author: CRAIN, J. KUHN, J.,

text:
    Thomas GORMAN v. Lieutenant Austin MILLER, Deputy Andrew, Deputy Tom Floyd and Deputy Robert Redmond.
    No. 2012 CA 0412.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 13, 2013.
    Concurring and Dissenting Opinion of Judge Kuhn, Nov. 19, 2013.

      Donna U. Grodner, Marcus J. Plaisance, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant, Thomas Gorman.
    Lieutenant Austin Miller, Deputy Andrew, Deputy Tom Floyd, Deputy Robert Redmond, Clinton, Louisiana, Defendants/Appellees, In Proper Person.
    Before WHIPPLE, C.J., PARRO, KUHN, GUIDRY, PETTIGREW, McDonald, welch, HIGGINBOTHAM, CRAIN, and THERIOT, JJ.

      . The Hon. Page McClendon and Hon. Ernest Drake Jr. recused themselves from consideration of this matter.

   CRAIN, J.

IsThomas Gorman appeals a final judgment dismissing his personal injury suit with prejudice. He also seeks review of the trial court’s interlocutory rulings excluding certain evidence and finding that Gorman failed to meet his burden of proof to confirm a preliminary default judgment against the defendants. After en banc consideration, we reverse the judgment and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Gorman instituted this suit against Lieutenant Austin Miller, Deputy Andrew (also referred to as Deputy Andrew Duncan), Deputy Tom Floyd, and Deputy Robert Redmond. In his petition, Gorman alleges that on March 81, 2011, he was arrested following a traffic stop and was detained at the East Feliciana Parish jail. He alleges that while detained in jail, the defendants verbally and physically attacked him, causing serious injuries. Gorman seeks damages under state and federal law, including 42 U.S.C. § 1983.

The defendants did not answer Gor-man’s suit. On Gorman’s motion, which alleged personal service on the defendants, the trial court entered a preliminary default judgment. At the hearing to confirm the preliminary default judgment, Gorman offered proof of his demand through his own testimony, medical records, two affidavits, and photographs of his injuries. The trial court excluded the medical records and affidavits and determined that Gorman’s testimony was not credible. The trial court then concluded that Gorman had not met his burden of proof to confirm the preliminary default judgment and rendered judgment denying the confirmation of default and dismissing Gorman’s suit with prejudice.

Gorman appeals, challenging the trial court’s exclusion of the medical records and affidavits, the trial court’s refusal to confirm the preliminary default judgment, and the dismissal of his suit with prejudice.

^DISMISSAL BY TRIAL COURT

This case presents for review the appropriateness of the trial court dismissing the plaintiffs case with prejudice upon finding that the plaintiff failed to establish a prima facie case as required under Louisiana Code of Civil Procedure article 1702A. Sitting en banc, we find such action to be in error, and in doing so, choose not to follow this court’s previous ruling in State Through Dept. of Social Services v. R.H., 98-2312 (La.App. 1 Cir. 10/7/94), 644 So.2d 853.

Louisiana’s Code of Civil Procedure delineates the time delay within which a defendant must file his answer after service of the plaintiffs suit upon him. If the defendant does not comply, the plaintiff may move for entry of a default judgment (also called a preliminary default judgment) against the defendant. La.Code Civ. Pro. art. 1701A; see also Corte v. Cash Technologies, Inc., 02-0846 (La.App. 1 Cir. 4/2/03), 843 So.2d 1162. The Code of Civil Procedure further sets forth the method by which a plaintiff can have the preliminary default judgment confirmed. Specifically, the plaintiff must present the trial court with proof of the demand sufficient to establish a prima facie case. La. Code Civ. Pro. art. 1702A.

The judgment on appeal dismissed Gor-man’s suit for failure to establish a prima facie case. The trial court acted sua sponte, as Gorman did not move to voluntarily dismiss his suit, and the defendants, having made no appearance in this proceeding, presented no motion for involuntary dismissal of the suit.

In State Through Dept, of Social Services v. R.H., the trial court dismissed the plaintiffs suit after the plaintiff failed to offer evidence sufficient to have a | ^preliminary default judgment confirmed. In reviewing the propriety of the trial court’s action, this court noted that the plaintiff had not requested that the matter be held open for the submission of additional evidence, nor requested that the case be reopened for additional evidence after the trial court’s ruling, or even suggested that additional evidence was available. State Through Dept. of Social Services, 644 So.2d at 855. This court found that “[i]t is not the duty of the trial court to assess the merits of a litigant’s claim and to then determine, on its own motion, that the litigant is deserving of a second chance to prove his case.” Id. This court concluded that the plaintiff had no right to demand another opportunity to do so, and the trial court had no duty to offer such an opportunity to the plaintiff, particularly when the plaintiff had not requested it or indicated that additional proof would be offered. Id. The trial court’s judgment dismissing the plaintiffs suit was affirmed.

Upon en banc consideration, and in light of current Louisiana law and jurisprudence, we now find to the contrary. The analysis of this same issue by the Fourth Circuit Court of Appeal in Dahan Novelties & Co., LLC v. Ohio Cas. Ins. Co., 10-0626 (La.App. 4 Cir. 10/20/10), 51 So.3d 129, is persuasive. In Dahan Novelties & Co, LLC, the court of appeal reversed the trial court’s judgment dismissing a plaintiffs suit on its own motion after finding the plaintiff had failed in his burden to confirm a preliminary default judgment, explaining:

Our procedural law confers upon a trial court only very limited authority to dismiss a lawsuit on its own motion. A trial court on its own may notice, for example, peremption or the failure to disclose a cause of action and dismiss the lawsuit. See La. C.C.P. arts. 927 B and 934. Also, when no party appears for trial, the trial court may dismiss an action “on its own motion.” La. C.C.P. art. 1672 A(2). But these authorized circumstances do not apply in this case. Except in such circumstances, a trial judge’s power to dismiss cannot be exercised on his own motion, but requires the application of a party.

Dahan Novelties & Co., LLC, 51 So.3d at 135. The court further recognized that under Louisiana law, voluntary dismissal of a plaintiffs suit requires a motion by |fithe plaintiff and involuntary dismissal requires a motion by “a party.” La.Code Civ. Pro. arts. 1671 and 1672; Dahan Novelties & Co., LLC, 51 So.3d at 135. The trial court is not a party to the action and thus cannot supply the motion for involuntary dismissal. Wooley v. AmCare Health Plans of Louisiana, Inc., 06-1146 (La.App. 1 Cir. 1/17/07), 952 So.2d 720, 729.

We agree that if the plaintiff fails to present sufficient evidence to confirm a preliminary default judgment, and no party present at the confirmation hearing moves for dismissal of the plaintiffs suit, the trial court is effectively prevented from dismissing the plaintiffs suit on its own motion. See Dahan Novelties & Co., LLC, 51 So.3d at 136; see also Griffin v. Pecanland Mall Assoc. Ltd., 535 So.2d 770 (La. App. 2 Cir.1988). In those circumstances, the trial court’s authority is limited to a denial of the request to confirm the preliminary default judgment. To the extent it holds otherwise, we overrule State Through Dept, of Social Services v. R.H., supra. The trial court’s judgment dismissing Gorman’s suit with prejudice is reversed.

DENIAL OF REQUEST TO CONFIRM PRELIMINARY DEFAULT JUDGMENT

When an unrestricted appeal is taken from a final judgment, such as the trial court’s dismissal of the plaintiffs suit, the appellant is entitled to additionally seek review of all adverse interlocutory rulings. Landry v. Leonard J. Chabert Med. Ctr., 02-1559 (La.App. 1 Cir. 5/14/03), 858 So.2d 454, 461 n. 4, writs denied, 03-1748, 03-1752 (La.10/17/03), 855 So.2d 761; R & R Steel Erectors v. Watson, 01-1322 (La.App. 3 Cir. 3/6/02), 809 So.2d 1228, 1230; Griffin, 535 So.2d at 773. Therefore, we consider Gorman’s arguments that the trial court erred in finding that he failed to meet his burden of proof to have the preliminary default judgment confirmed after erroneously excluding the offered medical records and affidavits, IfiWhich along with plaintiffs testimony and his photographs comprised the entirety of the evidence presented to the trial court.

Confirmation of a preliminary default judgment is similar to a trial with the defendant being absent. The plaintiff is required to present admissible and competent evidence establishing a prima facie case, proving both the existence and the validity of the claim as though the defendant denied each allegation of the petition. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La.5/5/09), 9 So.3d 815, 820; Northshore Regional Medical Center, L.L.C. v. Dill, 12-0850 (La.App. 1 Cir. 3/22/13), 115 So.3d 475, 480, writ denied, 13-0866 (La.5/31/13), 118 So.3d 396. Simply stated, in order to confirm a default, “the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial on the merits.” Arias, 9 So.3d at 820. In doing so, the plaintiff must adhere to the rules of evidence despite there being no opponent to urge objections. Arias, 9 So.3d at 820. Except as provided by law, inadmissible evidence may not support a default judgment. Arias, 9 So.3d at 820 (citing 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof § 1.1, at 5 (2d ed.2007)). The standard of review for a trial court’s evidentiary rulings is abuse of discretion; the trial court’s ruling will not be disturbed unless it is clearly erroneous. Riverside Recycling, LLC v. BWI Companies, Inc. of Texas, 12-0588 (La. App. 1 Cir. 12/28/12), 112 So.3d 869, 874.

The trial court excluded Gor-man’s certified medical records because no representative from the medical institutions was available for the court to examine regarding the diagnoses and treatment information contained in the records or to testify that the records were kept in the normal course of business and were true and correct. This ruling was in error. Properly certified medical records are admissible in establishing a prima facie case to confirm a default in a delictual action, without accompanying oral medical testimony or sworn narrative report. See Oliver v. Cal Dive International, Inc., 02-1122 (La.App. 1 Cir. 4/2/03), 844 So.2d 942, 945, units denied, 03-1230 and 03-1796 (La.9/19/03), 853 So.2d 638 and 648; Assamad v. Percy Square and Diamond Foods, L.L.C, 07-1229 (La.App. 1 Cir. 7/29/08), 993 So.2d 644, 650, writ denied, 08-2138 (La.11/10/08), 996 So.2d 1077. Consequently, the trial court abused its discretion in excluding the medical records on the basis that no representatives from the medical institutions were present to offer testimony.

The trial court also excluded the affidavits of Daniel McKenzie and Jason Whit-stone, both of whom were allegedly incarcerated at the East Feliciana Parish jail at the same time as Gorman and whose testimony was presented to corroborate Gor-man’s account of the defendants’ actions.

Code of Civil Procedure article 1702B(2) provides, in pertinent part:

When a demand is based upon a delic-tual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. (Emphasis added.)

Thus, affidavits may be considered in support of confirming a default judgment without the necessity of the affiant’s oral testimony at the hearing. Nonetheless, the documents submitted as affidavits must be of sufficient evidentiary quality to be considered, despite there being no objection by the defendants. See Arias, 9 So.Sd at 820.

An affidavit is a declaration or statement of facts personally known to the affiant, reduced to writing and sworn to by the affiant before an officer who has authority to administer oaths, such as a notary public. In re Davis, 12-0689, 2012 WL 6677915 (La.App. 1 Cir. 12/21/12) (unpublished); Patterson in Interest of Patterson v. Johnson, 509 So.2d 35, 38 (La.App. 1 Cir.1987). The handwritten McKenzie “affidavit” is not signed by either McKenzie or a notary. A document that is not signed and notarized cannot be considered as an affidavit. Anderson v. Allstate Ins. Co., 93-1102 (La.App. 1 Cir. 4/8/94), 642 So.2d 208, writ denied, 94-2400 (La.11/29/94), 646 So.2d 404. The trial court correctly excluded the McKenzie “affidavit.”

In contrast, the Whitstone affidavit is signed by Whitstone. It begins “Before me the undersigned Notary Public came and appeared Jason Whitstone who after being sworn did declare....” It concludes “Sworn to [and] subscribed before me this 5th day of May 2011,” followed by a signature on a signature line. Although the notary is not identified by name or number, the document reflects the definitive characteristics of an affidavit in that it purports to be a writing made under oath, signed by the affiant, and notarized. See State v. Duhon, 95-2724 (La.5/21/96), 674 So.2d 944, 946; Millen v. State Dept. of Public Safety and Corrections, 07-0845 (La.App. 1 Cir. 12/21/07), 978 So.2d 957, 963 (holding that a notary’s failure to comply with the Louisiana Revised Statute 35:12 does not invalidate the affidavit); Anderson, 642 So.2d at 210. The trial court abused its discretion in refusing to consider the Whitstone affidavit.

Having determined that the trial court erred in excluding evidence offered in support of the plaintiffs case, this appeal requires that we determine whether to conduct de novo review or remand for further proceedings. As a general rule, when the trial court makes evidentia-ry errors that are prejudicial, such that they materially affect the outcome of the trial and deprive a party of substantial rights, and if the record is otherwise complete, the appellate court will conduct its own de novo review of the record. See La.Code Ev. art. 103A; Riverside Recycling, 112 So.3d at 874; State of Louisiana through Dept. of Child and Family Services v. Dennis, 11-1736 (La.App. 4 Cir. 4/18/12), 90 So.3d 1206, 1208-09. However, the Louisiana Supreme Court has also recognized that in limited circum stances, when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court should remand the ease to the trial court under the authority of Code of Civil Procedure article 2164, rather than undertaking de novo review. See Wegener v. Lafayette Ins. Co., 10-0810 (La.3/15/11), 60 So.3d 1220, 1233; Alex v. Rayne Concrete Service, 05-1457 (La.1/26/07), 951 So.2d 138, 155.

We find that remanding this case, rather than conducting de novo review, is just, legal, and proper. Cf. La.Code Civ. Pro. art. 2164. To confirm a preliminary default judgment, the plaintiff must prove both the existence and validity of his claim by convincing the trial court that it is more probable than not that he would prevail at a trial on the merits. Añas, 9 So.3d at 815. The determination of whether the plaintiff has satisfied his burden is subject to the credibility determinations of the trial court. Tucker v. Howes, 413 So.2d 585, 588 (La.App. 1 Cir.1982). Importantly, in the context of confirming a preliminary default judgment in a delictual action, Code of Civil Procedure article 1702B(2) expressly grants the trial court the authority to “require additional evidence in the form of oral testimony before entering judgment,” when warranted under the circumstances of the case.

In this case, the trial court found that Gorman’s testimony was not credible. However, after Gorman’s medical records and the Whitstone affidavit were erroneously excluded, that conclusion was reached without considering all admissible evidence. The trial court also intimated that corroboration with oral [ 1fltestimony was necessary. Under Article 1702B(2), the trial court is not obliged to accept the affidavits and records offered, nor even the plaintiffs testimony, without additional corroboration in the form of oral testimony. Even after considering the improperly excluded evidence in this case, the trial court may or may not require corroboration through oral testimony pursuant to Article 1702B(2). In contrast, this court cannot receive new evidence (i.e., corroborating testimony) in conducting de novo review. See Niemann v. Crosby Development Co., LLC, 11-1337 (La.App. 1 Cir. 5/3/12), 92 So.3d 1039, 1044.

While we make no findings regarding the weight to be given the evidence on remand, or the factors the trial court may consider in deciding whether to require corroborating testimony under Article 1702B(2), we note that the authority to require corroborating testimony may be particularly useful here, where the trial court found the plaintiff not credible, a corroborating “affidavit” is not an affidavit, the other affidavit lacks information necessary to verify that it was notarized, and the trial court suggested that medical testimony was necessary to establish causation. On remand the trial court can consider and weigh all of the admissible evidence and determine whether to require additional testimony. Moreover, without the trial court’s determination of whether it will order additional testimony, we cannot conclude that this court has before it a complete record upon which to conduct de novo review and base a decision. See Chambers v. Village of Moreauville, 11-898 (La.1/24/12), 85 So.3d 593, 597 (stating that when a legal error interdicts the fact finding process, de novo review should be undertaken if the record is otherwise complete.) Accordingly, this matter is remanded.

^CONCLUSION

This court’s prior decision in State Through Dept. of Social Services v. R.H., 93-2312 (La.App. 1 Cir. 10/7/94), 644 So.2d 853, is overruled insofar as it found that a trial court is authorized to sua sponte dismiss a plaintiffs suit for failure of the plaintiff to meet his burden of proof to confirm a preliminary default judgment. The trial court’s judgment, dismissing Gor-man’s suit with prejudice, is reversed. This matter is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs of this appeal shall await final disposition in this matter.

REVERSED AND REMANDED.

PETTIGREW, J., concurs in part and dissents in part for the reasons assigned by Judge GUIDRY.

WHIPPLE, C.J., respectfully concurs in the result.

HIGGINBOTHAM, J., concurs in the result.

GUIDRY, J., concurs in part and dissents in part and assigns reasons.

KUHN, J., concurs in part and dissents in part, and will assign reasons.

KUHN, J.,

concurring in part and dissenting in part.

hi dissent from the proposition posed by the majority that a remand is necessary in this case to achieve “justice.” The plaintiff has filed a suit for damages and a claim under 42 U.S.C. § 1983. The suit was unanswered, yet the trial court dismissed the suit following a rigorous cross-examination by the trial court itself. When the plaintiff appealed, he was met by a rule to show cause issued by this Court asking him to show cause why his appeal should not be dismissed. As of this date, this Court has neither disposed of the show cause nor offered any explanation for its issuance.

In dismissing the suit on the offer of proof made by the plaintiff, the trial court refused to accept evidence it was required to accept under La. C.C.P. art. 1702(B)(2), which states that “the testimony of the plaintiff with corroborating evidence, which may be by affidavits ... which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand.” (Emphasis added.) The majority now suggests that the trial eourt may decide on remand to require additional “corroboration through oral testimony” before confirming the default. This suggestion likewise ignores the above-quoted language of Article 1702(B)(2).

Our standard of review initially is one of legal error, which the majority recognizes. However, the majority ignores the longstanding rule of de novo review following a finding of legal error, choosing to disregard a multitude of cases that address that concept, ostensibly in an attempt to “do justice.”

| glnterestingly, the majority goes on to suggest as an alternate basis for remand that there was no proof of service. This suggestion ignores the trial court record and the information provided to this Court by the district court clerk’s office, as well as the Uniform Rules of the Courts of Appeal.

Defendants failed to make any appearance in the trial court. At the confirmation hearing, the plaintiff testified that, while incarcerated in jail, he was severely beaten and repeatedly tazed by defendants without provocation. No evidence was presented in opposition to this testimony. In support of his testimony, the plaintiff attempted to introduce the affidavit of Jason Whitstone, who was incarcerated in the adjacent jail cell at the time of the incident. To establish his injuries, the plaintiff also offered certified medical records, including emergency rooms records dated the day of his release from jail, which showed that he suffered a concussion, a broken right hand, multiple abrasions on his upper arm consistent with taser marks, swelling to his left thigh, and numerous bruises to his back, chest, ribs, left thigh, lower legs and right forearm. When the trial court refused to admit these exhibits, the plaintiff proffered them into the record. I concur with the majority’s conclusion that the trial court erred in excluding these exhibits.

Following the confirmation hearing, the trial court not only refused to confirm the preliminary default, but also denied the request of plaintiffs counsel to withdraw the preliminary default from the record. The trial court on its own motion then dismissed the plaintiffs suit with prejudice. In rendering judgment, the trial court emphasized the supposed lack of corroborating evidence, as follows:

BY THE COURT: ... I’m having grave difficulty in accepting this version of events outlined by [Mr. Gorman], and you had ample opportunity to bring some other witnesses here. Medical testimony — I have no medical testimony to proceed on. Mr. Gorman’s parents could have come here today to testify. They could have corroborated some of what he’s saying, but basically you’re asking me to proceed on faith, and I’m having a little bit of difficulty trying to understand |3how someone of Mr. Gor-man’s size — which he’s average size, probably five ten and a hundred fifty or sixty pounds — is going to withstand the onslaught of five deputies, being tased four times, multiple mace. I’m just having some difficulty with that.
BY THE COURT: Well, I’m finding that you lose, that the evidence is not such that I can conclude more probably than not that all of this happened, that it happened the way it was described by your client. I don’t have any medical evidence to try to get some idea of what the damages might be, what the long term care may be, what the medical expenses may be or any of those things, so I can’t rule in your favor. [Emphasis added.]

It is ironic that the trial court’s rejection of the plaintiffs account of events was based primarily on the supposed lack of corroborating evidence when it was the trial court that erroneously excluded the corroborating evidence that the plaintiff offered.

It is well-established that when the trial court commits prejudicial legal error, such as the erroneous exclusion of evidence that occurred in this case, the fact-finding process is interdicted and, if the record is otherwise complete, the reviewing court should make an independent de novo review of the record in order to render judgment on the merits, rather than remanding to the trial court. Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510; Ferrell, 650 So.2d at 747; Rosell v. ESCO, 549 So.2d 840, 844 n. 2 (La.1989); McLean v. Hunter, 495 So.2d 1298 (La.1986); Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980); Gomales v. Xerox Corporation, 254 La. 182, 320 So.2d 163, 165 (La.1975); Hebert v. ANCO Insulation, Inc., 00-1929 (La.App. 1st Cir. 7/31/02), 835 So.2d 483, writs denied, 02-2956, 02-2959 (La.2/21/03), 837 So.2d 629; Holliday v. Holliday, 00-0533 (La.App. 1st Cir.8/17/01), 795 So.2d 423, 429; Noveh v. Broadway, Inc., 95-2081 (La.App. 1st Cir.5/10/96), 673 So.2d 349, 353, writ denied 96-1431 (La.9/13/96), 679 So.2d 109; Hoyt v. Wood/Chuck Chipper Corporation, 92-1498 (La.App. 1st Cir.1/6/95), 651 So.2d 1344, 1349, writ denied. 95-0753 (La.5/19/95), 654 So.2d 695; Smith v. Smith, 615 So.2d 926, 932 (La.App. 1st Cir.), writ denied, 617 So.2d 916 (La.1993). In explaining this rule, our Supreme Court observed that, in addition to the constitutional authority of courts of appeal to review law and facts, there also is the practical consideration that judicial economy is best served by a prompt decision on the merits rather than a remand to the trial court when the appellate record is otherwise complete. Ragas, 388 So.2d at 708; Gonzales, 320 So.2d at 165-66. A de novo review serves to minimize the harm of the trial court’s error by allowing resolution of the matter on appeal without the delay, effort and expense inherent in remand. See Ragas, 388 So.2d at 708; Gonzales, 320 So.2d at 166.

In the instant case, despite the prejudicial legal error committed by the trial court in excluding several of the plaintiffs exhibits, the majority has elected not to conduct a de novo review. Instead, the majority is remanding this matter to the trial court, which has already demonstrated its unwillingness to accord the proper weight due under Article 1702(B)(2) to the evidence offered by the plaintiff at the confirmation hearing. The effect of the majority’s action is to tacitly overrule the long line of jurisprudence, including the cases cited herein, which clearly require a de novo review under the circumstances present.

The record in this case is complete since the plaintiff proffered the erroneously excluded exhibits. Nevertheless, as justification to remand this matter rather than performing its duty to conduct a de novo review, the majority cites the broad principle that in limited circumstances, “when necessary to reach a just decision and to prevent a miscarriage of justice, an appellate court should remand the case to the trial court under the authority of Code of Civil Procedure article 2164, rather than undertaking a de novo review.” Yet, the majority has cited no circumstances explaining how a de novo review would result in a miscarriage of justice in this particular case. Rather, the majority suggests that a remand is | ¡justified, despite the complete record before us, due to the trial court’s apparent conclusion that the plaintiffs testimony was not credible, as well as the possibility the trial court could decide to require additional corroboration from the plaintiff in the form of oral testimony pursuant to La. C.C.P. art. 1702(B). Incredibly, the majority’s position disregards the fact that the trial court’s reasons clearly demonstrate that its refusal to accept the plaintiffs testimony was based primarily on the lack of corroborating evidence, which ironically was provided in the very documents that the trial court erroneously excluded. Accordingly, it is farcical to accord any weight to the trial court’s purported credibility determination.

Further, the cases cited by the majority as authority for a remand are distinguishable on their facts from the present case. In Alex v. Rayne Concrete Service, 05-1457 (La.1/26/07), 951 So.2d 138 the trial court erroneously granted a peremptory challenge of a juror over a Batson/Ed-monson objection, which constituted a structural error. Under those peculiar circumstances, the Supreme Court held the interests of judicial economy must yield to the greater legal principles involved. Specifically, the Supreme Court concluded a remand was warranted because of the impact the structural error had not only on the parties, but also on the improperly excluded juror and our system of justice. Alex, 951 So.2d at 155-56. No such structural error occurred in the instant case.

In Wegener v. Lafayette Insurance Company, 10-0810 (La.3/15/11), 60 So.3d 1220, 1234, the Supreme Court remanded the case for a new trial based on the specific facts and circumstances of that case, as well as the particular legal issues involved. The Supreme Court held that first-hand observation of the opposing witnesses was necessary because there were multiple issues which were greatly affected by the respective credibility of the witnesses. In contrast, there |fiwas no opposing or conflicting evidence at issue in the instant case. No evidence whatsoever was introduced, challenging the plaintiffs testimony nor did any other witnesses testify at the confirmation hearing. Therefore, unlike Wegener, the facts of the present case do not warrant a remand to allow the first-hand observation of opposing witnesses.

With respect to the majority’s further rationale that the trial court could elect upon remand to require additional oral testimony under La. C.C.P. art. 1702(B)(2), it should be noted that the trial court had the opportunity to order such testimony before rendering judgment in this matter, and it elected not to do so. Particularly in view of this fact, the majority’s rationale constitutes mere speculation. Moreover, to give validity to this rationale would require remand in all confirmation cases where prejudicial legal error occurs, since the possibility will always exist that the trial court could decide on remand to require additional oral testimony under Article 1702(B)(2). In any event, once a determination was made that the trial court had committed prejudicial legal error, the issue before this Court was not whether or not the trial court might decide to require additional oral testimony on remand, but whether the plaintiff established a prima facie case supporting his claim.

Finally, as previously noted, the majority also sets forth as additional justification for a remand the assertion that it could not “independently confirm” that service was made on defendant because the appellate record contains no evidence of service. In doing so, the majority failed to explain why it was necessary to “independently confirm” that service was made, given that Uniform Rules, Court of Appeal, Rule 2-1.11 does not require that returns be included in an appellate record when they are not at issue. In this case, no issue was raised concerning service, either in the trial court or in this Court. Hence, the issue of service is not properly before this Court in the instant appeal since it was not raised concerning service, either in the trial court or in this Court. Hence, the issue of service is not properly before this Court in the instant appeal since it was not raised |7by any of the parties. See Corte v. Cash Technologies, Inc., 02-0846 (La. App. 1st Cir. 4/2/08), 843 So.2d 1162, 1166. Even more significantly, the majority ignores the fact that the East Feliciana Parish Clerk of Court’s Office has provided this Court with documentation verifying personal service of the suit on defendants.

The majority’s claim that a remand is just, legal, and proper under La. C.C.P. art. 2164 is unfounded. It is not justice for this Court to raise an issue on its own concerning service, without giving the plaintiff any opportunity to address that issue or supplement the record, given that the uniform rules do not require returns to be included in the appellate record when service is not at issue. It is not justice for the majority to ignore well-established jurisprudence from the Supreme Court and this Court in order to remand this case to a trial court rather than to perform its duty to conduct a de novo review of the complete record before us. It is not justice to remand this case to the trial court without restriction, which will allow defendants an opportunity to answer this suit and present evidence at this late juncture, especially since defendants repeatedly have failed to avail themselves at the proper time of numerous opportunities to answer the plaintiffs claims and present opposing evidence. The majority’s refusal to conduct a de novo review of the record and render a judgment on the merits when it is clearly required to do so by well-established jurisprudence is a miscarriage of justice. For these reasons, I dissent from the majority’s remand.

      . While this appeal was pending, Article 1702A was amended to require that the proof submitted to establish a prima facie case be admitted into the record prior to confirmation. See 2013 La. Acts, No. 78, § 1. Comment (a) to the revised article explains that:
      The change follows [Louisiana Constitution article 1, section 19], which grants litigants "the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” The amendment is also consistent with jurisprudence holding that "to prevent reversal on appeal, both the plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence that establishes a pri-ma facie case.” Arias v. Stolthaven, LLC, 9 So.3d 815, 820 (La.2009).

      . For the reasons presented in more detail later in this opinion, the trial judge did have the authority under Louisiana Code of Civil Procedure article 1702B(2) to require further testimony if he believed that the medical records did not establish one or more of the elements necessary for the plaintiff to recover.

      . The proper inquiry for determining whether a party was prejudiced by a trial court's erroneous ruling on the admission or denial of evidence is whether the error, when compared to the entire record, had a substantial effect on the outcome of the case. See Wright v. Bennett, 04-1944 (La.App. 1 Cir. 9/28/05), 924 So.2d 178, 183.

      . Article 2164 pertinently provides that "[t]he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

      . Louisiana Code of Civil Procedure article 1702D allows a sworn narrative report of the treating physician to be offered in evidence in a suit for personal injuries and in lieu of oral testimony. No such sworn narrative reports were presented to the trial court in this case.

      . We also note that the appellate record does not contain evidence necessary for this court to independently confirm Gorman’s assertion of personal service of this suit on the defendants. It is well settled that a default judgment may not be taken against a person who has not received citation and service thereof. Mitchell v. Bass, 01-2217 (La.App. 1 Cir. 11/8/02), 835 So.2d 778, 780. In order for a default judgment to be valid, the court must have jurisdiction over the parties, which is based upon service of process on the defendants. La.Code Civ. Pro. art. 6; Mitchell, 835 So.2d at 780. Although subpoenas, notices, and returns may be omitted from the appellate record unless they are at issue, and there is no requirement that the citation and return of the sheriff be formally offered into evidence to confirm a preliminary default judgment, we are also mindful that a judgment rendered in a case wherein the trial record does not evidence service of process on the defendants is null. See Stout v. Henderson, 157 La. 169, 102 So. 193 (1924); Mitchell, 835 So.2d at 780; Uniform Rules-Courts of Appeal, Rule 2-1.11 We are reluctant to perform a de novo review that could result in this court rendering a judgment that, without any evidence in the record of service of process on the defendants, could be null.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Edmonson v. Leesville Concrete Company, Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).

      . The Supreme Court has held that when an appellate court on its own motion raises an issue that was not briefed, the parties should be given an opportunity to be heard on the issue by briefing. Merrill v. Greyhound Lines, Inc., 10-2827 (La.4/29/11), 60 So.3d 600, 602. The plaintiff has been given no such opportunity in this case, despite the fact that the majority relies at least in part on the lack of service information in the record as justification for its decision to remand this matter.

      . Not only did defendants fail to appear in the trial court, they also failed to make any appearance in this appeal. Specifically, defendants failed to file an appellees' brief or appear for oral argument. Further, when this matter was assigned to a five-judge panel for hearing, defendants neither filed a brief nor appeared for oral argument. Again, when this matter was set for an en banc hearing, defendants neither filed a brief nor appeared for oral argument. Delivery of the various docketing notices sent to defendants by this Court was refused and those notices were returned to this Court marked "Return to Sender.”


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Milton F. HILBERT, III v. Lance E. MILEY.
    No. 2012 CA 2108.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 14, 2013.

      Jacob Kansas, Gretna, LA, for Plaintiff-Appellant, Milton F. Hilbert, III.
    G. Brice Jones, Ross F. Lagarde, Paul D. Hesse, Jones Lagarde, L.L.C., Slidell, LA, for Defendant-Appellee, Ronald R. Caire.
    Before PARRO, GUIDRY, and DRAKE, JJ.
   PARRO, J.

| gMilton F. Hilbert, III appeals a judgment dismissing his suit on the basis of three years’ abandonment, pursuant to LSA-C.C.P. art. 561(A). We affirm the judgment and render this opinion in accordance with Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.1(B).

Hilbert filed suit on a promissory note on March 22, 2004. On February 6, 2009, he filed a motion and order to set the matter for trial. The trial court signed the order, scheduling the case for trial on April 21, 2009. However, the trial was continued on the court’s own motion due to the parties’ failure to file a joint pre-trial statement. On April 2, 2012, Hilbert filed another motion to set the matter for trial. On July 9, 2012, Ronald R. Caire filed a motion and order to dismiss the suit on grounds of abandonment, based on Article 561(A). The court signed an order of dismissal on July 17, 2012. Hilbert moved to set aside the dismissal and, after a hearing, the court denied the motion and maintained its order of dismissal. A judgment in accordance with this ruling was signed October 31, 2012.

In this appeal, Hilbert contends the trial court erred in finding that the last step taken by a party to advance its case was Hilbert’s filing of the motion and order to set the matter for trial on February 6, 2009. He contends the court should have recognized the trial date set by the court, April 21, 2009, as the appropriate date to commence the three-year abandonment period set forth in Article 561(A)(1). We disagree.

Article 561(A) has been construed as imposing three requirements on a plaintiff. First, a plaintiff must take some “step” toward the prosecution of his lawsuit. A “step” |sis the taking of formal action intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding, and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period by either party; sufficient action by either plaintiff or defendant will be deemed a step. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779, 784. In Hardy v. A. Wilbert’s Sons, L.L.C., 06-1093 (La.App.1st Cir.9/19/07), 970 So.2d 1063, 1066, the last action taken by a party appearing of record was a service request filed by the plaintiff on July 1, 2002. The sole determination to be made by this court was whether the signing of a case management order on October 4, 2002, interrupted the running of the three-year time limitation. This court stated that because the signing of the case management order was not a step taken by a party to the lawsuit, it could not serve to interrupt the running of the applicable period. Id.

It is undisputed that no step in the prosecution of this litigation appearing of record was taken by either plaintiffs or defendants after July 1, 2002, the date on which plaintiffs requested service on the defendants. On July 1, 2005, with the passing of three years without a step having been taken, the lawsuit was deemed abandoned by the operation of law. La.Code Civ. P. art. 561. Therefore, the trial court correctly dismissed the lawsuit on the grounds of abandonment.

Id.

We note that the wording of Article 561 states that an action is deemed abandoned “when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” (Emphasis added). When a statute is clear and unambiguous and its application does not lead to absurd consequences, the statute is applied as written. Dejoie v. Medley, 08-2223 (La.5/5/09), 9 So.3d 826, 829; see LSAC.C. art. 9; LSA-R.S. 1:4. Unequivocal provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. See Snowton v. Sewerage and Water Bd., 08-399 (La.3/17/09), 6 So.3d 164, 168; see also |4LSA-C.C. art. 11; LSA-R.S. 1:3. Article 561 unambiguously and unequivocally states that it is the responsibility of “the parties” to take action in furtherance of their claims in the litigation. Had the legislature meant to include actions taken by the court, such wording could easily have been included in Article 561. Since it was not, we agree with the analysis of the trial court and of this court in the Hardy case.

Additionally, we note that there was no “step” in the prosecution of the case on the date suggested by Hilbert, which was the scheduled trial date, April 21, 2009. In fact, since that trial date was continued by the court on its own motion, nothing at all occurred on that date.

For the above reasons, we conclude, as did the trial court, that the motion to set the matter for trial filed by Hilbert on February 6, 2009, was the date of the last “step” taken “by a party’ in the lawsuit before April 2, 2012, when Hilbert again filed a motion to set the matter for trial. Over three years elapsed between these two steps taken by a party of record in the prosecution of this litigation. Therefore, under the clear wording of Article 561, this lawsuit was properly dismissed as abandoned.

Accordingly, we affirm the judgment of the trial court and assess all costs of this appeal to Milton F. Hilbert, III.

AFFIRMED.

GUIDRY, J, concurs in the result.

      . Louisiana Code of Civil Procedure article 561(A)(1) states, in pertinent part: "An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....”

      . During the intervening period, a supplemental and amending petition was filed, naming Ronald R. Caire as an additional defendant. Answers were filed by each defendant, and various motions were filed by the parties and heard by the court.

      .Hilbert relies on Reed v. Finklestein, 01-1015 (La.App. 4th Cir. 1/16/02), 807 So.2d 1032, writ denied, 02-0550 (La.4/26/02), 814 So.2d 560, in which the court decided that the date set by the trial court for a hearing on the plaintiffs motion for summary judgment constituted the commencement date for the three-year abandonment period, rejecting the defendant’s argument that the last step taken by the plaintiff was his motion to set the matter for hearing. For the undersigned reasons, we decline to follow the Reed decision.

      . The case management order was signed by a trial judge in another division and stated that Hardy’s water contamination suit was included in the order and was "consolidated with” a number of similar suits, but also specifically stated that the case management order did not act as a consolidation of the cases. See Hardy, 970 So.2d at 1064-65.


author: PETTIGREW, J.

text:
    MIDTOWN MEDICAL, LLC v. The DEPARTMENT OF HEALTH & HOSPITALS.
    No. 2012 CA 1695.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 5, 2013.
    Elite T. Schilling, New Orleans, LA, for Plaintiff-Appellant Midtown Medical, LLC.
    Neal R. Elliott, Jr. Baton Rouge, LA, for DefendanUAppellee Department of Health & Hospitals.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

|2The plaintiff, Midtown Medical, LLC (Midtown), an outpatient abortion facility, appeals a trial court judgment that affirmed an administrative law decision finding that the defendant, Department of Health and Hospitals (DHH), lawfully imposed two separate $600.00 fines against Midtown, and that the bases for imposing those fines (alleged violations of the applicable Louisiana Administrative Code regulation) were proper. Because we find that DHH was without authority to levy fines against Midtown, we reverse the judgment of the trial court, reverse the findings and order of the administrative law judge (ALJ), and vacate, the unauthorized imposition of fines against Midtown.

BACKGROUND FACTS AND PROCEDURAL HISTORY

On January 13, 2011, DHH sent a letter to Midtown informing it that as a result of a health survey conducted at Midtown’s facility on April 22, 2010, it was being assessed two civil fines in the amount of $600.00 each (a total fine of $1,200.00) based on DHH’s determination that the facility was out of compliance with “federal and/or state rules for abortion clinics.” Specifically, the letter noted the facility had “deficient practices” in violation of Louisiana Administrative Code (LAC) tit. 48, pt. I § 4405 — Governing Body and LAC tit. 48, pt. I, § 4423 — Anesthesia Services, and that those deficiencies constituted Class “C” violations pursuant to a final rule published by this Department in July of 2000, in that the facility’s action or inaction in those areas “created a potential for harm by directly threatening the health, safety, rights or welfare” of its residents. The letter also informed Midtown of its right to request informal administrative reconsideration and/or an administrative appeal.

Midtown exercised its right to challenge the alleged deficiencies through the informal dispute resolution process, which was held on June 29, 2010. Notwithstanding the challenge and evidence presented, DHH affirmed the deficiencies.

|sOn February 10, 2011, Midtown requested an administrative appeal. In that appeal, it filed a motion for summary judgment on July 8, 2011, asserting that DHH did not have the authority to impose the fines, and on July 25, 2011, it filed a second motion for summary judgment, challenging the fines as being arbitrary, capricious, and an abuse of discretion.

A hearing on both motions was held before an ALJ on September 19, 2011, following which a decision and order was rendered on December 29, 2011, affirming DHH’s decision to impose the fines. In accordance with La. R.S. 49:964(B), Midtown timely filed a Petition for Judicial Review of the ALJ’s decision and order.

Midtown again asserted that DHH was without authority to impose the fines, and that its decision to do so was arbitrary, capricious, and an abuse of discretion. The matter was heard by the trial court on June 12, 2012, following which the trial court signed a judgment on July 22, 2012, affirming the administrative law decision and order. This appeal by Midtown followed.

APPLICABLE LAW

An outpatient abortion facility is among the public health care facilities governed and licensed by DHH pursuant to La. R.S. 40:2199(A)(1), which provides:

For purposes of this Part, “facility” shall mean any one or more of the following: an adult day health care facility, substance abuse/addiction treatment facility, ambulatory surgery center, case management facility, urine drug screening facility, mobile cholesterol screening facility, end stage renal disease facility, supplier of portable X-ray services, home health agency, hospice, hospital, ICF/DD facility, outpatient abortion facility, or any other health care provider licensed or certified by the Department of Health and Hospitals. (Emphasis added.)

The statute further provides, in pertinent part, as follows (with emphasis added to those portions relevant to the issue presented herein):

(2) The opening or operation of a facility without a license or registration therefor shall be a misdemeanor, punishable upon conviction by a fine of not less than one thousand dollars nor more than five thousand dollars. Each day’s violation shall constitute a separate offense.
U(3) It shall be a violation to operate a facility which holds a current license, registration, or certificate if one of the following apply:
(a) As a result of a licensure or certification survey, it is determined by an agency to be in violation of one or more conditions of licensure or certification and has failed to correct such conditions of violation within the time prescribed by law or by the agency.
(4) Any violation provided for in Paragraph (3) of this Subsection shall entitle both the facility and the complainant to an administrative appeal.
B. (1) Any person or entity violating the provisions of Paragraph A(3) of this Section w hen such a violation poses a threat to the health> safety, rights, or welfare of a resident or client may be liable for civil fines in addition to any criminal action which may be brought under other applicable laws. The department shall adopt rules in accordance with the Administrative Procedure Act which define specific classifications of violations, articulate factors in assessing civil fines including mitigating circumstances such as an effective corporate compliance program, and explain the treatment of continuing and repeat deficiencies.
(2) A schedule of civil fines by class of violations shall be as follows:
* * *
(c) Class C Violations that create a condition or occurrence relating to the operation and maintenance of a facility which create a potential for harm by directly threatening the health, safety, rights, or welfare of a resident or client Civil fines shall not exceed one thousand dollars for the first violation and shall not exceed two thousand dollars per day for repeat violations.

In accordance with the mandate of 40:2199(B) to adopt rules, fn July, 2000, DHH adopted LAC, title 50, pt. I, § 5501, the regulation upon which it admittedly relied upon when imposing the fines on Midtown. That regulation provides, as follows:

A. Any health care facility listed in Subsection B below found to be in violation of any state or federal statute, regulation, or any Department of Health and Hospitals (Department) rule adopted pursuant to the Administrative Procedure Act governing administration and operation of the facility may be sanctioned as provided in this Chapter.
hB. For purposes of this Chapter, facility refers to any agency licensed by Department of Health and Hospitals as an adult day health care center, substance abuse/addiction treatment facility, ambulatory surgical center, case management agency, urine drug screening clinic, suppliers of portable x-ray services, home health agency, hospice, hospital or intermediate care facility for the mentally retarded.

(Emphasis by holding added.)

STANDARD OF REVIEW

We note that even though the standard of review set forth in LSA-R.S. 49:964(G) applies to district courts when they sit in an appellate mode and review an administrative agency’s final decision or order in an adjudication proceeding, judicial review of final decisions of the Commission does not lie in any district court but is constitutionally vested in the First Circuit Court of Appeal, pursuant to LSA-Const. Art. X, § 12. Thus, the standard of review contained in LSA-R.S. 49:964(G) does not apply to review of decisions of the Commission, because judicial review is performed by the First Circuit Court of Appeal, not by a district court. Metoyer v. Department of Health and Hospitals, Office of Public Health, 2008-0515, p. 3 (La.App. 1 Cir. 10/14/08), 2008 WL 4567281 (unpublished opinion).

The appropriate standard of review of an action by the Civil Service Commission is to determine whether the conclusion reached by the Commission was arbitrary and capricious. A conclusion of a public body is “capricious” when the conclusion has no substantial evidence to support it or the conclusion is contrary to substantiated competent evidence. The word “arbitrary” implies a disregard of evidence or of the proper weight thereof. Id. at p. 4.

ANALYSIS

The clear language of La. R.S. 40:2199 reveals that the statute is not self-effectuating; rather, pursuant to subsection (B), DHH is required by the statute to promulgate rules that define the circumstances under which a particular facility may be assessed a civil fine. Moreover, the assessment of fines, according to the clear language in subsection (B) of the statute is permissive, i.e., -within the discretion of the department.

|fiNotably, an outpatient abortion facility is absent from the facilities listed in § 5501 as facilities that DHH can sanction. Moreover, it is clear that an outpatient abortion facility does not fall within the scope of hospital or any other facility listed in the statute. An outpatient abortion facility was defined by the Legislature in La. R.S. 40:2175.3(5) as an “outpatient facility, other than a hospital as defined in R.S. 40:2102 or an ambulatory surgical center as defined in R.S. 40:2133, in which any second trimester or five or more first trimester abortions per month are performed.” (Emphasis added.)

The transcript of the hearing before the ALJ reveals that counsel for DHH candidly admitted that the exclusion of outpatient abortion facilities from the LAC provision authorizing it to assess fines was not intentional; rather, DHH simply did not have the resources to expend on revising the rule, and that is why it has not, to date, been done.

Notwithstanding the intent of DHH, the statutory language is clear. When a law is clear and free from ambiguity, and its application does not lead to absurd consequences, it must be given effect as written. See Benjamin v. Zeichner, 2012-1763, p. 6 (La.4/5/13), 113 So.3d 197, 202, unit denied, 2013-1187 (La.8/30/13), 120 So.3d 270; McLane Southern, Inc. v. Bridges, 2010-1259, p. 4 (La.App. 1 Cir. 3/21/13), 110 So.3d 1262, 1265. Because LAC, title 50, pt I, § 5501, pursuant to which DHH may assess civil fines, excludes outpatient abortion facilities, DHH lacked the authority to impose the fines at issue.

CONCLUSION

Accordingly, we reverse the judgment of the trial court that erroneously affirmed the decision and order of the administrative law judge. The fines imposed against Midtown Medical, LLC are hereby vacated. Costs of this appeal in the amount of $2,637.50 are assessed to Department of Health & Hospitals.

REVERSED.

      . DHH provided further details of the alleged violations to Midtown in the April 22, 2010 survey statement; however, because we ultimately conclude that DHH was without authority to levy a fine against Midtown, those details are not pertinent to this appeal.

      . We note that as of August 20, 2013, DHH filed a notice of intent, LA REG TEXT 335103, whereby it proposes to amend its regulations by repealing LAC 50:I.Chapter 55 in its entirety, and adopt LAC 48:I.Chapter 46, which specifically lists "abortion facilities” among the facilities it can regulate.


text:
    J. Marion MATHERNE v. TWH HOLDING, L.L.C.
    No. 2012 CA 1878.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 6, 2013.
    Rehearing Denied March 24, 2014.

      James S. Holliday, Jr., Evest A. Brous-sard, III, The Baringer Law Firm, L.L.C., Baton Rouge, LA, for Plaintiff-Appellant J. Marion Matherne.
    James C. Percy, David M. Kerth, Jones, Walker, Waechter, Poitevent, Carrére, & Denegre, Baton Rouge, LA, for Defendant-Appelle TWH Holdings, L.L.C.
    BEFORE: PARRO, WELCH, and DRAKE, JJ.
   PARRO, J.

li>J. Marion Matherne appeals a judgment in favor of TWH Holdings, L.L.C. (TWH), sustaining its peremptory exception raising the objection of res judicata, and dismissing Matherne’s claims alleging an ownership interest in TWH. For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 1991, J. Marion Math-erne, the sole shareholder of K-TEK Corporation (K-TEK), entered into a “Management and Control Agreement” (the 1991 Agreement) with Tony W. Harper to accomplish the eventual transfer of Math-erne’s ownership, management, and control of K-TEK to Harper. Under the 1991 Agreement, the transfer was to be finalized at the end of 1996, at which time all payments under the 1991 Agreement would be paid in full, all of Matherne’s shares in K-TEK would be returned to the corporation as treasury shares, and Harper would become the sole owner of K-TEK. Two key provisions of the 1991 Agreement stated the following:

17. Neither of the parties can sell, transfer, assign or [ejncumber their stock in The Corporations [K-TEK and M-TEC/RISE] during the life of this agreement except as herein contemplated or with the written consent of both parties to the contrary. It is also agreed that neither party will vote any stock they have in The Corporations for the purposes of allowing The Corporations to issue any additional shares of stock without the mutual written consent of those parties.
18. At the end of the six year period of time commencing with January 1, 1991 and assuming that all payments due hereunder have been made and all transfers of property have been accomplished and all the other terms and conditions as set forth herein are fully performed, then Matherne will return all of his outstanding stock in M-TEC/RISE and K-TEK to The Corporations without further consideration being paid for same. All of this stock will then become treasury stock in The Corporations.

Paragraph 19 of the 1991 Agreement stated that any disputes or decisions not settled by mutual agreement of the parties would be submitted to binding arbitration.

On December 27, 1996, Matherne and Harper entered into a letter agreement (the 1996 Agreement), which addressed all the remaining issues between them that lswere based on the 1991 Agreement. That letter stated:

2. Upon receiving the payments described in paragraph 1 above, you [Matherne] will return your shares of M-TEC and K-TEK to those corporations for cancellation as treasury shares. At that time I [Harper] will be the sole shareholder of M-TEC and K-TEK.

All the agreed-upon payments under the two agreements were paid, and Matherne surrendered his shares in the two corporations, as required by both agreements.

In late 1997, Matherne asked K-TEK for certain payments that had not been covered by either of the two agreements, including money allegedly owed to him for equipment rental. He also asked for accelerated payment of certain consulting fees that were to be paid to him under the 1996 Agreement. K-TEK refused these requests. In succeeding months, Math-erne continued to assert that various obligations to him from the two agreements had not been resolved, that Harper had breached certain verbal agreements between the parties, and that he (Matherne) was prepared to take legal steps to regain his position and ownership of K-TEK.

In order to resolve these demands, on July 23, 1999, K-TEK, M-TEC/RISE, and Harper filed suit against Matherne in the Twenty-Third Judicial District Court (the 23rd JDC suit or the first suit), seeking a declaratory judgment to determine the rights, status, and other legal relations between the parties, injunctive relief, and damages. Paragraph 10 of the petition in the 23rd JDC suit stated:

Matherne and Rita signed the 1996 Letter Agreement and all payment of the sums contemplated by the 1991 Agreement as amended and supplemented by the 1996 Letter Agreement were made to Matherne. Matherne and Rita then surrendered the remaining shares in K-TEK and M-TEC for redemption and Matherne resigned all offices and positions with the corporations. Math-erne was then engaged as an “as needed” or “at will” consultant to K-TEK and as a[n] “at will” non-officer-manager of M-TEC in satisfaction of the obligation to provide “meaningful employment” to him pursuant to the 1991 Agreement.

Copies of the 1991 Agreement and 1996 Agreement were attached to the petition.

The Mathernes and MPS filed an answer in the 23rd JDC suit on December 3, 1999. Paragraph 10 of their answer stated the following:

|4The allegations of plaintiffs’ petition paragraph no. 10 are admitted in regards to the transfer of shares between the Mathernes and Harper. However, all other allegations of plaintiffs’ petition paragraph no. 10 are denied.

In an amended answer filed March 17, 2000, the Mathernes asserted a reconven-tional demand containing additional claims for monetary payments under the 1991

Agreement that they alleged had not been paid as agreed.

Eventually, all parties to the 23rd JDC suit filed a motion to invoke alternative dispute resolution procedures, seeking arbitration of their remaining disagreements. Paragraph 3 of the motion stated:

The parties, with the advice of counsel and after due and diligent inquiry into relevant facts and applicable law, have identified the following matters as constituting all claims, demands and causes of action between them (hereafter the “disputed matters”) and agree that any claim, demand or cause of action not specifically identified herein shall be deemed forever waived and renounced.
The sole and only disputed matters between the parties concern the following:
1. The obligation, if any, of any party to pay and the right of any party to receive money pursuant to any provision of the agreement between J. Marion Matherne and Tony W. Harper dated on or about November 26, 1991, a copy of which is attached to the petition filed herein as Exhibit “A” (hereafter referred to as the “1991 Management and Control Agreement”) as the same may be determined to have been modified by the letter agreement between J. Marion Matherne, Rita L. Matherne, Tony W. Harper and Natalie Harper dated December 27, 1996 and signed by the Mathernes on January 2, 1997, a copy of which is attached to the petition filed herein as Exhibit “B” (hereafter referred to as the 1996 Letter Agreement); and
2. The claim, if any, of Modern Process Systems, Inc. against K-TEK Corporation for the payment [of] money for fair rental or use of and necessary repairs to certain items of equipment owned by Modern Process Systems, Inc. and used by ... K-TEK Corporation; and
3.The obligation, if any, of any of the Harper Parties to Rita L. Matherne on any unpaid installment promissory note.
There are no other disputed matters between any of the parties of any kind, character or nature, and to the extent the same may exist, such disputed matters are deemed forever waived and renounced. (Emphasis in the original).

The judge in the 23rd JDC suit signed a Consent Order pursuant to the motion regarding arbitration on April 4, 2000.

|BAn arbitration proceeding was held before Vincent P. Fornias, who rendered his decision on May 16, 2000, rejecting all of the Mathernes’ demands and taxing all costs of the proceeding against them. The Harpers moved for a judgment confirming the decision of the arbitrator, and the district court judge entered and signed such a judgment on July 25, 2000. That judgment included certain injunctive relief in favor of the Harpers and K-TEK that had not been at issue in the arbitration, and the Mathernes moved for a new trial to have that injunctive language removed. A new trial was granted, and on September 25, 2000, the judge in the 23rd JDC suit signed a consent judgment that confirmed the decision of the arbitrator and did not include the language concerning injunctive relief. Among other things, that judgment stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT:
All other disputed matters relating to or connected with the 1991 Agreement or the 1996 Agreement asserted or as-sertable by any of J. Marion Matherne, Rita L. Matherne or Modern Process Systems, Inc., on the one hand, against or concerning any of Tony W. Harper, Natalie L. Harper, K-TEK Corporation or M-TEC/RISE, Inc., on the other hand, are hereby dismissed with prejudice.

Almost twelve years later, on March 21, 2012, Matherne initiated the current litigation by filing suit in the Nineteenth Judicial District Court (the 19th JDC suit or the second suit) against the successor corporation to K-TEK, TWH. In this suit, Matherne claimed to be the owner of 4000 shares of stock in K-TEK, as evidenced by a stock certificate issued to him on December 6,1996. The petition also alleged that, without Matherne’s knowledge or consent, on December 17, 1999, K-TEK had merged with K-TEK, L.L.C.; that following the merger, K-TEK, L.L.C. was the survivor; and that the name of K-TEK, L.L.C. was changed in 2007 to TWH Holdings, LLC. Matherne claimed an equity interest in TWH and sought to have that recognized or to be bought out. In response to this petition, TWH filed a peremptory exception raising the objection of res judicata and seeking dismissal of Matherne’s claims.

On August 13, 2012, the judge in the 19th JDC suit held a hearing on TWH’s exception, at which the entire record of the 23rd JDC suit was introduced as evidence. Following that hearing, in oral reasons for judgment, the judge stated:

LI understand the case very, very well. A lawsuit was filed. It was filed in the 23rd JDC. The parties are the same in this lawsuit. At issue in that lawsuit was, among other things, ownership of stock and monies due and owing by and between the parties under a 1991 and 1996 agreement.They were put at issue. Specifically put at issue were the transfer of the stocks. The judgment issued by Judge Holdridge on September 25th of 2000 addresses all of the money issues ... but then it adds, it is further ordered, adjudged, and decreed that all other disputed matters relating to or connected with the 1991 Agreement or the 1996 Agreement asserted, that means set forth in the 23rd lawsuit, or assertable claims that could have been made that weren’t yet asserted by any of Marion Matherne, Rita Matherne, or Modern Process Systems, Inc., on the one hand, against or concerning any of Tony Harper, Natalie Harper, K-TEK Corporation or M-TEK/RISE, Inc., on the other hand, are hereby dismissed with prejudice. That means that all matters between the parties, stock issues, as well as money issues, were raised and resolved, either through the pleadings and/or arbitration in Suit Number 65,186, Division C of the 23rd JDC. It was, in fact, a final and valid judgment pursuant to Louisiana R.S. 13:4231, and therefore, res judicata does apply in this matter, and I will grant the exception of res judicata, dismissing the matter with prejudice. I’ll sign an order upon presentation, Sir. Thank you. Costs assessed against Mr. Matherne.

A judgment in accordance with these reasons was signed on August 23, 2012. This appeal followed.

DISCUSSION

Louisiana Revised Statute 13:4231 states the following, in pertinent part, concerning the doctrine of res judicata:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment. (Emphasis added).

The amendment of this statute by 1990 Louisiana Acts, No. 521, effective January 1, 1991, made a substantial change in the law. Under its provisions, the central inquiry is not whether a second action is based on the same cause or cause of action (a concept which is difficult to define), but whether a second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. This serves the purpose of judicial economy and fairness by requiring the plaintiff to seek all relief and to assert all rights which arise out of the same transaction [7or occurrence. For purposes of res judicata, it would not matter whether the cause of action asserted in a second action was the same as that asserted in the first or was different, as long as it arose out of the transaction or occurrence that was the subject matter of the first action. LSA-R.S. 13:4231, Comments-1990, Comment (a).

Under LSA-R.S. 13:4231, all of the following elements must be satisfied for res judicata to preclude a second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049, 1053.

A judgment determining the merits of a case, in whole or in part, is a final judgment. LSA-C.C.P. art. 1841; see also Tolis v. Board of Sup’rs of Louisiana State Univ., 95-1529 (La.10/16/95), 660 So.2d 1206, A final judgment acquires the authority of the thing adjudged if no further review is sought within the time fixed by law. Tolis, 660 So.2d at 1206. A confirmed arbitration award is considered to be a valid and final judgment for purposes of res judicata. See In re Interdiction of Wright, 10-1826 (La.10/25/11), 75 So.3d 893, 897-98.

There is no requirement that the claims be actually litigated for the doctrine of res judicata to apply. Leon v. Moore, 98-1792 (La.App. 1st Cir.4/1/99), 731 So.2d 502, 505, writ denied, 99-1294 (La.7/2/99), 747 So.2d 20. Also, although not explicitly stated in the amended statute, the requirement that the parties be “the same” in order for a second suit to be precluded by operation of res judicata retains an “identity of capacity” component that was recognized under the former law. That is, under LSA-R.S. 13:4231, the parties are the same when they appear in the same capacities in both suits. Burguieres, 843 So.2d at 1054-55, Thus, the jurisprudence does not require that the parties in the two lawsuits be physically identical, as long as they share the same “quality” as parties. Code v. Department of Pub. Safety and Corr., 11-1282 (La.App. List Cir.10/24/12), 103 So.3d 1118, 1125, unit denied, 12-2516 (La.1/23/13), 105 So.3d 59.

The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Diamond B Const. Co., Inc. v. Department of Transp. and Dev., 02-0573 (La.App. 1st Cir.2/14/03), 845 So.2d 429, 435. The burden of proving the facts essential to sustaining the objection is on the party pleading the objection. Union Planters Bank v. Commercial Capital Holding Corp., 04-0871 (La.App. 1st Cir.3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception raising the objection of res judicata must be overruled and the second lawsuit maintained. Denkmann Assoc. v. IP Timberlands Operating Co., Ltd., 96-2209 (La.App. 1st Cir.2/20/98), 710 So.2d 1091, 1096, writ denied, 98-1398 (La.7/2/98), 724 So.2d 738. The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Pierrotti v. Johnson, 11-1317 (La. App. 1st Cir.3/19/12), 91 So.3d 1056, 1063-64.

Applying these principles to the matter before us, we note that the first two requirements of the statute, the existence of a valid and final judgment, are met. For purposes of res judicata, a valid judgment is one rendered by a court with jurisdiction over both the subject matter and the parties after proper notice has been given. A final judgment is one that disposes of the merits in whole or in part. The use of the phrase “final judgment” also means that the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and bars any action filed later unless the judgment is reversed on appeal. LSA-R.S. 13:4231, Comments-1990, Comment (d); see also Burguieres, 843 So.2d at 1053. In the matter before us, the judgment in the first suit was rendered in the 23rd JDC, a court with subject matter jurisdiction and personal jurisdiction over the parties. It confirmed the decision of an arbitrator, which is considered to be a valid and final judgment for purposes of res judicata. The judgment in the first suit was rendered after notice to the parties, disposed of the merits of the suit, and was not appealed. Therefore, it was a valid and final judgment, |3which met the first two requirements of LSA-R.S. 13:4231.

With reference to the identity of the parties, the first suit was filed by K-TEK, M-TEC, and Harper against Math-erne, his wife, Rita, and MPS. The second action was filed by Matherne against TWH, the successor corporation to K-TEK. Identity of parties is satisfied when a privy of one of the parties is involved. Burguieres, 843 So.2d at 1054 n. 3. In its broadest sense, “privity” is the mutual or successive relationship to the same right of property, or such an identification in interest of one person with another as to represent the same legal right. Five N Co., L.L.C. v. Stewart, 02-0181 (La.App. 1st Cir.7/2/03), 850 So.2d 51, 61. Matherne was a party to both suits. TWH, a party in the second suit, was the successor corporation to K-TEC, a party in the first suit. Therefore, the third requirement of LSA-R.S. 13:4231 is met, and a valid and final judgment in the first suit has res judicata effect.

The fourth requirement of LSA-R.S. 13:4231 is that the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation. The claim asserted by Matherne in the second suit was that he had an ownership interest in TWH, based on an alleged ownership interest in K-TEC that was evidenced by a certificate dated December 6, 1996, showing him as the owner of 4000 shares of K-TEC stock. The first suit was filed in July 1999 and the final judgment was signed in September 2000. One of the issues in that suit involved the ownership of K-TEC and the transfer of that ownership interest from Matherne to Harper in 1996. Therefore, Matherne’s claim of ownership in K-TEC as of 1996 existed at the time of the final judgment in the first suit. Thus, the fourth requirement of LSA-R.S. 13:4231 is satisfied.

The fifth requirement of LSA-R.S. 13:4231 is that the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the | ^subject matter of the first litigation. The subject matter of the first litigation was Matherne’s ownership of K-TEK and the transfer of that ownership to Harper upon satisfaction of obligations set forth in two agreements between the parties, the 1991 Agreement and the 1996 Agreement. The cause of action asserted by Matherne in the second suit is that he had an ownership interest in TWH as a result of an ownership interest in K-TEK. He sought to have that interest recognized by issuance of an appropriate stock/membership certificate in TWH or, in the alternative, to have his interest valued as of the time of the merger of K-TEK into K-TEK, L.L.C., and to have payment to him from TWH of cash or property equivalent to that value. Thus, the cause of action asserted in the second suit — ownership of K-TEK in 1996 resulting in ownership of TWH — arose out of the transaction or occurrence — transfer of K-TEK ownership to Harper in 1996 — that was the subject matter involved in the first suit. Therefore, all five requirements for the application of res judicata set out in LSA-R.S. 13:4231 were satisfied in this case.

Moreover, although there is no requirement that the claims in the second suit were actually litigated in the first suit for the doctrine of res judicata to apply, we agree with the trial court that those claims were litigated in the first suit and were resolved by the September 25, 2000 judgment, which confirmed the decision of the arbitrator. K-TEK’s petition in the first suit asserted that all of the payments required by the 1991 Agreement, as amended by the 1996 Agreement, had been made; that Matherne had surrendered his remaining shares in K-TEC to the corporation as treasury shares; and that Harper was now the sole owner of K-TEK. In his answer, Matherne admitted the allegations of the petition “in regards to the transfer of shares between the Mathernes and Harper.” Therefore, the transfer of Matherne’s K-TEC shares to Harper was no longer an issue in the litigation, having been resolved by Math-erne’s admission of that fact. The remaining issues concerned the satisfaction of the obligations in the 1991 and 1996 Agreements, as well as the existence and enforceability of certain alleged oral agreements; these were submitted to arbitration. In their motion to invoke arbitration, |nboth parties agreed that there were no other disputed matters between them of any kind, character, or nature, and, to the extent the same may exist, such disputed matters were deemed forever waived and renounced.

The judgment rendered by the trial court in the first suit confirmed the decision of the arbitrator in favor of plaintiff K-TEK, which decision had rejected and dismissed all of Matherne’s claims against it on the issues submitted to arbitration. As previously noted, that judgment further stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT:
All other disputed matters relating to or connected with the 1991 Agreement or the 1996 Agreement asserted or as-sertable by any of J. Marion Matherne, Rita L. Matherne or Modern Process Systems, Inc., on the one hand, against or concerning any of Tony W. Harper, Natalie L. Harper, K-TEK Corporation or M-TEC/RISE, Inc., on the other hand, are hereby dismissed with prejudice. (Emphasis added).

By dismissing all disputed matters “asserted or assertable” between Matherne and K-TEK related to or connected with the 1991 Agreement or the 1996 Agreement, the court recognized and exercised the claim preclusion function of res judicata, as set out in LSA-R.S. 13:4231. That function extinguishes all causes of action existing at the time of final judgment in the first suit, whether asserted or not, as long as those causes of action arose out of the transaction or occurrence that was the subject matter of the litigation. In this judgment in the first suit, the trial court also implicitly recognized and enforced the waiver and renunciation of any and all claims that either party may have against each other, which was a condition of their agreement to arbitrate their disputes.

In the second suit, which is before us in this appeal, the trial court recognized that all matters between the parties, including stock issues and money issues, had been raised and resolved, either through the pleadings and/or arbitration, in the first suit. The court further noted that the judgment rendered in that suit was a final and valid judgment pursuant to LSA-R.S. 13:4231, and that therefore, res judicata applied to the claims raised in the second suit. Based on our de novo review of the record, we agree with the judgment of the trial court, which sustained the exception raising the objection of res judicata and dismissed all of Matherne’s claims, with prejudice.

| ^CONCLUSION

For the above reasons, the August 23, 2012 judgment of the trial court is affirmed. All costs of this appeal are assessed to J. Marion Matherne.

AFFIRMED.

      . The 1991 Agreement also provided for the transfer of ownership, management, and control of another corporation, M-TEC/RISE, Inc., under the same conditions. That transfer is not at issue in this appeal.

      . Matherne and his wife, Rita, signed the 1996 agreement on January 2, 1997.

      . The 23rd JDC suit also named as defendants Matherne’s wife, Rita, and Modern Process Systems (MPS), another corporation owned by the Mathernes.

      . This certificate was signed on December 6, 1996, by J. Marion Matherne, as President of K-TEK, and Rita L. Matherne, as Vice President and Acting Secretary of K-TEK. Other documents in the record show that Rita was not authorized to sign as Secretary or Acting Secretary at this time and that the corporation had not voted to authorize the issuance of additional shares to Matherne at that time. Moreover, such issuance was an apparent breach of paragraph 17 of the 1991 Agreement, since there was no mutual written consent by Matherne and Harper to such issuance.