author: DRAKE, J. THERIOT, J.,

text:
    Clyde KEATING and Carol Keating v. Paul VAN DEVENTER, M.D., John Kessels, M.D., and St. Tammany Parish Hospital.
    No. 2014 CA 0157.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.

      Robert T. Talley, Baton Rouge, LA, for Plaintiffs/Appellants Clyde Keating and Carol Keating.
    Craig J. Robichaux, Jocelyn R. Guidry, Mandeville, LA, for Defendant/Appellee Paul Van Deventer, M.D.
    Jon Van Steeris, Klint E. Beckendorf, Katy B. Kennedy, Covington, LA for Defendant/Appellee St. Tammany Parish Hospital Clinic for Wound Care and Hy-perbaric Medicine.
    Deborah Deo Gracias Trahan, Emily G. Couvillon, Covington, LA, for Defendant/Appellee John Kessels, M.D.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   DRAKE, J.

In this appeal, the plaintiffs sued for damages in district court after the Louisiana Patient’s Compensation Fund (“PCF”) dismissed their medical malpractice claims for failure to appoint an attorney chairperson to the medical review panel (“MRP”) within the requisite one year timeframe. The defendants filed dilatory exceptions of prematurity. The district court sustained the exceptions, dismissed the plaintiffs’ suit without prejudice, and remanded the matter to the PCF to convene a MRP. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Plaintiffs-Appellants, Clyde and Carol Keating, filed a medical malpractice complaint with the Division of Administration on February 29, 2012, against Defendants-Appellees, Paul Van Deventer, M.D., John Kessels, M.D., and St. Tammany Parish Hospital Clinic for Wound Care and Hy-perbaric Medicine. The plaintiffs alleged that the care and treatment provided by the doctors and hospital to a lower right leg fracture sustained by Mr. Keating fell below the applicable standard of care. The Keatings presumably desired to avail themselves of the medical review panel procedures provided for by the Louisiana Medical Malpractice Act, La. R.S. 40:1299 et seq. Pursuant to the Act, the parties had one year from the date of the filing of the request for review to appoint an attorney chairman to the MRP. See La. R.S. 40:1299.47(A)(2)(c).

Throughout 2012, Dr. Van Deventer, Dr. Kessels, and St. Tammany Parish Hospital made numerous inquiries and suggestions regarding possible candidates for the panel’s attorney chairman. The Keatings did not consent to any of the candidates proposed by the defendants, and instead repeatedly proposed Michael Simon of Baton Rouge as chairman. The defendants did not agree to the | .¡appointment of Mr. Simon, since he did not reside in the venue where the events giving rise to the Keat-ings’s claims occurred. Unable to secure a consensus regarding the appointment of a chairman, in December 2012, the defendants initiated the “strike list” process in accordance with La. R.S. 40:1299.47(C)(Í )(a). When the Keatings failed to respond to the strike list, the defendants requested that the Louisiana Supreme Court exercise strikes on behalf of the Keatings. However, the supreme court did not exercise strikes as contemplated by La. R.S. 40:1299.47(C)(£ )(a).

Due to the impending one year deadline of February 28, 2013, to appoint a chairman to the panel, the defendants acquiesced to the Keatings’s proposed candidate for chairman, Michael Simon of Baton Rouge, and notified the PCF of their consent to Mr. Simon on February 21, 2013. The next day, however, the Keatings notified the PCF that they did not consent to the appointment of Mr. Simon as chairman. On February 25, 2013, the PCF advised the parties that Mr. Simon would not be appointed chairman absent the consent of all parties. The defendants asked the Keatings to notify the PCF of their preference for an attorney chairman, so that an appointment could be made prior to the one year deadline, but the Keatings did not respond.

|4On February 26, 2013, two days before the February 28, 2013 deadlme, the defendants sought and obtained a writ of mandamus from the district court, which ordered the Keatings to immediately provide the names of three attorneys they would accept in the capacity of attorney chairman. The Keatings failed to respond. On February 28, 2013, the one year deadline of the filing of the request for review, the defendants expressly advised the PCF that they did not waive their statutory right to proceed before a MRP. The PCF dismissed the claim on March 4, 2013, for the parties’ failure to appoint an attorney chairman within the one year timeframe.

Thereafter, the Keatings filed a petition for damages in the district court on April 11, 2013, within the 90-day prescriptive period following dismissal of the PCF complaint. See La. R.S. 40:1299.47(A)(2)(a). In response, the defendants filed dilatory-exceptions of prematurity in which they argued that the Keatings’s claims against them had not been presented to a MRP, and therefore, the action was premature. Following a hearing, the district court sustained the exceptions of prematurity, dismissed the Keatings’s suit for damages without prejudice, and remanded the matter to the PCF to convene a MRP. The district court issued reasons for judgment on June 21, 2013, and signed a final judgment on July 11, 2013. | ¡fit is from this judgment that the Keatings now appeal, assigning four errors.»

LAW AND DISCUSSION

A judgment sustaining a dilatory exception of prematurity and dismissing a cause of action on that basis is a final, appealable judgment. The standard of review of such a judgment is manifest error. Pinegar v. Harris, 08-1112 (La.App. 1 Cir. 6/12/09), 20 So.3d 1081, 1087-88.

A dilatory exception raising the objection of prematurity pursuant to La. C.C.P. art. 926(A)(1) raises the issue of whether the judicial cause of action has not yet come into existence because some prerequisite condition has not been fulfilled. The objection contemplates that the plaintiff has filed her action prior to some procedure or assigned time, and it is usually utilized in cases wherein the applicable law or contract has provided a procedure for a person aggrieved by a decision to seek administrative relief, before resorting to judicial action. Generally, the person aggrieved by an action must exhaust all such administrative remedies or specified procedures before she is entitled to judicial review. Dailey v. Travis, 02-2051 (La.App. 1 Cir. 2/23/04), 872 So.2d 1104, 1108.

The party that raises the objection of prematurity has the burden of showing that an administrative remedy is available, by reason of which the judicial action is premature. Once the existence of an administrative remedy is established, the burden shifts to the plaintiff to show that the specified administrative remedies or procedures have been exhausted or that the present situation is one of the ^exceptional situations where the plaintiff is entitled to judicial relief because any administrative remedy is irreparably inadequate. Id.

The issue before the court .is whether a medical malpractice lawsuit can be declared premature after the PCF has dismissed the medical review panel for failure to name an-attorney chairman pursuant to La. R.S. 40:1299.47(A)(2)(c). The Medical Malpractice Act, La. R.S. 40:1299.41 et seq., governs private health care providers. The Act constitutes a special legislative provision in derogation of the general rights available to tort victims and, therefore, must be strictly construed. See McGlothlin v. Christus St. Patrick Hosp., 10-2775 (La.7/1/11), 65 So.3d 1218, 1225; see also Bardwell v. Faust, 06-1472 (La.App. 1 Cir. 5/4/07), 962 So.2d 13, 16, writ denied, 07-1174 (La.9/21/07), 964 So.2d 334. Where strict construction applies to an act of the legislature, however, courts must not overlook the legislative intent and fundamental aim of the law. See Bernard, Lumber Co., Inc. v. Lake Forest Construction, Co., Inc., 572 So.2d 178, 181 (La.1990).

A malpractice claim must first be submitted to a MRP before the malpractice action may commence in court, as set forth in La. R.S. 40:1299.47(A)(l)(a), which states that “[a ]ll malpractice claims against health care providers covered by this Part, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a medical review panel established as hereinafter provided for in this Section.” (Emphasis added.) Further, La. R.S. 40:1299.47(B)(Z )(a)(i) provides that “Mo action against a health care provider ... may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.” (Emphasis added.) The procedure is initiated by filing a request for review of the claim by a MRP with the Louisiana Division of Administration, which forwards |7the request to the PCF. La. R.S. 40:1299.47(A); In re Medical Review Panel Proceedings of Ouder, 07-1266 (La.App. 1 Cir. 5/2/08), 991 So.2d 58, 60.

To obtain the benefit of the limitation of liability under the Act, a healthcare provider must become qualified by fulfilling the requirements of La. R.S. 40:1299.42(A):

(1) Cause to be filed with the board proof of financial responsibility as provided by Subsection E of this Section.
(2) Pay the surcharge assessed by this Part on all health care providers according to R.S. 40:1299.44.
(3) For self-insured health care providers, initial qualification shall be effective upon acceptance of proof of financial responsibility by and payment of the surcharge to the board. Initial qualification shall be effective for all other health care providers at the time the malpractice insurer accepts payment of the surcharge.

Certificates of enrollment issued by the PCF demonstrate that Dr. Van Deventer, Dr. Kessels, and St. Tammany Parish Hospital were enrolled in the PCF at the time the alleged acts of negligence occurred and are entitled to a medical panel review as a condition precedent to the filing of a suit for damages.

In their first assignment of error, the Keatings contend that the district court erred in granting the defendants’ exceptions of prematurity. The Keatings argue that the law is clear and unambiguous that when the PCF dismisses a MRP under La. R.S. 40:1299.47(A)(2)(c), the parties are “deemed to have waived the use of the medical review panel.” The Keatings argue that should have been the end of the district court’s inquiry; however, they allege the court engaged in statutory construction to find facts that rendered this lawsuit premature.

Plaintiffs argue that this precise issue was resolved by this court in Neese v. East Baton Rouge Medical Center, 11-0811 (La.App. 1 Cir. 3/20/12), 2012 WL 1080866 (unpublished opinion), writ denied, 12-0948 (La.6/15/12), 90 So.3d 1066. In Neese, this court held that under La. R.S. 40:1299.47(A)(2)(c), both parties are charged with the appointment of the attorney chairman, either through |smutual agreement or through the specified strike process. This Court also stated, in a concurrence by Judge Welch in Estate of Nicks v. Patient’s Compensation Fund Oversight Bd., 05-1624 (La.App. 1 Cir. 6/21/06), 939 So.2d 391, 401, that:

[T]he only effect of the dismissal of the claim for the failure to appoint an attorney chairman within one year from the date the request for review was filed is that the parties — both the plaintiff and the defendants — are deemed to have waived the use of the medical review panel. See La. R.S. 40:1299.47(A)(2)(c), 40:1299.47(B)(l)(a)(i), and 40:1299.47(B)(l)(c). [Emphasis added.]

The Louisiana Supreme Court also noted this same result in the case of Turner v. Willis-Knighton Med. Ctr., 108 So.3d 60, 67 (La.12/4/12), stating:

Pursuant to La. R.S. 40:1299.47(A)(2)(c), an attorney chairperson must be appointed one year from the date a request for review by a medical review panel is filed. If this is not done, the claim is dismissed, use of the panel is deemed waived, and the plaintiff has 90 days, plus any time remaining on the one-year prescription period of La. R.S. 9:5628(A), in which to file suit ... As clearly stated in the statute, “the filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section.” As dismissal, not notification, begins the 90 day grace period, Mrs. Turner’s suit, filed more than 90 days after the suit was dismissed, has prescribed. [Emphasis added.]

The defendants counter that there was no waiver, as evidenced by their persistent efforts to select an attorney chairman. They argue that extensive evidence was introduced at the hearing, showing continuous communication between the Keatings and the defendants regarding the need to select a chairman, candidates suggested for the position, and the inability/unwillingness of the Keatings to respond or agree to a candidate, all of which showed that the defendants diligently attempted to secure an attorney chairman.

The defendants further aver that, having exhausted every other available procedural remedy expressly provided in the Medical Malpractice Act, they sought |9relief pursuant to La. C.C.P. art. 3862 and La. R.S. 40:1299.47(0(6) via a writ of mandamus or, alternatively, an order to compel. As stated previously, the district court granted relief to the defendants and ordered the Keatings to immediately provide the names of attorneys they would accept in the capacity of attorney chairman. The defendants argue that the Keatings were asked through electronic, written, and telephone communication to identify three candidates deemed acceptable as attorney chairman pursuant to the district court’s order. The Keatings failed or refused to respond.

On February 28, 2013, all three defendants expressly advised the PCF that they did not waive their right to proceed before a MRP; however, on March 4, 2013, the PCF issued correspondence dismissing the claim for failure to appoint an attorney chairman. The Keatings then filed their petition for damages in the district court.

Louisiana Revised Statutes 40:1299.47(A)(2)(c) provides, in pertinent part:

An attorney chairman for the medical review panel shall be appointed within one year from the date the request for review of the claim was filed. Upon appointment of the attorney chairman, the parties shall notify the board of the name and address of the attorney chairman. ... If the board has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed, then the board shall promptly send notice to the parties by certified or registered mail that the claim has been dismissed for failure to appoint an attorney chairman and the parties shall be deemed to have waived the use of the medical review panel. The filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section. [Emphasis added.]

11flThe statutory language of La. R.S. 40:1299.47(A)(2)(c) indicates that parties have one year from the date the request for review of the claim was filed to appoint an attorney chairman. The statute further states that both parties are charged with the appointment of an attorney chairman, either through mutual agreement or through the strike process. La. R.S. 40:1299.47(A)(2)(c).

The record indicates that the parties, specifically the defendants, first attempted to appoint a chairperson through mutual agreement by proposing various candidates to the parties through electronic, written, and telephone communication. When the parties were unable to mutually agree upon an attorney-chairperson, the defendants initiated the “strike list” process. When the Keatings failed to respond to the strike list, the defendants requested that the Louisiana Supreme Court exercise strikes on behalf of the Keatings; however, the supreme court did not exercise any strikes. After exhausting all other procedural remedies, the defendants sought and obtained a writ of mandamus from the district court, which ordered the Keatings to provide names of acceptable candidates for chairman, but the Keatings still refused to respond. At the one year deadline to appoint an attorney chairman, all that was left for the defendants to do was to inform the PCF that they did not waive their rights to proceed before a MRP.

From our review of the record, the defendants exhausted every procedural means available to them to secure the appointment of an attorney-chairman including: (i) proposing candidates and ultimately agreeing to the nomination of Michael Simon as attorney chairman (as requested repeatedly by the Keatings); (ii) by invoking the striking process; and (iii) by obtaining a writ of mandamus from the district court compelling the Keatings to provide names of attorneys they deemed acceptable to serve as chairman of the MRP. Additionally, the defendants expressed to the PCF, in writing, that they did not waive their right to a MRP and wished to preserve the MRP for the claims brought by the Keatings. Thus, unlike |T1the factual situations presented in other cases where the parties may have failed to appoint an attorney chairman to a MRP, under the particular facts of this case, the defendants were diligent and communicated with each other, the Keatings, and the PCF in their attempts to appoint a chairman.

The record is replete with evidence of their diligence. It is evident that the defendants did not wish to waive their statutory right to proceed before a MRP, despite the dismissal of the Keatings’s claims by the PCF. It is also apparent, and even rational, that the defendants wish to cloak themselves with the legal limitations and procedures set forth by the Medical Malpractice Act, including potentially receiving a favorable opinion from the MRP. Just as understandably it is the plaintiffs’ desire to avoid the legal limitations of the Act, as well as a potentially adverse opinion by the MRP.

The district court considered that even where strict statutory construction applies, as it does with the Medical Malpractice Act, courts must consider the legislative intent and the fundamental aim of the statute. The district court held:

... The legislative intent of the Medical Malpractice Act is not to allow the plaintiff to benefit by non-compliance and side-step the Medical Review Panel by failing to cooperate in this procedure. Thus, even though the plaintiffs assert that technically the defendants have waived their rights to the panel, the Court finds the defendants were very diligent in their efforts and under the Act there was no waiver by the defendants of the Medical Review Panel ...

This Court agrees with the district court, that the Medical Malpractice Act is designed to allow defendants certain protections, such as a limitation of liability and an opportunity to allow their peers to render a hopefully favorable opinion. But this Court disagrees with the district court that a plaintiffs recalcitrance and obstruction of the process of appointing an attorney chairman cannot ultimately result in a perceived advantage to the plaintiff.

Again, La. R.S. 40:1299.47(A)(2)(c) clearly provides that:

|12An attorney chairman for the medical review panel shall be appointed within one year from the date the request for review of the claim was filed. Upon appointment of the attorney chairman, the parties shall notify the board of the name and address of the attorney chairman.... If the board has not received notice of the appointment of an attorney chairman within one year from the date the request for review of the claim was filed, then the board shall promptly send notice to the parties by certified or registered mail that the claim has been dismissed for failure to appoint an attorney chairman and the parties shall be deemed to have waived the use of the medical review panel. The filing of a request for a medical review panel shall suspend the time within which suit must be filed until ninety days after the claim has been dismissed in accordance with this Section. [Emphasis added.]

This statute contains an obligation, burden, or duty on both parties to finalize the appointment of an attorney chairman within a year. If the attorney chairman is not appointed within a year, then the Louisiana State Legislature has set forth that “both parties shall be deemed to have waived the use of the medical review panel.” (Emphasis added.) Since both parties have the obligation or duty to perfect the appointment of the attorney chairman, it seems that the Legislature has burdened both parties with the ramifications for failing to achieve the appointment of the attorney chairman.

In this case, the failure of the Keatings to cooperate with the appointment of an attorney chairman, for whatever reason, resulted in the obstruction of the rights of the defendants to proceed before a MRP as contemplated by the Act. Furthermore, to rule in favor of the Keatings in this matter would demonstrate to other potential malpractice claimants that the simplest way to remove their claim from under the purview of the Medical Malpractice Act is to refuse to cooperate with the formation of a MRP, and in obstructing the law, to obtain some perceived advantage by filing the malpractice claim in district court. Despite their failure to 11sstrictly abide by the provisions of the Act, the Keatings would have this court strictly construe its provisions.

Reluctantly, this Court recognizes that this is precisely the result mandated by a straightforward application of the Medical Malpractice Act, as currently worded. Any different result would have to come from the Louisiana State Legislature. Therefore, we reverse the judgment of the district court which sustained the dilatory exceptions of prematurity and dismissed the plaintiffs’ suit without prejudice, and we remand this matter to the district court for further proceedings consistent with this opinion.

DECREE

Based on the foregoing reasons, the July 11, 2013 final judgment of the district court is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. All costs of this appeal are equally assessed to the parties.

REVERSED AND REMANDED.

J. THERIOT concurs with reasons.

GUIDRY, J., concurs.

THERIOT, J.,

concurring and assigning reasons.

hi respectfully disagree with the trial court finding that the intent of the Medical Malpractice Act (Act) is not to allow the plaintiff to benefit by non-compliance and side-step the medical review panel by failing to cooperate in the procedure. Although I believe the record reveals the plaintiff purposely refused to cooperate, the Act does not distinguish between a good faith plaintiffidefendant and a bad faith plaintiffidefendant.

The Act does provide mechanisms for a party to use when the other party is stonewalling the process. The Act provides a “strike” process to ultimately have the Clerk of the Louisiana Supreme Court select the attorney chairman. Granted, the Act does not contemplate a scenario of the Clerk of the Louisiana Supreme Court failing to select an attorney chairman within the time frame provided for in the Act. However, even then, the Act provides a remedy. The Act confers jurisdiction to the district courts to order a non-conforming party to comply. La. R.S. 40:1299.47(0(6). A party may petition a district court with competent jurisdiction to enforce the Act at any stage of the one year time period.

| ¡..Outside of seeking relief earlier from the district court, the defendants availed themselves of the remedies provided by the Act to no avail. The twelve month period ultimately expired without an attorney chairman being named. Unfortunately, my interpretation of the language of La.. R.S. 40:1299.47(A)(2)(c) reaches the same conclusion as the majority. The Act requires an attorney chairman to be appointed within one year. The Act uses the word “shall” repeatedly.

— An attorney chairman ... SHALL be appointed within one year from the date the request for review of the claim was filed
— If the board has not received notice of the appointment of an attorney chairman within one year ... then the board SHALL promptly send notice to the parties.... that the claim has been dismissed
— The parties SHALL be deemed to have waived the use of the medical review panel.
La. R.S. 40:1299.47(2)(C) (emphasis added)

The legislation is clear, the parties have one year to appoint an attorney chairman. Failure to do so will waive the use of the medical review panel. The board has no choice but to dismiss the claim. Courts have no choice but to conclude that the parties waived the use of the medical review panel. I find this time period to be absolute. Unlike La. R.S. 40:1299.47B(l)(b), La. R.S. 40:1299.47(2)(C) does not allow a party to petition a court of competent jurisdiction for an order extending the twelve month time period.

As mentioned by the majority, any different result would have to come from the Louisiana State Legislature.

      . The Keatings named Dr. Van Deventer as a defendant in their complaint filed February 29, 2012. The Keatings filed an amended complaint on March 23, 2012, which named Dr. Kessels and St. Tammany Parish Hospital as defendants.

      . The "strike list” procedure is outlined in La. R.S. 40:1299.47(C)(l)(a), which provides, in pertinent part:
      The ... Louisiana Supreme Court, upon receipt of notification from the board, shall draw five names at random from the list of attorneys who reside or maintain an office in the parish which would be proper venue for the action in a court of law_After selection of the attorney names, the ... clerk of the supreme court shall notify the [PCF] of the names so selected. It shall be the duty of the [PCF] to notify the parties of the attorney names from which the parties may choose the attorney member of the panel within five days. If no agreement can be reached within five days, the parties shall immediately initiate a procedure of selecting the attorney by each striking two names alternately, with the claimant striking first and so advising the health care provider of the name of the attorney so stricken; thereafter, the health care provider and the claimant shall alternately strike until both sides have stricken two names and the remaining name shall be the attorney member of the panel. If either the plaintiff or defendant fails to strike, the ... Louisiana Supreme Court shall strike for that party within five additional days.

      . In its reasons for judgment, the district court stated that it had authority to remand the matter to the PCF to convene a panel pursuant to Fanguy v. Lexington Ins. Co., 13-0114 (La.4/1/13), 110 So.3d 127; however, the Fanguy case involved a situation where a MRP had been timely and properly constituted. After the MRP rendered its opinion, the claimant brought allegations of bias and financial disclosure failures, which the claimant alleged tainted the MRP proceedings. We note that the Fanguy case did not involve the application of La. R.S. 40:1299.47(A)(2)(c) to the failure of the parties to appoint an attorney chairman within the one year time limit. Thus, the Fanguy case does not serve as binding authority to remand claims to the PCF to convene MRPs when the parties fail to appoint an attorney chairman to a panel within the prescribed one year and their claims are thereafter dismissed by the PCF.

      . After the district court sustained the defendants’ exceptions and signed the judgment on July 11, 2013, the Keatings filed a motion for new trial, motion to vacate judgment, petition for declaratory judgment, and peremptory exception of failure to join indispensable party, which the district court denied on July 19, 2013, The Keatings applied for supervisory writs with this court. We granted the writ for the limited purpose of remanding this matter to the district court with instructions to grant the Keatings a devolutive appeal pursuant to the July 11, 2013 judgment, which is a final, appealable judgment. Clyde Keating and Carol Keating v. Paul Van Deventer, M.D., John Kessels, M.D., and St. Tammany Parish Hospital, 13-CW-1420 (La.App. 1 Cir. 11/18/13) (unpublished); see In re Howard, 541 So.2d 195 (La.1989).

      . The Keatings state that prescription is not an issue in this case, and, as reflected above, the clear and unambiguous language of La. R.S. 40:1299.47(A)(2)(c) expressly states that dismissal of the review panel proceedings by the PCF in this matter on March 4, 2013, legally "waived the use of the medical review panel” by both parties and "triggered,” or initiated, the 90-day prescriptive period set forth by La. R.S. 40:1299.47(A)(2)(c).

      . A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. La. C.C.P. art. 3863. However, a writ of mandamus may only be issued in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. Plaisance v. Davis, 03-0767 (La.App. 1 Cir. 11/07/03), 868 So.2d 711, 718, writ denied, 03-3362 (La.2/13/04), 867 So.2d 699.

      . This Court notes the view of several judges of this circuit who have previously suggested that the Legislature, when it said, "the parties shall be deemed to have waived the use of the medical review panel,” actually intended that to be a rebuttable presumption. Not to belabor the point, but if the above constitutes any type of presumption by the Legislature, then this Court holds that the Legislature intended the "waiver" language to constitute a "conclusive presumption.” Admittedly, the Legislature could have used more definitive language.

      . We pretermit discussion of the remaining errors assigned by the Keatings.

      . The professional conduct of the attorney involved is not before us. Such conduct is for another forum to decide.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    GLOBAL MARKETING SOLUTIONS, LLC v. BLUE MILL FARMS, INC., et al.
    No. 2013 CA 2132.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.
    Rehearing Denied Nov. 10, 2014.

      Donald T. Carmouche, Victor L. Marcel-lo, John H. Carmouche, William R. Coe-nen, III, Brian T. Carmouche, Ross J. Donnes, D. Adele Owen, Baton Rouge, Louisiana, Richard J. Ward, Jr., Marin-gouin, Louisiana, for Plaintiff/Appellant Global Marketing Solutions, LLC.
    Joe B. Norman, Kelly Brechtel Becker, Robert B. McNeal, James E. Lapeze, Kathryn Zainey Gonski, New Orleans, Louisiana for Defendant/Appellee Exxon Mobil Corporation.

      Wayne G. Zeringue, Jr., Glenn G. Goodlier, New Orleans, Louisiana, for Defendant/Appellee Ashland, Inc.
    Michael R. Phillips, Louis M. Grossman, Shannon A. Shelton, New Orleans, Louisiana, Leonard L. Kilgore, III, L. Victor Gregoire, Richard D. McConnell, Jr., Baton Rouge, Louisiana, for Defendani/Ap-pellee Chevron U.S.A. Inc.
    Gary M. Zwain, Joseph E. Bearden, III, Metairie, Louisiana, for Defendants/Appel-lees Warren Operating Company, Inc., Seal Energy Company and Bayou Choctaw, Inc.
    David M. Culpepper, New Orleans, Louisiana, for Defendant/Appellee Key Production Company, Inc.
    Before GUIDRY, THERIOT, and DRAKE, JJ.
   THERIOT, J.

IsThe plaintiff-appellant, Global Marketing Solutions, LLC (“Global”), seeks reversal of motions for summary judgment granted in favor of the defendants-appel-lees, Chevron U.S.A. Inc., Exxon Mobil Corporation, Ashland, Inc., Key Production Company, Inc., Warren Operating Company, Seal Energy Company, and Bayou Choctaw, Inc., which dismissed all of Global’s claims against the defendants, with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

By act of cash sale recorded in the conveyance records of the Parish of West Baton Rouge on September 12, 2005, Global purchased 144 acres of land located in the Bayou Choctaw Oil and Gas Field from Water Oak Plantation, L.L.C. Global alleges that after purchasing the land, it discovered that the land was contaminated by various forms of toxic waste that had seeped through the soil from drilling operations that had been conducted since 1937 to the present time.

At no time did Global possess mineral rights to the land. The mineral rights had been severed years prior by various mineral leases beginning in the 1930s. Through investigation and discovery, Global learned that the defendants were mineral lessees at various points in the land’s history and had conducted drilling operations.

Global filed a petition for damages against the defendants on March 14, 2006. While Global does not cite with specificity in its petition how each defendant polluted the land, Global alleges that all of the defendants |4were negligent and strictly liable for having actual or constructive knowledge that their operations were polluting the land and failing to inform Global of the latent pollution prior to Global’s purchase of the land. Global further claims the defendants were contractually obligated under the mineral leases to restore the land to its original condition once their drilling operations had ceased, and their actions not only violated their contractual obligations, but also violated the corresponding provisions of the Louisiana Civil Code and Louisiana Mineral Code.

The’ defendants filed various exceptions to the petition. Pertinent to this appeal, the defendants filed peremptory exceptions raising the objections of no right of action and no cause of action, and motions for summary judgment. On April 1, 2010, the district court denied the defendants’ exceptions of no right of action and motions for summary judgment. In reaching its ruling, the district court relied on the opinion of this Court found in Marin v. Exxon Mobil Corporation, 2008-1724 (La.App. 1 Cir. 9/30/09) (unpublished opinion), stating that “the right to recover damages is a property right arising out of the original lease and attaches to the property itself.” However, the court also noted that “this area of law seems to be recently developing, and has yet to have a consensus opinion on this exact point of law by the [sjupreme [cjourt....” At that time, the Marin case was under review by the Louisiana Supreme Court.

Following the district court’s ruling, the defendants applied for supervisory writs of review. This Court denied the writs, allowing the defendants to re-urge their exceptions should the Marin case be reversed by the supreme court. The defendants subsequently applied for supervisory writs to the supreme court. In the interim, Mann was reversed, See Marin v. (Exxon Mobil Corporation, 2009-2368 (La.10/19/10), 48 So.3d 234, as was a similar case out of the Fourth Circuit Court of Appeal titled Eagle Pipe and Supply, Inc. v. Amerada Hess Corporation, 2010-2267 (La.10/25/11), 79 So.3d 246. The supreme court granted the defendants’ writs on March 2, 2012, and remanded the case to the district court for reconsideration of its previous ruling in light of the Eagle Pipe decision.

The defendants re-urged their motions, and on May 29, 2013, the matter came before the district court on remand. The district court granted the motions for summary judgment in favor of the defendants, dismissing Global’s petition, with prejudice. The district court noted that the new judgment was made in light of the Eagle Pipe decision. Global timely filed this devolutive appeal.

ASSIGNMENTS OF ERROR

Global cites twelve assignments of error:

1. The district court committed error in dismissing the claims of Global based on the subsequent purchaser rule and Eagle Pipe.
2. The district court committed error in finding that all of the claims asserted by Global were personal claims for damages.
3. The district court committed error in failing to find that Global owns a real right to claim restoration of its property.
4. The district court committed error in failing to find that Global has the right to seek remediation as an as-signee of the rights of the mineral servitude owners.
5. The district court committed error in failing to find that the defendants committed continuing torts.
6. The district court committed error in failing to find that Global has remediation claims based on La. C.C. art. 667 and La. Mineral Code arts. 11 and 134.
7. The district court committed error in its interpretation of Eagle Pipe.
8. The district court committed error in failing to find that Global was a third party beneficiary of the express and implied stipulations in the mineral leases and certain lease assignments.
9. The district court committed error in failing to find that the defendants owe real remediation obligations to Global.
10. The district court committed error in failing to find that the Louisiana Mineral Code provisions applying to mineral leases impose real obligations on mineral lessees.
11. The district court committed error in failing to follow the supreme court ruling in Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475 (La.1991).
12. The district court committed error in failing to conduct the analysis ordered by the supreme court in Eagle Pipe.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 2010-0116 (La.App. 1 Cir. 9/10/10), 47 So.Sd 1024, 1027, writ denied, 2010-2227 (La.11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the movant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B)(2).

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. C.C.P. art. 966(F)(1). Evidence cited in and attached to the motion for summary judgment or memorandum filed by an adverse party is deemed 17admitted for purposes of the motion for summary judgment unless excluded in response to an objection made in accordance with La. C.C.P. art. 966(F)(3). Only evidence admitted for purposes of the motion for summary judgment may be considered by the court in its ruling on the motion. La. C.C.P. art. 966(F)(2).

The burden of proof on a motion for summary judgment 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. LSA-C.C.P. art. 966(C)(2).

Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 967(B); Pugh v. St. Tammany Parish School Board, 2007-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, 97 (on rehearing), writ denied, 2008-2316 (La.11/21/08), 996 So.2d 1113. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B).

lain determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this ease. Christakis v. Clipper Construction, L.L.C., 2012-1638 (La.App. 1 Cir. 4/26/13), 117 So.3d 168, 170. Since the district court was instructed by the supreme court to make a ruling in light of the Eagle Pipe decision, we shall use the same standard to make our own determination on the issues of the instant case.

DISCUSSION

Interpretation of Eagle Pipe

Assignments of error one, seven, and twelve question the district court’s application of Eagle Pipe in the present case. Specifically, Global argues that the-subsequent purchaser rule was incorrectly applied to conclude that there was no right of action for Global to sue the defendants for the damage to the purchased property.

According to Eagle Pipe:

The subsequent purchaser rule is a jurisprudential rule which holds that an owner of property has no right or actual interest in recovering from a third party for damage which was inflicted on the property before his purchase, in the absence of an assignment or subrogation of the rights belonging to the owner of the property when the damage was inflicted. Eagle Pipe, 79 So.3d at 256-257.

The Louisiana Supreme Court conducted a comprehensive analysis of Louisiana property law principles to define the subsequent purchaser rule and how real and personal rights relate to it. We shall summarize the conclusion of that analysis here.

|9“[A] particular successor is not personally bound, unless he assumes the personal obligations of his transferor with respect to the thing, and he may liberate himself of the real obligation by abandoning the thing.” Eagle Pipe, 79 So.3d at 261. In other words, when a person acquires a thing, he does not receive any personal obligations related to the thing unless there is some express assumption of a personal obligation; however, he does assume the real obligations related to the thing upon acquiring it and does not absolve himself of those real obligations until the thing is no longer under his possession or control.

Real obligations are correlative of real rights. Eagle Pipe, 79 So.3d at 261. The legal right that a person has against another person to demand the performance of an obligation is a personal right. Id. While a real right can be asserted against the world, a personal right is effective only between the parties involved. Eagle Pipe, 79 So.3d at 261-262.

The defendants were mineral lessees upon the subject property at various times in the property’s history. According to civil law, a lease does not convey any real right or title to the property leased, but only a personal right. Eagle Pipe, 79 So.3d at 262. A particular successor does not acquire, without stipulation to that effect, any personal rights that his author has with respect to the thing. Id. Based on these Louisiana civil law precepts, the supreme court concluded:

Louisiana courts have held that the indemnity due to the owner of an immovable for the expropriation of a part of that immovable, and damages due to the owner of a thing for its partial destruction or for an interference with the owner’s rights, belong to the person who was owner at the time of the expropriation, destruction, or interference. These are personal rights that are not transferred to a successor by particular title without a stipulation to that effect. Eagle Pipe, 79 So.3d at 262, Fn. 52 (citing La. C.C. art. 1764, Revision Comments — 1984 (f)).

| inWe find no ambiguity in the supreme court’s language, which states that an owner’s right to sue for damage to his property is a personal right and is held by the person who was the owner at the time the damage was caused. This personal right is not transferred to a subsequent owner without a clear stipulation that the right has been transferred. We find the district court reached the same conclusion as we have in its interpretation of Eagle Pipe, and we find no error in its application. Assignments of error one, seven, and twelve are without merit, and we will apply the above interpretation of Eagle Pipe to the remaining assignments of error in the instant case.

Global’s real right of action against the defendants

In assignments of error two, three, four, six, nine, and ten, Global argues that under La. C.C. art. 667 and La. Mineral Code arts. 11 and 134, real rights and real obligations existed between Global and the defendants. According to La. C,C. art. 667, if the work a proprietor makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause preventable damage.

Even if we make the assumption that La. C.C. art 667 bestows real rights and obligations between owners of adjacent immovable property, Global never shared that relationship with the defendants. As the article is written, Global and the defendants were never “neighbors.” The mineral leases were executed decades before Global purchased the property. By the time Global purchased the property in 2005, all of the defendants’ mineral leases had expired. The defendants never did lease rights to the minerals under the property while Global owned it, which means they never could have been “neighbors,” even in the broadest sense. Therefore, Global | v cannot enforce any rights against the defendants under La. C.C. art. 667. While Global insists that this article confers real rights to be enforced against the defendants, Global presents no statute or jurisprudence which supports this interpretation.

Article 11 of the Mineral Code confers correlative rights on the land owner and the owner of the mineral right to exercise their rights with reasonable regard for those of the other, and Article 134 states that in violation of a mineral lease, the aggrieved party is entitled to appropriate relief provided by law. Again, these articles contemplate the real rights and obligations that exist between parties who occupy the land contemporaneously with a mineral lease.

In Marin, a land owner sued a mineral lessee for damage to the land after the mineral lease had expired. Marin, 48 So.3d at 255. Even though the lease was in effect at the time the plaintiff purchased the property, it had expired by the time the suit was filed, and the plaintiffs were never named as third-party beneficiaries to the lease. Id. The supreme court found that the plaintiff would not have a right to sue the mineral lessee under these circumstances. Id. This finding in Marin parallels the Eagle Pipe principal that rights and obligations under a mineral lease do not transfer to a third party without assignment.

Despite Global’s interpretation of La. C.C. art. 667 and La. Mineral Code arts. 11 and 134, which contains no statutory or jurisprudential support, Eagle Pipe clearly states that leases convey personal rights only, and we can find nothing in the Mineral Code or the Civil Code which make mineral leases an exception to this rule. Global, therefore, has no real right to sue the defendants for the damage to the land. No such right transferred |12to Global upon its purchase of the property, and no such right was assigned to Global by any party at any time. Assignments of error two, three, four, six, nine, and ten are without merit.

Continuing tort

Global argues, with assignment of error five, that the actions of the defendants constituted a continuing tort, giving Global the right to sue. To have a continuing tort, there must be continuous conduct that causes continuing damages. See Bustamento v. Tucker, 607 So.2d 532, 543 (La.1992). To determine whether a continuing tort exists, the court must look to the operating cause of the injury sued upon and determine whether it is a continuous one giving rise to successive damages, or whether it is discontinuous and terminates, even though the damage persists and may progressively worsen. Marin, 48 So.3d at 253.

In Marin, the plaintiff sued Exxon Mobil Corp. for property damage created by oilfield waste seeping from unlined disposal pits. Id., at 254. Prior to the lawsuit, Exxon closed the pits; however, seepage from the pits continued. Id. The supreme court held that although the contamination was migrating from the pits, the conduct creating the damage had ceased. “Simply because the contaminants may have continued to dissolve into, or move with, the groundwater with the passage of time does not turn this into a continuing tort.” Id.

We find a similar factual scenario in the instant case. Global argues that, while the mineral leases had terminated long before purchasing the property, the contamination allegedly caused by the defendants is a continuous tortuous act since the contamination is still on the property. Based on Marin, we disagree. The tortuous conduct, whatever it may have been, would have ended when the defendants’ mineral leases terminated and 113their drilling operations ceased. Although the damage to the property may continue to exist, its operating cause, the drilling operations, ceased when the mineral leases terminated. Assignment of error five is without merit.

Third-party beneficiary

In assignment of error number eight, Global argues that it is a third-party beneficiary under the defendants’ expired mineral leases. No mineral lease relating to or affecting immovable property shall be binding on or affect third persons or third parties unless and until filed for registry in the office of the parish recorder of the parish where the land or immovable is situated. Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347, 352 (1969).

While Global claims to be a third-party beneficiary of the defendants’ mineral leases, there is no evidence in the record of any written stipulation pour autri recorded in the Parish of West Baton Rouge that conveys such a right to Global. A contracting party may stipulate a benefit for a third-party beneficiary. Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note 95-3317(A), 2001-2219 (La.App. 1 Cir. 11/20/02), 837 So.2d 11, 34, writs denied, 2003-0418 (La.4/21/03), 841 So.2d 805, 2003-0417 (La.5/16/03), 843 So.2d 1129, 2003-0427 (La.5/16/03), 843 So.2d 1129, and 2003-0438 (La.5/16/03), 843 So.2d 1130. None of the defendants’ mineral leases contain language conferring a benefit upon a third-party beneficiary, let alone Global. Without any contractual specification, Global cannot claim a right to sue the defendants as a third-party beneficiary. Assignment of error eight is without merit.

The Magnolia Coal ruling

In assignment of error number eleven, Global cites Magnolia Coal Terminal v. Phillips Oil Company, 576 So.2d 475 (La.1991) to support its position that a land owner can sue a mineral lessee for damage it caused to |14the land years before the sale. Placing itself in the position of the Magnolia plaintiff, Global specifically cites the phrase “Magnolia’s right to recover damages is a property right arising out of the original lease and attached to the property.” Magnolia, 576 So.2d at 483. That phrase was also relied upon by this Court in its initial review of Marin, but that opinion was reversed by the supreme court. In light of Eagle Pipe, we find that Magnolia is distinguishable from the instant case.

In Magnolia, the plaintiff obtained an option to purchase land along the Mississippi River for the purpose of constructing a coal terminal. The land was burdened by a mineral lease. During the option period, the plaintiff became aware of oil on the property that had collected due to an unplugged well from the defendant’s drilling operation. The defendant met with the plaintiff and agreed to rectify the problems at the site. Magnolia, 576 So.2d at 477-478. When the cleanup proved too difficult, the defendant abandoned its efforts, leaving the well unplugged and the land contaminated with oil. Magnolia, 576 So.2d at 480. The plaintiff sued for damages and was ultimately successful.

The primary difference between Magnolia and the instant case is that in Magnolia, an agreement existed between the plaintiff and the defendant that the defendant would rectify the contamination prior to the plaintiffs purchase of the property. In the instant case, no such agreement exists between Global and the defendants. The contamination in Magnolia started decades before the plaintiffs purchase of the property, and the unplugged well continued to leak at the time of the sale, which, in accordance with our discussion supra, would constitute a continuous tort. In the instant case, the damage allegedly occurred decades before the sale of the land to the 11fiplaintiff, but there is no evidence in the record to show that the damage is continuous.

Magnolia does not state that the plaintiff had a real right to sue for the damage to its property caused by the mineral lessee; instead, the Magnolia court uses the term “property right,” qualifying it as “arising out of the original lease and attached to the property.” Magnolia, 576 So.2d at 483. Essentially, Magnolia states the plaintiffs right of action was a right derived from ownership of the surface, which was burdened by the mineral lease. Without the mineral lease, the right of action would not exist. This interpretation of Magnolia is consistent with the interpretation of Eagle Pipe, which is that a mineral lease can only convey personal rights and obligations between the parties. Where the parties did share a contractual relationship in Magnolia, and personal rights and obligations derived from it, no such relationship exists between Global and the defendants in the instant case. Assignment of error eleven is without merit.

CONCLUSION

We are bound by the supreme court to apply the principals of Eagle Pipe to the instant case. In doing so, we find that Global has no real right of action deriving from ownership of the contaminated property, and neither does Global possess a personal right of action from an assignment. As the drilling operations ended long before Global purchased the property, no continuing tort exists. Eagle Pipe has established the standard by which the subsequent purchaser rule is to be applied; thus, our conclusion must be that Global is a subsequent purchaser of the damaged property with no right of action against the defendants.

|, (¡DECREE

The judgment granting motions for summary judgment in favor of the defendants-appellees, Chevron U.S.A. Inc., Exxon Mobil Corporation, Ashland, Inc., Key Production Company, Inc., Warren Operating Company, Inc., Seal Energy Company, and Bayou Choctaw, Inc., and dismissing Global Marketing Solutions, LLC’s petition, with prejudice, is affirmed. All costs of this appeal are assessed to Global Marketing Solutions, LLC.

AFFIRMED.

      . Other defendants, such as Blue Mill Farms, Inc., were dismissed prior to this appeal. There is one remaining defendant in this matter who is not a party to this appeal, as the claims against that defendant are unrelated to the claims against the defendants in this appeal. As such, the trial court designated this judgment as final and appealable pursuant to La. C.C.P. art. 1915(B).

      . La. C.C. art. 667 and La. R.S. 31:22 et seq., respectively.

      . Louisiana Code of Civil Procedure article 966 was recently amended by 2013 La. Acts No. 391, § 1 and 2014 La. Acts No. 187, § 1 to provide for submission and objections to evidence for motions for summary judgment. These procedural amendments to La. C.C.P. art. 966 are not implicated in the issues presented in the present appeal.

      . La. R.S. 31:11.

      . La. R.S. 31:134.


author: KUHN, J.

text:
    KESSLER FEDERAL CREDIT UNION v. Felix RIVERO.
    No. 2014 CA 0095.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2014.

      Adam M. Stumpf, Bradley J. Chauvin, New Orleans, Louisiana, for Plaintiff-Ap-pellee Keesler Federal Credit Union.
    Felix F. Rivero, Slidell, Louisiana, Pro Se Defendant-Appellant.
    Before KUHN, PETTIGREW, and WELCH, JJ.

      . By amendment of the petition, the identity of this party was corrected to "Keesier Federal Credit Union.”

   KUHN, J.

¡ gDefendant-appellant, Felix Rivero, a pro se litigant, appeals the grant of summary judgment by the city court in favor of plaintiff-appellee, Keesler Federal Credit Union (Keesler), awarding $21,812.20, interest, attorneys’ fees, and court costs on an open account. We affirm.

PROPRIETY OF THE APPEAL

As a preliminary matter, we note that Keesler challenges the city court’s grant of Rivero’s appeal of the August 22, 2018 summary judgment, suggesting that it was untimely. La. C.C.P. art. 5002A provides in relevant part, “An appeal from a judgment rendered by a city court ... may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.” Relying on La. C.C.P. art. 4905, Keesler maintains that Rivero’s appeal, filed on September 4, 2013, was untimely since the record demonstrates the clerk of court mailed notice of judgment on August 23, 2013.

La. C.C.P. art. 4905, after its amendment by La. Acts 2001, No. 512, § 1 states, “Notice of the signing of a final judgment shall be given as required by Article 1913.” La. C.C.P. art. 1913 provides in relevant part:

A. Except as otherwise provided by law, notice of the signing of a final judgment ... is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel....
D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.

Before its 2001 amendment, La. C.C.P. art. 4905 provided in relevant part:

B. When the party who is entitled to notice of judgment does not have counsel of record, the notice shall be served by a proper officer upon the party, either personally or at his domicile.
C. When the- party who is entitled to notice of judgment has counsel of record, notice shall be given by mailing or delivering a copy of the judgment to the counsel of record.

| (¡Interpreting the earlier version of La. C.C.P. art. 4905, the Louisiana Supreme Court held that the appeal delay from a city court judgment commenced upon receipt of the notice of judgment rather than the mailing of the notice of judgment. See Myles v. Turner, 612 So.2d 32, 35 (La. 1993). Keesler urges that the amendment to La. C.C.P. art. 4905 legislatively overruled Myles. We disagree.

In Myles, the supreme court reasoned that notice of judgment was clearly necessary under the former version of La. C.C.P. art. 4905C, and that under La. C.C.P. art. 5002, “service of notice” commenced the appeal delay. Despite the change in the substantive content of La. C.C.P. art. 4905, under the new provisions, notice of judgment is also clearly necessary in this case. See La. C.C.P. art. 1913A. And because the legislature did not change the provisions of La. C.C.P. art. 5002, “service of notice of judgment, when such notice is necessary,” remains the basis for commencing the appeal delay in city court. Therefore, applying the Myles holding, as we are bound to do, the date of receipt of the notice of judgment is the determinative commencement of the ten-day appeal delay set forth in La. C.C.P. art. 5002. Because the record establishes that notice of judgment was mailed by the clerk of court on August 23, 2013, and through Rivero’s testimony that he received the notice of judgment on August 27, 2013, he had ten days or until September 6, 2013 to file his request for an appeal of the August 22, 2013 judgment. His pleadings indicating his intent to appeal, filed on September 4th and 5th, 2013, were, therefore, timely asserted.

While we appreciate, as Keesler has pointed out, that by referencing La. C.C.P. art. 1913 in the 2001 amendment to La. C.C.P art. 4905, the legislature addressed the Myles court’s concern that the status of the appeal procedure prior |4thereto did not require a certification by the clerks of the city courts and made certainty of the date of mailing potentially as unfixed as certainty of receipt, the procedural provisions that commence the appeal delay in city court remain unchanged. In light of the policy favoring appeals without straining to find an interpretation different from the common sense meaning of the language of La. C.C.P. art. 5002, see Myles, 612 So.2d at 35, we believe that we must find, as the city court judge did, that the appeal is timely. See and compare Erazo v. Morton, 2009-661 (La.App. 5th Cir.3/9/10), 33 So.3d 952, 954-55 (the appeal was untimely where motion was not filed until ninety-six days after appellant’s receipt of notice of judgment); Hacienda Constr., Inc. v. Newman, 2010-18 (La.App. 5th Cir. 6/29/10), 44 So.3d 333 (noting the Myles court’s holding that receipt of notice of judgment is required rather than mailing of notice of judgment, where the record did not contain a date of mailing of notice of judgment, or ostensibly a date of receipt of notice of judgment, appellant’s actual knowledge of judgment was insufficient to support dismissal of appeal as untimely).

SUMMARY JUDGMENT

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Honor v. Tangipahoa Parish Sch. Bd., 2013-0298 (La.App. 1st Cir.11/1/13), 136 So.3d 31, 35, writ denied, 2014-0008 (La.2/28/14), 134 So.3d 1181. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the Lease. Guardia v. Lakeview Reg’l Med. Ctr., 2008-1369 (La.App. 1st Cir.5/8/09), 13 So.3d 625, 628.

In proving an open account, a plaintiff first must prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established by a plaintiff-creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Louisiana Eggs, Inc. v. Gunter Farms, Inc., 2001-0932 (La.App. 1st Cir.4/2/03), 844 So.2d 400, 402.

Rivero asserts on appeal that the earlier denial of a motion for summary judgment resulted in a determination by the city court that he was a victim of identity theft, which cannot be relitigated under the principles of res judicata. See La. R.S. 13:4231. Thus, he asserts, the later grant of summary judgment resulted in a legal error.

It is well settled that denial of summary judgment is an interlocutory judgment, to which res judicata does not apply. According to the jurisprudence, even though | ^summary judgment has been denied previously, it may be rendered later. First Homestead Fed. Sav. & Loan Ass’n v. Harrington, 491 So.2d 736, 737-38 (La.App. 5th Cir.1986) (citing Arnold v. Stupp Corp., 249 So.2d 276, 277-78 (La.App. 1st Cir.1971)). Thus, the city court did not commit error in considering anew Kees-ler’s second motion for summary judgment. And because res judicata principles do not apply, the city court did not err in resolving the issue of whether Rivero was a victim of identity theft in a different manner unless Keesler failed its initial burden of proof.

In support of the second motion for summary judgment, admitted into evidence on behalf of Keesler was the affidavit of its assistant vice president, Albert L. Lord, who attested that: he was personally familiar with the account; there was an outstanding balance of $21,827.70; and he was the custodian of attached documents, which were true copies of originals that had been maintained in the course and scope of Keesler’s business operations. Rivero’s credit card application, dated January 22, 2007, and bearing his signature; the cardmember agreement establishing a line of credit in favor of Rivero; and statements itemizing the purchases commencing on February 18, 2008 and running through June 21, 2010 recorded to the account that bears Rivero’s name and that were sent to his home address were also entered into evidence by Keesler. In addition, Keesler included into evidence a letter dated November 13, 2007, sent by Rivero requesting in longhand that minimum monthly payments automatically be tendered to the Keesler account from his savings account, which Keesler urges constitutes Rivero’s admission of custody of the credit card account. Lastly, Keesler submitted an affidavit and report from a handwriting expert, Mary Ann Sherry, who opined that the signatures on: the application for the credit card; the November 13, 2007 handwritten letter to Keesler; the member information form; the account agreement; the signature page of Rivero’s pleading filed on 17February 3, 2012, answering the lawsuit; and two letters to the clerk of the city court had all been made by the same writer.

In response to Keesler’s showing, Rive-ro offered no evidence. Thus, his pleading averring that he had been the victim of identity theft was the only counter to Keesler’s evidentiary showing.

When a motion for summary judgment is made and supported by affidavits made on personal knowledge, a party may not rely upon his pleadings but must by “affidavit, or as otherwise provided, set forth specific facts showing that there is a genuine issue for trial.” See La. C.C.P. art. 967B.

The last statement that Keesler introduced in support of its motion was dated June 21, 2010, and this lawsuit was filed on January 31, 2012, with an answer from Rivero dated February 3, 2012. According to a copy of “Identity Theft Victim’s Complaint to the Federal Trade Commission and Affidavit” dated March 8, 2012, Rivero attested that he first learned of the existence of the Keesler account on approximately January 31, 2012. He stated, “I do not know who stole or misused my personal information, how it was stolen or any other aspect of the crime.”

In light of the strong showing made by Keesler, including thirty statements addressed to Felix Rivero at the same address he provided in his answer and subsequent legal filings with the city court; the handwritten letter to Keesler seeking an automatic payment from his savings account to pay toward the outstanding balance in November 2007; and the expert affidavit opining that the same writer signed the various documents, we agree with the city court judge that Rivero has failed to set forth specific facts that show there is a genuine issue of material fact that would warrant a trial on the matter. Accordingly, we conclude the city court Iscorrectly granted summary judgment awarding $21,812.20, interest, attorneys’ fees, and court costs on the open account to Keesler.

DECREE

For these reasons, the judgment of the city court, granting summary judgment in favor of Keesler Federal Credit Union is affirmed. Appeal costs are assessed against defendant-appellant, Felix F. Rive-ro.

AFFIRMED.

      . There is no palpable error by the city court's grant of an appeal despite Rivero's failure to attach an order to his request. As a pro se litigant, the city court may afford leeway and patience by liberally construing Rive-ro's pleadings. See Manichia v. Mahoney,
        2010-0087 (La.App. 4th Cir.8/4/10), 45 So.3d 618, 622, writ denied, 2010-2259 (La. 11/24/10), 50 So.3d 829 (relying on Price v. Kids World, 2008-1815 (La.App. 1st Cir.3/27/09), 9 So.3d 992, 996, writ not considered, 2009-1340 (La.9/25/09), 18 So.3d 94).

      . The res judicata principles applicable to causes of action in Louisiana are statutorily set forth in La. R.S. 13:4231, which provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

        (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
      (2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

      . Although Keesler.filed an answer with this court, seeking attorneys’ fees under La. R.S. 9:2781 for defending the appeal, the matter was not briefed and, therefore, considered abandoned. See La. U.R.C.A. Rule 2-12.4. To the extent that the request was for the extensive defense suggesting the appeal was not properly before this court, having been unsuccessful, Keesler is not entitled to attorneys' fees on that basis either. See La. C.C.P. art. 2164.


author: GENOVESE, Judge.

text:
    Connie JORDAN v. RAPIDES REGIONAL MEDICAL CENTER, et al.
    No. 14-124.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Rehearing Denied Nov. 12, 2014.

      John L. Hammons, Nelson & Hammons, Shreveport, Louisiana, for Plaintiff/Appellant Connie Jordan.
    Nicholas Gachassin, Jr., Nicholas Ga-chassin, III, Gary J. Delahoussaye, Ga-chassin Law Firm, Lafayette, Louisiana, for Defendant/Appellee Dr. Robert Kendrick.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

pin this medical malpractice case, Plaintiff, Connie Jordan, appeals a jury verdict rejecting her claims for damages asserted against Defendant, Robert Kendrick, M.D. Mrs. Jordan also appeals the trial judge’s rulings on certain evidentiary matters. For the following reasons, we affirm.

STATEMENT OF THE CASE

This litigation originates from the death of Mrs. Jordan’s son, Michael Leblanc, and the medical treatment he received from Dr. Kendrick, the emergency room physician at Rapides Regional Medical Center (RRMC) in Alexandria, Louisiana, on March 25, 2008. Mr. Leblanc was transported via ambulance to the emergency room of RRMC due to the suspicion that he had inhaled gastric contents after vomiting sometime around 3:30 a.m. He arrived at RRMC at 6:45 a.m. and was seen by Dr. Kendrick at 7:01 a.m. Dr. Kendrick diagnosed Mr. Leblanc with aspiration pneumonia for which an antibiotic, fluids, and breathing aids were administered. Dr. Kendrick arranged for Mr. Leblanc’s admission to the hospital for further treatment by contacting the physicians of the LSU Family Practice Service. Mr. Leblanc’s care was assumed by the physicians of the LSU Family Practice Service at 8:51 a.m.; however, Mr. Leblanc physically remained in the emergency department of RRMC awaiting an available hospital bed. Mr. Leblanc was moved to a medicine floor of the hospital at 3:50 p.m., after |2which he was moved to the intensive care unit. Mr. Leblanc expired that evening at 6:45 p.m.

Mrs. Jordan filed a complaint of medical malpractice against Dr. Kendrick with the Louisiana Patients’ Compensation Fund, alleging that he failed to properly diagnose and treat Mr. Leblanc while he physically remained in the emergency department of RRMC on March 25, 2008. On April 12, 2010, a medical review panel unanimously rejected Mrs. Jordan’s claims and determined that Dr. Kendrick met the applicable standard of care in his treatment of Mr. Leblanc. Thereafter, on July 9, 2010, Mrs. Jordan instituted the present lawsuit alleging that Dr. Kendrick, through his acts and omissions, failed to meet the degree of care ordinarily exercised by emergency room physicians in his treatment of Mr. Leblanc and that this failure was a significant, contributing factor in Mr. Leblanc’s demise.

A jury trial was held from August 7, 2013, through August 10, 2013, wherein the jury returned a verdict in favor of Dr. Kendrick. Specifically, in answer to the first question on the Jury Verdict Form: “Did Robert Kendrick, M.D., violate any applicable medical standard with regards to the care and treatment that he provided, or should have provided to Michael [Leblanc]?” the jury responded, “NO.” Judgment in accordance with the jury verdict was signed by the trial court on September 13, 2013.

On September 20, 2013, Mrs. Jordan filed a Motion for Judgment Notwithstanding the Verdict (JNOV) and, Alternatively, Motion for New Trial (MNT). Following a hearing on October 21, 2013, Mrs. Jordan’s motions were |adenied. Judgment in accordance with the trial court’s ruling was signed on November 7, 2013. Mrs. Jordan appeals.

SPECIFICATIONS OF ERROR

Errors of Law

Mrs. Jordan assigns three errors, which she contends are errors of law made by the trial court, as follows:

I. The trial court erred in refusing to allow Dr. Sheldon Kottle to testify on rebuttal.
II. The trial court erred in excluding the Rapides Regional antibiotic protocol that had been identified and discussed by Dr. Alan Fortier, one of the defense witnesses.
III. The trial court erred in permitting Dr. Eustis [sic] Edwards to continue testifying after he willingly disobeyed the court’s order precluding any testimony or evidence suggesting third party fault of the nursing staff or of the LSU family practice physicians.
“Appellate review of a question of law is simply a decision as to whether the [trial] court’s decision is legally correct or incorrect.” Jim Walter Homes, Inc. v. Jessen, 98-1685, p. 5 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 702 (citing Ducote v. City of Alexandria, 95-1269 (La.App. 3 Cir. 7/17/96), 677 So.2d 1118). “If the trial court’s decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial court’s decision is not entitled to deference by the reviewing court.” Id. (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983)). If an appellate court finds that a reversible error of law was made by the trial court, it must review the facts de novo and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Watkins v. Lake Charles Mem’l Hosp., 12-1320, pp. 6-7 (La.App. 3 Cir. 4/17/13), 114 So.3d 503, 507, aff'd, 13-1137 (La.3/25/14), 144 So.3d 944.

| ¿Mrs. Jordan’s first and second assignments of error are intertwined. Mrs. Jordan argues that the trial court committed legal errors when: (1) it refused to allow Dr. Kottle to testify as her rebuttal witness; and, (2) it excluded the RRMC antibiotic protocol identified and discussed during the testimony of Dr. Fortier, a witness called by Dr. Kendrick.

Dr. Fortier, an LSU Family Practice Service physician involved with Mr. Leblanc’s care, testified by video deposition and mentioned the antibiotic protocol promulgated by RRMC. Said antibiotic protocol was “attached” to Dr. Fortier’s deposition; however, when Dr. Kendrick offered Dr. Fortier’s testimony at trial, the antibiotic protocol was not made a part of his evidentiary offering. Mrs. Jordan moved to introduce the RRMC antibiotic protocol into evidence, and Dr. Kendrick objected, arguing that the document, an unauthenticated copy of the purported RRMC antibiotic protocol, was hearsay. Dr. Kendrick further argued that Mrs. Jordan had, in pre-trial pleadings, also moved for its exclusion from evidence on the basis of it being inadmissible hearsay. The trial court agreed, and the RRMC antibiotic protocol was not received into evidence.

Mrs. Jordan attempted to call Dr. Kottle on rebuttal. Dr. Kendrick objected, arguing that Dr. Kottle was never named in discovery as a prospective witness and that he did not meet the definition of a rebuttal witness since he was being called by Mrs. Jordan to elicit testimony relative to the RRMC antibiotic protocol, a document the trial court previously ruled was inadmissible and was not received into evidence.

In her brief, Mrs. Jordan argues that Dr. Fortier’s deposition “raised, for the first time, the existence of specific antibiotic protocols that had been promulgated |sby [RRMC] and were applicable to the care and treatment provided to [Mr.] Leblanc by both Dr. Kendrick and the LSU [F]amily [Practice [Service] physicians.” Mrs. Jordan further eláborates:

[Dr. Kottle’s] testimony was being offered both to rebut any number of statements by defense witnesses and specifically to confirm the accuracy of the medical records regarding [Mr.] Leblanc’s diagnosis of sepsis, septic shock[,] and dehydration and to rebut Dr. Kendrick’s testimony that the antibiotic therapy that he had instituted complied with applicable medical standards. Dr. Kottle was prepared not only to explain the significance of the [RRMC] antibiotic protocols but also to correlate those standards with Universally accepted antibiotic protocols promulgated by the American Thoracic Society regarding proper medical management of these particular diagnoses.

Dr. Kendrick disputes that Dr. Fortier’s testimony was surprising to Mrs. Jordan since his deposition was taken several weeks prior to trial. Dr. Kendrick also alleges that Mrs. Jordan named Dr. For-tier in discovery as a prospective expert witness for trial and “is asking this [c]ourt to reverse a jury finding on the basis that the plaintiff was not allowed the chance to present opinion testimony to rebut fact testimony of one of her own listed expert witnesses.” Finally, Dr. Kendrick argues that Mrs. Jordan wanted Dr. Kottle to address the specific content of the RRMC antibiotic protocol; however, since it was ruled inadmissible by the trial court and not received into evidence, “there was no need to allow [her] the extraordinary benefit of calling an unidentified expert to rebut fact testimony.” The trial court concluded that Dr. Kottle’s testimony was being offered by Mrs. Jordan as direct evidence of the issue being litigated, not as rebuttal or impeachment.

In Waste Management of La. LLC v. Tadlock Pipe & Equipment, Inc., 04-1151 (La.App. 3 Cir. 12/8/04), 889 So.2d 457, writ denied, 05-14 (La.3/18/05), 896 So.2d 1005, the plaintiff sought to call a witness not named in discovery as a ^prospective witness and who the plaintiff argued was being called as an impeachment and a rebuttal witness. This court upheld the trial court’s exclusion of the plaintiffs witness declaring:

A trial judge has great discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control proceedings so that justice is done. [La.Code Civ.P.] art. 1631; Pino v. Gauthier, 633 So.2d 638, 648 (La.App. 1st Cir.1993), writs denied, 94-0243 and 94-0260 (La.3/18/94), 634 So.2d 858 and 859; Hurts v. Woodis, 95-2166 (La.App. 1st Cir.6/28/96), 676 So.2d 1166, 1174. The judge’s discretion includes the admissibility of a witness’s testimony. Combs v. Hartford Ins. Co., 544 So.2d 583, 586 (La.App. 1st Cir.), writ denied, 550 So.2d 630 (La.1989). It is only upon a showing of a gross abuse of discretion that appellate courts have intervened. Pino, 633 So.2d at 648.

Id. at 460 (quoting Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. P’ship, 01-2812, pp. 7-8 (La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 03-306 (La.4/4/03), 840 So.2d 1219). Further, in Freeland v. Bourgeois, 06-932, p. 20 (La.App. 3 Cir. 1/24/07), 950 So.2d 100, 114, writ denied, 07-409 (La.4/5/07), 954 So.2d 144 (quoting Palace, 839 So.2d at 91), this court stated with regard to the trial court’s discretion:

If a party objects to the offered testimony of a witness not listed on the pre-trial order, a trial judge has great discretion in deciding whether to receive or refuse the testimony objected to on the grounds of failure to abide by the rules, but any doubt must be resolved in favor of receiving the information. Abdon Callais Boat Rentals, Inc. v. Louisiana Power and Light Co., 555 So.2d 568, 576 (La.App. 1st Cir.1989), writ denied, 558 So.2d 583 (La.1990); Curry v. Johnson, 590 So.2d 1213, 1216 (La.App. 1st Cir. 1991).

We find that the trial court did not err in excluding from evidence the document “attached” to Dr. Fortier’s deposition, which was purportedly an antibiotic protocol promulgated by RRMC. “Before a court may admit the evidence, there has to be evidence ‘sufficient to support a finding that the matter in question is what its proponent claims,’ i.e., the evidence must be authenticated. |7La.Code Evid. art. 901.” Ducote v. Union Pac. R.R. Co., 08-1208, p. 4 (La.App. 3 Cir. 2/4/09), 4 So.3d 240, 244, writ denied, 09-940 (La.6/5/09), 9 So.3d 877. “The authentication requirement is a condition precedent to the admissibility.” Id. at 245. Mrs. Jordan offered an unauthenticated copy of a document, purportedly the RRMC antibiotic protocol. The trial court was correct to exclude it from evidence as inadmissible hearsay.

We also find that the trial court did not abuse its discretion in refusing to allow Mrs. Jordan to call Dr. Kottle on rebuttal. “Rebuttal evidence by a plaintiff is limited to countering that evidence raised by a defendant during their case in chief. Roberts v. Owens-Corning Fiberglas Corp., 03-248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631 [, writ denied, 04-1834 (La.12/17/04), 888 So.2d 863]; La.Code Evid. art. 611(E).” Waste Mgmt., 889 So.2d at 460-61. There being no RRMC antibiotic protocol in evidence, the trial court did not abuse its discretion in refusing to allow Dr. Kottle to testify at trial.

Dr. Eustace L. Edwards, III, an expert in the field of emergency medicine, served as a member of the medical review panel that exonerated Dr. Kendrick. Called by Dr. Kendrick to testify at trial, Dr. Edwards stated that the panel members reviewed the care provided to Mr. Leblanc by Dr. Kendrick and others. According to Mrs. Jordan, the trial court allowed the jury to be tainted by Dr. Edwards’ testimony because he referred to the fault of others when Dr. Kendrick had judicially confessed that no third party fault existed. As a result thereby, she moved to strike Dr. Edwards’ testimony. The trial court denied her motion to strike.

IsAgain, the trial court has great discretion in conducting the trial and controlling its proceedings. Having reviewed the exchange upon which Mrs. Jordan relies, Dr. Edwards acknowledged that the role of the medical review panel was to review the care provided to Mr. Leblanc by Dr. Kendrick and other health care providers. Dr. Edwards did not suggest that other health care providers, besides Dr. Kendrick, were negligent. Thus, we do not find that the jury was tainted by Dr. Edwards’ testimony.

Based upon our finding of there being no legal errors made by the trial court, we review the remainder of Mrs. Jordan’s assigned errors, i.e., errors of fact, under the manifest error standard of review, as discussed below. The trial court did not abuse its discretion in refusing to strike Dr. Edwards’ testimony.

Errors of Fact

Mrs. Jordan assigns three errors, which she contends are errors of fact made by the jury, as follows:

IV.The jury erred in failing to conclude that Dr. Kendrick violated applicable standards of care by failing to diagnose Michael Leblanc’s Systemic Inflammatory Response Syndrome (SIRS) and by failing to institute appropriate therapeutic measures.
V. The jury erred in failing to conclude that Dr. Kendrick violated applicable standards of care by failing to administer adequate fluids for Michael Leblanc’s dehydration.
VI. The jury erred in failing to conclude that Dr. Kendrick violated applicable standards of care by failing to evaluate the patient for approximately 6 hours in the emergency department and by failing to timely transfer him to the ICU.

“A fact finder’s determinations regarding whether a plaintiff proved the elements of the burden of proof of La.R.S. 9:2794 are findings of fact. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646.” Doyle v. Ramos, 13-1143, p. 5 (La.App. 3 Cir. 3/5/14), 134 So.3d 92, 96. As such, we review the jury’s findings of fact using the clearly wrong or manifest error standard of review. Id.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. [Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).] The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270, 278-79. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based on a credibility determination. Rosell, supra at 844-45. But where such factors are not present, and a fact finder’s finding is based on its decision to credit the testimony of one or two or more witnesses, that findings can virtually never be manifestly erroneous or clearly wrong. Id.

Salvant, 935 So.2d at 650.

Louisiana Revised Statutes 9:2794 sets forth the, burden of proof for medical malpractice actions, in pertinent part, as follows:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq.-, ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
| m(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

A plaintiff in a medical malpractice action must establish the negligence of a physician by a preponderance of the evidence. La.R.S. 9:2794(C).

Mrs. Jordan, pursuant to La.R'.S. 9:2794 and the jurisprudence interpreting said statute, had the burden of proving, by a preponderance of the evidence, the following: (1) the standard of care for treating a patient such as Mr. Leblanc; (2) that Dr. Kendrick breached that standard of care; and (3) that the breach caused Mr. Leblanc’s death. See also Browning v. W. Calcasieu Cameron Hosp., 03-332 (La.App. 3 Cir. 11/12/03), 865 So.2d 795, writ denied, 03-3354 (La.2/13/04), 867 So.2d 691.

Mrs. Jordan asserts that Mr. Leblanc died of dehydration and sepsis. The final autopsy report states Mr. Leblanc’s death was “natural” and caused by “aspiration of gastric contents, complicating mental retardation, and seizure disorder.” Mrs. Jordan seemingly disputes the medical records, the findings of the autopsy, and the opinion of the medical review panel.

The medical review panel’s opinion was introduced into evidence by Mrs. Jordan, the most relevant portion of which provides:

The evidence does not support the conclusion that Dr. Robert Kendrick (Emergency Medicine) failed to comply with acceptable standard of care for an emergency medicine physician in the treatment of Michael [Leblanc]. Once triaged by the nursing staff, Dr. Kendrick examined and evaluated Mr. [Leblanc] within a short time following presentation to the Emergency [M]edi-cine Department of Rapides Regional Medical Center. Dr. Kendrick ordered appropriate diagnostic tests. He and the staff reviewed the patient’s medical history as provided by the caregivers. Dr. Kendrick was aware of Mr. [Le-blancj’s multiple aspirations, surgeries, Nissan fundoplication, [and] feeding tube. Dr. Kendrick recognized Mr. [Leblanc] was tachycardic and most likely dehydrated. The patient’s 02 rates were low upon presentation. Dr. Kendrick appropriately ordered oxygen to [praise saturation rates, which occurred. In the [Ejmergency [R]oom, Mr. [Leblanc] received IV fluids. Upon receipt of test results, Dr. Kendrick diagnosed aspiration pneumonia and ordered antibiotic regimen. In fact, the antibiotics were expanded to provide broad coverage to Mr. [Leblanc]. The CBC test results initially indicated 41% bands. However, a repeat CBC negated the original result. Dr. Kendrick diagnosed aspiration pneumonia; considered and ruled our [sic] sepsis; provided oxygenation, antibiotic coverage, IV fluids, and stabilized Mr. [Leblanc] while in the Emergency Room. In addition. Dr. Kendrick sought admission of the patient to the LSU Family Practice floor within the hospital. At the time of transfer to family medicine physicians, the patient was stable.
The allegations made against Dr. Kendrick are without merit. In fact, Dr. Kendrick did comply with the standards of care raised against him. The panel finds no deviation of standard of care by Dr. Robert Kendrick.
In summary, the diagnosis of aspiration pneumonia was appropriate. Diagnostic tests were ordered and repeated when necessary throughout the emergency room and hospital care. Appropriate antibiotics were ordered initially and later added. The dosages and coverage were appropriate. The cultures for Mr. [Leblanc] returned negative, indicating Mr. [Leblanc]’s condition was due to inflammation, not infection and sepsis. Placement initially of two IV lines is not standard of care. When needed, a PICC line was timely and appropriately placed. Intubation of Mr. [Leblanc] initially was not warranted as he responded to oxygen, with his 02 sats improving. Mr. [Leblanc] was properly hydrated. The administration of Lasix was appropriate after receipt of test results indicating the patient may have heart failure as well as being helpful for pneumonia. The [ ... ] physician who cared for Mr. [Leblanc] attended to the patient quickly, thoroughly and appropriately. The records do not indicate a need for consultation of infectious disease. Unfortunately, the condition of Mr. [Leblanc] was not a diagnostic dilemma, but a therapeutic problem.

Mrs. Jordan sought to discredit the panel’s decision that Dr. Kendrick did not deviate from the applicable standard of care by arguing that the evidence before the panel was incomplete, inaccurate, or both.

In support of her position, Mrs. Jordan presented Dr. Walter Simmons as an expert in the fields of emergency medicine and quality control of medical services. According to Dr. Simmons, Dr. Kendrick violated the standard of care by not 112recognizing when Mr.. Leblanc first arrived that he was excessively dehydrated and had a significant respiratory rate. Dr. Simmons listed Dr. Kendrick’s alleged breaches as: (1) a failure to treat; (2) a failure to assess; and, (3) a failure to consult appropriate physicians. According to Dr. Simmons, Mr. Leblanc’s demise was a result of Dr. Kendrick’s failure to administer appropriate fluids resulting in dehydration and his failure to administer appropriate antibiotics, resulting in systemic inflammatory response syndrome (SIRS) and sepsis. Dr. Simmons found fault with Dr. Kendrick’s administration of 500 milligrams of the antibiotic Levaquin in his treatment of Mr. Leblanc. Instead, Dr. Simmons opined that Dr. Kendrick should have administered 750 milligrams of Leva-quin and a second antibiotic, either Vanco-mycin or Clindomycin, to Mr. Leblanc. Finally, Dr. Simmons was critical of the care Mr. Leblanc received the entire time he physically remained in the emergency department, regardless of that fact that the medical records reflect Mr. Leblanc’s care was assumed by the physicians of the LSU Family Practice Service at 8:51 a.m.

Dr. Robert Anderson was called to testify by Dr. Kendrick and was accepted as an expert in the field of emergency medicine. Dr. Anderson explained that the duty of an emergency room physician is to get treatment started and get the patient admitted into the hospital for treatment by another doctor if necessary. According to Dr. Anderson, Dr. Kendrick’s care of Mr. Leblanc was reasonable and appropriate. Dr. Anderson also testified that at 8:51 a.m., Mr. Leblanc was no longer Dr. Kendrick’s patient.

As a witness for Dr. Kendrick, Dr. Edwards refuted the accusation that the evidence before the medical review panel was erroneous and that its opinion was flawed. According to Dr. Edwards, the medical review panel based its decision |,supon a complete, precise, and accurate record of the treatment received by Mr. Leblanc. Dr. Edwards was unequivocal in his opinion that Dr. Kendrick met the applicable standard of care in his treatment of Mr. Leblanc.

Dr. Kendrick testified that when Mr. Leblanc presented to the emergency room, he was diagnosed as suffering from aspiration pneumonia. He administered an antibiotic, fluids, and oxygen, which improved Mr. Leblanc’s condition. Because he felt that Mr. Leblanc needed continuing treatment, Dr. Kendrick contacted a physician with the LSU Family Practice Service and transferred Mr. Leblanc’s care accordingly-

This court has often held that the fact finder’s choice between two permissible views of the evidence cannot be manifestly erroneous or clearly wrong. See Stobart, 617 So.2d 880. We are further cognizant that when “expert witnesses differ, it is for the trier of fact to determine the most credible evidence and a finding of fact in this regard will not be overturned absent manifest error.” Smith v. Cappaert Manufactured Housing, Inc., 11-1464, p. 11 (La.App. 3 Cir. 4/10/12), 89 So.3d 1234, 1242-43, writs denied, 12-1418 (La.10/8/12), 98 So.3d 857, and 12-1516 (La.10/12/12), 98 So.3d 871. The jury was presented with alternative permissible views of the evidence of what occurred during Dr. Kendrick’s treatment of Mr. Leblanc. The jury found that Dr. Kendrick had not violated any applicable medical standard with regards to the diagnosis, care, and treatment that he provided, or should have provided to Mr. Leblanc, evidently adopting the views expressed by Dr. Kendrick’s experts. The jury decided which experts were credible, and its adoption of those opinions cannot be considered manifestly erroneous. Therefore, we find Mrs. Jordan’s alleged errors of fact to be without merit.

| uDECREE

For the foregoing reasons, we affirm the trial court judgment pursuant to jury verdict and the trial court’s evidentiary rulings. Costs are assessed to Plaintiff/Appellant, Connie Jordan.

AFFIRMED.

      . At the time of his death, Mr. Leblanc was a thirty-year-old partial quadriplegic, who was significantly impaired as a result of multiple birth defects and a resident of Pinecrest Supports and Services Center (Pinecrest), formerly Pinecrest Developmental Center, in Pine-ville, Louisiana.

      . According to hospital policy, all Pinecrest residents were admitted through the LSU Family Practice Service.

      . The Motion for Appeal filed on November 15, 2013, declares Mrs. Jordan’s intent to appeal both the September 13, 2013 Judg- ' ment (jury verdict) and the November 7, 2013 Judgment (JNOV/MNT); however, the appeal filed herein presents arguments relative only to the September 13, 2013 Judgment and does not address the denial of the motions for JNOV and MNT; therefore, the failure to address these issues constitutes an abandonment thereof pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4.

      . Dr. Edwards, Dr. Thomas Fontenot, and Dr. William McBride, III, constituted the medical review panel.