author: DREW, J.

text:
    FAIR FARMS, INC. and Roy Dean Hart, Plaintiff-Appellant v. Robert B. HOLT, Anthony Hal Waller, and William Bradley Johnson, Defendant-Appellee.
    No. 48,246-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 2013.

      Sedric E. Banks, Monroe, for Appellant, Fair Farms, Inc.
    Ward & Condrey, LLC, Covington, by Lisa A. Condrey, for Appellees, Robert B. Holt, Robert B. Holt, Inc., Anthony Hal Waller, William Bradley Johnson, JBF Partnership, C. Boyce Miller, OBOBA, Inc., Johnny Johnson, and Linda Carol Johnson.
    Cotton, Bolton, Hoychick & Doughty, L.L.P., Rayville, by David P. Doughty, for Appellee, Transylvania Gin, Inc.
    Before BROWN, DREW and PITMAN, JJ.
   DREW, J.

_JjIn this stockholder lawsuit concerning the closing of Transylvania Gin, Inc., Fair Farms, Inc., appeals a summary judgment granted in favor of defendants. Fair Farms also appeals a judgment granting the exception of prescription as to its negligence claims.

We reverse the summary judgment. We also reverse the granting of the exception of prescription insofar as it dismissed certain negligence claims. The matter is remanded for further proceedings.

FACTS

Transylvania Gin is a closely held corporation owned, at the filing of this suit, by eight stockholders. The stock was held in six blocks of 20 shares and two blocks of 10 shares. The stockholders and their interests were recorded for notice of the annual meeting in 2010, and this was the last record of stock ownership before the suit was filed. Ownership was as follows:

• Fair Farms, Inc. (formerly Scrapping Cotton, Inc.), represented by Robert A. Fairchild: 20 shares.

• JBF Partnership, represented by William Bradley Johnson: 20 shares.

• Robert B. Holt, Inc., represented by Robert B. Holt: 20 shares.

• Anthony Hal Waller: 20 shares.

• Boba, Inc., represented by Boyce Miller: 20 shares.

• Roy Dean Hart: 20 shares.

• John S. “Johnny” Johnson & Linda Johnson Green: 10 shares.

• Voncile Johnson: 10 shares.

|2The gin was traditionally run very informally, with no minutes from many meetings prior to 2009. The members of the gin’s board had allowed Robert Fair-child, who began serving as president of the gin in 1972, to have nearly total control over the gin, including buying and marketing cottonseed, for almost 40 years. The board raised no objection to the gin being run in this manner, and Fairchild said all stockholders had a vote in major decisions.

Beginning in December 2008, the stockholders became concerned about the decreasing availability of cotton in East Carroll Parish. The number of cotton acres farmed in East Carroll Parish had dropped during the period from 2005 through 2008. During this period, the number of bales ginned at Transylvania Gin had decreased 70%. A stockholders’ meeting was held in December 2008, during which the gin’s accountant, Alyssa Oliver, presented rough estimates of the potential costs for the 2009 ginning season.

To determine the income from ginning, she considered the potential for 3500 or 5000 bales of cotton available with a 1.3 seed factor and $180 per ton seed price. Oliver then looked at the cost of ginning, using estimates of $53-55 per bale from historical cost estimates. After taking into account the costs of ginning and potential income, she estimated the net profit for the season, excluding rebates, repairs, and note payments. She believed the gin would have between $9,000 and $19,000 to spend on expenses after the costs of ginning were deducted. Robert Holt, secretary of the gin and the only person who spoke to Oliver about these projections |sprior to the meeting, provided the seed price and the number of bales used in Oliver’s estimates. Holt said in his deposition that as a stockholder he was entitled to request these calculations. He admitted that despite giving Oliver the numbers to determine the potential income for the 2009 season, he was not familiar with the “workout monies” method of payment that the gin typically used for receiving payment for cottonseed; he had, however, heard Fairchild mention “workout monies.” This anticipated payment for cottonseed was, therefore, not considered in Oliver’s calculations.

The gin’s minutes indicate that at the next meeting the board agreed to decrease Fairchild’s salary by one-half and terminate the remaining employees.

At the following meeting, Fairchild informed the board that he did not agree with decisions made at the earlier meeting and submitted his resignation. The board voted not to accept his resignation, and many of the stockholders described a disagreement between Fairchild and Holt that abruptly ended the meeting.

Fairchild contended that he and Holt argued because Holt said he did not intend to grow cotton that season. Fairchild said he offered Holt $35,000 for his stock, and Holt countered that he wanted $100,000 for the stock; Holt denied that Fairchild offered him a price for his stock at that meeting.

At the next meeting on March 19, 2009, the board accepted Fairchild’s resignation. Brad Johnson became the gin’s president. At aRMarch 26, 2009, meeting, there was a vote to close the gin for that year’s ginning season, but the vote was subsequently delayed until the annual stockholders’ meeting. The stockholders voted to close the gin at this annual meeting. Hart, Fairchild, and Johnny Johnson were absent from the meeting. In June 2010, the board of directors voted to keep the gin closed for the 2010 ginning season. In 2011, the board of directors elected to value the corporate stock at $3,446.67 per share, or $68,953 per 20-share block. At the May 6, 2011, meeting, held at Brad Johnson’s shop, the board of directors voted for the gin to remain closed for the 2011 ginning season. Throughout all these votes for the gin to close and remain closed, there was no business plan in place for the gin.

The plaintiffs filed this lawsuit on February 28, 2011. After several amending and supplemental petitions, all directors of the gin were named as defendants in the lawsuit. The defendants filed the exception of prescription and a motion for summary judgment. Included among the submissions in support of the motion were the gin’s articles of incorporation and amendments, affidavits, minutes, Oliver’s projections, and depositions of the parties and Oliver. In opposition to the motion, Fair Farms submitted the affidavits of Fair-child and several former stockholders, a sealed affidavit from Donald Gregory, the gin’s articles and bylaws, the gin’s La. C.C.P. art. 1442 deposition given by Holt, and exhibits to Oliver’s deposition.

The trial court ruled in October 2011 that the claims for negligence had prescribed. On September 19, 2012, the trial court granted summary judgment for the defendants. Fair Farms appeals both judgments.

JjDISCUSSION

The foundation for this lawsuit lies in the Articles of Incorporation, as amended in 1974. Article XI requires that a stockholder be engaged in the production of cotton. Article XIV provides the procedure for the removal of a stockholder no longer engaged in the production of cotton. Fair Farms claims that the directors breached their fiduciary duties by not enforcing Article XI or XIV, which both require stockholders to be cotton producers. Fair Farms argues that in addition to these articles, a resolution had once been passed that required each stockholder to grow at least 200 acres of cotton per season. Fair Farms contends that the defendants’ goal in not enforcing the articles and shuttering the gin was to increase the value of their shares through liquidating the gin, rather than being forced to sell their shares to the gin for a lower value.

| (¡Robert Holt

Robert Holt bought his stock in the gin from another stockholder trying to divest himself of the stock. Despite understanding the role of Articles XI and XIV in the success of a cotton gin, Holt said the gin was not enforcing the articles because doing so would cause the gin to incur more debt and have greater difficulty reopening. At the time of his deposition, he did not know the amount of money required to resume operations at the gin. Holt asked Oliver about valuing the stock of the gin; Oliver replied that she could not do this.

Holt gave the corporate deposition for the gin in accordance with La. C.C.P. art. 1442. He had been secretary of the gin since 1990 or 1991. He did not believe that stockholders were obligated to grow 200 acres of cotton, as contended by Fair-child, because the rule was not in the articles or bylaws. Holt believed growing as little as 1.2 acres of cotton was fulfilling the Article XI obligation to be a cotton producer.

Holt said the decision not to enforce the gin’s articles was a business judgment, and despite the lack of cotton acreage, a cotton producer should be able to vote his stock. He said every stockholder who voted to close the gin voted his own conviction. He believed that if the gin was not operating, there was no obligation to produce cotton. There were gin meetings in 2011 and 2012 to discuss the availability of cotton acreage. He said the gin’s decision to cease operations was not based solely on the price of cotton.

17.Anthony Waller

Waller had owned stock in the gin for four to five years at the time of his deposition. He is vice-president and a director of the gin. Waller believed that an aspect of the duties associated with these two roles was to make the decision on whether to operate, liquidate, or close the gin. He said when making this decision, the board considered cotton production, cotton producers, and the numbers of possible bales of cotton available to gin. He believed the gin needed 10,000 bales to justify opening, but he did not know the amount of cotton required for the gin to be profitable.

Waller knew that a stockholder must be a cotton producer and saw this requirement as a way to ensure that the gin was profitable. He did not know what efforts were made in 2010 to determine the volume of cotton necessary for the gin to operate. Waller acknowledged that cotton prices were one of many considerations in the decision to close the gin each year after 2009.

Cary Boyce Miller

Miller bought newly issued shares of stock, in a sale Fairchild orchestrated, seven or eight years prior to the lawsuit. He purchased the stock for $150,000 credit and made annual payments of $15,000 to the gin. When Miller acquired the stock, he was planting 1,000 to 1,300 acres of cotton annually and ginning at another gin, Hollybrook.

Miller did not know if he was on the board of directors and did not recognize a fiduciary duty of the board. He recalled discussions about the requirement that stockholders grow 200 acres of cotton but none referring to |8Article XIV. He remembered Fairchild mentioning the bylaws and something about returning stock to the corporation if a stockholder did not grow cotton. He did not know about duties in the articles to grow cotton.

Miller said the presentation by Alyssa Oliver was the deciding factor in his vote to close the gin, due to his existing debt from the stock purchase and his belief that he would be responsible for additional debt of the gin. He did not recall discussing rebates during Oliver’s presentation of costs for the upcoming season. Miller said there was a discussion about available acreage for the gin in 2010, but he did not recall a similar discussion in 2011.

William Bradley Johnson

Johnson became a stockholder in Transylvania Gin after inheriting his father’s stock. The stock is now owned by JBF Partnership, represented by Johnson. Johnson was elected gin president in 2009 and believed his responsibilities included running the business. He did not develop a business plan for the gin, because there was never one under Fairchild and he saw no need for one. Johnson said Fairchild did not enforce the provision in the bylaws that required stockholders to turn in then-stock if they did not wish to grow cotton.

Johnson believed Fairchild was president of the gin for so long because there were never any elections, but he acknowledged the lack of interest in the position. He believed that Fairchild resigned from his position as president because he was losing control of the gin.

Johnson said that when deciding whether or not to close the gin, he, [9WalIer, and Holt discussed the available acreage for the 2009 season. He did not know what efforts were made to determine acreage available to the gin in 2010 or if any of the stockholders determined the acreage necessary for the gin to be profitable in 2010, considering the historically high prices at the time being offered for cottonseed oil. The board met on May 6, 2011, to discuss cotton acreage for the 2011 season.

Johnson did not have discussions about demanding the return of stock to the gin because he said no one wanted to buy the stock. He did not want to buy Holt’s stock personally or for the gin because he did not want the gin to assume more debt and did not want to have to grow enough cotton to fuel the gin himself.

Johnson estimated that in order to be profitable, and not simply scraping by, the gin would need to gin 10,000 bales of cotton, or around 5500 to 6000 acres of cotton. He believed that Oliver’s projections for 2009 were part of the reason stockholders voted to close the gin, the other part being fear of large expenses.

Johnny and Linda Johnson

Johnny Johnson and Linda Carol Johnson are joint stockholders of shares inherited from their parents. At the time of his deposition, Johnny was essentially the controlling stockholder because Linda lived in Georgia. He was elected to the gin’s board of directors in the spring of 2011. Johnson remembered Oliver’s presentation and the meeting in which the available bales of cotton were discussed. He decided to vote to close the gin after Oliver’s presentation, which he said caused him to realize the risk of | ^operating.

Johnson had no part in managerial decisions in 2009. In the 2010 meetings he attended, he did not recall discussing the available cotton acreage- or if anyone attempted to determine potential profits with historically high cottonseed prices existing in 2010. He remembered a meeting to discuss available cotton acreage for 2011. He believed it was in the best interest of the gin to remain closed in 2010 and 2011.

Roy Dean Hart

Roy Dean Hart, formerly a plaintiff, now deceased, had been a stockholder in the gin since 1990. Hart testified he was an officer of the gin who recorded minutes from time to time. Hart did not remember if he attended the meeting at which Oliver presented her projections for the 2009 season. Nevertheless, he did not believe that her calculations presented a fair picture of .the income of the gin.

Hart believed that the defendants were attempting to remove Fairchild from the gin and his position as president. He also believed there was a rule of thumb that had been followed during his 19 years at the gin that required each stockholder to plant 200 acres of cotton per season.

Robert Alton Fairchild

Fairchild became a stockholder in Transylvania Gin in 1968 and president of the gin from 1972 until his resignation in March 2009. Fairchild believed that if stockholders had abided by the bylaws, he would have been able to run the gin profitably.

Fairchild said that the price of Boyce Miller’s stock in the gin was |¶1 determined by considering recently paid off debt of the gin and the effect on the value of the gin as a whole. He said, in the past, he was able to run the gin profitably on 2,700 bales of cotton when seed prices were $45 per ton.

Fairchild contended that he had contacted parties, including Donald Gregory, who would have been interested in buying stock in the gin at a reasonable price. Gregory confirmed by affidavit that he and his sons were interested in the stock, if available for a fair price. Fairchild said that he was unable to talk to other stockholders around the time of discussions about closing the gin.

Fairchild believed that stockholders who were not planting cotton should not be allowed to vote their stock. Fairchild said that during his tenure at the gin, several people had decided not to plant cotton and sold their stock back to the gin. Others who had farmed less than 200 acres had their rebate amounts reduced. He never sent a certified letter requesting Holt’s stock because he believed his offer at the meeting in January was sufficient.

SUMMARY JUDGMENT

Our law pertaining to review of motions for summary judgment is well settled.

112Fair Farms alleges that the directors breached their fiduciary duties to the gin. La. R.S. 12:91 defines the fiduciary duty officers and directors owe to the stockholders of a corporation. The duty imposed is one of good faith | j3and reasonableness. Findings as to breach of this duty necessitate analysis of subjective intent.

Defendants cite Subsection (C) of La. R.S. 12:91 and contend they relied in good faith on Oliver’s projections and made a rationally based business judgment to suspend ginning operations.

When granting the defendants’ motion for summary judgment, the trial court concluded there was no evidence that the defendants breached their fiduciary duties or evidence of a lack of good faith amounting to reckless disregard or indifference to the best interests of the gin and its stockholders.

The depositions of the stockholders of the gin are the primary source of evidence in this case. To determine the good faith of the stockholders of the gin, the events preceding the votes to close the gin are critical to the finding of good faith. Unfortunately, there is no clear picture of the actions of the stockholders during the time frame commencing immediately before the decision to close the gin through the date of trial.

Much of the dispute is related to Oliver’s presentation of potential income for the gin in 2009. Holt said Fairchild knew that Oliver was coming to the meeting to discuss the gin’s financial situation; Fairchild 114denied this. Holt organized the meeting because Fairchild would not have trusted any figures that Holt would have presented. Fairchild believed that Oliver’s presentation was not a full reflection of the income of the gin. In her deposition, Oliver said that rebates were inappropriate to include in her calculations. All parties agreed on-the speculative nature of cottonseed rebates but acknowledged they were a major source of income for the gin’ and had historically been issued to the gin each year. The information Holt gave Oliver to prepare her projections was also affected by Holt’s relatively limited knowledge about gin operations, compared to Fair-child’s, particularly as to the rebates in the form of workout monies.

Holt and Waller believed that in 2009 Fairchild said that Donald Gregory, one of the largest cotton producers in the area and a former customer of the gin, was “off the table” as a potential client for the gin and that is why no one contacted Gregory. Fairchild denied ever saying this and maintained that Gregory had orally committed to returning to the gin with 2,400 acres of cotton. Gregory and his family ginned 1,528 bales at the gin in 2008. They ginned 1,930 bales in 2009; 3,500 bales in 2010; and 3,917 bales in 2011. Holt believed Brad Johnson said he would contact Donald Gregory about ginning in the 2010 and 2011 seasons. Brad Johnson said he believed Fairchild’s friendship with Gregory would dissuade Gregory from coming to the gin, so Johnson did not call him.

Some stockholders attempted to recruit cotton from sources other than Donald Gregory. Waller spoke to some potential customers about ginning cotton at Transylvania in 2011, but they were not planting cotton. | ^Neither Waller nor Johnny Johnson contacted anyone about bringing cotton to the gin in 2009; Miller had not spoken to other farmers about this either. Fairchild said that LaBane Clement would reconsider planting cotton if the gin opened. Brad Johnson said that before the decision to close the gin in 2009, he attempted to recruit cotton from farmers to bring to the gin.

Though Article XI states that a stockholder must be a cotton producer, many of the stockholders, including the plaintiff, were not cotton producers at times. Holt testified in his deposition that he intended to keep his stock in the gin because he was under no financial pressure to get rid of the stock and was holding it at no cost. After Miller lost money growing cotton in the 2009 season, he expressed his desire to sell the stock and pay off his note on the stock. Brad Johnson discussed with Fair-child offering the stock of-the nonproduc-ers to cotton producers and said both Waller and Holt expressed interest in selling their stock.

Fairchild believed that a stockholder who was not producing cotton should have no vote in the gin. His belief was partially based on a handwritten, undated, unsigned sheet of paper that he said Hart gave him, recording a motion, made by A.J. Johnson and seconded by Waller, to amend the articles to require each stockholder to plant 200 acres of cotton, the failure to do so being a violation of Article XIV. He knew this amendment was not officially added to the articles but attributed that to the informal way the gin was run. Fair-child also said the failure to plant 200 acres of cotton limited the rebates the stockholder received in the past.

Fair Farms’ claims are partially based on the failure of some directors | ^and stockholders to grow cotton. Fairchild had not produced cotton since 2008, but prior to that produced 475 acres of cotton annually. Hart leased land to a tenant who, as part of the lease, ginned cotton at Transylvania Gin; around 225 acres were devoted to cotton. Hart acknowledged that this number varied, and Fairchild said at times Hart planted less than 200 acres. Miller farmed 450 acres of cotton in 2009, ginned at Raley Brothers, and did not plant cotton in 2010 or 2011. Holt planted 25 acres of cotton in 2009, 1.5 acres in 2010, and 1.4 acres in 2011. In 2011, Brad Johnson planted 550 acres of cotton. Brad Johnson and his brother decide what crops to plant on Johnny and Linda Johnson’s land, and decided not to plant cotton there in 2011 and possibly 2010. Waller said he agreed to plant 200 acres of cotton at the January 2009 meeting at which Fairchild agreed to the cost-cutting measures. When Fairchild returned in March and said he no longer agreed with the measures, Waller .again said he would not grow cotton. Fairchild said he agreed to the cost-cutting measures only , because he believed if he did, Waller would plant cotton. In 2009, Waller planted cotton but the crop failed, and he had not planted cotton since.

Many of the other stockholders admitted hearing something about a 200-acre rule, but did not think they were required to plant 200 acres of cotton. Miller and Waller admitted that they had not .read the Articles of Incorporation or the bylaws when this lawsuit was filed. Brad Johnson said he became aware of Article XIV only when Fairchild offered to buy the stock of a nonproducer.

Many directors, including Brad Johnson and Robert Holt, believed | ^enforcing the gin’s articles was optional. The gin’s current officers did not agree on a plan for the future of the gin in 2011. Holt said he believed the gin was to begin liquidation of assets but also said he did not know the gin’s business plan; Johnson denied any plan to liquidate the gin. Miller did not know if the gin had a business plan in 2011.

Finally, despite the gin remaining closed for three ginning seasons, the board of directors voted to nearly double the value of stock in the corporation. Fair Farms claims that this was part of the directors’ scheme to close the gin and make money. Holt said that the value of the stock increased from $35,000 to around $68,000 because of bids on the gin’s equipment. Waller said the increase in stock value was attributable to the increase in cotton prices. Accordingly, Holt said that the board of directors “put a finer pencil to it” when determining stock value. Hart did not know what method was used to value the stock of the gin, but he did not believe that the gin’s assets could cover the set price of stock.

While the plaintiffs do not have to prove the elements of their claims on summary judgment, they are required to show that there is factual support for the elements. The factual support for the plaintiffs’ claims, and the defendants’ defenses, is primarily found in the parties’ depositions. The depositions reflect several disputed factual issues and a general lack of agreement on how and why the decisions were made to close the gin from 2009 to 2011.

The lack of agreement on these aspects of the internal affairs of the gin from 2009 to 2011 shows the uncertainty that clouds the assessment of |1sthe events surrounding this lawsuit.

The allegations of negligent and intentional breach of fiduciary duty are directly related to the state of mind of the stockholders and their intentions for the gin from 2009 forward. Credibility determinations based on the parties’ depositions are inappropriate for summary judgment. To determine the intent or good faith of the board of directors from 2009 to 2011 calls for credibility determinations of parties based almost solely on the depositions. Summary judgment for the defendants is, therefore, improper.

Exception of Prescription

The prescriptive period for breach of fiduciary duty is provided by La. R.S. 12:96. The plaintiffs’ numerous petitions repeatedly allege intentional, as well as negligent, breaches of fiduciary duty. While claims for negligent breach of fiduciary duty have a one-year prescriptive period, claims for the intentional breach of fiduciary duty have a two-year prescriptive period. La. R.S. 12:96.

The claims for intentional breach of fiduciary duty relating to actions or omissions in 2009 are not prescribed to the extent that they allege that the |13breach was intentional. The two-year prescriptive period for the 2009 claims under La. R.S. 12:96(B) was interrupted by the filing of this lawsuit, and claims have not prescribed.

The plaintiffs alleged that each vote by the board of directors for the gin to remain closed was an independent breach of fiduciary duties, whether negligent or intentional. The trial court found that the 2010 and 2011 votes for the gin to remain closed were too interrelated to the original 2009 decision to close the gin to be, an independent cause of action and, thus, were prescribed unless pled to the level of intentional tortious conduct.

We are constrained to find, considering the clear language of La. R.S. 12:96, that the trial court erred in ruling that negligence claims from 2010 and 2011 are prescribed. The trial judge, when granting the exception of prescription for the 2010 and 2011 claims, said, “They are prescribed unless it can be brought up to the level of intentional tortious conduct, because ... everything really goes back to 2009.” We disagree.

In 2010 and 2011, the board of directors admitted to looking at the prospects for the individual growing seasons when deciding whether or not to operate the gin. Each independent decision for the gin to remain closed presents a claim under La. R.S. 12:96(A). The plaintiffs’ claims for negligent breach of fiduciary duty arising from the defendants’ actions in 2010 and 2011 have not prescribed.

|2qDECREE

For the reasons stated above, we reverse the trial court’s summary judgment. We also reverse the judgment granting the exception of prescription insofar as it dismissed the negligence claims arising from actions taken to shutter the gin in 2010 and 2011. We remand the matter to the trial court for further proceedings. Costs are assessed to defendants.

REVERSED AND REMANDED.

      . Roy Dean Hart was a plaintiff. After his death, his succession asked that it be substituted as plaintiff and dismissed as it did not want to pursue the suit. The succession sold his stock to the corporation.

      . "Workout monies” allowed the gin to receive some of the anticipated rebate money up front.

      . Article XI of the Transylvania Gin Articles of Incorporation as amended in 1974: "Any person owning stock in this corporation must be a cotton producer, engaged in the production of cotton, either as lessor or lessee, and must bring his entire crop for ginning to the gin or gins owned or operated by this corporation. The only exceptions to this rule shall be if the gin or gins owned or operated by this corporation are unable to gin the cotton within a reasonable period of time because of mechanical breakdowns or otherwise, and prudent farming practices dictate that the cotton be ginned elsewhere: of [sic] if lease contracts on land farmed by stockholders as tenants require that the cotton be ginned elsewhere. Also, in addition to the two above express exceptions, the directors of this corporation may, under special and unusual circumstances, grant written permission to a stockholder to gin a portion or all of his cotton elsewhere.”

      . Article XIV of the Transylvania Gin Articles of Incorporation as Amended in 1974: "If a stockholder withdraws from the production of cotton, either as lessor or tenant; or refuses to bring his entire cotton crop for ginning, to the gin or gins owned or operated by this corporation, without coming under either of the two exceptions referred to in Article XI above, then in this event, the stockholder shall be obligated to transfer his shares of stock to this corporation, within one month from the date requested to do so by the Board of Directors of this corporation, which request shall be sent by certified mail. The price per share to be paid for the shares of stock conveyed to the corporation shall be the value per share fixed at the last preceding annual meeting of the stockholders of the corporation. In the event the stockholder fails to voluntarily comply with the provisions of this Article, within the time provided, then the corporation shall have the right to bring suit to compel the transfer of the stock, in accordance with the provisions of this title.”

      . Holt could not name any concerns or factors extant in 2009 to distinguish it from the 2006, 2007, or 2008 seasons.

      . A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate, i.e., whether there is any genuine issue of material fact, and whether the mov-ant is entitled to judgment as a matter of law. Id.

      A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B)(2).
      The burden of proof on a motion for summary judgment is set forth in La. C.C.P. art. 966(C)(2):
      The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
      This provision initially places the burden of producing evidence at the hearing on the motion for summary judgment on the mover, who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. At that point, the party who bears the burden of persuasion at trial, usually the plaintiff, must come forth with evidence (affidavits or discovery responses) which demonstrates that he or she will be able to meet the burden at trial. Samaha v. Rau, supra; Wright v. Louisiana Power & Light, supra.

      Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049.
      Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge or malice, yet it may be granted on a subjective issue when no issue of material fact exists concerning that issue. Johnson v. Pinnergy, Ltd., 46,188 (La.App.2 Cir.4/13/11), 63 So.3d 302. These subjective facts call for credibility evaluations and the weighing of testimony, and summary judgment is inappropriate for such determinations. Louisiana AG Credit, PCA v. Livestock Producers, Inc., 42,072 (La. App.2d Cir.4/4/07), 954 So.2d 883, writ denied, 2007-1146 (La.9/14/07), 963 So.2d 1001. In addition, the circumstantial evidence usually necessary for proof of motive or intent requires the trier-of-fact to choose from competing inferences, a task not appropriate for a summary judgment ruling. Id.

      . La. R.S. 12:91 Relations of Directors and Officers to Corporations and Shareholders.
      A.Officers and directors shall be deemed to stand in a fiduciary relation to the corporation and its shareholders, and shall discharge the duties of their respective positions in good faith, and with that diligence, care, judgment, and skill which ordinary prudent men would exercise under similar circumstances in like positions: however, a director or officer shall not be held personally liable to the corporation or the shareholders thereof for monetary damages unless the director or officer acted in a grossly negligent manner as defined in Subsection B of this Section, or engaged in conduct which demonstrates a greater disregard of the duty of care than gross negligence, including but not limited to intentional tor-tious conduct or intentional breach of his duty of loyalty. Nothing herein contained shall derogate from any indemnification authorized by R.S. 12:83.
      B. As used in this Section, "gross negligence” shall be defined as a reckless disregard of or a carelessness amounting to indifference to the best interests of the corporation or the shareholders thereof.
      C. A director or officer who makes a business judgment in good faith fulfills the duty of diligence, care, judgment, and skill under Subsection A of this Section if the director or officer:
      (1) Does not have a conflict of interest with respect to the subject of the business judgment.
      (2) Is informed with respect to the subject of the business judgment to the extent the director or officer reasonably believes to be appropriate under the circumstances.
      (3) Rationally believes that the business judgment is in the best interests of the corporation and its shareholders.

      . A. No action for damages against any director or officer for breach of his duty as a director or officer, including without limita? tion an action for gross negligence, but excluding any action covered by the provisions of Subsection B of this Section, shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered.
      B. No action for damages against any director or officer for intentional tortious misconduct, or for an intentional breach of the director’s or officer’s duty of loyalty, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    James DOW, Plaintiff-Appellant v. UNITED PARCEL SERVICE and Liberty Mutual Insurance Company, Defendant-Appellee.
    No. 48,310-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 18, 2013.

      Christopher C. McCall, Lake Charles, for Appellant.
    Patrick F. Cole, Shreveport, J. Kris Jackson, for Appellee.
    Before WILLIAMS, MOORE and PITMAN, JJ.
   WILLIAMS, J.

| Claimant, James Dow, appeals the workers’ compensation judge’s decision, finding that claimant failed to meet his burden of proving that his disabling condition was the result of his work-related injury. For the following reasons, we affirm.

FACTS

Claimant, James Dow, was employed by United Parcel Service (“UPS”) for over 33 years; he was planning to retire effective May 29, 2009. Claimant was injured on April 14, 2009, when he struck his head on a loading-dock door as he was making a delivery. The parties stipulated that claimant was injured in a work-related accident.

On the day of the accident, claimant was examined by Dr. Ronald Woods at the Glenwood Family Practice and Occupational Health Center. Claimant complained of pain in the right side of his head and dizziness. Dr. Woods diagnosed claimant with a “contusion to skull” and ordered a computerized tomography (“CT”) scan of the brain; he instructed claimant to return to the clinic and await the results of the CT scan. Although the results of the CT scan were normal, Dr. Woods instructed claimant to wait in the clinic to ensure that he was “neurologically stable” before sending him home. Dr. Woods noted that claimant still complained of a headache and that he had been given ibuprofen for pain.

On that same night, claimant went to the emergency room at Glenwood Regional Medical Center (“Glenwood”), complaining of headache, dizziness and neck pain. Claimant’s physical examination was |2normal and did not reveal any laceration, hematoma, abrasion or swelling to the right side of his head. However, another CT scan was ordered; the results were normal. The emergency room physician diagnosed claimant with “concussion” and discharged him with prescriptions for Flexeril (a muscle relaxant) and Lortab (a narcotic pain reliever) and with instructions to “followup” with his primary physician.

Claimant was seen by Dr. Woods the following day. Dr. Woods noted that claimant continued to complain of “some right temporal headache and some right neck pain.” Claimant’s neurological examination was within normal limits. Dr. Woods diagnosed claimant with a concussion and advised him “to take it easy all this week and even over the weekend.”

Claimant returned to the clinic on Friday, April 17, 2009. Dr. Woods noted that his condition was “improving” and that he complained of less pain. Later that day, claimant returned to the emergency room at Glenwood, complaining of nausea and “right[-]sided headache[,] ongoing intermittently since [TJuesday.” Claimant was given Benadryl, Toradol and Compazine; he was discharged home with a prescription for Fioricet as needed for pain.

On Monday, April 20, 2009, claimant returned to Dr. Woods and reported that he had “almost constant pain in the right temporal area of his skull and behind his eye[,] radiating to the back of his head almost down to his neck.” Dr. Woods examined claimant and noted that he appeared to be neurologically stable. Dr. Woods prescribed Tylenol # 3 for pain and Toradol injections as needed for severe headaches. He placed claimant on “clerical work only this week,” and ordered a magnetic resonance imaging |3(“MRI”) scan which showed “sinusitis.” Dr. Woods examined claimant on several other occasions: April 24, April 30, May 7, and May 26, June 3 and June 10, 2009. By the end of May, claimant’s complaints included headache and pain in the back of his neck. On June 3, 2009, Dr. Woods noted that claimant “has less pain in the temporal area but increased pain in the back of his neck.” He diagnosed claimant with post-concussion syndrome; at claimant’s request, Dr. Woods referred him to a neurologist.

Claimant retired from UPS on May 29, 2009. He began receiving workers’ compensation indemnity benefits from May 29, 2009, until his benefits were terminated on March 31, 2010.

On June 29, 2009, claimant was examined by a neurosurgeon, Dr. Howard Hola-day, who noted that claimant had “post-traumatic headache” with a normal neurological exam. ' Dr. Holaday prescribed Ly-rica, a pain medication, and instructed claimant to return with copies of his prior CT and MRI scans for his review. On July 15, 2009, claimant returned to Dr. Holaday, complaining of “intermittent headaches, pain over the right temporal region, and some pain affecting the right side of the neck and the right periauricular region.” Dr. Holaday prescribed pain medication and physical therapy, and ordered an MRI of the cervical spine and CT angiograms.

On July 21, 2009, claimant underwent an MRI of the cervical spine and CT angio-grams of the head and neck at Ouachita Imaging Center. The MRI showed a “broad base left paracentral disc protrusion at C6-7, producing some mild left lateral spinal stenosis.” The CT angio-grams were [ unremarkable.

On July 30, 2009, claimant returned to Dr. Holaday for a followup visit and reported “little change in his symptoms.” Dr. Holaday noted that claimant’s MRI and CT results did “not correlate with the distribution of his symptoms.” Dr. Hola-day continued to treat claimant conservatively, opining that he would not benefit from additional neurological intervention and referred him to Dr. Carroll McLeod for pain management.

Claimant returned to Dr. Holaday on August 26, 2009, reporting “no significant change in his symptoms.” Dr. Holaday noted, “I do not believe the patient would benefit from any neurosurgical intervention at present,” and again referred him to pain management.

On October 19, 2009, at the request of UPS, claimant underwent what is referred to as an independent medical examination (“IME”) by Dr. Mary McWilliams, a neurologist. Dr. McWilliams characterized claimant’s injury as a “slight bump or blow to the head.” She noted that claimant had no objective findings which would be consistent with head trauma. She reviewed claimant’s MRI results and opined that the lesion in his spinal cord was not the type of lesion normally seen in trauma. Dr. McWilliams also reviewed claimant’s medical history and opined that claimant’s spinal issues were not related to his work-related accident, but rather, to degenerative disc disease and physiological stress. Dr. McWilliams noted:

Although the patient does not have objective evidence of a chronic injury from his bump to the head, he does have objective evidence of [a] chronic c-spine condition that | smay be painful. Generalized degeneration of the spine is an age related problem that can become symptomatic at any time in life[.]
The herniated disc in the lower cervical spine is an asymptomatic lesion before and after the blow from bumping the door. It could not be causally related due to the location of the lesion in relation to the blow.
The patient would be most safely treated using modalities such as ice, heat, and massage than with long term medications.
The objective findings in the medical record support a diagnosis of contusion to the scalp over the left ear. There is nothing in the medical record that supports a diagnosis of cerebral concussion and the severity of the blow was mild. Treatment with occasional analgesics is appropriate for the symptoms he complains of.
More likely than not the only part of the pain directly related to the accident is the scalp pain. This is intermittent but can be severe for a few seconds off and on.
These symptoms would ordinarily be over in 4-5 months. This time has passed since the accident and the patient is still complaining of the same pain. However, he does admit that it is less frequent and less severe than it was initially.
In summary, all of the patient’s symptoms cannot be attributed to a condition caused by this accident. However, the patient may have lingering pain from this seemingly trivial event due to previously less symptomatic degenerative conditions of his spine. There is no objective evidence to support a serious injury from this mild contusion and certainly no evidence of injury to brain, spinal cord, or nerve root. There is potential for reversible injury to peripheral cutaneous nerve terminal segments in the scalp.

On December 14, 2009, claimant was examined by Dr. Carroll McLeod, an anesthesiologist at the Jackson Pain Center. Claimant’s chief complaint was right posterior neck and scalp pain, right ear pain and | ^occasional right parietal pain. After reviewing claimant’s MRI, Dr. McLeod diagnosed him with right-sided occipital neuralgia and headaches, status post-work related injury. Dr. McLeod performed a right occipital nerve block and fitted claimant with a muscle stimulator. ■ He prescribed Darvocet-N 100 as needed for pain.

On December 18, 2009, Dr. McWilliams, the employer’s chosen physician, issued a supplemental report, stating:

The patient is able to work, but should not lift objects greater than 25 pounds due to the herniated disc in his lower cervical cord.
Although he contends that pain medication “knocks him out” this is merely an indication that the prescribed dose of medication has been inappropriately high or the wrong medication has been used. There is always a therapeutic window for pain control below the level of sedation.
The problem is an aging change in the patient’s spine and may was [sic] not aggravated by his on the job accident as it never became symptomatic and would not have been an expected complication of bumping his head. These restrictions would have been indicated if he had never had an accident.

On January 18, 2010, claimant returned to Dr. McLeod for a followup examination. Dr. McLeod noted claimant continued to take “some occasional Darvoeet” but had an “overall about 40% to 50%” improvement. On February 18, 2010, Dr. McLeod reported that claimant was “overall markedly improved. In fact, most of the significant pain has resolved.” However, he noted that claimant had requested “something stronger than his Darvoeet.” Dr. McLeod prescribed Norco 10/35 to be taken as needed for |7pain. He also prescribed Am-rix, as needed for muscle spasms. On March 11, 2010, Dr. McLeod described claimant as “much improved,” He noted that claimant was “still having little pain and some occasional headaches over the right occipital area [and] some mild spasm.” Dr. McLeod placed claimant on Lyrica and instructed him to “start taking his Amrix on a regular basis.” He also instructed claimant to “continue using his hydrocodone” as needed for pain.

On March 30, 2010, claimant returned to Dr. McLeod, who noted that claimant was “markedly improved,” with only “mild tenderness to palpation over the right occipital nerve at the right occipital groove[.]” Dr. McLeod opined that claimant had reached maximum medical improvement and could return to his previous job, “since he was basically a driver and in the office.” He recommended continued medication and intermittent followup for possible nerve blocks. However, on April 20, 2010, Dr. McLeod penned a letter, addressed “To Whom It May Concern,” stating:

Mr. Dow last saw me on 03/30/2010. At that time, we completed his therapy. I had told him that I thought he could probably return to work. This was based on a previous note by Dr. Hola-day. However, he is going to see Dr. Holaday for a second opinion. I will defer his work status to Dr. Holaday.

Claimant returned to Dr. Holaday for a followup visit on April 21, 2010. Dr. Hola-day noted:

The patient returns today for routine followup and review since undergoing a series of occipital nerve blocks performed by Dr. McLeod. He reports some improvement in his symptoms. He continues to complain of chronic and intermittent pain. The patient has had a thorough course of conservative treatment and has no focal neurological findings. I do not believe he | swouId benefit from any additional neurosurgical intervention. I believe he has reached maximum medical improvement. I would not place any specific restrictions on his activities.
I do not believe the patient has any permanent impairment as a result of his injury.

Consequently, as noted above, claimant’s workers’ compensation benefits were terminated as of March 31, 2010.

On May 11, 2010, Dr. McLeod referred claimant to physical therapy to “evaluate and treat, [for] two weeks at three times a week.” Claimant returned to Dr. McLeod on July 20, 2010, with continued complaints of headaches and occipital nerve neuralgia symptoms. Claimant also reported that he was having difficulty tolerating his medication. Dr. McLeod prescribed Rybix ODT, a non-narcotic pain reliever, and instructed claimant to follow up with him as needed.

Following a visit on December 14, 2010, Dr. McLeod noted that claimant was “overall improved.” He maintained the Rybix ODT medication and recommended that claimant follow .up “in a .couple of | nmonths or on [an as needed] basis.”

On February 3, 2011, claimant returned to Dr. McLeod, reporting a “flare” of pain. Claimant also reported an intolerance to pain medication, including the Rybix ODT. Dr. McLeod recommended another series of occipital nerve blocks and prescribed Zipsor, an anti-inflammatory medication. Dr. McLeod noted:

I am going to hold his work restrictions for now. I do not think he can go back to work at'this time; however, I do hope this will be temporary as we [were] able to get it to resolve in the past, and Dr. Holaday felt that after we were able to get it resolved that he could return to work. However, at this present time, I do not think he could be gainfully employed given the fact that he is having these ongoing headaches and we will hold the restrictions for now.

Claimant returned to Dr. McLeod on March 10, 2011, for a nerve block. Dr. McLeod noted that claimant was “still tender to palpation over the right occipital nerve at the right occipital groove[.]” He did not make any changes to claimant’s medication and instructed claimant to follow up “in three to four weeks for repeat occipital nerve block and trigger point injections.” Claimant returned to Dr. McLeod for a nerve block. Dr. McLeod continued the Zipsor medication and noted that claimant could “resume his regular activities beginning tomorrow.”

On March 11, 2011, claimant filed a disputed claim for compensation, alleging that he was temporarily totally disabled. Claimant also requested penalties and attorney fees “for failure to reinstate weekly benefits despite the treating physician recommendation not to work.”

In response, UPS and its insurer, Liberty Mutual Insurance Company, |inffled an answer admitting that claimant had been employed by UPS and that he “sustained an on-the-job accident while in the employ of UPS.” However, defendants asserted that “certain conditions claimed by the applicant are the result of other injuries or causes not associated with his employment nor were any said conditions aggravated by employment at UPS.” In the alternative, defendants alleged that “if any condition resulted from [claimant’s] employment, that [claimant] has recovered from any such injury and condition, and any alleged disability which he has is the result of degenerative processes or other injuries or illnesses, which ai-e not related to his employment, nor were these conditions aggravated by his employment activities.”

On April 20, 2011, claimant was seen by Dr. McLeod, who noted that claimant was “overall much improved. He is about 70% improved from baseline.” Claimant was given a right occipital nerve block and a prescription for Zipsor. Dr. McLeod noted, “He can resume his regular activities beginning tomorrow.”

On June 2, 2011, claimant returned to Dr. McLeod, continuing to complain of pain over his right greater occipital nerve at the occipital groove. His examination revealed tenderness in that area. He received an occipital nerve block and was instructed to follow up with Dr. McLeod on an as needed basis.

On June 16, 2011, claimant presented to the emergency room at Glenwood, complaining of neck and back pain. Claimant was given a Toradol injection and was released with a prescription for Ultram as needed | nfor pain.

Claimant returned to Dr. Holaday on July 13, 2011, for a routine followup. Dr. Holaday noted:

He has completed a series of injections performed by Dr. McLeod. He indicates that they were not effective in alleviating his symptoms. He complains of chronic and intermittent posterior cervical and occipital pain. I believe his symptoms are likely secondary to cervical spondylosis — exacerbated by his job injury.
I do not believe he would benefit from any surgical intervention. I believe he has reached maximum medical improvement.
I believe he has a 5% whole person impairment. I would not place any specific restrictions on his activities.

On September 19, 2011, claimant was examined by a physician of his choice, Dr. Reynard Odenheimer, a neurologist, in Lake Charles, Louisiana. Claimant presented complaining of persistent radiating pain to the right side of his head, neck and shoulder since the work-related accident. Claimant also reported that the pain had begun to radiate to his right arm. Dr. Odenheimer’s impressions were: • status post-head trauma, headaches, neck pain, tremors, sleep disturbance, mood disturbance, neuralgia, spasm and hypertension. He performed an occipital nerve .block and prescribed Valium and a “therapeutic trial of Baclofen 10 mg.”

Dr. Odenheimer also ordered another MRI of the brain and cervical spine, which was completed on September 26, 2011. Claimant’s MRI showed the following: “chronic disc disease mainly at C5-C6 and C6-C7[,]” and a “large central left para-central disc protrusion at C6-C7 having mass | ^effect upon the cervical cord ... having increased in size since the prior exam from approximately 2 years earlier.” Claimant’s MRI of the brain showed “diffuse mild involutional changes noted with evidence of mild chronic microvascular ischemia but no acute intracranial findings identified[.]”

On October 19, 2011, claimant returned to Dr. Odenheimer for a followup visit. Dr. Odenheimer’s impressions included head trauma, spastic hemiparesis, spasticity, spinal stenosis, neuralgia, medication intolerance and medication intoxication. He advised claimant that he should not drive if he was having any side effects from the medication. Dr. Odenheimer continued the Valium and Baclofen and ordered a short-term use of Prednisone, a steroid. He referred claimant to Dr. Anil Nanda, a neurosurgeon at LSU-Shreveport.

On November 2, 2011, defendants referred claimant back to Dr. McWilliams for another IME. Dr. McWilliams examined claimant on ' November 16, 2011. During this visit, claimant reported that he had retired and that the accident occurred one month before he was scheduled to retire. Claimant also ■ reported a poor sleeping pattern and progressive pain in his neck and head, which limited his level of activity. Dr. McWilliams examined claimant and did not make any objective findings related to claimant’s accident at work or any deterioration in claimant’s cognitive function. Dr. McWilliams issued a report, stating, in part:

[Mjyelopathy in [rjight upper extremity; occasional numbness in his right hand. No sign of peripheral neuropathy. Frontal lobe deficits possibly connected with forceful blow to head. Likely complicating factor is haSleep Apnea Syndrome. This patient needs further evaluation for sleep apnea as this is correctable and may be the cause of his cognitive symptoms and headaches. Patient is somewhat impaired due to his coronary artery disease and focal mye-lopathy, but appears able for light work or sedentary work that is within the limits of his cognitive symptoms. His problems may be of greater magnitude than anticipated from a short interview due to the possibility of a sleep disorder the severity of his symptoms may vary widely from one part of the day to the next. Sleep apnea is treatable and in some cases curable with weight loss or oropharyngeal surgical procedures.

Claimant returned to Dr. Odenheimer on December 7, 2011. Claimant reported that his “neck hurts again” and that the “Prednisone helped briefly.” Based on claimant’s examination, Dr. Odenheimer’s impressions were: head trauma, spastic hemiparesis, spinal stenosis, neuralgia, medication intolerance, spasticity and occipital neuralgia. He continued claimant’s other medications, but added a prescription for Lortab to be taken as needed for pain. On January 4, 2012, claimant returned to Dr. Odenheimer complaining of “an increase in pain.” ■ Dr. Odenheimer re-referred claimant to Dr. Nanda “to evaluate and treat cervical stenosis, myelopathy, and occipital neuralgia.” He prescribed a “therapeutic trial of Talacen,” a pain medication, and ordered another MRI. The MRI, completed on February 9, 2012, showed that claimant had “2 level degenerative disc disease most severe at C6-7 with prominent left paracentral protrusion. Minimal changes noted from studies in 2011.”

On February 15, 2012, claimant returned to Dr. Odenheimer for a followup visit. Claimant continued to complain of pain and reported that he had “difficulty getting comfortable at night due to his neck pain and 114neuralgia and headache.” Dr. Odenheimer stated that he was awaiting claimant’s appointment with the neurosurgeon. He also stated, “Given side effect of medication and nature of medications required for comfort and quality of life, feel that the patient is likely unemployable as an equipment operator or commercial driver.”

On April 19, 2012, claimant was examined by Dr. Nanda, the neurosurgeon, who was asked to consider a nerve stimulator for the treatment of claimant’s neuralgia. Dr. Nanda reviewed the MRI but declined to perform any surgery due to claimant’s prolonged use of narcotic medication, the length of time claimant had been experiencing symptoms and claimant’s cardiac problems.

On April 28, 2012, claimant returned to Dr. Odenheimer, complaining of “pain in the right posterior occipital head and neck region, as well as pain between his right scapula and his back.” Claimant also reported that he had abruptly stopped taking his medication after being encouraged to attempt to taper off the medication. Dr. Odenheimer advised claimant to resume the Talacen and Valium at a reduced dosage to prevent withdrawal symptoms. Dr. Odenheimer administered an occipital nerve block and prescribed Talacen, Valium and Flexeril.

Claimant testified that he did not have any symptoms of pain prior to his injury at work. He denied having any headaches or neck pain. Claimant also denied having any knowledge of the herniated disc in his neck prior to the accident. He stated, “[T]o my knowledge, I’ve never went [sic] to a doctor for neck injury.” He also testified that he was not taking any |,¿medication for pain before the accident; however, he has been on some form of narcotic pain medication ever since the accident. Claimant further testified that prior to the accident, he worked “eight and a half to nine, nine and a half hours a day, every day.” He also testified that he operated a small engine business from his home prior to the accident. He stated that he had planned to continue to operate the business after retirement to supplement his income. He stated that he is able to assist his wife at the shop “maybe two or three days a week ... three to four hours a day[.]”

Claimant’s wife, Eyvonne Dow, also testified at the trial. She stated claimant did not have any problems with headaches or neck pain prior to the accident. She testified that since the accident, claimant has been “hurting in the back of his head and down into the neck.” Mrs. Dow also testified that since the accident, claimant “hasn’t been able to do like he normally would do. He hasn’t been able to enjoy his life.” She stated that claimant now relies on pain medication “just to be able to bear the pain to be able to just do little stuff in life.”

At the conclusion of the trial, the workers’ compensation judge (“WCJ”) denied the claim for workers’ compensation benefits, stating:

Claimant has failed to establish he is unable to earn at least ninety percent of his pre-accident wage due to the injury sustained on April 14, 2009. Claimant retired from the workforce effective May 29, 2009. He testified that he signed documents for his retirement in January, 2009. He had a lawn mower business he transferred to his wife. He planned to work in that business to supplement his income. He is unable to work, according to him, as a commercial driver due to the stress on his neck. He is taking medications that prevent him from driving and he is unable to lift heavy objects.
|1fiI placed emphasis on the fact that [Dr. McWilliams] found if claimant did not have changes in his neck, heart disease, a problem sleeping, and only had the bump on his head, he would be able to return to work.
I further note that Dr. Carroll McLeod thought claimant to be at maximum medical improvement. He could return to his previous job as a driver.
* ⅝ *
There’s a lack of evidence that the numerous complaints suffered by claimant are work related. There’s a lack of evidence that any of the medications preventing him from returning to the work environment is medication required as a result of the work related accident and not the result of other health problems suffered by claimant. There is a lack of evidence that his injury resulted in his inability to earn ninety percent of his wages.
There is a lack of evidence that claimant is unable to earn ninety percent of his pre-injury wages because — emphasis placed on the word, because, — of the work related injury.
* * *

Claimant now appeals.

DISCUSSION

Claimant contends the WCJ erred in finding that he failed to meet his burden of proving that his continued neck and back problems are the result of his work-related injury. He also contends the WCJ erred in concluding that he failed to prove that. the pain medications prescribed to him were necessary to treat a work-related injury. Claimant argues that UPS has never contended that he did not suffer a work-related injury; therefore, causation was not an issue. According to claimant, the issue is whether he is able to earn 90% of his average pre-injury wage.

An employee is entitled to workers’ compensation benefits if he receives a personal injury by accident arising out of and in the course of his | I7empIoyment. LSA-R.S. 23:1031(A); McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135. A workers’ compensation claimant has the burden of proving, by a preponderance of the evidence, that the disability suffered is related to an on-the-job injury. Modicue v. Graphic Packaging, 44,049 (La.App.2d Cir.2/25/09), 4 So.3d 968; Taylor v. Columbian Chemicals, 32,411 (La.App.2d Cir.10/27/99), 744 So.2d 704. The causal connection between the disability and the on-the-job injury can be established when the employee proves that before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appeared. Scott v. Super 1 Foods, 45,636 (La.App.2d Cir.9/29/10), 48 So.3d 1133; see also Po land v. Kroger, No. 404, 32,576 (La.App.2d Cir. 12/8/99), 747 So.2d 711, writ denied, 2000-0583 (La.4/7/00), 759 So.2d 764.

The purpose of supplemental earnings benefits (“SEB”) is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard Parish Sheriff’s Office, 2009-2793 (La.1/9/11), 56 So.3d 170; Roach v. Libbey Glass, Inc., 47,573 (La.App.2d Cir.11/14/12), 107 So.3d 759. An employee is entitled to receive SEB if he or she sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his or her average pre-injury wage. LSA-R.S. 23:1221(3)(a).

As stated above, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. | Poissenot, supra; Roach, supra. In determining if an injured employee has made out a prima facie case of entitlement to SEB the court may, and should, take into account all those factors which might bear on an employee’s ability to earn the appropriate wages. Id. Only when the employee makes this initial showing does the burden shift to the employer to prove that the employee is physically able to perform a certain job and that the job was offered to the employee in his or the employer’s community or reasonable geographic area. Id.

Moreover, in a workers’ compensation case, as in other cases, the appellate court’s review is governed by the manifest error or clearly wrong standard. Fuentes v. Cellxion, Inc., 44,914 (La.App.2d Cir.12/16/09), 27 So.3d 1045; Gilbert v. Willis-Knighton Workkare Clinic, 44,628 (La.App.2d Cir.9/2/09), 20 So.3d 1149. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the Office of Workers’ Compensation (“OWC”) judge. Id. Unless shown to be clearly wrong, the trial court’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

When there are two permissible views of the evidence, a factfinder’s | ^choice between them can never be manifestly erroneous or clearly wrong. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560, citing Stobart v. State, 617 So.2d 880 (La.4/12/93) and Sheppard v. Isle of Capri, 40,048 (La. App.2d Cir.8/17/05), 909 So.2d 699. Thus, even when the appellate court is convinced it would have weighed the evidence differently had it been sitting as trier of fact, the court of appeal may not reverse if the factfinder’s findings are reasonable in light of the record reviewed in its entirety. Id.

In the instant case, it is undisputed that on April 14, 2009, claimant sustained an injury while he was at work. Thus, the existence of a work-related injury has been established in this case. What is in dispute is whether claimant met his burden of proving that the work-related injury caused his inability to work because of his subsequent head, neck and back pain.

During the trial, both claimant and his wife testified that claimant did not suffer from neck and back pain prior to the accident at work, and he was not taking any medication for pain before his accident. Claimant testified that at the time he was released to return to work, he was still on narcotic medication, which prohibited him from driving commercially. Claimant also testified that he has been on some form of narcotics or pain medication since the accident.

Defendants presented ample evidence which discredited and cast serious doubt upon claimant’s assertion that his continued headaches, neck pain and back pain were caused by his work-related accident. The WCJ, as 12nthe trier-of-fact, heard the testimony and reviewed the depositions and claimant’s medical records. The WCJ expressly concluded, “There’s a lack of evidence that the numerous complaints suffered by claimant are work related.” We find no manifest error in the WCJ’s findings.

Although there is conflicting medical evidence as to the cause of claimant’s head and neck pain, the evidence supports the WCJ’s conclusion that claimant’s persistent symptoms were not attributable to his accident at work. The WCJ stated, “I placed emphasis on the fact that [Dr. McWilliams] found if claimant did not have the changes in his neck, heart disease, a problem sleeping, and only had the bump on his head, he would be able to return to work.”

Additionally, in July 2009, Dr. Holaday noted that the results of claimant’s MRI and CT angiogram did “not correlate with the distribution of his symptoms.” Dr. McWilliams examined claimant for the first time in October 2009, and described his injury as a “slight bump or blow to the head.” She opined that claimant’s condition was related to degenerative disc disease and physiological stress, rather than to the work-related injury. Dr. McWil-liams also noted that claimant suffered a mild contusion to the scalp as a result of the accident. She opined that claimant’s symptoms “would ordinarily be over in 4-5 months.”

We have conducted a thorough review of this entire record, including the testimony evidence and claimant’s medical records. We must conclude that the WCJ did not commit manifest error in finding that claimant failed to prove that his disabling condition was caused by his work-related injury.

12i For the same reasons, we find that the record supports the WCJ’s conclusion that claimant is not entitled to SEB. Claimant argues that he is currently unable to operate a commercial vehicle due to his reliance on prescription pain medication to control his pain. However, claimant did not meet his burden of proving that his work-related injury resulted in his inability to earn 90% of his pre-injury wage. As stated above, the WCJ was persuaded by the medical evidence that the injury claimant sustained at work was minor, and that the subsequent medical issues and treatment were unrelated to his work injury. This assignment lacks merit.

Because we conclude that the WCJ was not manifestly erroneous in finding that claimant failed to meet his burden of proving he is entitled to SEB, we need not consider his argument that the WCJ erred in finding that he intended to withdraw from the workforce when he retired in May 2009.

CONCLUSION

For the foregoing reasons, we affirm the WCJ’s judgment dismissing claimant’s workers’ compensation claim. Costs of this appeal are assessed to claimant, James Dow.

AFFIRMED.

      . On March 9, 2009, claimant formally notified UPS of his intent to retire.

      . The examination was actually based on a request by UPS for claimant to see its doctor. The WCJ did not order an IME.

      . Dr. McLeod administered a series of nerve blocks and trigger point injections: December 14, 2009, January 18, 2010, February 18, 2010, March 10, 2011, and April 20, 2011.

      . Additionally, Dr. McLeod noted that claimant informed him a friend, who had a similar condition, recommended that he see an ear, nose and throat ("ENT”) specialist. Dr. McLeod expressed his doubt that claimant’s condition could be treated by a specialist in that discipline. Nevertheless, he informed claimant that if his case manager approved, he "would be happy to set it up." Dr. McLeod further stated, “I want this understood that I am not recommending that he see an ENT physician, but that if this is the desire of the patient and his Worker’s Compensation case manager that this would be my recommendation.”
      On November 15, 2010, claimant was seen by Dr. C. Michael Osborne at Mississippi Ear, Nose & Throat Surgical Associates in Jackson, MS. Claimant complained of decreased hearing in his right ear, which he attributed to his work-related injury. Dr. Osborne noted, “I have discussed with Mr. Dow that I do not feel this trauma has contributed to his hearing loss. This appears to be symmetric in nature and therefore related to noise exposure over many years' duration.” However, Dr. Osborne wrote a letter to Dr. McLeod stating, in part, “At this point, I do feel the sensorineural hearing loss is related to his accident. I do feel that he would benefit from bilateral amplification^]”

      . Baclofen is a muscle relaxant used to treat pain, muscle spasm and stiffness.


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

text:
    Tenesha SMITH, et al. v. TRANSPORT SERVICES COMPANY OF ILLINOIS, et al.
    No. 2013-C-1023.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2013.
    Opinion on Grant of Rehearing Oct. 31, 2013.

      John E. Galloway, Andrea L. Albert, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, J. Warren Gardner, Jr., Mary Beth Meyer, Christovich & Kearney, LLP, New Orleans, LA, for Re-lators.
    Judith A. DeFraites, New Orleans, LA, Vernon P. Thomas, New Orleans, LA, for Respondents.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

|!Transport Services Co. of Illinois and its insurer, Protective Insurance Company (collectively, “Transport”), have filed the instant writ application seeking supervisory review of the trial court’s denial of their peremptory exception of prescription. Finding merit in Transport’s arguments, we grant the writ application, reverse the judgment of the trial court, and dismiss this case with prejudice.

This lawsuit arises from an alleged chemical spill that occurred on 7 August 2002 in New Orleans, Louisiana. The first lawsuit was filed on 7 August 2003 by Shirley Fulford, et al. in the Civil District Court for the Parish of Orleans as a class action; a second lawsuit, also a class action, was filed the same day and in the same court by Yolanda Abram (collectively referred to as the “Fulford/Abram plaintiffs”).

Transport timely removed the Fulford and Abram lawsuits to the United States District Court for the Eastern District of Louisiana, where they were consolidated. Following a 1 June 2004 hearing, the plaintiffs’ motion for class certification was denied, with the order entered into the record on the same day. The Fulford/Abram plaintiffs filed a motion for reconsideration that was also Ldenied. The Ful-ford/Abram plaintiffs appealed to the United States Fifth Circuit, but subsequently dismissed their appeal.

Tenesha Smith, Melvin Porter, and Wallace Dixon filed this lawsuit on 8 June 2004, making the same class action allegations as contained in the Fulford/Abram lawsuits; they were not named plaintiffs in the two prior suits. The trial court stayed the class action claims pending resolution of the federal case, but permitted the named plaintiffs to file an amended petition adding five hundred new plaintiffs to the lawsuit on 4 October 2004.

Once the stay was lifted, Transport filed a peremptory exception of prescription, arguing that the claims of all new plaintiffs had prescribed. The exception was denied by the trial court, stating that the earlier-filed class actions then pending in federal court interrupted prescription for the new plaintiffs. Transport applied for supervisory writs to this court and the Supreme Court, both of which were denied.

The issue of liability alone was tried to the court in December 2009. By agreement of the parties and the trial court, only the issues of liability and general causation were tried with regard to eleven plaintiffs. Nevertheless, the court ruled in favor of the named plaintiffs and entered judgment in favor of all plaintiffs, despite the agreement to the contrary. The trial court certified that partial judgment as final pursuant to La. C.C.P. art. 1915 A(5) so an immediate appeal could be taken by Transport before the issue of damages was addressed.

Transport appealed the issues of liability and general causation, as well as the prior interlocutory ruling denying their exception of prescription. This court | saffirmed the court’s ruling on prescription, reversed the trial court’s determination of causation, and remanded the matter for further proceedings. Transport’s supervisory writ application filed with the Supreme Court was denied. See Smith v. Transport Services Co., 10-1238 (La.App. 4 Cir. 5/4/11), 67 So.3d 487, writ denied, 11-1147 (La.9/16/11), 69 So.3d 1146.

On 2 November 2012, the Supreme Court issued its opinion in Quinn v. Louisiana Citizens Property Ins. Corp., 12-0152 (La.l 1/2/12), 118 So.3d 1011, reh’g denied, (La.1/25/13). Simply put, the Quinn Court held that when the Louisiana legislature adopted La. C.C.P. art. 596, it had rejected “cross-jurisdictional tolling” in class action proceedings; thus, the Court held that prescription was not suspended under article 596 as to the Quinn plaintiffs’ class action claims by the timely filing of a class action proceeding in federal court arising from the same facts. Id. at p. 19,118 So.3d at 1022-23.

We addressed a similar issue in Ansardi v. Louisiana Citizens’ Property Ins. Corp., 11-1717, 12-0166 (La.App. 4 Cir. 3/1/13), 111 So.3d 460, writ denied, 13-0697, 13-0698 (La.5/17/13), 118 So.3d 380, wherein we determined en bane that |4the reasoning of Quinn also applied to a class action initially filed in a Louisiana state court and later removed to federal court. We held that applying Quinn meant that even a class action filed in state court and later removed to, and pending in, federal court had no effect on the tolling of the prescriptive period. Id. at p. 10, 111 So.3d at 466-67.

Following the Quinn and Ansardi decisions, Transport reurged its exception of prescription arguing that, under these cases, the Smith plaintiffs’ individual and representative claims herein, filed more than one year after the accident, were prescribed on the face of the petition and should be dismissed. The trial court denied the exception, finding that its earlier denial of the exception precluded consideration of the present exception pursuant to the doctrine of res judicata. This timely writ followed.

In order to be accorded res judica-ta effect, a judgment must be “final.” Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049. Pursuant to La. C.C.P. art. 1841, a judgment that determines only preliminary matters in the course of the action is an interlocutory judgment, whereas a judgment that determines the merits in whole or in part is a final judgment. Although the trial court certified its earlier partial judgment as final, an exception of prescription is a procedural matter that does not address the merits of the pending case. Based upon the procedural Imposture of the case when we previously determined that prescription had not lapsed, the denial of the exception was merely interlocutory, -even when coupled with the appeal of a partial final judgment (on. the issue of liability), and it had no effect on the pending litigation. That is to say, only if the exception of prescription had been maintained and dismissed the plaintiffs’ case with prejudice would res judicata have applied. Therefore, res judicata cannot apply under these facts.

In Landry v. Blaise, 02-0822, pp. 2-3 (La.App. 4 Cir. 10/23/02), 829 So.2d 661, 664, we stated:

[R]es judicata is designed to prevent re-litigation of issues “in any subsequent action.” LSA-R.S. 13:4231. Res judica-ta protects against a “second action.” Comment (a) to LSA-R.S. 13:4231. This doctrine does not bar a party in the same action from re-urging an exception.
A peremptory exception may be urged at any time. LSA-C. C.P. art. 928. A party may re-wge a peremptory exception after a denial of the exception. [Citations omitted; emphasis supplied.]

We find that the trial court erred by denying Transport’s exception of prescription based on res judicata.

IfiThe plaintiffs also argue that the exception is barred by the doctrines of “law of the case” and “contra non valen-tem agree nulla currit ” and that to apply Quinn and Ansardi retroactively to this case deprives them of substantive and procedural due process. We reject these arguments. Because of “intervening case law,” law of the case is not applicable. In KeyClick Outsourcing, Inc. v. Ochsner Health Plan, Inc., 11-0598, pp. 7-8 (La.App. 4 Cir. 3/14/12), 89 So.3d 1207, 1211-12, we stated:

The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). The law of the case principle relates to (a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal. Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973). Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue. Id., 278 So.2d at 84.
The law of the case doctrine “may bar redetermination of a question of law or a mixed question of law and fact during the course of a judicial proceeding.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 6.7 (1999). Therefore, the law of the case doctrine is the proper procedural principle, as opposed to res judicata, for describing the relationship between prior judgments by trial and appellate courts rendered within the same case. Posey v. Smith, 453 So.2d 1016 (La.App. 3 Cir.1984). The policy reasons behind the doctrine include: (i) avoiding re-litigation of the same issue, (ii) promoting consistency of result in the same litigation, and (iii) promoting efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330, 256 So.2d 105, 107 (1971).
|7However, “[ujnlike the statutory doctrine of res judicata, the jurisprudential doctrine of law of the case is a discretionary guide that will not be applied inflexibly.” Daigre v. International Truck and Engine Corp., 10-1379, p. 15 (La.App. 4 Cir. 5/5/11), 67 So.3d 504, 513-514. “Argument is barred where there is merely doubt as to the correctness of the former holding, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.” Petition of Sewerage and Water Bd., 278 So.2d at 83. Moreover, jurisprudence provides that the law of the case doctrine “does not apply when the issues are not identical, when there is more than a mere doubt as to the correctness of the earlier decision, or when there is intervening case law.” Mann v. Brittany Place Associates Ltd., 99-1588, p. 3 (La.App. 4th Cir. 9/13/00), 770 So.2d 25, 27 (citing Stewart v. ARA Leisure Services., Inc., 97-1926 (La.App. 4 Cir. 10/29/97), 702 So.2d 75, 77) (emphasis supplied [emphasis in original]).

Id. at pp. 7-8, 89 So.3d at 1211-12.

As for contra non valentem, the plaintiffs contend that the time to file the Smith suit did not start to run until the plaintiffs’ counsel mailed notice of class certification denial to the putative class members on 7 September 2004 and published notice in the New Orleans newspaper on 19-24 September 2004. Thus, they assert the time to file the Smith suit began, at the earliest on 7 September 2004. We reject this argument primarily because the attorneys representing the Ful-ford/Abram plaintiffs are the same attorneys representing the Smith plaintiffs. Knowledge to the lawyer (actual or otherwise) is knowledge to the lawyer’s client. Stevison v. Charles St. Dizier, Ltd., 08-887, p. 4 (La.App. 3 Cir. 3/25/09), 9 So.3d 978, 981; Andre v. Golden, 99-689, p. 8 (LaApp. 5 Cir. 12/21/99), 750 So.2d 1101, 1104; see also Regional Transit Auth. v. Levey, 595 So.2d 1255, 1258 (La.App. 4th Cir.1992); Wilco March Buggies & Draglines v. XYZ Ins. Co., 520 So.2d 1292 (La.App. 5th Cir.1988).

| sIn Smart Document Solutions, LLC v. Miller, 07-670 (La.App. 3 Cir. 10/31/07), 970 So.2d 49, the court examined the relationship between an attorney and his client. The court was most impressed by the analysis and conclusion from the North Dakota Supreme Court as follows:

[T]he attorney-client relationship differs from the general agency relationship because the attorney-client relationship is subject to an established code of professional responsibility governing members of the Bar, and the attorney, not the client, is in charge of the litigation and determines the services necessary to promote the best interests of the litigation. See Judd & Detweiler v. Gittings, 43 App. D.C. 304 (1915); Molezzo Reporters v. Patt, 94 Nev. 540, 579 P.2d 1243 (1978); Burt v. Gahan, 351 Mass. 340, 220 N.E.2d 817 (1966); Monick v. Melnicoff, 144 A.2d 381(D.C.Mun.App.1958); Roberts, Walsh & Co. v. Trugman, 109 N.J.Super. 594, 264 A.2d 237 (1970); Brown & Huseby, Inc. v. Chrietzberg, 242 Ga. 232, 248 S.E.2d 631 (1978).
The rationale for this rule was perhaps best stated in Judd & Detweiler v. Gittings, 43 App.D.C. at 310-311:
“While it is true that an attorney is the agent of his client, the relation between them, we think, is such that it calls for some. modification of the general rule which the law recognizes as existing between principal and agent. In ordinary transactions, the agent is subordinate to the principal, the principal standing out as the real actor, and the agent merely as a subordinate representative. But the relation between attorney and client is different. The attorney has complete charge of the litigation, is so recognized by the court, and, as such, dominates in all matters pertaining to the conduct of the litigation. ‘While in one sense the client is the principal and the attorney the agent, and while the attorney is professionally and constantly acting for clients, whose names from the records of the courts and other means of publicity are almost always known or may be so, yet there are peculiarities in his case which 19make it neeéssary to apply to it with some qualification the general principles of agency. In most cases of agency the principal is what the name imports,-the leading person in the transaction. The agent is, as the term implies, a mere subordinate, important only as the representative of the principal; often representing only one principal. An attorney at law, on the other hand, occupies a position of recognized importance in itself, not infrequently of great prominence before the public, in which he often has a large number of clients, his relations to whom are full of detail, and who are little noticed by the public.’ Heath v. Bates, 49 Conn. 342, 44 Am.Rep. 234. The attorney usually determines what steps are to be taken in his client’s interest, and the acts of the attorney in the conduct of litigation are binding upon the client. We therefore deem the just and equitable rule of law thus established to be that, in the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of the litigation, may safely regard themselves as dealing with the attorney, instead of with the client.”

Id. at pp. 4-5, 970 So.2d at 51-52. We too agree with the analysis.

The plaintiffs also argue that the amended petition is timely under the relation back doctrine. They contend that the amended petition relates back to the original case filed by Smith, et al. on 8 June 2004. However, because the Ful-ford/Abram suit did not suspend prescription, the amended petition cannot relate back to the original petition that was itself prescribed. The plaintiffs also assert that the state court suits were timely because the federal court proceeding of the Ful-ford/Abram case was not finally dismissed until. 19 July 2007. Again, because the filing of the cases in state court did not suspend prescription, it matters not when the cases removed to federal court became final.

| ipThe Quinn and Ansardi cases address the notice provision of La. C.C.P. art 596, which is entirely procedural; Quinn merely interprets and clarifies the law in effect when the alleged accident occurred herein on 7 August 2002. Therefore, retroactive application is appropriate under the mandates of La. C.C. art. 6, (“Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary”). As the Supreme Court stated in Quinn:

For example, as noted, Fed. Rule Civ. Proc. 23 does not require notice to class members of denial of class certification. Thus, in putative class actions filed in federal court, if certification is denied, no notice is provided (and certainly not such notice as would include a statement of the relevant delay periods under Louisiana law, as required by La. C.C.P. art. 596(B)). The individual claims of putative class members arising under Louisiana law would, thus, remain suspended indefinitely.
Clearly, such was not the intent of the legislature in enacting La. C.C.P. art. 596. Its provisions contemplate that prescription, once suspended, “begins to run again” at some point. La. C.C.P. art. 596(A). To interpret the article to provide for cross-jurisdictional tolling would not only subvert the purpose of prescriptive statutes, but would render much of the language of Article 596 meaningless when a class action is filed in a jurisdiction other than Louisiana. Our rules of statutory interpretation do not permit us to reach such a result. The distinctions between Louisiana class action procedure and federal class action procedure reinforce our conviction that the legislature, in linking the suspension of La. C.C.P. art. 596 to unique provisions of Louisiana law did not intend to adopt “cross jurisdictional tolling.”
After examining the words of the article, we find, therefore, that the plain language of La. C.C.P. art. 596 dictates that the suspension of prescription provided therein applies only to “petition[s] brought on behalf of a class” in the state courts of Louisiana.

I uId. at pp. 14-15, 118 So.3d at 1019-21 [footnote omitted]. Therefore, we find that Quinn and Ansardi may be applied retroactively.

The plaintiffs’ final argument is that both Quinn and Ansardi were wrongly decided, are legally incorrect, and should be overruled on appeal. As counsel should be aware, we are bound by the law as established by the Supreme Court. Oliver v. Magnolia Clinic, 11-2132, 11-2139, 11-2142, p. 7 (La.3/13/12), 85 So.3d 39, 44 (citing Pelican State Associates, Inc. v. Winder, 253 La. 697, 219 So.2d 500 (1969) and noting that “trial courts and courts of appeal are bound to follow the last expression of law of the Louisiana Supreme Court”). With regard to Ansardi, this court heard the matter en banc and rendered a unanimous decision, after which the Supreme Court denied writs. Obviously, in this court’s opinion, we were correct in our decision and have no reason to find otherwise. The pronouncements of Quinn and Ansardi are binding on this court; the entire Smith suit had prescribed because prescription was never suspended by the earlier filed cases.

Thus, we reverse the judgment of the trial court, grant the peremptory exception of prescription of Transport Services Co. of Illinois and Protective Insurance Company, and dismiss these proceedings in their entirety with prejudice.

SUPERVISORY WRIT GRANTED; REVERSED; RENDERED.

ON APPLICATIONS FOR REHEARING

hThe application for rehearing of the plaintiffs/respondents, Tenesha Smith, et at, is denied.

The application for rehearing of the defendants/relators, Transport Services Co. of Illinois, Dan Davis, and Protective Insurance Company, is granted in the following respect only (to correct an omission): We amend the final paragraph of our decision to read as follows:

Thus, we reverse the judgment of the trial court, grant the peremptory exception of prescription of Transport Services Co. of Illinois, Dan Davis, and Protective Insurance Company, and dismiss these proceedings in their entirety with prejudice.

      . The Fulford/Abram lawsuit was tried in federal court in December 2006, wherein a jury found in favor of Transport and against the six named plaintiffs. The plaintiffs’ complaint was dismissed with prejudice.

      . The plaintiffs contend that we did not reverse the trial court's determination of causation, however, that is, in fact what this court did. See Smith, p. 10, 67 So.2d at 493.

      . We note with particularity footnote 8 in Quinn, which essentially abrogates this court’s and the Supreme Court’s decision in Smith:

      Although the issue is res nova in this court, the plaintiffs point to the court of appeal’s decision in Smith v. Transport Services Co., 10-1238 (La.App. 4 Cir. 5/4/11), 67 So.3d 487, as persuasive authority. In Smith, the court of appeal applied the provisions of La. C.C.P. art. 596 to a putative class action filed in federal court. Id. 10-1238 at 7-8, 67 So.3d at 491-92. However, it did so as a matter of course, without any analysis. Rather than serving as persuasive authority, the decision, especially the lengthy concurrence in part, dissent in part, illustrates the problems encountered when La. C.C.P. art. 596 is applied to a class action proceeding in a foreign jurisdiction. Id., 67 So.3d at 494 (Tobias, J., concurring in part, dissenting in part).

        Quinn, p. 11, 118 So.3d at 1018-19 n. 8.

      . La. C.C.P. art. 1915 provides in pertinent part:
      A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
      (1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or inter-venors.
      (2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
      (3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
      (4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
      (5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
      (6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).

      . We further note that the Supreme Court applied the interpretation of La. C.C.P. 596 to the then-pending case before it; a case that was filed earlier before the Court clarified the law. In the instant matter, we likewise apply Quinn and Ansardi to the now-pending case before us.

      . The plaintiffs cite to Harrison v. Horace Mann Ins. Co., 12-753 (La.App. 5 Cir. 4/10/13), 112 So.3d 1054, as containing a correct interpretation of Quinn. We disagree with our colleagues on the Fifth Circuit, finding that our- interpretation of Quinn in Ansar-di is correct and binding on us herein.

      . One of the relators in the writ application is defendant Dan Davis. In our original opinion, we omitted his name in the dismissal of the proceedings with prejudice. We now correct the error.