Settlement Class was re-filed in the district court and was approved on May 26, 2010. Again exercising our supervisory jurisdiction, we at first granted the writ and reversed the district court’s approval. See Pollard v. Alpha Technical, unpub., 10-0788 (La.App. 4 Cir. 6/15/10). We, however, were directed by the Supreme Court to reconsider that action in light of the district 13court’s May 28, 2010 order Preliminarily Approving Class Action Settlement and Certifying Class Action for Settlement Purposes. See Pollard v. Alpha Technical, 10-1836, 10-1762, 10-1844, p. 1 (La.11/5/10), 46 So.3d 1251, 1252.

Upon further review, and after following the directions given to us, we yet again reversed the district court’s preliminary approval of a proposed settlement and certification of a settlement class. See Pollard v. Alpha Technical, 10-0788 (La.App. 4 Cir. 8/12/11), 102 So.3d 71. At that time, we found that the district court had failed to make any specific findings of fact which differentiated the new proposed settlement class from the class that had previously been denied predominating issue certification. We, moreover, concluded that the district court ruling failed to apply the law-of-the-case doctrine and take into account the fact that a class had never been certified in this matter. Pollard, 10-0788, p. 51, 102 So.3d at 105.

Following remand of this matter to the district court, the parties were unable to resolve the issues which had prevented certification of any manner of class. Subsequently, the defendants sought to withdraw from the Preliminary Settlement Agreement and brought a motion before the district court seeking such authorization. The defendants argued that they should be allowed to withdraw from the preliminary settlement agreement because: 1) our repeated rejection of the proposed settlement class vitiated their prior expectation that a settlement class could be fashioned that would endure final district court approval and appellate scrutiny; 2) our observation that the district judge’s initial denial of certification ^constitutes the law-of-the-case forced them to conclude that a successful class certification was unattainable; 3) our conclusion that the proposed litigation class, which was no different than the proposed settlement class, contained enormous commonality deficiencies which rendered futile further attempts to craft any type of class in this case; and, 4) the stated intention of the Earl Adams plaintiffs to opt out of any proposed settlement class would result in an insufficient number of putative class members willing to participate in the proposed settlement.

The Pollard/Harvey TERM plaintiffs opposed the defendants’ motion and filed their own Motion to Enforce Preliminary Settlement Agreement. The Earl Adams plaintiffs, on the other hand, did not object to the defendants’ motion and informed the trial judge that they had begun con-fecting partial settlements with some of the defendants. The present appellants, the Dottie Adams/Mitchell plaintiffs, failed to file a timely opposition memorandum to the defendants’ motion and were, thus, prohibited by the district judge from opposing the motion orally at the subsequent hearing. The parties argued the merits of the two competing motions on May 16, 2013. At the close of the hearing, the district judge granted the defendants’ motion and denied the Pollard/Harvey TERM plaintiffs’ motion.

The Dottie Adams/Mitchell plaintiffs subsequently filed a motion for devolutive appeal challenging the propriety of the district judge’s actions. In response, the defendants argue, among other things, that the underlying judgment is not ap-pealable because it constitutes an interlocutory ruling. We agree and now explain our rationale more fully.

_bJI

In this Part we explain why we cannot exercise our appellate jurisdiction, and why we dismiss appellants’ appeal and remand to the district court.

The Louisiana Constitution of 1974 provides for our appellate jurisdiction and our supervisory jurisdiction. See La. Const. Art. V, § 10(A). “Appeal is 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 (emphasis added). “Supervisory -writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.” La. C.C.P. Art. 2201. As we have observed, “the difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the appellate court while the latter is invocable by the litigant as a matter of right.” Favrot v. Favrot, 10-0986, p. 2 (La.App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102, citing to Livingston Downs Racing Ass’n, Inc. v. Louisiana State Racing Com’n, 96-1215, p. 3 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216.

“A final judgment is appealable in all cases in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.” La. C.C.P. Art. 2083 A. “A judgment that determines the merits in whole or in part is a final judgment.” La. C.C.P. Art. 1841. “No appeal may be taken from a partial final judgment under Article 1915(B) until the judgment has been | (¡designated a final judgment under Article 1915(B). An appeal may be taken from a final judgment under Article 1915(A) without the judgment being so designated.” La. C.C.P. Art. 1911.

“A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.” La. C.C.P. Art. 1841. “An interlocutory judgment is appealable only when expressly provided by law.” La. C.C.P. Art.2083 C; see, e.g., La. C.C.P. Art. 3612 B (relating to the denial or the granting of a preliminary injunction), and La. C.C.P. Art. 592 A(3)(b) (relating to certification in class actions). If not expressly provided by law, there is no right to appeal an interlocutory judgment. See, e.g., La. C.C.P. Art. 968 (“An appeal does not lie from the court’s refusal to render any judgment on the pleading or summary judgment.”).

Therefore, in order to determine whether a particular judgment or order is appealable as of right, it must be determined whether the judgment is (1) a final judgment which has determined the merits in whole, La. C.C.P. Art.1911; (2) a partial final judgment which does not require designation as a final judgment, La. C.C.P. Art.1915 A; (3) a partial judgment which requires designation as a final judgment, La. C.C.P. Art.1915 B(l); (4) an interlocutory judgment from which an appeal is expressly provided by law, La. C.C.P. Art. 2083 C; or, (5) an interlocutory judgment from which an appeal is not expressly provided by law, id. See also LaDonte A. Murphy, Access to Appellate Review: Writs, Appeals, and Interlocutory Judgments, 34 S.U.L.Rev. 27 (2007).

|7A partial judgment which requires designation as a final judgment by the trial court (the third category, ante) but which has not received such a designation is not an appealable judgment. See La. C.C.P. Art.1915 B(2) (“In the absence of such a determination and designation, [any such order or decision] ... shall not constitute a final judgment for the purpose of an immediate appeal.”). Such an undesignated judgment, like an interlocutory judgment, “may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.” La. C.C.P. Art.1915 B(2); see, e.g., Regions Bank v. Weber, 10-1169, p. 1 (La.App. 4 Cir. 12/15/10), 53 So.3d 1284 (“An interlocutory judgment may be reconsidered or revised upon proper motion at any time until the rendition of a final judgment.”), citing to Magallanes v. Norfolk Southern Railway Co., 09-0605, p. 4 (La.App. 4 Cir. 10/14/09), 23 So.3d 985, 988. See also Roger A. Stetter, Louisiana Civil Appellate Procedure, § 3:20 (2010-2011 ed.) (“Any partial judgment that does not dismiss a party and that is not expressly authorized by Article 1915 is interlocutory in character rather than final.”).

Insisting that a partial judgment be designated as final because “there is no just reason for delay” allows us to enforce the “policy against multiple appeals and piecemeal litigation.” R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122; see also 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise-Civil Procedure, § 14.3, p. 363 (1999). Such insistence also helps to “ensure that our courts operate under principles of sound judicial administration to promote judicial efficiency and economy.” Id.

The judgment which the plaintiffs “appeal” was one granting the defendants’ motion to withdraw from a joint motion for the preliminary approval of a settlement agreement and certification of a class for settlement purposes, and denying the Pollard/Harvey TERM plaintiffs’ countervailing motion to enforce the preliminary settlement agreement. The judgment did not dismiss any party or adjudicate liability. See La. C.C.P. Art.1915 A(l) and (6). The effect of the judgment is merely to allow the defendants to withdraw, collectively, from the preliminary settlement - agreement. This judgment, therefore, is clearly interlocutory.

The plaintiffs argue, however, the judgment is appealable by virtue of La. C.C.P. Art. 592 A(3)(C), which provides in pertinent part:

If the court finds that the action should be maintained as a class action, it shall certify the action accordingly. If the court finds that the action should not be maintained as a class action, the action may continue between the named parties.... A suspensive or devolutive appeal, as provided in Article 2081 et seq. of the Code of Civil Procedure, may be taken as a matter of right from an order or judgment provided for herein.

The plaintiffs assert that the underlying district court judgment is, therefore, ap-pealable because certification “was at the heart of the dispute” between the two competing motions. This assertion, however, is quickly dispelled by reference to both sets of pleadings and supporting memoranda. The defendants’ motion does not seek the withdrawal of a previously granted class certification. Rather, the ^defendants’ motion seeks to withdraw from a preliminary settlement agreement, the terms of which provide for the eventual formation, pending court approval, of a class for settlement purposes. It does not seek the withdrawal or modification of a previously certified class. The Pollard/Harvey TERM plaintiffs’ motion, moreover, did not request a ruling on class certification, but instead sought to enforce the terms of the preliminary settlement agreement. Additionally, as should be clear from our discussion of this matter’s procedural history, the plaintiffs in these consolidated matters were ultimately unsuccessful in securing class certification for both litigation and settlement purposes. Accordingly, La. C.C.P. Art. 592 A(3)(C) is inapplicable to this matter because no class has been successfully certified to date, or was in effect at the time of the ruling at issue.

The judgment underlying the matter before us is, therefore, interlocutory. We, therefore, dismiss the present appeal brought by the Dottie Adams/Mitchell plaintiffs and remand this matter to the district court for further proceedings.

APPEAL DISMISSED, REMANDED.

      . The present matter is comprised of several groupings of plaintiffs that are, in turn, represented by different groupings of attorneys. The present appeal was brought by a group that has, throughout the course of these proceedings, been referred to as the "Dottie Adams/Mitchell” plaintiffs. Two other large plaintiff groupings, the "Earl Adams” and "Pollard/Harvey TERM” plaintiffs have not sought review of the underlying district court ruling. We note that like the Dottie Adams/Mitchell plaintiffs, the two other groupings of plaintiffs likewise are alleged to comprise thousands of individual plaintiffs. Nevertheless, these three large groupings of plaintiffs do not encompass all of the plaintiffs in the underlying matter.

      . The defendants herein are Shell Oil Company, Shell Offshore, Inc., SWEPI LP, Anadarko U.S. Offshore Corporation f/k/a Kerr-McGee Oil & Gas Corporation, BP America Production Company f/k/a Amoco Production Company, Atlantic Richfield Company, Chevron U.S.A., Inc., Texaco Inc., Union Oil Company of California, ConocoPhillips Company, Marathon Oil Company, Transco Exploration Company, as successor to Exchange Oil and Gas Corporation, OXY USA, Inc., Placid Oil Company, and OFS, Inc.

      . In dismissing this appeal on jurisdictional grounds we take no position on the propriety of the district judge’s underlying rulings.