author: McCLENDON, J. PETTIGREW, J., KUHN, J.,

text:
    Lakeita JONES and Auther Gabriel v. Dana B. FONTENOT and Safeco Insurance Company.
    No. 2012 CA 0441.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2012.
    Keith B. Nordyke, Baton Rouge, LA, for Plaintiff/Appellant Lakeita Jones.
    Keith S. Giardina, Aaron J. Lawler, George Prevot, Mike Thompson, Baton Rouge, LA, for Defendants/Appellees Dana B. Fontenot and Safeco Insurance Company.
    Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, GAIDRY, McDONALD, McClendon, hughes, welch and HIGGINBOTHAM, JJ.
   McCLENDON, J.

| gPlaintiff appeals a trial court judgment dismissing her survival action on the basis of prescription. For the reasons that follow, we reverse the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Bruce Gabriel was injured on August 10, 2009, when he was struck by a car being driven by defendant Dana Fontenot. Gabriel,' who died on November 21, 2009, never instituted any action arising from the August 10, 2009 accident.

On November 19, 2010, Gabriel’s mother and daughter, Auther Gabriel and Lakeita Jones, respectively, filed suit against Fon-tenot and Fontenot’s liability insurer, Safe-co Insurance Company, alleging that the August 10, 2009 accident contributed to Gabriel’s death. In their petition, plaintiffs sought wrongful death and survival damages.

The defendants filed exceptions raising the objections of lack of procedural capacity and no right of action. After considering defendants’ exceptions, the trial court rendered judgment, decreeing that decedent’s daughter, Lakeita Jones, was the proper party to proceed against the defendants and dismissing Auther Gabriel’s claims with prejudice.

Thereafter, the defendants filed a peremptory exception raising the objection of prescription, asserting that plaintiffs suit was prescribed because it was filed more than a year after the accident at issue. Following a hearing and after taking the matter under advisement, the trial court subsequently rendered judgment on January 10, 2012, dismissing plaintiffs survival action on the basis of prescription, but maintaining plaintiffs wrongful death action.

Plaintiff has appealed the trial court’s judgment. On appeal, she asserts that the trial court erred in ruling that the survival action had prescribed when the action was filed within one year of the decedent’s death.

1-DISCUSSION

Plaintiff notes that LSA-C.C. art. 2315.1 is the specific codal article governing prescription of a survival action. Civil Code article 2315.1 provides, in pertinent part:

A. If a person who has been injured by an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased in favor of:
(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children.

Plaintiff submits that the wording of the statute is clear and allows a beneficiary a period of one year from the death of the decedent to file a survival action. Accordingly, plaintiff concludes that the survival action was timely brought insofar as it was filed within a year of Mr. Gabriel’s death.

In support, plaintiff cites Domingue v. ABC Corp., 98-657 (La.App. 8 Cir. 10/28/98), 720 So.2d 806, writ denied, 98-2905 (La.1/15/99), 736 So.2d 210, wherein an oil field worker allegedly died as a result of a disease contracted in the oil field. Suit was filed by the oil field worker’s sons within one year from the date of death, but more than a year after diagnosis. The plaintiffs asserted that LSA-C.C. art. 2315.1 provided for a year from the date of death for them to file the survival action. The Domingue court found the action timely, stating: “Because the [Plaintiffs] filed suit within one year of their father’s death, the Defendants’ exception of prescription should have been denied.” Domingue, 720 So.2d at 808.

In opposition, the defendants note that this court has previously addressed when the prescriptive period for a survival action in a malpractice case commences in In re: Brewer, 05-0666 (La.App. 1 Cir. 5/5/06), 934 So.2d 823, writ denied, 06-1290 (La.9/15/06), 936 So.2d 1278. Therein, the tortious conduct occurred on November 29, 2002, and the decedent died on December 30, 2002, without having instituted an action. Subsequently, survival and wrongful death actions were filed on December 23, 2003, greater than one year from the tor-tious conduct but less than one year from the date of death. This court held that the survival action was prescribed because it was filed more than one year after the tortious conduct that caused the decedent’s injury. In so holding, this court reasoned:

The survival action, which is a derivative of the malpractice victim’s action, is linked to the inception of the tort[ious] act, omission or neglect. The action is based on the victim’s right to recovery being transferred by operation of law to the beneficiary. The action is dependent on the victim having a viable malpractice action on the date of death. Taylor v. Giddens, 618 So.2d 834, 840 (La.1993).

Brewer, 05-0666 at p. 5, 934 So.2d at 826-27.

However, while In re: Brewer appears to broadly address the prescriptive period in all actions brought under LSA-C.C. art. 2315.1, we note that In re: Brewer, as well as Stubblefield, were medical malpractice actions arising under the Medical Malpractice Act, LSA-R.S. 40:1299.41.

In contrast, the survival action at issue in this case is not based on medical malpractice and is clearly governed by LSA-C.C. art. 2315.1, which provides that the survival action shall survive for a period of one year from the death of the deceased. Thus, we find it unnecessary to address the holdings in In re: Brewer and Stubblefield.

In Barber v. Employers Ins. Co. of Wausau, 11-0357, p. 7 (La.App. 1 Cir. 6/28/12), 97 So.3d 454, this court, in a toxic materials exposure and work hazards case, addressed the delays for asserting a survival action under LSA-C.C. art. 2315.1:

Based on this Article, if a tort victim dies within one year of the offense that caused his injuries, but without having filed suit, his right to assert the underlying cause of action has not yet prescribed and still exists; it survives in favor of the designated beneficiaries, who have one year from his death to institute the action for his injuries. See Guidry v. Theriot, 377 So.2d 319, 324-25 (La.1979) [repudiated in part on other grounds by Louviere v. Shell Oil Co., 440 So.2d 93 (La.1983) ]. [Footnote omitted.]

In determining that the time delay in Article 2315.1 was a peremptive rather than a prescriptive period, this court further noted:

In the Guidry case, the Louisiana Supreme Court examined the source provision of Article 2315, which was Article 2294 of the Civil Code of 1825, and observed that Article 2294 was amended by Act 223 of 1855 to provide that a tort victim’s action survived in favor of named beneficiaries “for the space of one year from death.” Guidry, 377 So.2d at 325. We note that additional amendments to the Article have been made since the Guidry decision, and the pertinent time-limit language remained the same. Article 2315.1 was added by 1986 La. Acts, No. 211, § 2, which separated the survival action and the wrongful death action from the general tort provisions of Article 2315. Through all the revisions, the statement that “the right to recover all damages for injury to that person ... shall survive for a period of one year from the death of the deceased” continued unchanged. (Emphasis added.) See LSA-C.C. art. 2315.1.... [T]he word “survive” means “to remain alive or in existence.” Webster’s Third New International Dictionary 2303 (1966). If the right specified in Article 2315.1 only survives for one year after the victim’s death, it goes out of existence after that time.... [Footnote omitted.]
Noting that the survival action gives the designated beneficiary a time bonus of more than one year in which to institute the victim’s action, the Gui-dry court stated, “We deem it reasonable that the legislature would be concerned about the interval during which a potential defendant might be vulnerable to a survival action and therefore foreclosed the issue by providing an express time limitation.” Id. at 326. [Emphasis added.]

Barber, 11-0357 at 8-9, 97 So.3d at 462-63.

[(/The specific language of LSA-C.C. art. 2315.1 clearly provides that a beneficiary may institute a survival action within one year of the decedent’s death provided that the decedent’s cause of action had not prescribed at the time of his death. Mr. Gabriel’s cause of action existed at the time of his death and Ms. Jones instituted the survival action within a year of his death. Having concluded that In Re: Brewer and Stubblefield are inapplicable, we find that the survival action was timely asserted pursuant to LSA-C.C. art. 2315.1.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed. Costs of this appeal are assessed to defendants, Dana Fontenot and Safeco Insurance Company. This matter is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

KUHN, J., concurs and assigns reasons.

CARTER, C.J., concurs in the result only.

PETTIGREW, J., concurs with the results and assigns reasons.

GAIDRY, J., agrees on merits and concurs on designation of judgment as final.

GUIDRY, J., agrees on merits and concurs on designation of judgment as final.

PETTIGREW, J.,

concurs with the results, and assigns reasons.

| ]I agree with the majority that under La. Civ.Code art. 2315.1, a beneficiary may institute a survival action within one year of the decedent’s death, provided that the decedent’s cause of action had not prescribed at the time of his death. However, I disagree with the legal analysis of In re Brewer, 2005-0666 (La.App. 1 Cir. 5/5/06), 934 So.2d 823, writ denied, 2006-1290 (La.9/15/06) 936 So.2d 1278, dealing with the survival action under the medical malpractice act. La. R.S. 40:1299.41, et seq.

KUHN, J.,

concurring.

hi agree with the result reached by the majority on the merits. However, I write separately to note my disagreement with the majority’s conclusion that the judgment at issue is an appealable final judgment under La. C.C.P. art. 1915. In order to review this matter, this court should have been converted it into a writ application and reviewed it under our supervisory jurisdiction. Accordingly, I concur.

      . Defendants deny that Gabriel’s death was related to the August 10, 2009 accident.

      . The original judgment was signed by the trial court on January 10, 2012. Because the judgment is a partial judgment, this court, on March 29, 2012, issued a show cause order regarding the finality of the judgment, instructed the parties to file briefs on the issue, and remanded the matter to the trial court to either advise this court that the judgment does not warrant a designation under LSA-C.C.P. art. 1915(B), or sign an amended judgment containing the designation and provide this court with a per curiam containing reasons why there is no just reason for delay based on the factors expressed in R.J. Massinger, Inc. v. Rosenblum, 04-1664, p. 14 (La.3/2/05), 894 So.2d 1113, 1122-23. In re-spouse, both parties submitted briefs to this court asserting that the judgment was appropriate for immediate appeal. The trial court also submitted a per curiam indicating that it intended to designate the judgment as final and providing explicit reasons for its designation of the judgment as final. Although a duty panel made a preliminary determination to maintain the appeal, the propriety of the trial court’s designation of finality was reserved to this panel in connection with our duty to review the merits of the appeal. Considering the criteria set forth by the Louisiana Supreme Court in R.J. Messinger, Inc., we have reviewed the propriety of the trial court's designation of finality and conclude that the trial court’s designation of its judgment as final was proper.

      . We note that the oil field worker died within one year of the diagnosis.

      . This court concluded that the action for wrongful death was instituted timely.

      . See also Stubblefield v. Lindig, 08-2362, p. 4, 2009 WL 3011196 (La.App. 1 Cir. 9/14/09) (unpublished opinion), writ denied, 09-2273 (La.1/8/10), 24 So.3d 875, wherein this court concluded in a malpractice action that a survival action brought within a year of decedent’s death, but not within a year of the tortious conduct, had prescribed.

      . Despite the language in Paragraph C of LSA-C.C. art. 2315.1 providing that the inheritance of the survival action neither interrupts nor prolongs the "prescriptive period defined in this Article[,]” this court has long considered the survival claim is subject to a one-year period of peremption, not prescription, and as such, cannot be interrupted. Jones v. Philco-Ford Corp., 452 So.2d 370, 372 (La.App. 1 Cir.), writs denied, 457 So.2d 1193, 1198 (La.1984).


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    RIVERSIDE RECYCLING, LLC v. BWI COMPANIES, INC. OF TEXAS.
    No. 2012 CA 0588.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2012.

      Tom S. Easterly, L. Adam Thames, Baton Rouge, LA, for Defendant/Appellant BWI Companies, Inc. of Texas.
    Timothy E. Pujol, Barbara Lane Irwin, Gonzales, LA, for Plaintiff/Appellee Riverside Recycling, LLC.
    Before CARTER, C.J., GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

|gThis is an appeal from a trial court judgment awarding damages for breach of contract. We affirm.

FACTS AND PROCEDURAL HISTORY

Riverside Recycling, L.L.C. (“Riverside”) operates a mulch processing facility. BWI Companies, Inc. (“BWI”) is a distributor of nursery and garden products. In October of 2009, BWI sent Riverside purchase orders for 150 loads of aged pine bark mulch, which were to be delivered from Riverside directly to BWI’s customer, Saxon Becnel & Sons (“Saxon Becnel”) on an as-needed basis in 2010. Saxon Becnel had purchased aged pine bark mulch from Riverside through BWI the prior year as well. After receiving the purchase orders from BWI in October of 2009, Riverside purchased additional equipment to help it handle all the work. In March of 2010, Saxon Becnel scheduled delivery of the first three loads of mulch from Riverside. These deliveries were made, as they had been in the parties’ past dealings, by an outside trucking company. About a month after the first three loads were delivered, Larry Wainwright of Riverside contacted Mark Ellerman of BWI to find out when Saxon Becnel would be ready for delivery of more loads because Riverside had been producing a stockpile of material in anticipation of Saxon Bec-nel’s needs. Mr. Ellerman was informed at this time that Saxon Becnel was displeased with the first three, loads and was considering changing vendors. Saxon Bec-nel alleged that the three loads which were delivered in March contained clay and other debris, which rendered them at least partially unusable. Mr. Wainwright and Riverside’s owner Skip Noel then contacted and met with Ricky Becnel and Dave Becnel, two of the owners of Saxon Becnel, and were given the same basic information — that there had been clay in the first three loads and that |3they were considering switching to a different vendor. BWI later notified Riverside by letters sent April 20, 2010 and May 7, 2010 that it was cancelling the remaining orders for Saxon Becnel effective April 9, 2010.

Riverside filed a suit for damages against BWI for breach of contract on July 7, 2010. After a bench trial, the court found that while there was some issue as to the quality of the product delivered by Riverside in those first three loads, the extent of that issue was not clear such that it could be deemed a defective performance. The court further found that there was insufficient evidence that BWI provided Riverside with reasonable notice before exercising the remedy of dissolution under La. C.C. art. 2015, therefore, the dissolution was a breach of the contract. The court awarded Riverside $75,000.00 in damages, plus judicial interest and all costs of the proceedings. BWI has appealed from this judgment, alleging that the trial court erred finding that it breached the contract between the parties and in excluding the recorded statement of an unavailable witness.

DISCUSSION

Breach of Contract

Upon a party’s failure to perform his obligations under a contract, the other party may serve him with a notice to perform within a certain time, with a warning that unless performance is rendered within that time, the contract will be deemed dissolved. La. C.C. art. 2015. “Failure to perform” includes a nonperformance, defective performance, or delay in performance. La. C.C. art. 1994. The time allowed for performance by the notice to perform must be reasonable under the circumstances. La. C.C. art. 2015. The methods for putting an obligor in default (written request for performance, oral request for performance made before two witnesses, filing |4suit for performance, or by specific contractual provision) apply to the notice to perform. La. C.C. arts. 2015 and 1991. When a delayed performance would no longer be of value to the obligee or when it is evident that the obligor will not perform, the obligee may regard the contract as dissolved without any notice to the obligor. La. C.C. art. 2016.

BWI’s first assignment of error is that the trial court erred in failing to find that Riverside’s performance was defective. BWI argues on appeal that the evidence presented at trial proved that Riverside furnished a product which was substantially different from the product ordered, and therefore made a defective performance.

It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). The reviewing court does not decide whether the trier of fact was right or wrong; rather, a trial court’s factual findings cannot be reversed unless an appellate court, after review of the entire record, finds both that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. See Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Moreover, in applying this standard, a trial court’s credibility determinations are entitled to great deference. See Hebert v. Rapides Parish Police Jury, 06-2001, p. 3 (La.1/16/08), 974 So.2d 635, 654 (on rehearing). Thus, if the factfinder’s findings are reasonable in light of the record viewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

| .-(There is evidence, as noted by the trial court, that there was an issue with the quality of the product delivered by Riverside in the first three loads. Mr. Wainwright admitted in his deposition that he had no reason to disbelieve Saxon Becnel’s representatives’ assertions that there was clay or debris in those three loads, and that he did not personally see the loads which were delivered to Saxon Becnel. However, other evidence before the court suggests that the quality issues with the product may not have been serious enough to rise to the level of a defective performance: The three loads were delivered over a two-day period, and none were refused, although Saxon Becnel claims all were of poor quality. Dave Becnel was present when the three loads were delivered and testified that he told the delivery driver, who worked for an outside trucking company, that there was clay in the loads. However, he did not contact Riverside directly. No pictures were taken of the allegedly defective product. Ricky Becnel, who was out of state when the three loads were delivered, testified that when Dave Becnel told him about the clay in the loads, he called Mr. Wainwright to let him know that the loads contained clay. However, Mr. Wainwright denies speaking to Ricky Becnel about this. And although Ricky Becnel allegedly contacted Mark Eller-man, Saxon Becnel’s sales representative at BWT, about the quality issue, Ellerman did not communicate this information to Riverside until he was contacted by Wainwright much later. The Becnel family prepared a written statement outlining the problems with the three loads; however, it was not done until after the contract was dissolved and litigation was imminent. Finally, no request was made for a credit for the bad loads from Riverside, even though BWI had done that in the past for other customers. In light of the evidence viewed in its entirety, the trial court’s ^finding that BWI failed to prove a defective performance is a reasonable one.

Even assuming that the quality of the first three loads was proven to be poor enough to constitute defective performance, BWI was still obligated to give Riverside proper notice and an opportunity to perform its obligations under the contract. After a thorough review of the evidence before the court on this issue, we find no error in the trial court’s finding that BWI did not provide this notice. Although there was testimony from Mr. Ellerman that he tried to call Mr. Noel to discuss the problems, he never spoke to him and never left a voicemail. The record contains no emails from Mr. Ellerman to Riverside about the issue, nor any letters prior to the April 20 and May 7 letters notifying Riverside of the dissolution of the contract. Mr. Ellerman testified that Mr. Noel usually just called him back without him having to leave a message, so he did not feel the need to leave a message, even when he never received a return phone call. In light of the evidence before the court, we find no error in the court’s conclusion that the required notice was not given. This assignment of error lacks merit.

Finally, BWI asserts that no notice was required in order to dissolve the contract under La. C.C. art. 2016 because it was evident that Riverside would not perform its obligation. However, the evidence before the court that Riverside had a stockpile of material prepared for delivery to Saxon Becnel, that Riverside attempted to schedule more deliveries to Saxon Becnel, and that Mr. Wainwright and Mr. Noel contacted Ricky Becnel and Dave Becnel by phone and then drove to Saxon Becnel’s locations in Louisiana and in Texas in an attempt to work out the problem, support the trial court’s conclusion that BWI failed to prove that Riverside would not |7perform its obligations under the contract. This assignment of error is also without merit.

Testimony of Larry Wainwright

Prior to trial, Riverside filed a motion in limine seeking to exclude, among other things, a recorded telephone conversation between BWI’s attorney and Mr. Wainwright and a transcript of the conversation. Riverside’s motion asserted that after Mr. Wainwright was fired from Riverside, and after his deposition was taken by BWI, Mr. Wainwright gave a statement over the phone to BWI’s counsel, which was later transcribed by a court reporter, in which he alleged that Mr. Noel was lying about his knowledge of the quality of the product delivered to Saxon Becnel in the first three loads. Riverside argued that the recording and transcript should be excluded as hearsay. BWI argued that the recording and the transcript are not hearsay because Mr. Wainwright’s statement was not being offered for the truth of the matter asserted, but simply for the fact that it was said.

At the beginning of the bench trial, the court granted the motion in limine, excluding the recording and transcript of the telephone conversation. Mr. Wainwright was unavailable at trial, and his deposition was to be introduced in lieu of his live testimony. The court rejected BWI’s assertion that Mr. Wainwright’s recorded statement was not being offered for the truth of the matter asserted, and ruled that it was inadmissible hearsay. Noting that Riverside would be unable to cross-examine Mr. Wainwright regarding the statements made in the phone conversation if the recording and transcript were admitted at trial, the court offered to allow BWI time to retake Mr. Wainwright’s deposition. BWI instead proffered the excluded evidence and assigned the exclusion of the evidence as error on appeal.

|sThe standard of review for evi-dentiary rulings of a trial court is abuse of discretion; the trial court’s ruling will not be disturbed unless it is clearly erroneous. See Devall v. Baton Rouge Fire Department, 2007-0156, p. 4 (La.App. 1 Cir. 11/2/07), 979 So.2d 500, 508; see also Brandt v. Engle, 2000-3416, p. 10 (La.6/29/01), 791 So.2d 614, 621. If the trial court has abused its discretion in its evidentiary rulings, such that the jury verdict is tainted by the errors, the appellate court should conduct a de novo review. See McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986). Errors are prejudicial when they materially affect the outcome of the trial and deprive a party of substantial rights. Evans v. Lungrin, 97-0541, p. 7 (La.2/6/98), 708 So.2d 731, 735. Thus, a de novo review should not be undertaken for every evidentiary error, but should be limited to errors that interdict the factfinding process. Wingfield v. State, ex rel. Department of Transportation and Development, 2001-2668, p. 15 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 799, writs denied, 2003-0313, 2003-0339, 2003-0349 (La.5/30/03), 845 So.2d 1059-60, cert. denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003).

Hearsay is “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La. C.E. art. 801(C). Hearsay is generally not admissible, unless it falls under one of the statutory exceptions set forth in La. C.E. arts. 803 or 804. See La. C.E. art. 802.

We find no abuse of discretion in the trial court’s ruling that the recorded telephone conversation and transcript were offered to prove the truth of the matter asserted, ie., that Mr. Noel was aware of the issues with the quality of the product delivered in the first three loads, and therefore were inadmissible hearsay. This assignment of error also lacks merit.

^CONCLUSION

The judgment appealed from is affirmed. Costs of this appeal are assessed to defendant, BWL

AFFIRMED.

      . BWI also filed a reconventional demand, but it was later dismissed.


author: HUGHES, J. McCLENDON, J.,

text:
    STATE of Louisiana v. James THOMAS.
    No. 2012 KA 0177.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2012.
    James D. “Buddy” Caldwell, Attorney General, Baton Rouge, LA, Camille A. “Cam” Morvant, II, District Attorney, Thi-bodaux, LA, for Appellee State of Louisiana.
    Bertha M. Hillman, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Ap-pellee James Thomas.
    Before CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, GAIDRY, McDONALD, McClendon, hughes, welch, and HIGGINBOTHAM, JJ.
   HUGHES, J.

| ¡/The defendant, James Thomas, was charged by bill of information with one count of vehicular homicide (Count I), a violation of LSA-R.S. 14:82.1, and one count of fourth or subsequent offense driving while intoxicated (Count II), a violation of LSA-R.S. 14:98, and pled not guilty on both counts. The charges were severed and, following a jury trial on Count I, he was found guilty as charged. Thereafter, the State filed an habitual offender bill of information against the defendant, pursuant to LSA-R.S. 15:529.1, alleging he was a fourth-felony habitual offender. He was originally sentenced to twenty years imprisonment at hard labor, with the first year to be served without the benefit of parole. After he was adjudicated a fourth-felony habitual offender, the trial court vacated the previously imposed sentence and sentenced the defendant to forty years imprisonment at hard labor.

On appeal to this court, we found the State failed to prove the ten-year “cleansing period” had not lapsed in regard to predicate number one, and thus, we affirmed the conviction on Count I, reversed the habitual offender adjudication, vacated the habitual offender sentence, reinstated the original sentence on vehicular homicide, and remanded for further proceedings on the habitual offender bill. See State v. Thomas, 2005-2210 (La.App. 1 Cir. 6/9/06), 938 So.2d 168, 177, writ denied, 2006-2403 (La.4/27/07), 955 So.2d 683 (“Thomas I”). Upon remand, the State abandoned its allegations in regard to predicate number one, the defendant was adjudicated a third-felony habitual offender, the trial court vacated the original sentence, and on July 22, 2010 the trial court sentenced the defendant to thirty-five years imprisonment at hard labor.

On the second appeal to this court, while reviewing the record in the proceedings under LSA-C.Cr.P. art. 920(2), we found sentencing error, in that the trial court failed to impose the sentence in conformity with the reference statute. While the sentence imposed on the defendant was within the range provided by the habitual offender law, we noted that the trial court may have imposed a different term had it been aware of the conditions required by the reference statute. Thus, we affirmed the habitual offender adjudication, vacated the habitual offender sentence, and remanded for resentencing. See LSA-R.S. 14:32.1(B) (prior to amendment by 2012 La. Acts, No. 662, § 1; 2008 La. Acts, No. 451, § 2; 2006 La. Acts, No. 294, § 1; 2004 La. Acts, No. 750, § 1; and 2004 La. Acts, No. 381, § 1). See also State v. Thomas, 2010-1926, 2011 WL 3806127 (La.App. 1 Cir. 8/10/11) (unpublished) (“Thomas II”).

On remand, the trial court sentenced the defendant, on December 12, 2011, to thirty-five years imprisonment at hard labor, with one year to be served without benefit of parole, ordered the defendant to pay a $2,000 fine, and ordered the defendant to participate in and successfully complete a |4court-approved substance abuse program. Subsequently, the defendant filed a motion for appeal, and, on appeal, counsel for the defendant has filed a brief raising no assignments of error and contending that there are no non-frivolous issues to argue on appeal. For the following reasons, we vacate the sentence imposed on December 12, 2011 and reinstate the trial court’s July 22, 2010 sentence.

STATEMENT OF FACTS

The facts were set forth in our original decision in this matter, as follows:

On or about February 14, 2004, at approximately 8:30 p.m., Officers Brook Angelette and Kurt Landry (both of the Greater Lafourche Port Commission Harbor Police) left their office in separate police units to conduct street patrol. The two officers were responding to an electrical power outage that had just occurred in the area. After receiving a dispatch regarding a utility pole, the officers headed toward Louisiana Highway 1 in Lafourche Parish. The officers promptly arrived at the scene of a downed utility pole and electrical wires lying across the highway. Traffic was stalled due to the downed pole and wires. The officers observed an overturned (upside down) 1985 GMC Jimmy utility-style vehicle in a body of water located off the shoulder of Louisiana Highway 1, just south of Louisiana Highway 39. An adult male and a male child (the defendant and his eight-year-old son) walked up the bank toward the highway. The officers asked the defendant if anyone else was in the vehicle, and the defendant informed them that his daughter (the eight-year-old victim) was still in the vehicle. The officers ran into the water toward the vehicle. They ultimately pulled the victim, who was restrained in the front passenger seat at the time of their approach, out of the vehicle and took her to the shoulder of the highway.
Officer Angelette attempted to perform CPR on the victim but could not detect any vital signs. The autopsy revealed the victim’s cause of death to be a broken neck and severed spinal column, injuries consistent with the victim having been a restrained guest passenger in a vehicle that was involved in a high-impact collision. The defendant’s blood-alcohol concentration, determined from a blood sample taken at 10:50 p.m. (on the night of the accident) at Terrebonne General Medical Center, was .24 grams percent.

See Thomas I, 938 So.2d at 171 (footnote omitted).

|,ANDERS BRIEF

Defense counsel has filed a brief containing no assignments of error and a motion to withdraw. Defense counsel has reviewed the procedural history and record of the case. In her motion to withdraw, referring to the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam), counsel indicated that after a “conscientious and thorough review of the trial court record,” she could find no non-frivolous issues to raise on appeal. See also State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam); State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4 Cir.1990).

The Anders procedure used in Louisiana was discussed in Benjamin, 573 So.2d at 529-31, sanctioned by the Louisiana Supreme Court in Mouton, 653 So.2d at 1177, and expanded by the Louisiana Supreme Court in Jyles. According to Anders, 386 U.S. at 744, 87 S.Ct at 1400, “if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw.” To comply with Jyles, appellate counsel must not only review the procedural history of the case and the evidence, but his brief also must contain “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, 704 So.2d at 242 (quoting Mouton, 653 So.2d at 1177). When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. Because we find patent error as stated hereinafter, we deny counsel’s motion to withdraw.

| «PATENT ERROR

Louisiana Code of Criminal Procedure Article 920 directs an appellate court to consider on appeal errors discoverable by an inspection of the pleadings and proceedings. Our independent review of the record in this case reveals that an error was made when the matter was previously reviewed, in Thomas II, wherein this court held that the trial court’s failure to impose sentence in the habitual offender proceeding in conformity with the underlying criminal reference statute, LSA-R.S. 14:32.1, was patent error. We affirmed the habitual offender adjudication, but vacated the habitual offender sentence and remanded for resentencing. We now recognize that there is a division of opinion among the circuit courts of appeal on this issue, and we herein review the jurisprudence and render a decision consistent with the most recent ruling of the supreme court.

In Thomas II, we held that “[t]he conditions imposed on the [habitual offender] sentence are those mandated in the reference statute,” citing State v. Bruins, 407 So.2d 685, 687 (La.1981). In Bruins, the supreme court stated:

LSA-R.S. 14:64 B provides that one convicted of armed robbery shall be sentenced without benefit of parole, probation or suspension of sentence. The habitual offender law does not specifically require these conditions. LSA-R.S. 15:529.1, subd. A(l), supra.
... The [habitual offender] statute increases the sentence for a recidivist. The penalty increase is computed by reference to the sentencing provisions of the underlying offense. 17SimiIariy, the conditions imposed on the sentence are those called for in the reference statute.
One convicted of a second felony is ineligible for probation or suspension of sentence. LSA-C.Cr.P. art. 893(A). An armed robber can be sentenced without benefit of parole under the habitual offender statute. State v. Overton, 337 So.2d 1201 (La.1976). State v. Wilson, 363 So.2d 445 (La.1978) involved an armed robber sentenced as an habitual offender. The opinion states that the “... sentence is without benefit of parole, probation, or suspension of sentence.” 363 So.2d at 447.
Bruins’ sentence as an habitual offender based on an underlying conviction of armed robbery should be without parole, probation, or suspension of sentence.

State v. Bruins, 407 So.2d at 687. See also State v. Fraser, 484 So.2d 122 (La.1986).

Subsequently, appellate courts applied the Bruins rationale to require inclusion in an habitual offender sentence of a mandatory fine required by the underlying criminal reference statute. See State v. Fletcher, 2003-60 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222, which held that, since the underlying criminal statute mandated a fine, a remand for imposition of the fine was required. See also State v. Evans, 2008-0417 (La.App. 1 Cir. 10/31/08), 998 So.2d 197, 206, writ denied, 2008-2840 (La.6/19/09), 10 So.3d 732, habeas corpus denied sub nom. Evans v. Cain, 2012 WL 2565001 (E.D.La.2012), which held that, in sentencing an habitual offender, failure to impose the fine mandated by the reference statute is error, but an appellate court may decline to correct the error when the issue has not been raised on appeal, since it is not inherently prejudicial to the defendant. Compare State v. Normand, 98-1312 (La.App. 5 Cir. 5/19/99), 735 So.2d 901, 907, writ denied, 99-1687 (La.11/12/99), 749 So.2d 653, wherein the appellate court refused to correct an habitual offender sentence to add a fine made mandatory by the reference statute.

IsNotably, both State v. Bruins and State v. Fraser dealt with a trial court’s failure to restrict a sentence as to parole, probation, or suspension of sentence and, as such, were not directly on point with the issue before this court, namely, the failure to impose a fine required by a reference statute. Whereas the habitual offender statute, LSA-R.S. 15:529.1, now provides in Paragraph (G) that “[a]ny sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence,” no similar change has been made to the habitual offender statute to require imposition of a mandatory fine required by an underlying criminal reference statute. Rather, the habitual offender statute provides, in LSA-R.S. 15:529.1(D)(3), that “[w]hen the judge finds that [the offender] has been convicted of a prior felony or felonies, ... the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed.... ” (Emphasis added.)

State v. Dickerson, 584 So.2d 1140 (La.1991) (per curiam), is directly on point, and in a two-paragraph decision the supreme court stated:

La.Rev.Stat. 15:529.1 requires that the sentencing judge vacate the original sentence and resentence the defendant as a multiple offender. In resentencing, the judge must impose a sentence authorized by La.Rev.Stat. 15:529.1. That statute does not authorize the imposition of a fine, but only provides for enhanced sentences relating to the term of imprisonment. The trial judge was therefore without authority to impose a fine on resentencing under La.Rev.Stat. 15:529.1.
Accordingly, the fine and default provisions of defendant’s sentence are deleted. The application is otherwise denied.

Because the holding of State v. Dickerson governs this particular issue and prohibits imposition of a fine in an habitual offender sentencing, despite the requirement of a fine in the reference statute, this court must conform its decisions to this ruling. See Oliver v. Magnolia Clinic, 2011-2132 (La.3/13/12), 85 So.3d 39, 44 (noting that “trial courts and courts of appeal are bound to follow the last expression of law of the Louisiana Supreme Court”).

The Second, Third, and Fifth Circuits have followed State v. Dickerson in numerous published decisions. See State v. Cross, 46,996 (La.App. 2 Cir. 2/29/12), 91 So.3d 995, 1002: State v. Cass, 46,228 (La.App. 2 Cir. 4/13/11), 61 So.3d 840, 845, writ denied, 2011-1006 (La.11/4/11), 75 So.3d 922; State v. Marshall, 45,567 (La.App. 2 Cir. 9/22/10), 47 So.3d 1083, 1091, writ denied, 2010-2411 (La.2/25/11), 58 So.3d 457; State v. Gipson, 45,121 (La.App. 2 Cir. 4/14/10), 34 So.3d 1090, 1098-99, writ denied, 2010-1019 (La. 11/24/10), 50 So.3d 827; State v. Dyas, 45,065 (La.App. 2 Cir 3/3/10), 32 So.3d 364, 372, writ denied, 2010-0759 (La.11/19/10), 49 So.3d 397; State v. Johnlouis, 2009-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, 1153, writ denied, 2010-0097 (La.6/25/10), 38 So.3d 336, cert. denied, — U.S. -, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011); State v. Ealy, 44,252 (La.App. 2 Cir. 5/13/09), 12 So.3d 1052, 1059, writ denied, 2009-1393 (La.2/5/10), 27 So.3d 298; State v. Thomas, 2008-1171 (La.App. 5 Cir. 4/28/09), 13 So.3d 595, 602; State v. Dotie, 43,819 (La.App. 2 Cir. 1/14/09), 1 So.3d 833, 840, writ denied, 2009-0310 (La.11/6/09), 21 So.3d 297, State v. Morris, 43,522 (La.App. 2 Cir. 9/17/08), 996 So.2d 306, 313; State v. Moore, 2006-875 (La.App. 5 Cir. 4/11/07), 958 So.2d 36, 39 n. 2; State v. Williams, 2004-1016 (La.App. 5 Cir. 3/29/05), 901 So.2d 527, 533, writ denied, 2005-1080 (La.12/9/05), 916 So.2d 1056; State v. Reichard, 2004-110 (La.App. 5 Cir. 7/27/04), 880 So.2d 97, 104; State v. Jetton, 32,893 (La.App. 2 Cir. 4/5/00), 756 So.2d 1 1206, 1217, writ denied, 2000-1568 (La.3/16/01), 787 So.2d 299; State v. Thomas, 95-1646 (La.App. 3 Cir. 5/8/96), 680 So.2d 37, 40.

After careful review of the issue, we agree with the Second, Third, and Fifth Circuits that we are constrained by State v. Dickerson to hold that LSA-R.S. 15:529.1 does not authorize the assessment of the fíne mandated in the underlying criminal reference statute when imposing an habitual offender sentence, and, if a trial court has imposed such a fine, it must be set aside as error. Accordingly, we recall our prior order to the trial court, issued in Thomas II, requiring resentenc-ing in accordance with the sentencing restrictions imposed in the underlying criminal reference statute, and vacate the trial court’s December 12, 2011 sentence complying with this court’s prior order. We further reinstate the trial court’s July 22, 2010 thirty-five year sentence, to be served at hard labor in the custody of the Louisiana Department of Public Safety and Corrections, with credit for time served.

DECEMBER 12, 2011 SENTENCE VACATED; JULY 22, 2010 SENTENCE REINSTATED; DEFENSE COUNSEL’S MOTION TO WITHDRAW DENIED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

| T Finding this case to be controlled by State v. Dickerson, 584 So.2d 1140 (La.1991) (per curiam), “the last expression of law of the Louisiana Supreme Court,” I concur with the result reached by the majority.

      . Count II was nol-prossed by the State.

      . Predicate number one was set forth as the defendant's August 16, 1979 conviction, under Twenty-fourth Judicial District Court docket number 78-1302, for simple burglary. Predicate number two was set forth as the defendant's January 13, 1994 conviction, under Fifty-fourth Judicial District Court (Texas) docket number 93-489-C, for theft by check over $750. However, the State abandoned this allegation prior to the court’s decision on the habitual offender status of the defendant. Predicate number three was set forth as the defendant's November 26, 1996 commission of criminal mischief over $1,500 and under $20,000 in the Fifty-fourth Judicial District Court (Texas) docket number 05-57356 CR296-664-C. Predicate number four was set forth as the defendant’s August 26, 2002 guilty plea, under Ascension Parish docket number 14749, to third-offense driving while intoxicated.

      .At the time of the offense in this case, February 14, 2004, LSA-R.S. 14:32.1(B) provided for a sentence of imprisonment “with or without hard labor for not less than two years nor more than twenty years,” with “[a]t least one year of the sentence” to be imposed "without benefit of probation, parole, or suspension of sentence.” In addition, LSA-R.S. 14:32.1(B) authorized imposition of a fine of "not less than two thousand dollars nor more than fifteen thousand dollars.”

      . The fine mandated by LSA-R.S. 14:32.1 was not imposed.

      . We do not find the "law of the case” doctrine prohibits review of this issue. The "law of the case” doctrine is similar to stare decisis and res judicata and maintains that a court should not revisit an issue that it decided earlier in the course of the same proceeding. The doctrine applies to an appellate court's revisit, on a subsequent appeal, of an issue that the court decided in an earlier appeal or after a grant of supervisory writs. However, the doctrine is discretionary and will not be applied where "manifest injustice” would result. See Frank L. Maraist, 1A La. Civ. L. Treatise, "Civil Procedure — Special Proceedings," § 4.7 Law of the Case (2012 ed.).

      . Paragraph (G) of LSA-R.S. 15:529.1 was added by 1987 La. Acts, No. 774, § 1," and amended by 2010 La. Acts, No. 69, § 1 (to add “at hard labor”).

      . We note that, in resentencing the defendant, following the Thomas II remand, the trial court also ordered that one year of the defendant's sentence be served without benefit of parole and ordered that the defendant participate in and successfully complete a court-approved substance abuse program. However, on reconsideration of the Thomas II decision, we choose not to require resentencing on any portion of the trial court’s original sentence on the habitual offender conviction, assuming any portion thereof was illegally lenient, since the State did not object to the original sentence on the habitual offender conviction, by the filing of an appeal or an application for supervisory review. See State

        v. Price, 2005-2514 (La.App. 1 Cir. 12/28/06), 952 So.2d 112, 124-25 (en banc), writ denied. 2007-0130 (La.2/22/08), 976 So.2d 1277 (holding that an appellate court "may" correct an illegally lenient sentence, but it is not required to take such action). We further note that while LSA-R.S. 15:529.1(G) requires that an habitual offender sentence be imposed "without benefit of probation or suspension of sentence," the habitual offender statute makes no mention of "parole,” which was required to be restricted under the reference statute, LSA-R.S. 14:32.1, for at least one year (at the time of this 2004 offense). We recognize, but decide to leave for another day, that a question is thereby raised as to whether State v. Bruins, cited hereinabove, would control in such a circumstance and require sentencing in accordance with the reference statute, as to parole (since State v. Bruins is procedurally distinguishable from the instant case, in that, in State v. Bruins, the State had sought supervisory review of the trial court's failure to restrict the habitual offender sentence in accordance with the reference statute).

      . See Oliver v. Magnolia Clinic, 11-2132 (La.3/13/12), 85 So.3d 39, 44.


author: KUHN, J.

text:
    Faron CLAVIER and Annette Clavier v. OUR LADY OF THE LAKE HOSPITAL, INC., Dr. Richard Byrd, Pathology Group of Louisiana, APMC and Dr. Stephen Mason.
    No. 2012 CA 0560.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 2012.

      Benjamin P. Mouton, Eric E. Helm, Baton Rouge, LA, for Plaintiffs-Appellants Faron Clavier and Annette Clavier.
    Vance A. Gibbs, Randal R. Cangelosi, Baton Rouge, LA, for Defendant-Appellee Pathology Group of Louisiana, APMC.
    Douglas K. Williams, Jordan L. Fair-cloth, Baton Rouge, LA, for Defendant-Appellee Our Lady of the Lake Hospital, Inc.

      Janie Languirand Coles, Baton Rouge, LA, for Defendant-Appellee Richard Byrd, M.D.
    Before KUHN, PETTIGREW, and McDonald, jj.
   KUHN, J.

12Plaintiffs-appeIlants, Faron and Annette Clavier, individually and as the surviving parents of their deceased son, Casey Clavier, appeal the trial court’s judgment sustaining peremptory exceptions raising the objection of prescription and dismissing their claims against defendants-appel-lees, Dr. Richard Byrd, Our Lady of the Lake Hospital, Inc. (OLOL), and Pathology Group of Louisiana, APMC (PGL). Because we hold that plaintiffs’ petition fails to state a cause of action and, alternatively, that the matter is prescribed, we affirm the dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

On October 22, 2009, Casey underwent a surgical procedure, performed by Dr. Byrd at OLOL, to address complications from Crohn’s colitis. After the operation, Casey was placed in a recovery unit and then later moved to a regular room. On October 23, 2009, at approximately 2 a.m., Casey died in his room at OLOL. Dr. Byrd advised the Claviers of several possible causes of death. These included that Casey had: bled to death in his pelvis (which was the site where the operation had been performed); an adverse reaction to prescribed narcotics; a cardiac infarction or other cardiac event; or a pulmonary embo-lus. Because there was no obvious cause of death, Dr. Byrd requested that the Claviers allow an autopsy to be performed on Casey, and they consented.

Dr. Stephen Mason of PGL undertook a restricted, medical autopsy of Casey’s abdomen, pelvis, and chest, which was performed at OLOL. Although the results of the autopsy ruled out several suspected causes of Casey’s death, certain plausible cardiac events or an adverse reaction to narcotics were potential causes |sthat could not be eliminated. Dr. Byrd classified Casey’s death as “unknown” on the death certificate. •

On July 18, 2011, the Claviers filed this lawsuit, alleging that a medical review panel had reviewed Casey’s medical care and unanimously concluded the evidence did not support the conclusion that OLOL employees or Dr. Byrd failed to meet the applicable standards of care. Urging that the medical review panel’s conclusion was based on a lack of evidence to support their claim that over sedation/respiratory distress/respiratory failure, attributable to breaches in the standards of care that OLOL and Dr. Byrd owed to Casey, was the cause of his death, the Claviers claimed entitlement to damages for spoliation of evidence as a result of the actions and omissions of Dr. Byrd, OLOL, and PGL, naming each as a defendant in this litigation.

Dr. Byrd, OLOL, and PGL each filed a peremptory exception objecting to the timeliness of the Claviers’ claims for damages for spoliation. Collectively the defendants maintained that even if it were assumed that the Claviers had a viable cause of action for spoliation, their lawsuit was nevertheless untimely. After a hearing, the trial court agreed with the defendants, sustained the exceptions of prescription, and dismissed the Claviers’ petition. This appeal followed.

NO CAUSE OF ACTION

Initially we point out that this court may notice the peremptory exception raising the objection of no cause of action on its own motion. See La. C.C.P. art. 927 B; Capital City Towing & Recovery, Inc. v. City of Baton Rouge, 97-0098 (La.App. 1st Cir.2/20/98), 709 So.2d 248, 251. The function of the exception of no cause of action is to test the legal sufficiency of the petition by determining whether |4the law affords a remedy on the facts of the pleading. A court must review the petition and accept all well pleaded facts as true, and the only issue is whether, on the face of the petition, plaintiffs are legally entitled to the relief sought. Pelican Educ. Found., Inc. v. Louisiana State Bd. of Elementary and Secondary Educ., 2011-2067 (La.App. 1st Cir.6/22/12), 97 So.3d 440, 444.

The plaintiffs, who are the parents of Casey, have filed this lawsuit separately from the medical malpractice lawsuit they have asserted against defendants Dr. Byrd and OLOL, which has yet to be tried. They have also included PGL, individually and as employer of Dr. Mason, in this spoliation lawsuit.

In this petition, the Claviers assert that the action of OLOL employees of unplugging a PCA pump (prescribed by Dr. Byrd to administer Casey’s narcotic intake), which resulted in the erasure of recorded data that would have shown the amounts of narcotic drugs that Casey had received subsequent to surgery, constituted intentional spoliation of the evidence by the hospital. Additionally, the Claviers contend the performance of an autopsy without toxicology screens' constituted intentional spoliation of evidence by: Dr. Byrd, who did not expressly request toxicology screens; OLOL for reporting the death to East Baton Rouge Parish rather than Acadia Parish, the latter of which, it is alleged, would have required toxicology screens as part of an autopsy; PGL for the actions of Dr. Mason in failing to include toxicology screens in conducting the autopsy and to advise Dr, RByrd of such; and by PGL individually for failing to include toxicology screens where an adverse reaction to prescribed narcotics was a possible cause of death.

The theory of “spoliation” of evidence refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. A plaintiff asserting a claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Barthel v. State, Dep’t of Transp. and Dev., 2004-1619 (La.App. 1st Cir.6/10/05), 917 So.2d 15, 20. Historically, when a litigant fails to produce evidence within his reach, the courts have applied a presumption that the evidence would have been detrimental to his case. See Randolph v. General Motors Corp., 93-1983 (La.App. 1st Cir.11/10/94), 646 So.2d 1019, 1026, writ denied, 95-0194 (La.3/17/95), 651 So.2d 276. The obligation or duty to preserve evidence arises from the foreseeability of the need for the evidence in the future. Dennis v. Wiley, 2009-0236 (La.App. 1st Cir.9/11/09), 22 So.3d 189, 195, writ denied, 2009-2222 (La.12/18/09), 23 So.3d 949. The failure to identify evidence that was intentionally destroyed to deprive its use where the defendant had a duty to collect such evidence is detrimental to plaintiffs claim for spoliation. See Jackson v. Home Depot, Inc., 2004-1653 (La.App. 1st Cir.6/10/05), 906 So.2d 721, 728.

Initially, we note the Claviers have not alleged that at the time of the acts and alleged omissions of the defendants, litigation was pending or imminent. And the Claviers have not produced anything to support the conclusion that Casey’s death was caused by an adverse reaction or overdose of prescribed medication rather than as a result of a cardiac event, both of which were causes of death that were not | ^eliminated by the autopsy that was performed. Thus, the Claviers have not shown the existence of any evidence that was actually destroyed by the defendants.

Moreover, we conclude that none of the defendants owed a duty to the Claviers to collect the evidence they suggest is the subject of their spoliation claims. The Claviers have not cited any law that required Dr. Byrd, OLOL, Dr. Mason, or PGL to include toxicology screens as part of an autopsy; or for OLOL to require that a PCA pump not be disconnected so that its recorded data could be made part of the hospital’s record where no litigation was pending. Whether Dr. Byrd or OLOL breached their respective standards of care on these bases are ostensibly issues the Claviers will pursue in their medical malpractice claim for wrongful death and survival action damages and ai-e not proper issues before us in this spoliation claim.

Importantly, nothing precludes the Claviers from asserting entitlement to an application of the adverse presumption of spoliation in the medical malpractice lawsuit if they have met the requirements for its application. Thus, if the Claviers were permitted to assert a separate cause of action for spoliation against Dr. Byrd and OLOL at this time, it would create a plethora of problems. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998) (where in concluding a separate tort cause of action for intentional spoliation of evidence does not exist when the spoliation is committed by a party to the underlying action to which the evidence is relevant and the spoliation victim knows or should have known of the alleged spoliation before the trial or other decision on the merits of the underlying action, the California Supreme Court pointed out numerous practical and procedural concerns including a strong policy against derivative tort remedies for litigation-related misconduct since such remedies undermine the desire for finality of ^adjudication; the existence of effective nontort remedies for spoliation of evidence, including the evidentiary inference that evidence destroyed by a party is unfavorable to that party; sanctions for abuse of discovery; punishment of attorneys who are involved; and criminal penalties).

Insofar as the spoliation claims against PGL, individually and for the actions of Dr. Mason neither of whom are parties to the medical malpractice action, we likewise find the Claviers have failed to assert a duty to include toxicology screens in the restricted, medical autopsy Dr. Mason performed at OLOL pursuant to an order from Dr. Byrd. Thus, the Claviers are unable to prove the requisite breach of duty to support the imposition of intentional spoliation damages against PGL. See Jackson v. Brumfield, 2009-2142 (La.App. 1st Cir.6/11/10), 40 So.3d 1242, 1243 (two essential elements of proof under the duty-risk analysis of delictual liability are the existence of a legal duty of the alleged tortfeasor toward the injured person and the breach of such duty by the alleged tortfeasor).

Additionally, despite having averred the defendants’ actions were done “intentionally,” nothing in the Claviers’ statements of facts supports that characterization. As to Dr. Byrd, the Claviers have claimed that Dr. Byrd intentionally concealed, lost, destroyed, or otherwise disposed of critical physical evidence; failed to notify OLOL employees that he suspected an adverse or other reaction to narcotics so as to warn them to preserve any information on the PCA pump; and that he should have known that a toxicology screen would not be included when OLOL performed the autopsy he ordered. While these statements are assumed as true for purposes of examination of an objection of no cause of action, |sthey fail to aver any action on Dr. Byrd’s part was for the purpose of depriving the Claviers the use of that information for litigation.

As to OLOL, the Claviers have merely contended that OLOL employees unplugged the PCA pump. Nothing in these allegations indicates that OLOL employees unplugged the device for the purpose of erasing the information so that the Claviers would be unable to prove the amounts of prescribed narcotics Casey received. Similarly, they have averred that OLOL did not report Casey’s death to the coroner of Acadia Parish but instead advised East Baton Rouge Parish, suggesting that a report to the former would have resulted in an autopsy that included toxicology screens. But assuming these allegations as true, there are no facts that OLOL’s report to East Baton Rouge Parish was for the purpose of avoiding an autopsy, which included toxicology screens. Thus, nothing in their petition supports a theory of intentional spoliation insofar as OLOL.

The Claviers have likewise failed to aver any intentional conduct on the part of either Dr. Mason so as to impose liability for spoliation against PGL as his employer or against PGL for its actions. As to Dr. Mason, the Claviers alleged that he failed to advise Dr. Byrd that he would not perform toxicology screens in the autopsy although Dr. Byrd indicated that an adverse reaction to prescribed narcotics was a possible cause of death and that his performance of an autopsy without drug screens under these circumstances was intentional spoliation. Nothing in the Claviers’ factual allegations avers that Dr. Mason knew of pending litigation and failed to collect toxicology screens for the purpose of depriving the Claviers of the data they hoped would prove their theory of the cause of Casey’s death.

|9The Claviers have also averred that PGL failed to notify physicians at OLOL that the performance of an autopsy by its physicians would not include toxicology screens. But again, nothing in their allegations of fact claims that PGL, knowing of an existing lawsuit, intentionally failed to procure the evidence for which the Claviers are looking. As such, there are no facts to support a theory of intentional spoliation by PGL.

Accordingly, we conclude that the law fails to extend a remedy to the Claviers for damages for the intentional spoliation of evidence. Thus, the Claviers have failed to state a cause of action.

When the grounds of the objection pleaded by the peremptory 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. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. C.C.P. art. 934; Charming Charlie, Inc. v. Perkins Rowe Associates, L.L.C., 2011-2254 (La.App. 1st Cir.7/10/12), 97 So.3d 595, 600.

The Claviers urge that we allow them an opportunity to amend their petition to state a cause of action for either intentional or negligent spoliation. But the Claviers have offered, and we have not found, any duty that any of the defendants owed to them to collect data to support their theory that the cause of Casey’s death was an adverse reaction to prescribed narcotics rather than a cardiac event. And it is undisputed that at the time of the actions and omissions that the Claviers claim constituted intentional spoliation, there was no pending or imminent litigation. Therefore, an amendment cannot remove the grounds for the objection.

And because a plaintiff asserting a claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence, see Barthel, 917 So.2d at 20, there is no set of facts that would permit the Claviers to claim entitlement to damages for negligent spoliation. As such, they are not entitled to leave to amend their petition to assert such a claim.

PRESCRIPTION

As an alternative basis for our affir-mance of the trial court’s dismissal of the Claviers’ claims for intentional spoliation damages, we address the merits of the defendants’ exceptions of prescription and conclude, as the trial court did, that even if the Claviers had a cause of action for spoliation, their petition was untimely. Regardless of whether the spoliation claims (as distinguished from the Claviers’ claims for damages based on medical malpractice) were considered as arising out of patient care or a delictual matter, the trial court correctly determined that it was untimely.

Ordinarily, the party pleading prescription bears the burden of proving the right to bring the claim has prescribed. However, when the face of the petition reveals that the plaintiffs right has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. Barber v. Employers Ins. Co. of Wausau, 2011-0357 (La.App. 1st Cir.6/28/12), 97 So.3d 454, 464. At the | ntrial of a peremptory exception, evidence may be introduced to support or controvert the defense of prescription, if its grounds do not appear from the petition. La. C.C.P. art. 931. If evidence is introduced at the hearing on the peremptory exception, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. See Straub v. Richardson, 2011-1689 (La.App. 1st Cir.5/2/12), 92 So.3d 548, 552, writ denied, 2012-1212 (La.9/21/12), 98 So.3d 341. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart v. State, Dep’t of Transp. and Dev., 617 So.2d 880, 882-83 (La.1993).

According to La. R.S. 9:5628 A, which sets for a time limitation for the institution of medical malpractice actions,

No action for damages for injury or death against any physician ... [or] hospital ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless 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.

Article 3492, which governs tort claims, provides, “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.”

In support of the exception of prescription, the defendants introduced the deposition testimony of Drs. Byrd and Mason. In his deposition testimony, taken on March 24, 2009, Dr. Byrd explained that because Casey complained of pain despite having had the prescribed morphine administered, he put Casey on a PCA pump. 11gDr. Byrd testified that on the day after Casey’s death he asked OLOL nurses for the PCA pump data, explaining that the pump documents how many times a patient requests medicine versus how many times he receives it. He stated that he was advised that the machine had been turned off and unplugged, and that the data was, therefore, lost. In association with his autopsy order, because he expected that having prescribed narcotics to Casey, the patient would test positive, Dr. Byrd testified that he did not specifically request any toxicology screens. He also stated that when he ordered the procedure, he did not know whether a standard autopsy at OLOL would include a toxicology study.

According to Dr. Mason’s deposition, taken on March 18, 2009, he worked as a pathologist for PGL, a private consultant who had a contractual relationship with OLOL. He explained that all the autopsies PGL performed at OLOL were medical autopsies, i.e., a specific protocol for less than a full autopsy, which was restricted to examination of the abdomen, pelvis, and chest, and that an expansion of an autopsy beyond that would only be done at the request of the clinician and family. Dr. Mason testified that no one at PGL was able to perform forensic autopsies, which could only be undertaken by a coroner.

Dr. Mason stated that as a result of the autopsy he conducted, he was able to eliminate abdominal hemorrhage, pulmonary embolus, and myocardial infarction as causes of death, but that he could not rule out all other plausible cardiac events or an adverse reaction to narcotics as causes of death. Although Dr. Mason was aware that Dr. Byrd had indicated an adverse reaction to narcotics was a possible cause of death, and that the medical autopsy would not provide information permitting him to rule that out, he did not contact the medical examiner.

| ^Regardless of which of the parties bore the burden of proof, based on the deposition testimony, the evidence supports the trial court’s factual finding that by March 24, 2010, the date of Dr. Byrd’s deposition, the Claviers had actual knowl-¿dge that OLOL employees had unplugged the PCA pump, resulting in the loss of the recorded data. The evidence also supports the trial court’s factual finding that by no later than March 24, 2010, the Claviers were aware that a medical autopsy had been performed on Casey, which did not include toxicology screens. Thus, the trial court was not manifestly erroneous in concluding that the Claviers failed to file their lawsuit against OLOL within a year of actual knowledge that OLOL employees had allegedly spoliated the evidence associated with the PCA pump and that toxicology screens had not been performed at either Dr. Byrd’s request or as standard practice by either PGL or OLOL. Thus, whether any spoliation causes of action that the Claviers may have had were considered as medical malpractice claims under La. R.S. 9:5628 A, or delictual actions under La. C.C. art. 3492, the trial court correctly concluded they were prescribed.

The Claviers urge that the trial court erred as a matter of law because them claims are delictual causes of action and, therefore, prescription commenced to run from the day injury or damage was sustained rather than the date of the act or omission as in the case of a medical malpractice claim. They suggest that under Article 3492, prescription against the defendants could not have commenced until April 6, 2011, the day that the medical review panel rendered an unfavorable ruling for their allegations of medical malpractice. Thus, they claim entitlement to an application of contra non valentem.

Although La. C.C. art. 3467 provides that “prescription runs against all persons unless exception is established by legislation,” the jurisprudential doctrine of contra non valentem is an exception to this statutory rule. The courts have recognized four factual situations in which contra non valentem prevents the running of liberative prescription including where the cause of action is neither known nor reasonably knowable by the plaintiff even though the plaintiffs ignorance is not induced by the defendant. Marin v. Exxon Mobil Corp., 2009-2368 (La.10/19/10), 48 So.3d 234, 245. This is commonly known as the discovery rule.

Here, the Claviers are asserting that they are entitled to an application of the discovery rule. The doctrine of contra non valentem only applies in exceptional circumstances. A plaintiff is deemed to know what he can by reasonable diligence learn. Prescription begins to run when the plaintiff knows sufficient facts and has a reasonable basis for filing suit against a certain defendant; ignorance or misunderstanding of the probable extent or duration of injuries materially differs from ignorance of actionable harm that delays commencement of prescription. Prescription runs from the date on which a plaintiff first suffers actual and appreciable damage even though he may thereafter come to a more precise realization of the damages he has already incurred or incurs further damage as a result of the completed tortious act. See Marin, 48 So.3d at 245-46.

Clearly, by March 24, 2010, the date of Dr. Byrd’s deposition testimony, the Claviers had sufficient facts — i.e., that the PCA pump had been unpluggéd and, therefore, the recorded data was spoliated and that neither Drs. Byrd nor Mason had conducted toxicology screens and that neither was required to do so under the policy |1Bof restricted medical autopsies conducted by PGL at OLOL and, therefore, that such toxicology information was spoliated — to commence tolling of the prescriptive period under Article 3492. By the March 24, 2010 deposition, the Claviers were cognizant of the actual and appreciable damage they had suffered by the alleged spoliation of evidence by OLOL personnel as well as by Dr. Byrd and PGL individually and for the actions of Dr. Mason. Thus, as of March 24, 2010, the Claviers had a reasonable basis for filing suit against OLOL, Dr. Byrd, and PGL for any spoliation claims they may have had. Accordingly, regardless of who bore the burden of proof, we find no error in the trial court’s conclusion that any claim for spoliation that the Claviers may have had prescribed by March 24, 2011, whether under an application of La. R.S. 9:5628 or Article 3492. Therefore, on July 18, 2011, when they filed this lawsuit, the Claviers’ claim was already prescribed.

DECREE

Finding on our own motion that the Claviers’ petition fails to state a cause of action entitling them to relief and, furthermore, concluding in the alternative that even if the Claviers had an independent cause of action for spoliation, their petition filed on July 18, 2011, seeking damages from OLOL, Dr. Byrd, and PGL was untimely, we affirm the trial court’s dismissal of their petition. Appeal costs are assessed against plaintiffs-appellants, Faron and Annette Clavier.

AFFIRMED.

      . Specifically, Dr. Byrd performed a resection of a rectal stricture.

      .The Claviers filed a separate petition for wrongful death and survival action damages on July 18, 2011, naming OLOL, Dr. Byrd, and his insurer as defendants, which was allotted to another division in the district court.

      . Dr. Mason has not been named a party defendant in this litigation.

      . It is undisputed that a PCA pump is a patient controlled device that administers controlled amounts of a medication over intervals of time.

      . We find the Claviers reliance on Harris v. St. Tammany Parish Hosp. Service Dist. No. 1, 2011-0941 (La.App. 1st Cir.12/29/11), 2011 WL 6916523 (unpublished), writs denied, 2012-0585, 2012-0678 (La.4/20/12), 85 So.3d 1275, 85 So.3d 1277, misplaced. In a plurality opinion, this court affirmed the trial court's judgment, incorporating the jury's rejection of any relief to the plaintiff on the basis of spoliation. Therefore, any statements that could be construed to suggest the existence of a separate cause of action for negligent spoliation were merely dicta. The Harris plurality held that where the plaintiff failed to show the defendant had a duty to preserve evidence, there is no entitlement to recovery for spoliation damages, which is in conformity with our holding today.

        . In our ruling today, we express no opinion as to the timeliness of the Claviers' petition for wrongful death and survival action damages arising out of alleged medical malpractice.

      . Dr. Byrd prescribed .5 mgs of Dilaudid every 15 minutes with a lockout of 2 mgs per hour.