author: MAX N. TOBIAS, JR., Judge.

text:
    Margaret McCLAIN v. CITY OF NEW ORLEANS, et al.
    No. 2013-CA-1291.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 2014.

      J. Courtney Wilson, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Elizabeth Robins, Assistant City Attorney, Kimlin S. Lee, Deputy City Attorney, Churita H. Hansell, Interim Chief of Litigation, Sharonda R. Williams, City Attorney, New Orleans, LA, for Defendant/Ap-pellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff, Margaret McClain, appeals from an adverse judgment dismissing her claims against the defendants, City of New Orleans and Yolanda Rodriquez (sometimes collectively referred to as “the City”), for failure to state a cause of action. For the following reasons, we affirm in part, reverse in part, amend the judgment, and remand this matter for further proceedings.

Factual Background and Procedural History

This case arises from a petition for damages filed on 11 March 2013 by Ms. McClain against the City and Ms. Rodriquez seeking past and future lost wages, front pay, and other relief. Ms. Rodriquez was named as a defendant in her capacity as the director of the City Planning Commission (“CPC”) and in her individual capacity. Ms. McClain’s petition sets forth two theories of liability: (1) disability discrimination for failure to accommodate; and (2) tortious battery.

Ms. McClain’s original petition alleges the following relative to her claim for disability discrimination pursuant to La. R.S. 23:323:

3. This action is brought under La. R.S. 23:323, Petitioner having caused the mailing of a 30-day notice - of intent to sue to which no response was received.
4. At all material times petitioner was employed by the Defendant New Orleans City Planning Department, |?City of New Orleans (the City). She was hired July 8, 2008.
5. Her supervisor was Defendant, Yolanda Rodriquez.
6. Beginning in April 2009 and continuing through her last day of work in June 2012, Ms. Rodriquez ordered that the City Planning Commission work and public areas of its offices be sprayed with Lysol disinfectant spray on a regular, if not daily basis.
7. Petitioner as a result of this policy was sprayed directly several times, including but not limited to, following her return from a cruise to Mexico in April 2009 and on or about March 9, 2012.
8. Petitioner requested the Defendants provide the accommodation to her of not being sprayed directly as well as not being exposed to Lysol (spray chemical) in areas which she had [to] pass through or work in to perform her job beginning in April 2009 and several times thereafter, including but not limited to in February, 2011 and September 2011. That communication of her adverse reaction to exposure to Lysol spray was communicated to her supervisor and supported with requests from her doctors.
9. However, defendant failed to offer her a reasonable accommodation.
10. As a result of defendant’s failure to offer plaintiff a reasonable accommodation, she has been totally disabled from working since on or about June 2012.

Ms. McClain’s original petition contains the following allegations, in pertinent part, relating to her claim for battery:

11. On each occasion when Petitioner was sprayed directly by Lysol or exposed to it, the spraying was done by a city employee on the orders of Ms. Rodriquez.
12. Petitioner alleges that the spraying was done on the orders of Ms. Rodriquez in furtherance of a City purpose such that the City-is liable for the batteries.
|s13. Alternatively, if Ms. Rodriquez is found not to have acted in furtherance of a City purpose, she is made a defendant in her individual capacity.
14. Petitioner alleges that Ms. Rodriquez continued to spray the offices with Lysol even after she knew that plaintiff was suffering an adverse reaction to the Lysol such that every spraying after this knowledge constitutes a battery.

The City responded to Ms. McClain’s petition by filing peremptory exceptions of prescription and no cause of action, and the dilatory exception of vagueness. Specifically, regarding the claim for disability discrimination, the City asserted that Ms. McClain’s allegations failed to state a cause of action for failure to accommodate because her petition failed to claim any alleged disability, when the disability was reported to her employer, how the alleged disability related to her request for accommodation, or what request for accommodation was made relating to this alleged disability. With respect to Ms. McClain’s battery claim, the City averred that her petition failed to state a cause of action because it contained no allegations that either of the named defendants was responsible for committing the alleged battery of spraying Ms. McClain with the Lysol. Further, the City contends that other than the conclusory statements that the persons responsible for directly spraying her with the Lysol were “city employees,” the petition failed to specifically identify these persons.

In an effort to remove the City’s objections to her original petition, Ms. McClain amended her petition supplementing it with the following pertinent allegations:

7. Petitioner alleges that she was disabled in that she would be unable to breathe without medication.
|411. On each occasion when petitioner was sprayed directly with the Lysol or indirectly exposed to it, the spraying was done primarily by two city employees, Kristen Weems, and Carolyn Black-man, on the orders of Ms. Rodriquez.

The remaining allegations in Ms. McClain’s original petition remained largely unchanged except to reiterate and further delineate that her request for an accommodation included that she not be subjected to being sprayed by, or otherwise exposed to, Lysol. Additionally, the amended petition avers that the City is vicariously liable for the actions of Ms. Rodriquez because the Lysol was sprayed at her direction in furtherance of a City purpose. Alternatively, the amended petition reiterates that if it is determined that the spraying was not accomplished in furtherance of a City purpose, then Ms. Rodriquez should be held liable in her individual capacity.

The City’s exceptions came for hearing on 31 May 2013. After taking the matter under advisement, the trial court rendered judgment with reasons on 17 June 2013, sustaining the City’s exception of no cause of action and ordering Ms. McClain’s claims dismissed on the basis that her petition “failed to state a cause of action for failure to accommodate pursuant to La. R.S. 23:323 and ... for battery against any named defendant.” The trial court pretermitted ruling upon the exception of prescription and did not address the exception of vagueness. Ms. McClain then filed a motion to amend the judgment and a motion for new trial, which the trial court denied. Ms. McClain appealed de-volutively from this judgment.

DISCUSSION

At issue on appeal is whether the trial court properly determined that Ms. McClain’s original and amended petitions fail to set forth sufficient facts to state a |t;cause of action for disability discrimination and/or battery. If we determine that the trial court properly ruled, we must then decide whether the trial court should have permitted Ms. McClain the opportunity to amend her petition so as to remove the grounds for objection presented by the defendants’ exception of no cause of action. Ms. McClain contends the trial court’s failure to do so was error.

As has been often stated by the courts, a cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert an exception of no cause of action. Consequently, the court reviews the petition as amended and accepts well-pleaded allegations of fact as true. The issue at trial of the exception is whether, on the facts of the petition, the plaintiff is legally entitled to the relief sought. See, e.g., Ramey v. DeCaire, 03-1299, p. 7 (La.3/19/04), 869 So.2d 114,118.

“Louisiana has chosen a system of fact pleading.” Id. (citing La. C.C.P. art. 854 cmt. (a); Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131). Therefore, a plaintiff need not plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). “However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action.” Ramey, supra (citing Montalvo, 93-2813 at p. 6, 637 So.2d at 131).

“All well-pleaded allegations of fact are accepted as true and correct, and all doubts are resolved in favor of the sufficiency of the petition so as to afford litigants their day in court.” Foti v. Holliday, 09-0093, p. 5 (La.10/30/09), 27 So.3d 813, 817 (citations omitted). The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Id. “Exceptions of no cause of action present legal questions and are reviewed under the de novo standard of review.” Phillips v. Gibbs, 10-0175, p. 3 (La.App. 4 Cir. 5/21/10), 39 So.3d 795, 797 (citations omitted). The pertinent question is whether, in the light most favorable to the plaintiff and with every doubt resolved in the plaintiffs behalf, the petition states a valid cause of action for relief. City of New Orleans v. Board of Com’rs of Orleans Levee Dist, 93-0690, p. 28 (La.7/5/94), 640 So.2d 237, 253.

A. Disability Discrimination

Accepting all of the allegations in Ms. McClain’s original and amended petitions as true and applying the legal principles set forth above, we find her petition, as amended, fails to set forth sufficient well-pleaded facts to state a cause of action for disability discrimination pursuant to La. R.S. 23:323. In pertinent part, La. R.S. 23:323 provides:

A. No otherwise qualified disabled person shall, on the basis of a disability, be subjected to discrimination in employment.
B. An employer ... shall not engage in any of the following practices:
(1) Fail or refuse to ... reasonably accommodate an otherwise qualified disabled person on the basis of a disability, when it is unrelated to the individual’s ability, with reasonable accommodation, to perform the duties of a particular job or position.

The definitions of the terms “disabled person” and “reasonable accommodation” are found in La. R.S. 23:322, to wit:

(2) “Disabled person” means any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment.
(6) “Impairment” means ... any physical or physiological disorder or condition
(7) “Major life activities” means functions such as ... breathing ... and working.
(8) “Otherwise qualified disabled person” means a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires. ‘
(9) “Reasonable accommodation” means an adjustment or modification to a known' physical limitation of an otherwise qualified disabled person which would not impose an undue hardship on the employer.

In Louisiana, a person is disabled only if he or she is, in fact, disabled as statutorily defined. Scott v. Stokes, 07-0887, p. 6 (La.App. 4 Cir. 1/23/08), 976 So.2d 769, 773. Thus, if a person is not found to have a “known physical limitation,” then they are not owed a “reasonable accommodation.” La. R.S. 23:322(9). Concomitantly, an employer is not required to make an accommodation for a physical limitation that does not exist and, likewise, an employee cannot, prove discrimination or adverse action by a failure to accommodate a non-existent physical limitation. See La. R.S. 23:323; Scott, 07-0887 at p. 6, 976 So.2d at 773. In short, “the protections afforded by statutes prohibiting disability discrimination are not intended for those who have only a slight or marginal impairment.” Id., citing Beaumont v. Exxon Corp., 02-2322, p. 10 (La.App. 4 Cir. 3/10/04), 868 So.2d 976, 982. Merely having an impairment does not make one disabled for purposes of the disability discrimination laws. Beaumont, 02-2322 at p. 10, 868 So.2d at 982.

|sIn the instant case, while Ms. McClain’s petition, as amended, asserts that she experienced an allergic reaction when exposed to being sprayed with Lysol, we find the allegations set forth in her petitions do not allege sufficient facts to establish that she actually suffered from a statutorily defined disability or a “known physical impairment,” which allegations are required to state a cause of action for disability discrimination pursuant to La. R.S. 23:323. In short, the absence of particular facts concerning her alleged allergic reaction and inability to breathe when exposed to Lysol spray, in addition to what the City knew and when they knew of her alleged condition, prevent this court from determining from the allegations whether Ms. McClain suffered from a statutorily defined disability entitling her to an accommodation rather than experiencing a marginal impairment, which was not intended to be afforded protection under La. R.S. 23:323. Consequently, we cannot find at this time that the law affords a remedy to Ms. McClain for disability discrimination. Accordingly, we find that the trial court properly sustained the City’s exception of no cause of action as to Ms. McClain’s claim for failure to accommodate.

However, La. C.C.P. art. 934 provides that “[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court.” The article further provides that if the grounds of the objection cannot be removed by amendment, the action shall be dismissed. If the allegations of the petition are merely conclusory and fail to specify the acts or circumstances that establish a cause of action, then the trial court should permit the plaintiff the opportunity to amend. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, p. 11 (La.3/17/06), 929 So.2d 1211, 1219. The language of La. C.C.P. art. 934 does not limit a plaintiff to a single amendment of her petition; rather, additional opportunities for amendment of a petition may be allowed in the discretion of the court. See Ramey, 03-1299 at p. 9, 869 So.2d at 119.

In the instant case, we are not prepared to find as a matter of law that the basis for the City’s objections to Ms. McClain’s original and supplemental petitions regarding her claim for disability discrimination cannot be removed by further amendment to the petition. Therefore, while we agree that the factual allegations are presently insufficient to state a cause of action against the City and/or Ms. Rodriquez for failure to accommodate, we conclude the trial court committed an abuse of discretion and legal error in failing to allow Ms. McClain to amend her petition to remove the grounds of the objection; we will allow amendment of her petition in accordance with La. C.C.P. art. 934. See Ramey, 03-1299 at pp. 9, 869 So.2d at 119— 120.

B. Battery

We reach a different conclusion regarding Ms. McClain’s claim for battery.

The Louisiam Worker’s Compensation Act provides for compensation if an employee receives personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031. As a general rule, the rights and remedies granted to an employee are exclusive of all rights and remedies against his employer, any officer or principal of the employer, or any co-employee. La. R.S. 23:1032. However, an exception to this rule provides that nothing therein shall affect the liability of an employer, principal, officer, or co-employee resulting from an “intentional act.” Id.

In interpreting the statute, the Louisiana Supreme Court has held that compensation shall be an employee’s exclusive remedy against his employer for an unintentional injury covered by the act, but that nothing shall prevent an employee from recovering from his employer under general law for an intentional tort. Caudle v. Betts, 512 So.2d 389, 390 (La.1987); see also Bazley v. Tortorich, 397 So.2d 475 (La.1981).

In Louisiana, in order to constitute an intentional act, the actor must either “(1) consciously desire the physical result of the act, whatever the likelihood of that result happening from his conduct; or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result.” Batiste v. Bayou Steel Corp., 10-1561 (La.10/1/10), 45 So.3d 167, 168 (citing Bazley, supra). To rise to the level of an intentional tort, a plaintiff must establish that the actor knew with such certainty that the injuries were substantially certain to follow, that a denial of that knowledge is not believable. “Substantially certain to follow” requires more than a reasonable probability than an injury will occur and “certain” has been defined to mean “inevitable” or “incapable of failing.” Jasmin v. HNV Cent. Riverfront Corp., 94-1497, p. 2 (La.App. 4 Cir. 8/30/94), 642 So.2d 311, 312.

At the outset, we note that the line between whether a petition states a cause of action upon which relief can be granted or whether the allegations are merely vague is a fine one and such a determination is necessarily made on a case-by-case basis. In her petition, as amended, Ms. McClain contends that the battery, an intentional tort, occurred when her co-employees, Kristen Weems and Carolyn Blackman, at the direction of their supervisor, Ms. Rodriquez, sprayed Lysol in the | n public and work areas of the office as well as upon Ms. McClain directly, causing her to experience an adverse reaction consisting of an inability to breathe. Ms. McClain also alleges that she had advised the City and Ms. Rodriquez on numerous occasions of her inability to breathe whenever exposed to the disinfectant, which she substantiated with medical documentation. According to Ms. McClain, despite the City and Ms. Rodriquez’s knowledge of her condition, they continued to expose her to the chemical spray.

Applying the above precepts and reviewing the allegations of battery set forth the petition as amended in a light most favorable to Ms. McClain, and having resolved every doubt in her behalf, we conclude that, while arguably vague, she has pleaded sufficient facts to state a cause of action for the intentional tort of battery. Accordingly, we find the trial court erred in dismissing Ms. McClain’s original and amended petitions for failure to state a cause of action for the intentional tort of battery against the named defendants.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is amended to allow Ms. McClain an opportunity to amend her petition to properly state a cause of action for disability discrimination against the named defendants for their failure to accommodate her. That part of the judgment dismissing Ms. McClain’s petition, as amended, for failure to state a cause of action for battery is reversed. The case [12is remanded to the trial court with instructions to permit an amendment of Ms. McClain’s petition in accordance with the views expressed herein. Ms. McClain is given thirty days from the date of the finality of this judgment to amend her petition. If Ms. McClain fails to amend her petition within the prescribed time, the trial court may dismiss her claim for disability discrimination. Further, in due course, the trial court should address the City’s exceptions of prescription and vagueness.

AFFIRMED IN PART, AS AMENDED; REVERSED IN PART; REMANDED.

      . Lysol is a brand name of cleaning and disinfecting products.

      . La. R.S. 23:301, et seq., comprises the Louisiana Employment Discrimination Law, which is modeled after the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101, et seq.

      . An exception of no cause of action is not necessarily the proper procedural vehicle to determine the merits of a claim. Thus, whether Ms. McClain will ultimately be able to carry her burden of proving that (1) the employees who sprayed her with the Lysol knew she had an adverse reaction when exposed to the disinfectant and intended injury upon doing so, and/or (2) when Ms. Rodriquez ordered these employees to spray Lysol in the work areas of the CPC offices, she was "substantially certain” that doing so would result in injury to Ms. McClain, and (3) whether the spraying of Lysol is a compensa-ble battery that rises to the level of an intentional tort, are determinations more properly made on a motion for summary judgment (where no genuine issue of material fact exists) and not on an exception of no cause of action.


source: Caselaw Access Project

author: MADELEINE M. LANDRIEU, Judge.

license: Public Domain

text:
    Susan A. MENARD v. Judy BARRIE.
    No. 2013-CA-1284.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 5, 2014.
    Susan A. Menard, LaPlace, LA, In Proper Person.
    John A.E. Davidson, Christopher J. Davidson, Davidson & Davidson, APLC, Metairie, LA, for Defendant/Appellee.
    Court composed of Chief Judge JAMES F. McKAY, III, Judge DANIEL L. DYSART, Judge MADELEINE M. LANDRIEU.
   MADELEINE M. LANDRIEU, Judge.

|2The plaintiff, Susan Menard, appeals the trial court’s dismissal of her petition without prejudice upon the granting of the defendant’s exception of no cause of action. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

FACTS AND PROCEEDINGS BELOW

On December 12, 2013, Ms. Menard filed a petition claiming she had the right to possess the immovable property located at 6017 Canal Street, which had been designated as blighted by the city of New Orleans sometime after Hurricane Katrina. Ms. Menard’s petition alleged that the defendant, Judy Barrie, had illegally disturbed Ms. Menard’s possession. In response, Ms. Barrie filed an exception of failure to state a cause of action. Ms. Barrie asserted that Ms. Menard’s petition failed to allege compliance with the requirements of La. R.S. 9:5633, a statute designed to remediate blight by setting forth a specific procedure Rwhereby individuals may possess and ultimately acquire title to properties that qualify.

On June 4, 2013, the trial court granted the exception, dismissed the petition without prejudice, and afforded Ms. Menard thirty days “to amend her pleadings [sic] to conform with the requirements of Louisiana law.”

Ms. Menard did not amend her petition. However, on July 3, 2013, she filed a writ application in this court seeking review of the trial court’s decision. On July 17th, prior to our ruling on the writ application, Ms. Menard moved to withdraw her application on the basis that the judgment of the trial court was “a final appealable judgment.” Considering Ms. Menard’s status as a pro se litigant, this court on July 18th issued an order denying the motion to withdraw and expressly stating: “The trial court’s June 4, 2013 judgment ... is not a final, appealable judgment. See Succession of Agamy v. Merrill Lynch, Pierce, Fenner and, Smith, Inc., 487 So.2d 579, 580 (La.App. 4th Cir.1986).” In that case, this court held that a judgment maintaining a defendant’s exception of no cause of action and granting the plaintiff time to amend his or her petition is neither a final judgment nor an interlocutory judgment which may cause irreparable harm, and therefore is not appealable. Id. at 580.

Subsequent to our order, Ms. Menard filed a motion for reconsideration of this court’s denial of her motion to withdraw her writ application. On July 26, |42013, we issued a second order granting Ms. Menard’s motion and dismissing her writ application. Ms. Menard then filed the instant appeal.

DISCUSSION

According to Louisiana Code of Civil Procedure article 2083, an appealable judgment must be either a final judgment or an interlocutory judgment for which an appeal is “expressly provided by law.” Because the trial court’s judgment in this case is neither, we lack jurisdiction to consider this appeal.

Accordingly, the appeal is dismissed.

APPEAL DISMISSED.

      . Ms. Barrie, apparently seeking to establish her possession of and eventually attain ownership of the same property, also filed a suit against Ms. Menard alleging disturbance of possession. The record reflects that Ms. Barrie’s suit was randomly assigned to the same division of civil district court as Ms. Menard’s suit, but the two have not been consolidated.

      . This writ application is numbered 2013-C-0932.


author: STEWART, J.

text:
    Bobby MORGAN, Plaintiff-Appellant v. Ravish V. PATWARDHAN, M.D., Defendant-Appellee.
    No. 48,626-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2014.

      Patrick R. Jackson, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, Shreveport, by Lawrence W. Pettiette, Jr., Joseph S. Woodley, Rendí B. Wiggins, for Appellee.
    Before BROWN, STEWART and: LOLLEY, JJ.
   STEWART, J.

|TIn this medical malpractice case, plaintiff Bobby Morgan is appealing the trial court’s judgment granting defendant Ravis V. Patwardhan, M.D.’s exception of prescription, and denying his motion for a new trial. For the reasons discussed herein, we find that the defendant’s exception of prescription was properly granted and affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On March 20, 2008, Morgan began conservative treatment with his family physician, Dr. Mike Chandler, for pain in his lower back, right buttock, and right, leg. This pain was caused by degenerative disc disease. He later underwent a series of epidural injections under the care of his pain physician, Dr. William Whyte. On referral by Dr. Whyte, Morgan sought treatment from Dr. Patwardhan. Dr. Pat-wardhan recommended a transforaminal lumbar interbody fusion to treat his pain complaints, and the procedure was performed on April 28, 2008. Morgan testified that after the procedure, he began experiencing lower back and leg pain that was worse than he had experienced before the operation. He also suffered from a weak right leg and was having trouble walking due to increased pain and weakness of the leg, which were new conditions that developed after the procedure and before he was discharged from the hospital.

Dr. Patwardhan saw Morgan on either May 13 or 14, 2008, and on June 10, 2008, for postoperative visits. During his June 10, 2008, visit, Morgan complained that his lower back pain and right leg pain was worsening. On August 19, 2008, Dr. Pat-wardhan ordered an MRI and CT scan. Dr. Patwardhan also referred Morgan back to Dr. Whyte for | ¡.additional epidural injections. Morgan’s last visit with Dr. Patwardhan occurred on August 28, 2008, during which Dr. Patwardhan informed him that “everything looks like where it’s supposed to be,” and that “he should give it a year.”

Due to worsening back and leg pain and weakness, Morgan sought a second opinion from Dr. Britain Auer on November 13, 2008. During this office visit, Dr. Auer reviewed the MRI and CT scan previously ordered by Dr. Patwardhan, suspected the source of Morgan’s pain, and ordered a CT myelogram to confirm his suspicions. On November 18, 2008, Dr. Auer and Morgan discussed the results of the CT myelo-gram, and Dr. Auer recommended removal of the hardware placed by Dr. Patwardhan and reinstrumentation. Specifically, Dr. Auer opined that the hardware installed by Dr. Patwardhan was “sitting” on a nerve and was.the cause of Morgan’s pain.

Dr. Auer suggested Morgan seek a second opinion, and referred him to Dr. Milan Mody. Morgan saw Dr. Mody on December 1, 2008, and he agreed with Dr. Auer’s findings that the hardware needed to be removed and replaced. Morgan went to see Dr. Auer again on December 3, 2008, to discuss Dr. Auer’s surgical plan, the risks associated with the surgery, the recovery period, and the chances of improvement. On December 17, 2008, Dr. Auer surgically removed the hardware placed by Dr. Patwardhan and installed new hardware.

On December 3, 2009, Morgan filed this claim against Dr. Patwardhan with the Louisiana Patient’s Compensation Fund. On | ¡¡December 10, 2010, Dr. Patwardhan filed, a peremptory exception of prescription, arguing that prescription on this claim began to run, at the latest, on August 28, 2008, which is the last day he treated Morgan. A hearing on the exception occurred on October 29, 2012. The trial court granted the exception, and set the exception for additional argument on January 23, 2013. The trial court entered a judgment sustaining Dr. Patwardhan’s exception of prescription, and denied Morgan’s motion for a new trial and, alternatively, for reconsideration. It found that Morgan had sufficient constructive knowledge that he may be a victim of medical negligence when Dr. Auer advised him on November 13, 2008, that Dr. Patwardhan did not perform the April 28, 2008, surgery correctly.

Morgan appeals, raising three assignments of error.

LAW AND DISCUSSION

In Morgan’s first assignment of error, he asserts that the trial court erred in holding that he had the burden of proof regarding the issue of prescription. In his second assignment, he argues that the trial court erred in finding that he had constructive notice of his malpractice claim prior to December 3, 2008. In Morgan’s final assignment of error, he contends that the trial court erred in finding that he failed to timely submit his medical malpractice claim and that his claim had prescribed.

More specifically, Morgan contends that jurisprudence has established that the defendant bears the burden of proof on the issue of the prescription, that a review of the evidence shows that the trial court did not have a reasonable factual basis for finding that he was on notice before LDecember 3, 2008, and that the trial court erred in holding that the prescriptive period for his claim began before December 3, 2008. Since these three assignments all relate to the issue of prescription and all challenge the trial court’s determination that Morgan’s claim had prescribed, we will discuss these interrelated issues together.

A medical malpractice action must be filed within one year from the date of the alleged act, omission, or neglect or within one year from the date of discovery of the alleged act omission or neglect. La. R.S. 9:5628(A).

The one-year prescriptive period begins to run on the date that the injured party discovers or should have discovered the facts upon which a reasonable person would conclude that he had been the victim of a tort. When a party has sufficient information to incite curiosity, or put a reasonably minded person on guard and call for inquiry, he has the constructive knowledge necessary to start the running of prescription. Abbott v. Louisiana State Univ. Med. Ctr.-Shreveport, 35,693 (La. App.2d Cir.2/27/02), 811 So.2d 1107, writ denied, 2002-0952 (La.5/31/02), 817 So.2d 104; Cruse v. Louisiana State Univ., 34,-779 (La.App.2d Cir.6/20/01), 792 So.2d 798. When a plaintiff has knowledge of facts strongly suggestive that the untoward condition or result may be the result of improper treatment, and there is no effort by the health care provider to mislead or cover up information which is available to plaintiff through inquiry or professional medical or legal advice, then the cause of action is reasonably knowable to plaintiff. Failure to act by a plaintiff for more than Lone year under these circumstances is not reasonable. Abbott, supra; Harlan v. Roberts, 565 So.2d 482 (La.App. 2d Cir. 1990).

The prescriptive period in medical malpractice claims will not begin to run at the earliest possible indication that a patient may have suffered some wrong. Abbott, supra; Guitreau v. Kucharchuk, 99-2570 (La.5/16/00), 763 So.2d 575. Rather, in order for the prescriptive period to commence, the plaintiff must be able to state a cause of action-both a wrongful act and resultant damages. Id. The law of prescription does not require that the patient be informed by a medical practitioner or an attorney of possible malpractice before the prescriptive period begins to run. Abbott, supra; Dixon v. Louisiana State Univ. Med. Ctr., 38,086 (La.App.2d Cir. 1/26/00), 750 So.2d 408, writ denied, 00-0627 (La.4/20/00), 760 So.2d 350.

Regarding a provision in the private medical malpractice act, La. R.S. 40:1299.47(B)(l)(a)(i), the Louisiana supreme court has ruled that a patient “must provoke a medical review panel and receive an opinion from it before he can file suit in a court of law.” Everett v. Goldman, 359 So.2d 1256 (La.1978), cited in LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226; Dixon v. Louisiana State Univ. Med. Ctr., supra. The filing of an application for a medical review panel suspends the running of prescription. La. R.S. 40:1299.39.1; Dixon, supra; Rowsey v. Jones, 26,823 (La.App.2d Cir.5/10/95), 655 So.2d 560.

A health care provider against whom a claim has been filed before a medical review panel may raise the exception of prescription in a court of | ficompetent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel. La. R.S. 40:1299.47(B)(2)(a). Holmes v. LSU/E. A Conway Med. Ctr., 43,662 (La.App.2d Cir.10/22/08), 997 So.2d 605. However, under La. R.S. 40:12.99.47(B)(2)(a) and 9:5628, health care providers are precluded from raising exceptions of vagueness and no cause of action. Holmes, supra.

The plea of prescription must be specifically pleaded, and may not be supplied by the court. La. C.C.P. art. 927(B); Holmes, supra; Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Holmes, supra; Carter, supra. However, if prescription is evident on the face of the pleadings, the burden shifts to the plaintiff to show that the action has not prescribed. Holmes, supra; Carter, supra. Thus, a petition should not be found prescribed on its face if it is brought within one year of the date of discovery and facts alleged with particularity in the petition show that the patient was unaware of malpractice prior to the alleged date of discovery, and the delay in filing suit was not due to willful, negligent, or unreasonable actions of the patient. Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502.

In the instant case, Morgan’s “petition” is not the pleading filed in the district court, but the claim letter filed with the Louisiana Patient’s Compensation Fund for the enpanelment of the medical review panel. For the purposes of allocating the burden of proof on the exception of prescription under the facts of this case, the letter requesting a medical preview panel is treated as a petition. Patin v. State, 2011-290 (La.App.3d Cir.10/5/11), 74 So.3d 1234, writ denied, 2011-2844 (La.3/2/12), 84 So.3d 533; Dixon, supra. This letter, which was filed on December 3, 2009, formally lodged his complaint against Dr. Patwardhan with the Louisiana Patient’s Compensation Fund on December 3, 2009, more than a year after the surgery performed by Dr. Patwardhan took place.

It does not appear on the face of the claim that the action has prescribed, since Morgan alleges that he was unaware of the possible act of malpractice, which he alleges occurred in April of 2008, until the alleged date of discovery, December 17, 2008. December 17, 2008, is the date that Dr. Auer performed his operation to replace the hardware Dr. Patwardhan installed, and the date that Morgan alleges that Dr. Auer discovered that Dr. Patwar-dhan had committed malpractice. Although the claim was not filed within one year of the surgery, it was filed within one year of the date of the alleged discovery. Therefore, we must determine whether Morgan knew or should have known about his actionable cause prior to December 17, 2008.

During his deposition, Dr. Auer denied suggesting to Morgan that Dr. Patwar-dhan’s work was malpractice or in someway outside the standard of care, during any of his doctor’s appointments. He also denied indicating to Morgan that he should seek legal advice. Dr. Auer could not recall telling Morgan that he had been a victim of any tort. Even though Dr. Auer did not inform Morgan of possible malpractice, that does not mean that the prescriptive period did not begin to run. See Abbott, supra; Dixon, supra.

| RMorgan testified in his deposition that his back pain had grown significantly worse after the April 28, 2008, surgery, and he began to experience other problems that he did not suffer from prior to the surgery. He further stated that he discovered that he had three unexplained incisions post-surgery, instead of the two that Dr. Patwardhan informed him he would have. He also testified that after the April 28, 2008, surgery, his boss and District Attorney, Schuyler Marvin, and his wife, Kelli Morgan, suggested that he seek legal counsel. The pain was so severe that he sought a second opinion from Dr. Auer, after Dr. Patwardhan informed him that the CT and MRI showed that “everything looks like where it’s supposed to be.” Morgan explained that he sought a second opinion because he wasn’t “satisfied” with Dr. Patwardhan’s response.

Morgan’s last visit with Dr. Patwardhan occurred on August 28, 2008, and unfortunately, he did not seek a second opinion from Dr. Britain Auer until November 18, 2008. During this office visit, Dr. Auer reviewed the MRI and CT scan previously ordered by Dr. Patwardhan, suspected the source of Morgan’s pain, and ordered a CT myelogram to confirm his suspicions. On November 18, 2008, Dr. Auer recommended removal of the hardware placed by Dr. Patwardhan and reinstrumentation, after tests revealed that the hardware placed by Dr. Patwardhan was not correctly installed and was “sitting” on a nerve, causing Morgan’s severe pain. We find that Morgan’s date of discovery was November 18, 2008, at which time he either “discovered or should have discovered the facts upon which a treasonable person would conclude that he had been the victim of a tort.” See Abbott, supra; Cruse, supra.

In sustaining the exception, the trial court found that Morgan had notice when Dr. Auer identified “problems,” and reviewed the MRI and CT scan previously ordered by Dr. Patwardhan. These are the same tests that Dr. Patwardhan reviewed before telling Morgan that “everything was fine.” The trial court determined that “a reasonable person would at that point be highly suspicious that he had been lied to, and I think that would be the time that the prescriptive period had run.”

The record supports the finding that Morgan had sufficient information to incite curiosity, or enough information to put a reasonably minded person on guard and call for inquiry. See Abbott, supra; Cruse, supra. In light of Morgan’s worsening pain and additional symptoms acquired immediately after the April 28, 2008, surgery, it was not reasonable for him to wait approximately 20 months to assert his claim. Clearly, Morgan had doubts about the surgery, and his decision to set up an appointment with Dr. Auer for a second opinion confirms that fact. Since Dr. Auer’s findings directly contradicted Dr. Patwardhan’s findings, Morgan had notice of a possible malpractice action.

We conclude that Morgan’s malpractice claim related to the surgery prescribed on April 28, 2009. At the very latest, the prescriptive period on Morgan’s claim commenced on November 18, 2008, the day Dr, Auer recommended corrective surgery. Therefore, Morgan had the constructive | mknowledge necessary to start the running of prescription well before December 17, 2008.

During the hearing regarding the exception of prescription, Morgan’s counsel commented that he bore the burden of proof. Since prescription was not evident in the pleadings, it is unclear why counsel made that comment. Under the facts presented, the burden of proof rested with Dr. Pat-wardhan to prove that Morgan’s claim had prescribed. Despite this error, the district court’s conclusion was correct because Dr. Patwardhan met the requisite burden of proof regarding prescription.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining Dr. Ravish Patwardhan’s exception of prescription is affirmed. Costs are assessed to the plaintiff, Bobby Morgan.

AFFIRMED.


author: CARAWAY, J.

text:
    Byron K. TEDETON, Sr., Plaintiff-Appellant v. Patsy Jean Calhoun TEDETON, Deborah Ann Tedeton Davis and Pamela Larue Tedeton Savage, Defendants-Appellees.
    No. 48,840-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 12, 2014.

      Cook, Yancey, King & Galloway, Shreveport, by Bernard S. Johnson, Kristina B. Gustavson, for Appellant.
    Hudson, Potts & Bernstein, LLP, by Stephen A. North, Robert S. Tew, Monroe, for Appellees.
    Before BROWN, WILLIAMS and CARAWAY, JJ.
   CARAWAY, J.

1 ,This appeal concerns a declaratory judgment for the division of ownership of shares in a corporation that did not formally issue stock in the early days of its existence but continued to operate as a business for over 20 years. The dispute is between appellant, who was one of the original incorporators, and the legal heirs of his co-incorporator, who was also appellant’s father. The trial court found that at the time of the co-incorporator’s death, appellant owned 50% of the shares in the corporation and that the co-incorporator owned the other 50% of shares. Because the record supports that the incorporators each contributed adequate consideration to the corporation in its formative years and thereafter, we find that the trial court’s judgment was not clearly wrong, and thus, we affirm the judgment.

Facts and Procedural Background

The facts of this family dispute are described in detail in the previous appeal of this case found in Tedeton v. Tedeton, 46,-901 (La.App.2d Cir.02/08/12), 87 So.Sd 914 (“Tedeton /”). The record remains virtually the same following stipulations reached by the parties upon remand by this court. However, a brief summary of relevant facts will be repeated.

In this case, Byron Kirk Tedeton, Sr. (“Kirk”), seeks a declaratory judgment that he owns 100% of the shares in Tedco, Inc. (“Tedco”), a company that he and his father, Clayton Tedeton (“Clayton”), incorporated on March 15,1982. Tedco eventually sold soap products called Miracle II, the formula of which Clayton believes was revealed to him by God in 1981. Upon this revelation and for some time after Tedco’s incorporation, Clayton 12and his family, including Kirk, produced but did not sell the soap products. Clayton and Kirk were listed as the incorporators, registered agents, and initial directors of Tedco. The articles of incorporation or any other formative corporate documents did not identify the initial shareholders of the corporation. Clayton, for most of Tedco’s active years, promoted the soap products in what he and his family called his outreach ministry. Kirk and his wife, Sue Tedeton (“Sue”), managed during the active years of the business the day-to-day affairs of Tedco and manufactured the soap products. The earliest tax return for Tedco shown by the evidence was in 1993. In 1993-95, Kirk filed the tax returns for Tedco. On those tax forms, he indicated that no person owned more than 50% of Tedco.

In 2007, Clayton died, and this dispute over Tedco eventually arose between Kirk and the defendants, his mother, Patsy Te-deton (“Patsy”), and sisters, Deborah Davis and Pamela Savage (collectively, the “Defendants”).

After Clayton’s death, Patsy visited with an attorney concerning a possible succession of Clayton. She told the attorney that possibly Clayton’s only significant asset was his ownership interest in Tedco. Thereafter, the attorney contacted Kirk to obtain documents of corporate ownership so that he might confirm or dismiss any possible interest of Clayton in the company, including any stock certificates, Ted-co’s stock registry, and minutes of the board of directors authorizing the issuance of shares. In response, Kirk provided a stock certificate stating that he was the owner of all 1,000 shares that Tedco was authorized to issue and minutes of shareholder meetings, all of which simply elect Kirk and Sue as President and Secretary-Treasurer, respectively, and state their duties.

| ¡¡To determine the issue of Tedco’s ownership, Kirk filed a petition for declaratory relief naming Defendants and requesting that Kirk be declared the owner of all shares in Tedco at the time of Clayton’s death. It was discovered during depositions that a stock certificate document and shareholder minutes had been prepared in 2005 at Kirk’s directive to prove corporate ownership in response to a Food and Drug Administration (“FDA”) investigation of Tedco at that time. Evidence was presented by both sides concerning the ownership of Kirk and Clayton. The Defendants presented evidence and argued that Clayton had owned all the shares since the corporation’s inception and, therefore, that Kirk owned zero shares at the time of Clayton’s death.

The trial court initially denied the relief Kirk requested but decreed that whatever ownership interest Clayton had in the Miracle II formula was community property and that it could not be transferred without Patsy’s concurrence. That judgment was appealed, and this court reversed and remanded the case after ruling that it was possible for Clayton to have transferred the Miracle II formula to Tedco without Patsy’s concurrence. See, Tedeton I. This court remanded the case for further consideration of whether the formula was transferred by Clayton to Tedco and whether Tedco was in fact a corporation or some other type of business entity, which would have a possible legal bearing on the ownership of Miracle II and Tedco.

Upon remand, the parties presented no further evidence. Rather, the parties made several factual stipulations and submitted the case for decision. 14The parties stipulated (1) that Tedco is a validly formed Louisiana corporation and that its articles of incorporation were filed on March 11, 1982; (2) that the articles of incorporation identified Clayton and Kirk as incorporators, registered agents, and the only directors; (3) that Tedco has maintained its corporate existence since its inception; and (4) that Clayton transferred any and all rights he owned in the original formula utilized in the production of Miracle II soap to Tedco.

After reconsidering the evidence and the stipulations, the trial court found that Kirk owned 50% of all issuable shares in Tedco, and that Clayton owned the other 50% of the shares at the time of his death. The court found that the testimony presented by both sides was largely self-serving and discounted it. The court also found that the post-dated stock certificate and the recreated minutes prepared in 2005 were a “sham” and determined that the stock certificate had no evidentiary value, or at best had no prima facie evidentiary value. The trial court concluded that the only reliable evidence of corporate ownership is the articles of incorporation listing Kirk and Clayton as the incorporators.

Kirk filed the instant appeal arguing that the trial court’s decision is clearly wrong in light of the documentary evidence, which included the stock certificate and tax returns stating that Kirk owned 100% of Tedco. Kirk contends íhat -the evidence clearly establishes that he is the sole owner of Tedco. Defendants answered the appeal arguing that the court’s decision was clearly wrong because the evidence shows that Kirk had no ownership | r,interest in Tedco and that Clayton always considered himself the owner. Therefore, they contend that Clayton was the 100% owner of Tedco when he died.

Discussion'

By the parties’ stipulations, two of the issues on remand noted in Tedeton I were made clear. One, Tedco was incorporated in 1982; two, Tedco became the business entity that acquired ownership of Miracle II and produced the eventual profits from the sales of that product. From those stipulations and all the facts surrounding Tedco and the sale of Miracle II over the years,- the trial court ruled that at the time of Clayton’s death in 2007, the shareholder ownership of Tedco was equally owned by Clayton and Kirk.

The trial court’s task was to declare the corporation’s ownership in a setting where stock certificate issuance was delayed at least 23 years from 1982 to 2005. Kirk argues that the issuance of the stock certificate with all 1,000 shares of Tedco in his name evidences his ownership. However, the Defendants disputed the 2005 stock certificate as a sham.

The person, firm, or corporation, in whose name a certificate representing shares of stock stands, or to whom a certificate is endorsed, whether in full or in blank, and who has possession of said certificate, shall be regarded as the legal owner. La. R.S. 12:601. No person, corporation, | Bfirm, or transfer agent shall be responsible to any one claiming any interest in, or ownership of, said shares, or any part thereof, by virtue of any undisclosed or latent legal or conventional title or interest therein. Id.

However, in Tedeton I, we recognized that a stock certificate is not conclusive evidence of corporate ownership. We stated:

Although a stock certificate is prima facie evidence of corporate ownership, it is to be distinguished from actual ownership which may be determined from all the facts and circumstances of a case.

Tedeton I, supra at 924, quoting Fireplace Shop, Inc. v. Fireplace Shop of Lafayette, Inc., 400 So.2d 702, 703 (La.1981). The purpose of La. R.S. 12:601 is merely to provide protection for third persons who deal with the record owners of the stock. Succession of Dunham, 408 So.2d 888 (La. 1981); see also La. R.S. 12:57(A) (“[T]he rights and obligations of shareholders are not affected regardless of whether the shares are represented by certificates of stock”). In other words, as recognized by the jurisprudence, the absence of the proper issuance of stock certificates allows the court to make a determination of the ownership between shareholders of a closely held corporation from a totality of the circumstances.

Nevertheless, a trial court’s determination of corporate ownership is guided by the principles of Louisiana corporation law, La. R.S. 12:1, et seq. Section 52 of the Louisiana corporation law is entitled “Issuance of shares; consideration.” La. R.S. 12:52. Relevant to this dispute, Section 52 provides that (1) the consideration for no-par value shares of the corporation may be initially fixed by the incorporators, see La. R.S. 12:52(A); (2) the consideration for issued shares may be paid in corporeal or incorporeal |7property or services actually rendered to the corporation, see La. R.S. 12:52(C); and (3) the directors’ valuation placed upon the consideration for shares, other than cash consideration, shall be conclusive, see La. R.S. 12:52(D).

The standard of review in this case is the manifest error/clearly wrong standard. In order to reverse a factfin-der’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the factfinder is clearly wrong or manifestly erroneous.. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Bailey v. Donley, 44,919 (La.App.2d Cir.12/09/09), 26 So.3d 987, citing Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/03/02), 816 So.2d 270. Because the ownership of the corporation is determined based on the facts and circumstances of the case, the trial court’s findings of corporate ownership may be reversed only upon a showing of manifest error.

The trial court placed emphasis on the fact that both Clayton and Kirk were listed as incorporators in 1982. They were also listed as directors in the corporation’s initial report. While there was no formal fixing of the value of the corporate shares or the issuance of stock certificates at the time, the trial court could consider the evidence of the contributions into the corporation at the inception of the corporate business activity. That evidence, circumstantial and otherwise, reveals that both Clayton and Kirk contributed in the commencement of the affairs of the business enterprise.

La. R.S. 12:52 provides that “incorporeal property” may serve as consideration for shares in corporations. La. R.S. 12:52(C). As we noted in Tedeton I, supra at 921, the formula for Miracle II is an incorporeal movable. See La. C.C. art. 478. The parties stipulated that Clayton transferred any and all his interest in the formula to Tedco. Therefore, it was reasonable for the trial court to conclude this transfer to Tedco was made in exchange for an ownership stake in the corporation that was created to sell Miracle II products. Therefore, Clayton contributed adequate consideration in exchange for shares in Tedco. He also received financial benefits from Tedco from the sale of the Miracle II product through the years. The trial court was not clearly wrong in determining that Clayton owned a portion of the corporation from the beginning of the business.

Whether Kirk provided adequate consideration in exchange for shares in Tedco may be less apparent, but nevertheless, the record supports the trial 19court’s factual finding that Kirk contributed initial consideration for shares. Both Kirk and his wife, Sue, testified that they worked in the preparation of the Miracle II product in the early 1980s. Yet, during that time, the business of the corporation was not clear. However, one reasonable view of the business presented in the testimony was that beginning in 1988 and thereafter, the commercial manufacturing of Miracle II by Tedco for profit began in earnest. At that time, Clayton had lost everything from the financial difficulties of his prior businesses. He separated from his wife and began to reside on Kirk’s property in a building that began to serve as Tedco’s office and place of manufacture of the product. When Tedco’s corporate business is viewed as having commenced at that time, Kirk’s contribution of the facility for manufacturing and his commitment to the | ^management of the operations of the manufacturing process may also represent an adequate consideration for an ownership position in the corporation.

We therefore find that the trial court’s determination of the father’s and son’s corporate ownership of Tedco is based upon a reasonable view of the evidence and not clearly wrong. That ruling likewise does not violate the principles of Section 52 of the Louisiana corporation law. Clayton and Kirk as incorporators can be viewed from the circumstantial evidence of their relationship as having fixed the value of the consideration of the shares in Tedco and as having paid in that value capitalizing Tedco with corporeal and incorporeal properties they committed to the corporation. In a closely held corporation with complete acquiescence to informal management of the corporation between the shareholders, we find that a determination of equal ownership under the facts of this case is not manifestly erroneous.

By the appeal and answer to the appeal, both sides dispute the trial court’s ruling, asserting that the corporation was either 100% in Clayton or Kirk and not the equal sharing of ownership found by the trial court. The parties cite key third-party testimonial evidence, which they assert as conflicting with the trial court’s ruling. These views are revealed by two lawyers who were involved with Tedco on separate occasions.

The Defendants presented the testimony of Orlando Easterling, the attorney who prepared the corporate documents for the 1982 filing with the Secretary of State. Easterling testified that it was his impression that | n Clayton would be the owner of Tedco. Clayton directed Easterling’s actions. Nevertheless, Easterling admitted that Kirk “must have been there” in the process. Easterling also remembered that Clayton wanted to form a corporation because he wanted to be able to easily divide the ownership of the corporation. Easter-ling’s documentation, itself, listing Kirk as a director in the initial report before any vote of the “shareholders,” gives an implication that Kirk may have been intended to be a shareholder. Cf. La. R.S. 12:81. Easterling obviously did not direct Clayton regarding the importance of the issuance of shares and the maintenance of a stock registry.

Taken as a whole, therefore, Easter-ling’s testimony did not report that Clayton told him directly to ensure that there be a corporate issuance of all shares solely to Clayton or Clayton and Patsy Tedeton, without Kirk owning an interest in the corporation. Accordingly, the trial court’s factual determination of the corporate ownership from the evidence of both men’s contributions for beginning the commercial business of Tedco is not contradicted nor shown to be clearly wrong because of Easterling’s testimony.

Turning to Kirk’s assertion of 100% ownership, it must first be observed that the trial court’s reasonable determination that Clayton owned part of the corporation from inception means that Kirk was required to show a transfer of Clayton’s shareholdings to him before Clayton’s death. There is no evidence that Clayton ever executed a transfer of his ownership in Tedco. Kirk could show no stock certificate delivery from Clayton, and no written act of transfer, onerous or gratuitous, occurred.

| ^Nevertheless, Kirk maintains that the documentary evidence, particularly the issuance of the stock certifícate, clearly shows that he owned all the shares of Tedco. On its face, the stock certifícate is signed by Kirk, as president, and Sue, as secretary, and contains an unclear date which became a focus of the testimony. A Tedco lawyer, Steven Dean, admitted preparing the certificate in 2005 in response to the FDA investigation. The stock certificate indicates, with italics in the original, that it was “[d ]ated this 15th day of March 20 1982.” The stock certificate form was apparently to allow for a year after 2000 to be inserted. Additionally, Kirk and Sue were not corporate officers of Tedco in March 1982, making the certificate suspect on its face.

Steven Dean, who by 2007 was employed directly by Tedco, testified concerning the backdating of the stock certificate in 2005 and Clayton’s knowledge of the action. Kirk argues that this testimony established that Clayton concurred with the issuance of all shares to Kirk in 2005. Dean’s testimony regarding this was as follows:

Q: In your opinion did Mr. Clayton know that you had prepared a stock certificate and you had prepared these minutes to be furnished to the FDA?
A: Yes, he did.
Q: Did he ever object or make any statement that Kirk was not the hundred percent owner of Tedco?
A: He did not.

The Defendants challenged Dean’s credibility and the explanation of the issuance of the stock certificate in connection with the 2005 FDA investigation. Kirk and Dean testified that the stock certificate and | ^shareholder minutes were first prepared in 2005 with copies sent to a Washington, D.C., law firm representing Tedco. Nevertheless, the Defendants’ discovery inquiries to the Washington, D.C., firm indicated that no such internal corporate records of Tedco had been supplied to the firm.

Gary Graham, the attorney representing Patsy for the succession proceedings for Clayton, also challenged Dean’s credibility. Graham requested Tedco’s stock registry on August 6, 2007. Dean provided Graham the stock certificate and other corporate documents on August 10 in a meeting. After reviewing the certificate, Graham wrote Dean on August 27 stating that the date on the certificate was “somewhat confusing,” but that he was “going to assume it was issued on March 15, 1982.” Dean responded by letter on August 30 as follows:

The stock certificate issued to Kirk, a copy of which you included with your latest letter, contains an obvious error, that being the number “20” that was inadvertently typed into the date line, which should correctly read “Dated this 15th day of March, 1982.” This date is the date of filing of evidence of organization of Tedco, Inc. with the Louisiana Secretary of State.

The Defendants and Graham challenged Dean’s account of the issuance of the stock certificate as misleading, at best, or false because the certificate is dated in 1982 and the correspondence does not mention Dean’s purported preparation of the certificate in 2005. Dean insisted that Graham was told before August 27 of the 2005 “issuance” of the stock with the backdate of 1982. Graham denied that he was told by Dean in August 2007 of the 2005 events.

Given this conflicting testimony and this “recreation” of historic corporate events, we cannot conclude that the trial court erred in discounting 114Pean’s testimony and ruling that all the corporate records created by Dean after the fact at Kirk’s directions were a “sham.” This was a credibility evaluation reserved to the fact finder. We therefore cannot conclude that the trial court was clearly wrong in its factual finding that the 2005 stock certificate was not an appropriate action reflecting Clayton’s intent as an owner of Tedco at that time.

Conclusion

From this review of the record, we find that both Clayton and Kirk provided adequate consideration for shares in Tedco and that the trial court’s determination of their proportional interest was not manifestly erroneous. Clayton never transferred his shares to Kirk Tedeton. Therefore, we affirm the trial court’s judgment that at the time of Clayton Tedeton’s death, Kirk Tedeton owned 50% of the shares in Tedco and Clayton Tedeton owned the other 50%. Costs of this appeal are assessed equally to the parties.

AFFIRMED.

      . The court in Tedeton I also ordered the joinder of the Succession of Clayton Tedeton, which is now included as a party.

      . The parties’ joint stipulation states that the árticles of incorporation were filed on the 11th, but the actual certificate of incorporation states they were filed on March 15, 1982.

      . The evidence in the record also suggests that the stock certificate and minutes may have been prepared in response to this litigation rather than for the FDA investigation in 2005. The Defendants’ attorney sought the documents of corporate ownership submitted to a Washington, D.C., law firm representing Tedco in the FDA investigation. The firm had no records of the stock certificate or minutes, or any other documents of corporate ownership. The D.C. firm only had public records kept by the Louisiana Secretary of State. Nevertheless, Kirk insisted the stock certificate and minutes were delivered to the D.C. firm.

      . Louisiana Revised Statutes 12:52 states, in pertinent part:
      A. Par value shares may be issued initially for such consideration expressed in dollars, not less than the par value thereof, as shall be fixed by the board of directors. Shares without par value may be issued from time to time for such consideration expressed in dollars as may be fixed by the board of directors or by the shareholders by a vote of a majority of the voting power present, if the articles reserve to the shareholders the right to fix the consideration; provided however, the consideration for such shares may be initially fixed by the incorporators. Treasury shares may be disposed of by the corporation for such consideration as may be fixed from time to time by the board of directors. All fully paid shares shall be nonassessable.
      C. The consideration for shares issued otherwise than as stated in subsection B of this
      section, shall be paid in cash or in corporeal or incorporeal property, or services actually rendered to the corporation, the fair value of which is not less than the dollar amount of the consideration fixed for the shares, before the shares are issued. Upon payment of the consideration fixed therefor, such shares shall be considered as fully paid. Cash consideration for shares may not be paid by the purchaser’s note, secured or unsecured, or uncertified check; and in case of delivery of such a note or check in payment for shares, the shares shall not be issued until the note or check has been paid in full.
      D. Solely for the purpose of determining whether shares have been paid for fully, the valuation placed by the shareholders or the directors, as the case may be, upon the consideration other than cash paid therefor shall be conclusive.

      . We view Kirk’s commitment in 1988 to make Tedco a success as a contract for services and an incorporeal that may be transferred to the corporation in exchange for shares. A person may contribute incorporeal property to a corporation in exchange for shares. La. R.S. 12:52(C). Rights, obligations, and actions that apply to a movable thing are incorporeal movables. La. C.C. art. 473. When a person pledges his services to a corporation in exchange for shares, he is obligating himself to perform — specifically, to do something for the corporation. See also Glenn G. Morris & Wendell H. Holmes, Business Organizations § 10. 06, in 7 La. Civ. L. Treatise (2013 ed.).
      However, we also recognize that La. R.S. 12:52(C) provides that a corporation may issue shares for “services actually rendered to the corporation.” Some Louisiana appellate courts have interpreted the language in La. R.S. 12:52(C) referring to services "actually rendered” to exclude promises to provide future services to the corporation. See Prejean v. Commonwealth for Cmty. Change, Inc., 503 So.2d 661 (La.App. 3d Cir.1987); Lothrop v. Goudeau, 142 La. 342, 76 So. 794 (1917); see also 7 La. Civ. L. Treatise, Business Organizations § 10. 06 (2013 ed.). Nevertheless, subsequent cases examining this rule hold that although a person had not already performed actual services, the subsequent rendering of those services validated the issuance of the shares. See Hotard v. Diabetes Self Management Center, Inc., 02-944 (La.App.3d Cir.02/05/03), 838 So.2d 94 (validating the issuance of shares for promise to perform managerial services in dispute over election of directors on the basis that La. R.S. 12:52(C) states that ”[u]pon payment of the consideration fixed therefore, such shares shall be considered fully paid”); see also Kibodeaux v. Harrison, 93-1361 (La.App.3d Cir.05/04/94), 640 So.2d 503 (where the court did not find "clearly wrong (or inequitable) the trial judge’s conclusion that [the shareholder] not only provided services but guaranteed a legion of the [corporation’s] obligations and provided a host of support services in exchange for a half interest in the [corporation].” Kibodeaux, 640 So.2d at 506). Further, the requirement that services actually be rendered, rather than promised, is not found for the capitalization of limited liability companies. La. R.S. 12:1321. Therefore, Kirk’s promise to make Tedco a successful business along with his contribution of his house as a manufacturing and office building may act as consideration for an ownership interest in Tedco. No dilution of the existing corporate ownership occurred, as Kirk’s and Clayton’s contributions to Tedco occurred together at the initiation of the commercial venture.


author: DANIEL L. DYSART, Judge.

text:
    Shelita BOUDREAUX v. OFFICE OF INSPECTOR GENERAL.
    No. 2013-CA-1366.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 12, 2014.

      Ronald L. Wilson, New Orleans, LA, for Plaintiff/Appellant.
    Michael L. Fantaci, Leblanc Butler, LLC, Metairie, LA, Suzanne Lacey Wisdom, General Counsel, Office of Inspector General, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

11 Shelita Boudreaux appeals a ruling of the Civil Service Commission denying the appeal of her termination as an investigator for the Office of the Inspector General for the City of New Orleans. For the following reasons, we affirm.

Shelita Boudreaux (“Boudreaux”) worked for the Inspector General for the City of New Orleans as an Investigator 2. She was terminated from her employment following an investigation surrounding funds spent and gratuities accepted for an office crawfish boil.

Boudreaux and two co-workers agreed to do the leg-work for an office crawfish boil, including purchasing the crawfish, drinks, and supplies for the boil. One of Boudreaux’s co-workers agreed to pay for an additional sack of crawfish, and gave Boudreaux her credit card to make the purchase. According to Boudreaux, the co-worker also asked Boudreaux to buy some shrimp. Several months later, the co-worker complained to her supervisors that Boudreaux had used her credit card to purchase personal items. An investigation ensued.

|2Puring the course of an internal investigation, Howard Schwarz, the first assistant inspector general, interviewed Bou-dreaux and asked her if she used her coworker’s credit card to purchase a sack of crawfish, shrimp and other personal items. Boudreaux admitted to using the card to buy the crawfish at KJean’s Seafood, and stated she also used it at Rouse’s to purchase shrimp and personal items. Bou-dreaux claimed that she reimbursed the co-worker in cash for the personal items on the day of the crawfish boil when she returned the credit card.

Schwarz subsequently obtained a copy of the Rouse’s receipt, which did not include the purchase of shrimp. When asked about the discrepancy, Boudreaux changed her story and said she purchased the shrimp at a seafood store in New Orleans East with her own cash. She did not have a receipt for the purchase.

Another investigator interviewed the owner of KJean’s Seafood where the craw-fish had been purchased. The owner told the investigator that he received a call from an employee while Boudreaux and a co-worker were buying the crawfish, and he instructed his employee to give them ten pounds of free shrimp as “lagniappe” in appreciation of their business and because they were in the law enforcement field.

The Office of the Inspector General has a strict policy forbidding its employees from accepting anything of value from third parties. Schwarz explained that if Boudreaux had admitted that she accepted the shrimp as a gratuity, she would have been allowed to simply pay for the shrimp to remedy the infraction. However, because she attempted to cover up what had actually | shappened, her lack of candor and outright dishonesty resulted in her termination. Ed Quatrevaux, the Inspector General for the City of New Orleans, testified that his office could not retain an employee who lied during the course of an investigation as that could affect the credibility of his entire department.

The Civil Service Commission reviewed the termination and concluded that Bou-dreaux was terminated for cause as a result of her own misconduct during an internal investigation into her behavior. Following the hearing, the Commission dismissed Boudreaux’s appeal.

DISCUSSION:

Boudreaux argues that there was insufficient evidence produced to support a finding that she received a gratuity (free shrimp) in violation of internal rules and regulations. In the alternative, she argues that if this Court finds the evidence was sufficient, the punishment was excessive and not commensurate with the infraction.

Legal cause for termination exists when an employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Razor v. New Orleans Dep’t of Police, 04-2002, p. 3 (La. App. 4 Cir. 2/15/06), 926 So.2d 1, 4. The appointing authority, in this case the Office of the Inspector General for the City of New Orleans, has the burden of proving cause for termination by a preponderance of the evidence. Id.

Appellate review of the factual findings of the Commission in a civil service case is governed by the manifest error or clearly wrong standard. Bua v. Dep’t of Police, 11-1043, p. 2 (La.App. 4 Cir. 1/25/12), 81 So.3d 1007, 1008. “Further, mixed questions of fact and law should be accorded great deference by appellate courts under the manifest error standard of review.” O’Hem v. Dep’t of Police, 13-1416, p. 7 (La.11/8/2013), 131 So.3d 29; Brasseaux v. Town of Mamou, 99-1584, pp. 7-8 (La.1/19/00), 752 So.2d 815, 820-21. A reviewing court should only reverse a decision of the Commission if it is arbitrary, capricious, or is an abuse of discretion. Razor, 04-2002, p. 4, 926 So.2d at 4.

Based on the above criteria, the question on review is not whether the Commission’s decision was right or wrong, but whether its conclusion was reasonable. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882. Moreover, “where two permissible views of the evidence exist, the [Commission’s] choice between them cannot be manifestly erroneous or clearly wrong.” Id. at 883.

Our review of the record reveals that the hearing officer and the Commission found that a reasonable basis existed to question Boudreaux’s truthfulness and find that her lack of candor sufficiently impaired her ability to perform her duties as an investigator in the Inspector General’s office. Though Boudreaux urges a different, and conceivably plausible reason for her actions, such is not sufficient to warrant overturning the rulings of the hearing officer and Commission.

Boudreaux also argues, that assuming arguendo, that the conduct for which she was terminated did occur, the punishment of termination was excessive. Inspector General Quatrevaux testified that his employees must possess Rimpeceable standards of honesty and unimpeachable confidentiality because of the nature of their work. These employees, particularly investigators, have access to extremely sensitive documents and information including attorney/client communications in other city offices. He explained that it was impossible to continue to employ a person who had proven herself dishonest.

Considering the foregoing, we do not find that the Commission’s decision was arbitrary, capricious or an abuse of discretion. Accordingly, we affirm the decision of the Civil Service Commission.

AFFIRMED.