author: SANDRA CABRINA JENKINS, Judge.

text:
    Luz SANTIAGO v. TULANE UNIVERSITY HOSPITAL AND CLINIC, Unidentified X-Ray Technician, and Robert L. Barrack, M.D.
    No. 2012-CA-1095.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Ron A. Austin, Jeffrey P. Green, Austin & Associates, LLC, Harvey, LA, for Plaintiff/Appellant.
    Kathryn M. Caraway, Ann Marie Le-Blanc, Caraway LeBlanc, L.L.C., New Orleans, LA, Gregory C. Weiss, Weiss & Eason, L.L.P., Mandeville, LA, for Defendants/Appellees.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

12Plaintiff, Luz Santiago, appeals a district court ruling sustaining the Peremptory Exception of Peremption in favor of defendants, Dr. Robert L. Barrack, Dr. Scott Montgomery, Dr. Michael Adams, Dr. Sujal Shah, Dr. Brian Rogers, and their employer, the Administrators of the Tulane Educational Fund (hereinafter, “Administrators”). At issue is whether or not the trial court erred in dismissing all of the plaintiffs claims against these defendants as untimely.

For the reasons assigned below, the trial court’s judgment is affirmed in part and reversed in part. In particular, we find that the trial court erred in dismissing all of the plaintiffs claims against an originally named defendant, Dr. Robert Barrack, as untimely where the claims in the original petition were filed well within the three year deadline set forth in La. R.S. 9:5628. We further find that because La. R.S. 9:5628’s deadline is prescriptive, rather than peremptive in nature, the plaintiffs remaining claims should have instead been dismissed as prescribed. The trial court’s judgment is affirmed in all other respects.

LFACTS AND PROCEDURAL HISTORY

This is a medical malpractice case arising out of allegations that Ms. Santiago received fall-related injuries following left hip replacement surgery performed at Tulane University Hospital and Clinic on April 14, 2003. The facts and dates which are relevant to her appeal are delineated below:

Original PCF Complaint and Petition for Damages

On April 8, 2004, Ms. Santiago filed a complaint with the Louisiana Patient’s Compensation Fund and Oversight Board (“PCF”) against her surgeon, Dr. Robert Barrack; an unidentified x-ray technician; and their alleged employer/contractor, Tulane University Hospital and Clinic (“TUHC”). In the complaint, Ms. Santiago alleged that she was “dropped or improperly and inadequately restrained” while undergoing post-operative testing and while still under general anesthesia. As a result of the fall, the plaintiff claimed that she sustained multiple severe and disabling injuries including but not limited to injury to her “right leg fibula.” She claimed that these injuries were caused by the individual and collective acts of each of the named defendants, whose actions she alleged fell below the applicable standard of care.

The medical review panel rendered a unanimous decision in favor of Dr. Barrack on July 10, 2006, finding no evidence that he breached the standard of care. The medical review panel also found no evidence that Dr. Barrack’s employer, Administrators (improperly identified in the plaintiffs PCF complaint as TUHC), breached the applicable standard of care as charged in the complaint. [^Specifically, the medical review panel concluded that the medical records showed no evidence of a right fibula fracture as alleged by the plaintiff. Rather, the records showed the existence of a left femur fracture, which the panel explained was a well-known complication total hip replacement surgery.

The medical review panel rendered a split opinion as to TUHC. While two of the members concluded that there was also no breach in the standard of care by TUHC, the third member found there to be an issue of fact as to whether or not the plaintiff had been dropped by an x-ray technician. The record indicates that the plaintiff received the medical review panel’s opinion on August 24, 2006.

On July 21, 2006, the plaintiff filed a Petition for Damages in Orleans Parish Civil District Court. Like the plaintiffs original PCF complaint, the petition named only Dr. Barrack, the unidentified x-ray technician, and TUHC as defendants. Ms. Santiago’s petition also made the exact same allegations that were made in her original PCF complaint, including allegations that she was dropped and/or improperly restrained, resulting in a broken right leg fibula. The petition additionally alleged that plaintiffs right femur fracture was caused by the negligence of these defendants.

| Supplemental and Amending Petitions

On February 7, 2007, the plaintiff filed a First Supplemental and Amending Petition. This petition was amended to name University Healthcare System, L.C., (hereinafter, also referred to as “TUHC”) as the defendant employer of both Dr. Barrack and the unnamed x-ray technician. In its Answer, TUHC expressly denied employing Dr. Barrack.

Plaintiff then filed a Second Supplemental and Amending Petition for Damages on May 14, 2007, which differed from the prior amendment in four significant ways:

First, this second amended petition named four additional doctors as defendants for the first time: Drs. Michael Adams, Scott Montgomery, Sujal Shah, and Brian Rodgers. Administrators was also named as a defendant for the first time, in its capacity as the employer of Dr. Barrack and the newly named doctors.

Second, this petition added two radiologic technologists and two nurses as defendants. This amended petition alleged that these technologists and nurses were directly responsible for the plaintiffs fall, rather than Dr. Barrack and the “unidentified x-ray technician.”

Third, the plaintiff amended her petition to allege injury to her left, rather than right femur.

Fourth, the plaintiff set forth completely new allegations of negligence in this petition. She claimed that the doctors, including Dr. Barrack, were at fault for failing to diagnose and report her left femur fracture; failing to take immediate faction to prevent further harm; and falsifying her operative and x-ray reports. She also claimed that the doctors were incompetent and unprofessional.

In response to this Second Supplemental and Amending Petition, the doctors filed an Exception of Prematurity, alleging that the claims against them should be dismissed as premature because they had not been submitted to a medical review panel as required by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.47(A)(1). In an apparent attempt to remedy the issues raised in the defendants’ exception, the plaintiff filed a “supplemental complaint” with the PCF which named all five doctors, and the nurses and technologists as defendants. This supplemental PCF complaint addressed the issues that had been newly raised in plaintiffs second amended petition.

The plaintiff simultaneously filed a motion to voluntarily dismiss her district court claims against the four newly added doctors. The four doctors were dismissed without prejudice by the district court on September 13, 2007, with the plaintiff reserving her right to pursue her claims against the other defendants.

Exception of Peremption

In February of 2012, Administrators and all five defendant doctors filed an Exception of Peremption seeking a dismissal of the claims against them. They argued that the medical malpractice claims against Dr. Barrack should be |7dismissed pursuant to La. R.S. 9:5628 because the original PCF complaint and the original district court petition against Dr. Barrack could not suspend prescription where no specific allegations were lodged against him in those actions. They allege that Administrators and Drs. Adams, Montgomery, Shah, and Rodgers should be dismissed because they were not named as defendants until more than three years after the plaintiffs alleged injury. The trial court granted the Exception of Peremption filed on behalf of Administrators and the doctors on April 5, 2012, dismissing all of the petitions filed in district court, as well as the supplemental PCF complaint, with prejudice. It is from this Judgment that Ms. Santiago now appeals.

LAW AND ANALYSIS

The primary issue on appeal is whether or not the three-year deadline set forth in La. R.S. 9:5628 is an absolute bar which prevents plaintiffs in medical malpractice actions from amending their petition to add new claims or parties after this deadline has passed. Ms. Santiago argues that the trial court should have applied the “relation back” principles of La. C.C.P. art. 1153 to extend the three-year time limitation set forth in Section 5628 to newly filed claims. She further argues that La. R.S. 9:5628 is a prescriptive statute to which the principles of Article 1153 necessarily apply.

Medical malpractice actions against qualified healthcare providers are governed by special legislation. LeBreton v. Rabito, 97-2221, p. 7 (La.7/8/98), 714 So.2d 1226, 1229. According to La. R.S. 40:1299.47(B)(l)(a)(i), in order to file a malpractice claim against a qualified provider, a plaintiff must first file a complaint 18with the PCF requesting that the claim be submitted to a medical review panel for review. This PCF action then suspends prescription against all parties named in the complaint and all joint and solidary obligors until ninety days following notification of the opinion to plaintiffs counsel under La. R.S. 40:1299.47(A)(2)(a).

Louisiana Revised Statute 9:5628(A) sets forth the time limitations applicable to filing a medical malpractice action:

No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital or nursing home duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Essentially, a medical malpractice claim must be filed within one year from the date of the alleged malpractice, or within one year of the discovery of the malpractice. Most relevant to this discussion is the third deadline set forth under Section 5628, which sets forth a final three-year cut-off date for medical malpractice cases to be filed, regardless of the date of discovery of the alleged act, omission, or neglect.

|9In the present case, it is undisputed that Ms. Santiago’s second amended petition and supplemental PCF complaint were filed more than three years after the acts and omissions allegedly giving rise to her malpractice claim. However, the plaintiff claims that her amended action against the doctors and Administrators should be deemed timely under Louisiana Code of Civil Procedure Article 1158 because her original action was timely. Article 1153, also referred to as the “relation back” theory states:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing of the original pleading.

The plaintiff argues that this relation back theory should apply regardless of whether the three-year period set forth in Section 5628 is peremptive or prescriptive in nature.

The Supreme Court has squarely addressed the precise issue raised by the plaintiff in two landmark medical malpractice eases: Borel v. Young, 07-0419 (La.11/27/07), 989 So.2d 42, on reh’g, (7/1/08), 989 So.2d at 53-81; and Warren v. Louisiana Medical Mutual Ins. Co., 07-0492 (La.12/2/08), 21 So.3d 186, on reh’g, (6/26/09), 21 So.3d at 202-18.

Borel v. Young

In Borel, the Louisiana Supreme Court was faced with the issue of whether or not the three-year deadline set forth La. R.S. 9:5628 was an absolute bar to the plaintiffs attempt to add new defendants after the three-year period had expired. To make this determination, the Court had to examine whether Section 5628 was prescriptive or peremptive in nature. On rehearing, the Court concluded that |inSection 5628 was, in fact, a prescriptive provision. Borel, pp. 28-29, 989 So.2d at 69.

The facts in Borel are somewhat similar to the facts in the present case. In Borel, the plaintiffs filed a timely medical malpractice complaint with the PCF against a hospital and two physicians. Within ninety days of being notified of the panel’s opinion in favor the defendants, the plaintiffs filed suit solely against the hospital. More than three years after the hospitalization and alleged malpractice occurred, the plaintiffs tried to amend their petition to add the doctors and their insurer. After the trial court denied the motion to amend, plaintiffs filed a separate lawsuit against the new defendants. The insurer and one of the doctors objected by filing a peremptory exception of prescription which the district court granted.

The Supreme Court granted certiorari. On rehearing and after examining the legislative intent of the statute, the Court explained that La. R.S. 9:5628 “cannot be examined alone, but must be interpreted in conjunction with the provisions of the Medical Malpractice Act, codified in La. R.S. 40:1299.41, et seq.” Id. p. 15, 989 So.2d at 61. Because the Act prohibits claimants from filing a lawsuit against qualified healthcare providers before presenting the complaint to a medical review panel, “[t]he legislature ... took special cognizance of the need to fully protect plaintiffs from the detrimental effect of liberative prescription” and “provide[d] for suspension of the time within which suit must be filed during the pendency of the review process and for ninety days following notification to the claimant of his or her attorney of the panel opinion.” Id. (citing LeBreton, 97-2221 p. 10, 714 So.2d at 1230-1231; La. R.S. 40:1299.47(A)(2)(a) and (c)). It recognized that the “Medical Malpractice Act is replete with provisions respecting the operation and effect of this suspension.” Id.

| nThe Court ultimately concluded that it is this suspension that makes Section 5628’s three-year deadline prescriptive, rather than peremptive, in nature. It reasoned:

Suspension, as we have explained, applies only to prescription; a peremptive period, by definition, is not subject to interruption, suspension, or renunciation. LSA-CC art. 3461; Hebert [v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986)] 486 So.2d at 723. To suggest that the language of LSA-R.S. 9:5628 and, in particular, the use of the word “shall,” indicates an intent to establish a peremptive period would be to render the provisions of the Medical Malpractice Act relative to suspension meaningless, a result we cannot condone.

Borel, pp. 15-16, 989 So.2d at 61-62.

After determining that the three-year deadline was, in fact, a prescriptive period, the Court next examined whether the plaintiffs claims were properly dismissed, or whether the “discovery rule” embodied in the contra non valentem type exception to prescription operated to allow the plaintiffs claims against the doctors to relate back to the filing date of the original claim. It explained:

Relying on the rules of statutory construction, ... although statutes dealing with the same subject matter should be harmonized if possible, where there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.

Borel, p. 24, 989 So.2d at 66 (citing LeBreton, 97-2221 p. 7, 714 So.2d at 1229). The Supreme Court further reasoned that the Medical Malpractice Act’s 90-day suspension period was enacted to protect plaintiffs from the potentially detrimental 112effect of liberative prescription that could occur by requiring plaintiffs to present their claim to a panel first. “Thus, considering the doctrinal underpinning for the existence of the rules of suspension, it is evident that there is no need for the general rules of interruption of prescription to combine with suspension to syner-gistically benefit the plaintiff.” Id., p. 25, 989 So.2d at 67 (quoting LeBreton, 97-2221 pp. 9-10, 714 So.2d at 1230).

Based on this analysis, the Supreme Court concluded that only the more specific suspension provisions of the Medical Malpractice Act apply to medical malpractice claims — to the exclusion of more general provisions such as contra non valen-tem and La. C.C. art. 2324, which allow for the interruption of prescription against joint tortfeasors. Borel, p. 28, 989 So.2d at 69.

Warren v. Louisiana Medical Mutual Ins. Co.

The Supreme Court revisited the prescriptive nature of La. R.S. 9:5628’s three-year deadline in Warren, supra. In Warren, at issue was whether or not a new plaintiff could be added as a party more than three years after the death of a patient in a medical malpractice case. On rehearing the Supreme Court found the newly added party’s claims to be prescribed.

Warren was a wrongful death action initially filed by the husband and daughter of a patient who allegedly died from substandard medical care; the PCF claim and original district court petition were both filed within the delays set forth by the Medical Malpractice Act. Warren, 21 So.3d at 203. More than three years after the patient’s death, the plaintiffs attempted to amend their petition to add the decedent’s other daughter who was aware of the claim but had previously decided not to join in. Id. The defendants filed an exception of prescription as to the 11ssecond daughter’s claim. Id. The district court overruled the exception, and the court of appeal denied defendants’ writ application. After carefully examining each side’s position, on rehearing, the Supreme Court reversed the judgment of the trial court.

The Warren Court adopted the reasoning in Borel and the cases cited therein to reach its conclusion that the relation back principles of La. C.C.P art. 1153 do not interrupt prescription in cases brought pursuant to the Medical Malpractice Act. Warren, 21 So.3d at 207. The Court stated:

Because medical malpractice actions are governed by the specific provisions of the Act regarding prescription and suspension of prescription, under Borel, we find that any general codal article which conflicts with these provisions may not be applied to such actions in the absence of specific legislative authorization in the Act. The Act has no rules allowing relation back of pleadings for medical malpractice claims. The application of Article 1153 would permit the adding of an [sic] plaintiff subsequent to the expiration of the three-year period provided for in La. R.S. 9:5628, and would read out of the statute the prescription and suspension period provisions by La. R.S. 9:5628 and La. R.S. 40:1299.47; therefore, La. C.C.P. art. 1153 may not be applied to the medical malpractice action under the reasoning of LeBreton and Borel.

Warren, 21 So.3d at 207-208.

For the reasons set forth in the Warren and Borel, this Court finds that Ms. Santiago’s claims filed in her supplemental and amending petitions against Dr. Robert L. Barrack, Dr. Scott Montgomery, Dr. Michael Adams, Dr. Sujal Shah, Dr. Brian Rogers, and the Administrators are now prescribed as a matter of law. Because the procedural posture of the plaintiffs claims against Dr. Barrack differs from that of the plaintiffs claims against the remaining defendants, this Court will address prescription as it pertains to the claims against him separately.

| uClaims Against Dr. Barrack

As to her claims against Dr. Barrack, Ms. Santiago initially complied with the requirements of the Medical Malpractice Act. She filed a timely complaint with the PCF requesting that her claims against him be reviewed by a medical review panel in accordance with La. R.S. 40:1299.47(A)(1). This PCF complaint alleged that Dr. Barrack, the hospital, and an unidentified x-ráy technician, were liable for dropping and/or improperly restraining Ms. Santiago. The Medical Review Panel reviewed the medical evidence and concluded that there was no evidence to support the allegation that Dr. Barrack breached the standard of care as charged in the PCF complaint. Within ninety days of receiving notice of the medical review panel’s opinion, the plaintiff filed a timely petition for damages in district court as required by La. R.S. 40:1299.47(A)(2)(a).

In her original PCF complaint and petition for damages, Ms. Santiago alleged only that Dr. Barrack was liable for causing her to fall, either by dropping her or failing to restrain her. The petition stated: “Luz Santiago was dropped or improperly restrained thereby causing and or [sic] allowing her to fall to the floor.” It further stated: “The defendants were at fault in negligently dropping Luz Santiago.” The original petition did not allege that Dr. Barrack did anything else wrong.

The Second Supplemental and Amending Petition, however, omitted all allegations regarding Dr. Barrack’s responsibility for Ms. Santiago’s fall. Instead, this petition named two nurses and two radio-logic technologists as defendants and alleged that they alone were responsible for the plaintiffs fall. [ 15This petition then added completely new allegations against Dr. Barrack, which all involved purported acts of negligence by Dr. Barrack following the alleged fall. In particular, it alleged that Dr. Barrack was liable for failing to diagnose the plaintiffs left femur fracture, for failing to prevent further harm to plaintiff, for falsifying a report, and for being incompetent and engaging in unprofessional conduct. The supplemental PCF complaint also contained the new allegations set forth in this second amended petition.

Appellees argue that the trial court did not err in dismissing all of the plaintiffs claims against Dr. Barrack as time-barred. Specifically, they contend that that the later-filed allegations against Dr. Barrack had the effect of clarifying the parties allegedly responsible for the plaintiffs fall. According to Appellees, because the petition was amended to remove all allegations that Dr. Barrack was responsible for the fall, then it is as if no allegations were made against him in the original petition. Appellees further argue that the amended claims were properly dismissed as untimely and/or because there were no prior claims that the amended petition could relate back to.

First, we must determine whether the trial court properly dismissed the claims against Dr. Barrack that were set forth in the plaintiffs original PCF complaint and petition for damages. We must then determine whether or not the amended claims against Dr. Barrack were properly dismissed. For the reasons discussed below, we reverse the trial court’s dismissal of the plaintiffs original claims against Dr. Barrack. We further affirm the dismissal of the amended claims filed in the supplemental and amended petitions against Dr. Barrack on the grounds of prescription, rather than peremption.

11fiLouisiana courts have long acknowledged that the wording used in an amending petition may have the effect of superseding and replacing the allegations in an original petition. For instance, in Bologna Bros. v. Stephens, 23 So.2d 645, 646 (La.App. 2 Cir.1945), a Louisiana appellate court relied on the language, ‘“Plaintiffs supplement and amend their original and supplemental petitions ... to read as follows,’” to conclude that the plaintiffs abandoned their original claim. In Coleman’s Heirs v. Holmes’ Heirs, 147 So.2d 752 (La.App. 3 Cir.1962), the Court held that where plaintiffs filed a supplemental petition seeking relief pursuant a cause of action which conflicted with the cause of action originally filed, and where the supplemental petition did not expressly retain or abandon the prayers in the previous petition, it was presumed that the previous petition was abandoned. Id. at 753. In so ruling, the Court relied on 71 C.J.S. Verbo, Pleadings 321, pp. 716-717, which stated:

An amendment which is complete in itself and does not refer to, or adopt, the prior pleadings, ordinarily supersedes it and the prior pleading ceases to be a part of the record for most purposes, and has been held to be in effect abandoned and, likewise, has been held to be in effect withdrawn as to all matters not restated, and to become functus officio. On the other hand, an amended pleading does not supersede the original pleading where it is evident that it is not designed as a substitute therefor or intended to take its place, as where it refers to its allegations, or expressly reaffirms them, or merely elaborates certain of them, or merely augments the original pleading by additional allegations, and in such cases the original pleading and the amendment are to be construed together.

See also, Ford v. Louisiana & A. Ry. Co., 196 So. 403, 406 (La.App. 2 Cir.1940) (Court held allegations in supplemental petition superseded clearer allegations in original petition).

In Thomas v. Lusk, 13 La.Ann. 277, p. 3 (La.1858), the Supreme Court, in dealing with an amendment seeking an inconsistent demand, stated:

We are of the opinion that the filing of the amended petition was not such an absolute waiver of plaintiffs’ original demand as to put his cause of action out of court, even if it be conceded that the demands were inconsistent. The plaintiffs certainly could not be in a worse condition after they filed their amendment than they would have been if they had embraced both demands in their original petition. In that case they would have had the right to elect which cause of action they would prosecute.

(Cited in Montgomery v. American Motorists Insurance Co., 242 So.2d 45, 48 (La.App. 2 Cir.1970)). Similarly the Court stated in Self v. Great Atlantic & Pacific Tea Co., 178 La. 240, 254, 151 So. 193, 197 (La.1933):

It is well-settled that, when a supplemental petition, or an amendment of a petition, has been properly allowed, it forms a part of the original petition, the same as if there had been no need for the amendment, and (except with regard to questions of prescription) the plaintiffs rights are the same then as if the subject-matter of the amendment had been embodied in the original petition. (Emphasis added)

In the present case, the plaintiff, in her original PCF complaint and petition for damages, alleged only fall-related claims against Dr. Barrack. She amended her petition, however, to delete all references to Dr. Barrack’s responsibility for the fall. Without more, the trial court dismissal of the plaintiffs original claims against Dr. Barrack would have been proper as superseded by the plain language of the amended petition. We find, however, that the amended language must | isnecessarily be read in conjunction with the “catch-all” language of the plaintiffs amended petition, which states:

The plaintiffs [sic] hereby adopt and incorporate by reference all allegations contained in the original and First Supplemental and Amending Petition for Damages as if copied here in extenso.

This language constituted a pronouncement of the plaintiffs intent to preserve the allegations made against Dr. Barrack in her original petition. Coleman’s Heirs, 147 So.2d at 753. In addition, accepting the defendant’s position (that the amendment has the effect of negating the plaintiffs prior allegations) would have the undesired effect of placing the plaintiff in a worse condition than she was in prior to filing her amendment. Thomas, supra. As a result, we find that the trial court erred in dismissing the plaintiffs original fall-related claims against Dr. Barrack.

Lastly, we find that the trial court did not err in dismissing the plaintiffs amended claims against Dr. Barrack. Unlike the plaintiffs original claims, her amended claims against Dr. Barrack were filed more than three years after the alleged malpractice and are therefore untimely. Her argument that these claims relate back to the timely filed claims under La. C.C. P. art. 1153 is without merit. Applying the principles set forth in Warren, 21 So.3d 186 (on reh’g), this court finds that the relation back principles of Article 1153 cannot apply to the plaintiffs wholly new claims against Dr. Barrack. The only claims that were timely filed against Dr. Barrack are the original claims relating to his alleged responsibility for the plaintiffs fall. Because the plaintiff failed to amend her petition within the delays allowed by La. R.S. 9:5628, her amended claims are now prescribed.

| ^(Accordingly, with regard to plaintiffs amended claims against Dr. Barrack, we amend the trial court’s judgment solely with regard to the reasons for the dismissal. The plaintiffs amended claims against Dr. Barrack should have been dismissed on the grounds of prescription, rather than peremption, as set forth in Borel, supra and Warren, supra.

Claims Against Newly Added Doctors

Ms. Santiago did not name Dr. Montgomery, Dr. Adams, Dr. Shah, and Dr. Rogers, as defendants until she filed her Second Supplemental and Amending Petition for Damages on May 14, 2007— well over three years after the alleged April 2003 fall. She does not allege that these doctors caused the plaintiffs fall, but that they (like Dr. Barrack) are liable for various acts of malpractice that occurred after the fall, including failing to report the fall and alleged injuries, failing to diagnose a left femur fracture, and falsifying an x-ray report. Because these are wholly new allegations of medical malpractice against wholly new defendants added more than three years after the alleged malpractice occurred, we find that the trial court did not err in dismissing the plaintiffs claims against the four new doctors with prejudice; however, the claims should have been dismissed as prescribed rather than perempted. Warren, supra, 21 So.3d 186.

Ms. Santiago’s supplemental PCF claim against the doctors was also properly dismissed with prejudice. Although plaintiff attempted to remedy procedural defects in her claims against the four new doctors by voluntarily dismissing the district court action and filing a “supplemental” complaint with the PCF, this action was futile because the alleged malpractice had occurred more than 12nfour years earlier. Pursuant to La. R.S. 9:5628(A), Ms. Santiago had three years to file their claims against the doctors; this necessarily encompassed the filing of a timely PCF complaint against the doctors. La. R.S. 40:1299.47(B)(l)(a)(i). Because no PCF complaint was filed against these doctors within three years, prescription has now tolled. The Medical Malpractice Act states:

A health care provider, against whom a claim has been filed under the provisions of this Part, may raise peremptory exceptions of no right of action pursuant to Code of Civil Procedure Article 927(6) or any exception or defenses available pursuant to R.S. 9:5628 in a court of competent jurisdiction and proper venue at any time without need for completion of the review process by the medical review panel.

La. R.S. 40:1299.47(B)(2)(a). Accordingly, the trial court did not err in dismissing the Ms. Santiago’s supplemental PCF complaint as untimely.

Claims Against Administrators

Like the newly added doctors, Administrators was not named as a defendant until the plaintiff filed her Second Supplemental and Amending Petition for Damages. In that petition, Ms. Santiago claimed that Administrators was liable in its capacity as the employer of Drs. Barrack, Montgomery, Adams, Shah, and Rogers under the theory of respondeat superi- or. Prior to that time, the plaintiff had named Tulane University Hospital and Clinic, and then University Healthcare System, L.C., as a defendant employer. Because Administrators was not substituted as a defendant until more the three years after the alleged malpractice of the physicians occurred, in violation La. R.S. 9:5628, the plaintiffs claims against Administrators are also now prescribed.

|g1DECREE

In conclusion, for the reasons expressed herein, we find that the trial court erred in dismissing Ms. Santiago’s original claims against Dr. Robert L. Barrack as set forth in the Petition for Damages filed on July 21, 2006; therefore, that decision is hereby reversed.

We further find that Ms. Santiago’s claims against Dr. Barrack, Dr. Scott Montgomery, Dr. Michael Adams, Dr. Su-jal Shah, Dr. Brian Rogers, and their employer, the Administrators of the Tulane Educational Fund, as set forth in the Second Amended and Supplemental Petition for Damages, and in Plaintiffs Supplemental PCF Complaint, are time-barred because they were filed more than three years after the date of the alleged malpractice in violation of La. R.S. 9:5628. The judgment of the district court dismissing the claims, with prejudice, is amended to show the plaintiffs claims dismissed on the grounds or prescription, rather than peremption. In all other respects, the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . Hereinafter referred to as “original PCF complaint.”

        . It appears from the record before us that the medical review panel issued findings regarding Administrators’ responsibility for the plaintiff’s fall in spite of the fact that Administrators was not a named defendant in the original PCF complaint. The opinion stated in part:
      All the panelists find that the evidence does not support the conclusion that the defendants, The Administrators of the Tulane Educational Fund, d/b/a Tulane University Health Sciences Center, (Formerly Tulane University Medical Center) and Dr. Barrack failed to meet the standard of care as charged in the complaint.
      It is unclear to this Court whether of if the plaintiff properly amended her original PCF claim to add Administrators as a party to the medical review panel proceedings prior to the time that the panel rendered its opinion; however in their responsive brief filed with this Court, Appellees assert that the plaintiff did not. See, La. R.S. 40:1299.47(A)(1)(b) (outlining minimum requirements to establish a PCF claim against a qualified healthcare provider) and La. R.S. 40:1299.47(A)(1)(c) (establishing a filing fee of one hundred dollars per named defendant). Because there is no dispute that Administrators was not identified as a defendant in the district court proceedings until the plaintiff filed her second amended petition more than three years after the alleged malpractice (as will be discussed herein), there is no reason for this Court to address the effect of the panel’s opinion, if any, on the plaintiff’s claims against Administrators.

      . Presumably, the plaintiff alleged injury to her femur based on the findings of the medical review panel; however, in their opinion, the panel noted a fracture to the plaintiff's left femur, rather than her right one.

      . In its Answer to the plaintiff's first supplemental and amending petition, University Healthcare System, L.C. identified itself as "University Healthcare System, L.C. d/b/a Tulane University Hospital & Clinic.” We make no finding as to whether TUHC was properly named prior to this amendment as the claims against TUHC are not before us on appeal.

      .Plaintiff's first amended petition also named HCA Health Services of Louisiana, Inc., ABC Insurance Company, and DEF Insurance Company as additional defendants. Those parties are not before us on appeal.

      . The PCF ultimately assigned a new case number to this complaint because the original PCF case was closed. The original case filed with the PCF concluded at the point when the medical review panel rendered a decision in that matter. See, e.g. Abel v. North Oaks Medical Center, 09-1186, p. 6, (La.App. 1 Cir. 2/12/10), 35 So.3d 1109, 1113 (holding that once a medical review panel renders an opinion in a case, "the exclusive manner available to plaintiffs to have their new malpractice claims submitted to a medical review panel is by the claimant filing a new request for review to the division of administration as provided in La. R.S. 40:1299.47.")

      . In December of 2007, the nurses and radio-logic technologists (Larry Peschong, R.T., Brad Stringer, R.T., Rosalie Varnado, R.N. and Craig Jones, R.N.) filed a Peremptory Exception of Peremption and Alternatively, Motion for Summary Judgment challenging the timeliness of the plaintiff's Second PCF Complaint and district court petitions. These defendants argued that the medical malpractice claims against them should be dismissed under La. R.S. 9:5628 because they were not named as defendants in any action filed by the plaintiff until more than four years after the alleged fall. The trial court granted the Exception of Peremption on March 19, 2008, and dismissed all PCF and district court claims against these defendants. The plaintiff did not appeal their dismissal.

      . La. R.S. 40:1299.47(B)(l)(a)(i) states: "No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant's proposed complaint has been presented to a medical review panel".

      . La. R.S. 40:1299.47(A)(2)(a) states in pertinent part:
      The filing of the request for a review of a claim shall suspend the time within which suit must be instituted, in accordance with this Part, until ninety days following notification, by certified mail ... to the claimant or his attorney of the issuance of the opinion by the medical review panel.... The filing of a request for review of a claim shall suspend the running of prescription against all joint and solidary obligors, and all joint tortfeasors, including but not limited to health care providers, both qualified and not qualified, to the same extent that prescription is suspended against the party or parties that are the subject of the request for review.

      . Contra non valentem is a judicially created exception to the general rules of prescription that operates to suspend prescription when the plaintiff is prevented from acting under one of four scenarios:
      (1) Where there was some legal cause which prevented the courts or their officers ■ from acting or taking cognizance of the plaintiff’s action; or
      (2) Where there was some condition or matter coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting;
      (3) Where the debtor himself has done some act effectively to prevent the creditor from availing himself of his cause of action; and
      (4)Where some cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant.

        Hillman v. Akins, 631 So.2d 1 (La.1994); Rajnowski v. St. Patrick's Hospital, 564 So.2d 671, 674 (La.1990); Corsey v. State, through Dept. of Corrections, 375 So.2d 1319, 1321-1322 (La.1979).

      . Borel, p. 25, 989 So.2d at 67 (citing LeBreton, 97-2221 at 9-10, 714 So.2d at 1230).

      . The Louisiana First Circuit Court of Appeal relied on Giroir v. South La. Med. Ctr. Div. of Hospitals, 475 So.2d 1040 (La.1985) and Article 1153 in denying writs.

      . The plaintiffs First Supplemental and Amending Petition added defendants who are not before us on appeal; there were no other substantive changes regarding the allegations against Dr. Barrack in the First Supplemental and Amending Petition for Damages.

      . Emphasis added.

      . Compare, Williamson v. Hospital Service District No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782 (Although plaintiff’s counsel acknowledged that original pleadings were abandoned by virtue of amendment, appellate court should have reviewed plaintiff's petition as supplemented and amended without reference to allegations in original petition that were substituted or abandoned).

      . Plaintiff also cites Masson v. Champion Insurance Company, 591 So.2d 399, 402 (La.App. 4th Cir.1991), in support of her position.

      . We note that the filing of a petition does not suspend or interrupt prescription in a medical malpractice action. Only a timely request for a medical review panel suspends prescription. Borel, pp. 26-27, 989 So.2d at 68-69.

      . See footnote 17, supra.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    Judy SEROU, Gordon Serou, Jr., Stephen S. Serou, and Michael Serou v. TOURO INFIRMARY, Specialty Hospital of New Orleans, Inc., and Columbia Casualty Company.
    No. 2012-CA-0089.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Timothy E. Pujol, Barbara Lane Irwin, Pujol & Pryor, Gary M. Gaudin, Gary M. Gaudin, APLC, Gonzales, LA, Val Patrick Exnicios, Liska Exnicios & Nungesser, Mark P. Glago, Glago Law Firm, L.L.C., New Orleans, LA, Rebecca M. Urrutia, Urrutia & Associates, Attorney at Law, Metairie, LA, for Plaintiffs/Appellees.
    Sidney W. Degan, III, Laura M. Mayes, Travis L. Bourgeois, Degan Blanchard & Nash, New Orleans, LA, for Defendant/Appellee, Aggreko, LLC.
    Franklin D. Beahm, Jacob Best, Beahm & Green, New Orleans, LA, for Defendant/Appellant, Touro Infirmary.
    (Court composed of Judge TERRI F. LOVE, Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET).
   ON APPLICATION FOR REHEARING

PAUL A. BONIN, Judge.

hOur original opinion addressed two separate, but interrelated, judgments that were issued by the district court. First, we addressed Touro Infirmary’s appeal of the judgment rendered against it after a judge trial on the plaintiffs’ principal demand. Second, we addressed the district court’s dismissal with prejudice of Touro Infirmary’s cross-claim against Aggreko, Inc., which was rendered in response to a motion for summary judgment filed by Aggreko. In a split decision, the original three-judge panel affirmed the money judgment against Touro on the principal demand, but reversed the summary judgment on the cross-claim rendered in favor of Aggreko. Following separate applications for rehearing, we denied rehearing on the principal demand and that judgment is now final. See Serou v. Touro Infirmary, 12-0089 (La.App. 4 Cir. 1/9/13), 105 So.3d 1068, writ den., 13-0377 (La.4/1/13), 110 So.3d 588.

We, however, granted rehearing on Ag-greko’s application because we were not authorized to render judgment reversing its summary judgment when one judge of the three-judge panel would affirm. See La. Const, art. V § 8 B (requiring that a 12majority of judges concurring is necessary to render judgment “[hjowever, in civil matters only, when a judgment of a district court ... is to be modified or reversed and one judge dissents, the case shall be reargued before a panel of at least five judges, prior to the rendition of judgment”). See also Rule 1-5 of the Uniform Rules — Courts of Appeal. Thus, we convened a five-judge panel and heard re-argument on Touro’s appeal of the summary judgment rendered in favor of Ag-greko.

Upon our de novo review of Aggreko’s motion for summary judgment, we find that there are genuine issues of material fact that preclude the granting of summary judgment at this time in these proceedings. Accordingly, we remand Touro’s cross-claim to the trial court for further proceedings. We explain our decision in more detail below.

I

In its cross-claim, Touro seeks indemnification from Aggreko for money owed to the Serou plaintiffs for the death of Gordon Serou, Sr., a resident of the Specialty Hospital of New Orleans (“SHONO”), located on Touro’s seventh floor, at the time of Hurricane Katrina. Touro’s cross-claim for indemnification arises out of events that occurred near the start of the 2005 Hurricane season. In June 2005, Touro and Aggreko signed the Hurricane Contingency Plan Agreement |S(“HCPA”), which provided that, in exchange for $15,075, Aggreko agreed to guarantee the availability to Touro of a pre-selected generator package in the event of a hurricane striking the New Orleans area.

Specifically, the HCPA called for Aggre-ko to deliver to Touro the following: 1) one 800kW generator; 2) one filled 1,100 gallon external fuel tank; 3) one trailer; and 4) fifty 1.1 ton spot cooling units. The generator was intended to power certain pieces of equipment within the hospital that were components of Touro’s air conditioning system and were used to provide chilled air to the first three floors of Tou-ro’s main building. According to the terms of the contract, Touro was to tender full payment for Aggreko’s services by August 1, 2005. The facts show, however, that Touro’s accounts payable department did not prepare the check until August 25, 2005. Even then, the check was never tendered to Aggreko. The terms of the contract provided, however, that Aggreko was entitled to refuse performance on the HCPA in the event of Touro’s failure to tender timely payment.

Nevertheless, Aggreko delivered the generator package when requested to do so by Touro. Specifically, Touro’s Scott Landry spoke with Aggreko’s Todd Hastings on August 25 and 26, 2005, in order to arrange for the delivery of the generator package, which was delivered on Sunday, August 28, 2005. Touro lost power at approximately 3:00 a.m. on August 29, 2005. The Aggreko generator was activated at that time. While the testimony is somewhat conflicting, it is clear that Tou-ro’s staff began to experience problems with the Aggreko generator almost immediately after it was activated and that it was completely inoperable within four hours of its initial activation.

^Further, the evidence reveals that Ag-greko failed to deliver an external fuel tank that was full of generator fuel. That is to say, Aggreko delivered an external fuel tank, but it was not full of generator fuel. After the hurricane had passed, and the full extent of the damage to the community came to be known, Touro personnel concluded that they needed to obtain additional generator fuel. Subsequently, Touro accepted a delivery of fuel from a tanker truck operated by uniformed military personnel. Unfortunately, that fuel proved to be contaminated, and the contaminated fuel shut down those Touro generators that supplied backup power to life safety circuitry on Touro’s seventh floor— the floor that contained SHONO.

II

Subsequent to the events of August 2005, the Serou plaintiffs filed suit against Touro and SHONO and amended their original petition several times, eventually naming Aggreko as a defendant. Thereafter, Aggreko filed a cross-claim against Touro, who responded by filing a cross-claim for indemnification against Aggreko. Touro’s basis for liability against Aggreko is an indemnification clause found within the HCPA, which provides in part:

Aggreko shall release, indemnify, defend and hold customer harmless from and against any claim, demand, loss, damage, liability, lawsuit, cause of action, judgment, penalty and/or expense ... on account of property damage or loss, or personal injuries (including illness disability or death) resulting from the operation, use or handling of the equipment or services provided hereunder, to the extent caused by the negligence or fault of Aggreko.

Thus, Aggreko agreed to indemnify and hold Touro harmless for damages incurred by third parties that resulted from the negligence or fault of Aggreko.

IbTouto in its cross-claim pled that Ag-greko breached the HCPA in that it failed to provide the amount of fuel referenced in the HCPA, and it failed to provide a functioning and operable generator. Touro further asserted, among other things, that Aggreko’s alleged breach was the legal and proximate cause of plaintiffs’ damages, and sought indemnification for any sums to which it was cast in judgment in connection with the plaintiffs’ demands.

Aggreko first filed a motion for summary judgment on Touro’s cross-claim on June 2, 2011. The district court subsequently denied Aggreko’s motion, finding that there were “questions of fact surrounding whether the HCPA was breached, and if so, by whom and when.” Aggre-ko sought writs of certiorari with this Court, which denied Aggreko’s request for review. Serou v. Touro Infirmary, 11-1023 (La.App. 4 Cir. 7/25/11) (unpub.). Aggreko, thereafter, settled with the plaintiffs and re-urged its motion for summary judgment against Touro. After trial on the merits of the plaintiffs’ claims, wherein the district court assigned a percentage of liability to Touro for Gordon Serou, Sr.’s death, but prior to rendering judgment, the district court granted Aggreko’s re-urged motion for summary judgment and issued a judgment wherein it: 1) granted Aggreko’s motion for summary judgment against Touro; and 2) found specifically that Touro “failed to establish that Aggre-ko, LLC’s conduct was the proximate or legal cause of the Plaintiffs’ injuries.” Touro sought review of this ruling within the context of its appeal of the | (¡district court’s judgment on the plaintiffs’ demands.

In the district court below, Aggreko argued that summary judgment was warranted because: 1) its own failure to properly perform under the contract was, in essence, excused by Touro’s failure to timely make payment under the terms of the contract; and 2) Touro cannot establish that any actions or inactions by Aggre-ko were a legal or proximate cause of the plaintiffs’ injuries. Whatever the merits of Aggreko’s contractual argument, it is clear that the district court granted the motion based upon its finding that Touro cannot meet its burden of proving causation. After reviewing the record and the applicable law, we conclude that the district court erred when it granted Aggreko’s motion for summary judgment and dismissed Tou-ro’s claim for indemnification based upon the presence of genuine issues of material fact within the record before us.

Ill

Appellate courts review the granting of summary judgment de novo under the same criteria governing the district court’s

consideration of whether summary judgment is appropriate. See Hare v. Paleo Data, Inc., 11-1034, p. 9 (La.App. 4 Cir. 4/4/12), 89 So.3d 380, 387. “A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of summary judgment does not dispose of the entire case.” La. C.C.P. art. 966 E. “[A] motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La. C.C.P. art. 966 C(l). “The burden of proof remains with the movant.” La. C.C.P. art. 966 C(2). “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 mov-ant’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.” Id. “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.” Id.

Touro asserts that summary judgment on the issue of causation in its cross-claim against Aggreko was improper because of genuine issues of material fact. We agree. The evidence adduced at trial reveals that the generator delivered by Aggreko to Touro in advance of Hurricane Katrina never worked properly and was completely inoperable within four hours of its activation. Further, it was established at trial that Aggreko failed to provide Touro with a full fuel tank, which led Touro’s staff to accept from a military source fuel'that was subsequently found to be contaminated. Similarly, it was eventually discovered that this contaminated fuel led to the shutdown of those Touro generators which were responsible for supplying backup power to SHONO. Likewise, the district court found ^specifically, within the context of the plaintiffs’ demands, that Touro: 1) had a responsibility to SHONO patients to provide and maintain its premises in a safe and working condition; 2) was contractually obligated to provide emergency backup power and air conditioning to SHONO; 3) failed to provide air conditioning to SHO-NO; and 4) failed to provide SHONO and its patients with a safe environment. Additionally, the district court found that Mr. Serou died as a result of heat-related illness, which was caused in part by the foregoing enumerated failings.

Having reviewed the record, we find that there is a genuine issue of fact as to whether Touro’s inability to provide air conditioning and backup power to SHONO during the aftermath of Hurricane Katrina — failings that the district court connected causally to the plaintiffs’ injuries — resulted, in part, from Aggreko’s failure to provide a functioning backup generator and the contracted-for-amount of generator fuel. Specifically, we find that there is a genuine issue of material fact as to-whether Touro personnel would have felt compelled to accept the contaminated fuel — which subsequently rendered inoperative those generators providing backup power to SHONO — had Aggreko provided Touro with the contracted-for-amount of generator fuel. Clearly, with respect to Touro’s and Aggreko’s competing cross-claims, we find that genuine issues of fact remain as to whether Aggreko’s failures to perform under the terms of the HCPA can be causally linked to the plaintiffs’ injuries. Accordingly, we reverse the district court’s judgment that granted Aggreko’s motion for summary judgment on Touro’s cross-claim and remand this matter to the district court. Because we reverse the judgment, those issues raised by Aggreko in its answer to Touro’s appeal are now moot.

InDECREE

The judgment of the district court dismissing with prejudice Touro’s cross-claim against Aggreko (the judgment on the incidental demand) is reversed, and Aggreko’s answer to Touro’s appeal is rendered moot. Touro’s cross-claim is remanded to the district court for proceedings consistent with this opinion.

REVERSED AND REMANDED

      . Pursuant to a lease and a services agreement, SHONO leased the seventh floor of Touro's main hospital building located at 1501 Foucher Street, New Orleans. At that location, SHONO operated a long-term acute care facility beginning in 1998 and continuing through the aftermath of Hurricane Katrina. In essence, SHONO operated as a hospital within a hospital. SHONO had its own staff and was responsible for providing the clinical and medical care to its own patients. Touro, however, was contractually obligated to provide certain services, such as electricity, emergency power, and air conditioning, to the SHONO facility. Likewise, Touro also obligated itself to provide certain auxiliary services to SHONO’s patients, such as transportation and therapy; however, the agreement expressly provided that “Specialty Hospital is ultimately responsible for all care rendered to Specialty Hospital’s patients by Touro.” The agreement also required that Touro and SHONO cooperate in preparing for disasters.

      . The plaintiffs settled their claims with SHO-NO prior to trial on their main demand against Touro.

      . Further, the district court, .upon Aggreko’s uncontested motion, severed Aggreko’s and Touro's competing cross-claims and continued the trial on these matters until after the trial on the plaintiffs main demand.

      . Trial on Aggreko’s cross-claim against Tou-ro has yet to commence.

      . In its answer, Aggreko asserts the following six assignments of error:
      1) The district court erred in failing to specifically rule that Touro breached the Contract, and hence, is not entitled to damages or indemnity.
      2) The district court erred in failing to specifically rule that Touro further breached the Contract in "bad faith.”
      3) The district court erred in failing to specifically rule that Touro further breached the Contract by failing to notify Aggreko of any problems with the generator.
      4) The district court erred in failing to specifically rule that, even if there was a breach on the part of Aggreko, liability is foreclosed because of a "Fortuitous Event” under La. Civ.Code art. 1873.
      5) The district court erred in failing to specifically rule that "Payment of a Thing Not Owed” prevents Touro’s recovery, under La. Civ.Code arts. 2298 and 2299.
      6) Alternatively, even if indemnity were to become due, the Contract only makes Aggreko potentially liable for indemnity "to the extent caused by the negligence or fault of Aggreko.”

      .As noted, Aggreko asserts that its failure to perform under the HCPA was excused by its subsequent discovery that Touro was in breach of the HCPA by failing to timely remit payment. Aggreko cites to no law in support of this position, and we decline to craft such a principle. Regardless, our review of the HCPA indicates that Aggreko’s sole remedy in the event of Touro's non-payment was to refuse to perform under the contract. Aggreko, instead, opted to render performance, which Touro claims was deficient and a causative factor in the plaintiffs' injuries. Moreover, it is clear from the plain wording of the judgment on Aggreko’s motion that the district court granted Aggreko relief after finding that Touro could not meet its burden of proving causation.


author: EDWIN A. LOMBARD, Judge.

text:
    Vijayendra JALIGAM v. Radhika POCHAMPALLY.
    No. 2012-CA-1510.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Jane Ettinger Booth, Booth & Booth, APLC, New Orleans, LA, for Plaintifi/Ap-pellant.
    Richard Ducote, Pittsburgh, PA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   EDWIN A. LOMBARD, Judge.

11The Appellant, Vijaydendra Jaligam, seeks review of the judgment of the district court granting the Motion for Relocation of his ex-wife/the Appellee, Radhika Pochampally, and allowing the relocation of his minor children with the Appellee, to Jackson, Mississippi. Finding that the district court did not abuse its discretion in granting the motion, we affirm.

Facts and Procedural History

The parties were married in October 1995, and of that union were born two children, Pranav and Sahana (“the minor children”). During the marriage, the Appellant had an affair with a co-worker, who later filed a paternity suit against him. The Appellant is indeed the father of his co-worker’s child. Upon the Appellee learning of the paternity suit, she left the United States with the minor children and took them to India, where they remained for six months. The Appellant did not consent to the minor children being taken to India.

Thereafter, the Appellant filed a Petition for Divorce with Rule for Custody, Return of Children, Exclusive Use of Community Property and Termination of the Community on January 22, 2008. He then filed a second “Petition for Divorce and |2Petermination of Incidental Matters”, Case No. 2008-5342, which was consolidated with his original Petition for Divorce under Case No. 2008-00724. Along with the second Petition for Divorce, the Appellant filed a Writ of Habeas Corpus and Expedited Rule for Custody seeking the return of the children from India.

The Appellee returned with children to New Orleans in late June 2008. Upon her return to New Orleans in June 2008, she filed a Petition for Relief from Domestic Abuse alleging that the Appellant physically abused her. The district court later dismissed her petition with prejudice in July 2008. The district court further rendered an interim judgment granting the parties joint custody and designating the Appellee as the domiciliary parent. Additionally, the Appellant was awarded makeup visitation for the six (6) month time period the minor children were out of the country, and he was awarded regular visitation. The district court further ordered that the parties submit to a custody evaluation with Dr. Karen Van Beyer.

The parties were granted a Judgment of Divorce on August 18, 2008.

In early October 2009, the parties appeared in district court for a custody trial; however, the trial was stayed in response to a request by the Appellant to file a Writ Application to the Court of Appeal, Fourth Circuit. The writ application, Case No. 2009-C-0481, was denied.

On March 5, 2010, the Appellee filed a Temporary Restraining Order on behalf of the minor children allegedly seeking to prevent their paternal grandmother from being in their presence and seeking an order that their paternal grandmother undergo a psychiatric evaluation. The temporary restraining order |awas later issued against the Appellant and the minor children’s paternal grandmother, who was residing with the Appellant.

On March 31, 2010, the Appellee filed a Rule to Suspend or Modify Child Visitation which was set for hearing on April 15, 2010; nevertheless, the Rule was continued without date and never reset to be heard by the Court. Thereafter, in April 2010, the parties entered into a Consent Judgment dissolving the Temporary Restraining Order that issued against the minor children’s paternal grandmother.

Subsequently, the Appellant filed an Emergency Ex Parte Motion to Enforce Visitation, which the district court granted thereby reinstituting the Appellant’s visitation with the minor children.

The district court declared an open custody trial a mistrial in August 2010.

On November 15, 2010, the Appellant filed a motion requesting that the court implement the recommendations of custody evaluator, Dr. Van Beyer, pending the trial on Permanent Custody, and he moved for an updated evaluation. The parties entered into a Consent Judgment wherein they agreed that Dr. Van Beyer would perform an updated custody evaluation. The parties also agreed to an interim holiday visitation schedule, and a regular visitation schedule for the Appellant.

In mid-June 2011, a four-day custody trial was held. The district court rendered an October 2, 2011, judgment awarding the parties joint and shared physical custody of the minor children. The parties were to alternate domiciliary status every other year and Dr. Karen Van Beyer was appointed as Parenting Coordinator and Custody Facilitator.

At the end of 2011, the Appellee was terminated from Tulane University, where she had done her post-doctorate fellowship and had been employed for ^approximately 8 years. In January 2012, the Appellee began working at the University of Mississippi, in Jackson. . Thereafter, the Appellee filed a Motion for Relocation Authorization to move the permanent residence of the minor children to Jackson, Mississippi, which the Appellant opposed. After the relocation trial, on July 31, 2012 , the district court rendered judgment granting the motion and permitting the relocation of the minor children to Jackson.

The Appellant timely sought review of this judgment and raises three (3) assignments of error on appeal:

1) The district court abused its discretion by refusing to allow relocation and custody expert, Dr. Karen Van Beyer, to give an opinion on relocation and in failing to weigh her expert testimony with the other evidence presented at trial;
2) The district court abused its discretion in failing to apply the evidence as presented to all of the factors of La. Rev.Stat. 9:355.13; and
3) The district court abused its discretion by allowing the relocation of the minor children when the evidence supports that the relocation is not in the best interest of the minor children.

Standard of Review

The district court’s determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. H.S.C. v. C.E.C., 05-1490, p. 3 (La.App. 4 Cir. 11/8/06), 944 So.2d 738, 740 (citing Curole v. Curole, 02-1891, p. 4 (La.10/15/02), 828 So.2d 1094, 1096).

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Leaf v. Leaf, 05-0592, p. 2 (La.App. 4 Cir. 3/2/06), 929 So.2d 131, 132 (citing Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992)). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

Refusing to Allow Dr. Van Beyer to Testify on Relocation

In his first assignment of error, the Appellant argues that the district court abused its discretion by refusing to allow Dr. Van Beyer to give an opinion on relocation and in failing to weigh her expert testimony with the other evidence presented at trial. The Appellant argues that the district court qualified Dr. Van Beyer as an expert in the areas of custody evaluations and relocation. Furthermore, Dr. Van Beyer interacted with the family from 2008 to 2012 as a result of her initial appointment by the district court to assess the family and prepare a custody evaluation. The Appellant contends that in light of Dr. Van Beyer’s extensive familiarity with the family and her expertise, the district court should have allowed her to testify as to her opinion of whether the Appel-lee’s relocation was in the best interest of the children. The district court’s refusal to allow Dr. Van Beyer to testify, according to the Appellant, amounts to an abuse of discretion and reversible error by the district court.

|f,In the instant matter, the questions asked of Dr. Van Beyer regarding relocation were deemed speculative by the district court, which questioned Dr. Van Beyer to ascertain whether she conducted a relocation evaluation in the matter. In sustaining the objections of the Appellee to Dr. Van Beyer’s testimony, the district court explained that Dr. Van Beyer did not “assess the situation in light of the pending relocation action.” Also, counsel for the Appellee alleged that at the time of the trial Dr. Van Beyer had not met with the parties or the minor children in quite some time.

Based upon our review of the record, Dr. Van Beyer had not met with any members of the family since February 2012. Furthermore, the district court did not request that Dr. Van Beyer perform a relocation evaluation pursuant to La.Rev. Stat. 9:355.8, which was within the court’s discretion. Moreover, neither of the parties moved the court to request that Dr. Van Beyer or another mental health professional perform a relocation evaluation. See Jarnagin v. Jarnagin, 09-903 (La.App. 3 Cir. 12/9/09), 25 So.3d 1028, 1034.

“A trial judge has great discretion in the admissibility of evidence and its decision to admit or exclude evidence may not be reversed on appeal unless there is an abuse of that discretion.” Lauve v. Lauve, 08-0076, pp. 7-8 (La.App. 4 Cir. 8/20/08), 6 So.3d 184, 189 (citing Boykins v. Boykins, 04-0999, p. 4 (La.App. 4 Cir. 4/24/07), 958 So.2d 70, 74). “In ruling on a relocation request, the trial court may give whatever weight it deems appropriate to the testimony of any and all witnesses, including that of experts.” Fuqua v. Fuqua, 46,118, p. 11 (La.App. Cir. 1/26/11), 57 So.3d 534, 539 (citation omitted). In addition to an expert’s professional qualifications and experience, the weight to be given expert testimony depends, ultimately, on the facts on which it is based. Meany v. Meany, 94-0251, p. 11 (La.7/5/94), 639 So.2d 229, 236.

Considering that Dr. Van Beyer did not perform a relocation assessment of the parties and the minor children, we do not find that the district court erred in excluding the testimony of Dr. Van Beyer as to her opinion on relocation. The district court differentiated between an expert in relocation, such as Dr. Van Beyer, from an expert in relocation who performed a relocation assessment specific to the family at issue. Although another trier of fact may have allowed Dr. Van Beyer to testify as to her opinion on the Appellee’s relocation given her extensive history with the family, we do not find that the district court abused its vast discretion in this instance. This assignment of error is without merit.

Failing to Apply the Evidence as Presented Under La.Rev.Stat. 9:355.13

The second assignment of error raised by the Appellant is that the district court abused its discretion in failing to apply the evidence as presented to all of the factors of La.Rev.Stat. 9:355.13, which provides:

The person proposing relocation has the burden of proof that the proposed relocation is made in good faith and is in the best interest of the child.

The good faith requirement is not satisfied by relocations “that are based on a frivolous reason, no reason, or just to interfere with the noncustodial parent’s visitation with the children.” McLain v. McLain, 07-0752, pp. 13-14 (La.App. 4 Cir. 12/12/07), 974 So.2d 726, 734 (citations omitted). “The jurisprudence has defined the meaning of the term good faith in this context as a legitimate or valid reason for the move.” Id., 07-0752, p. 13, 974 So.2d at 734 (citing Johnson v. Johnson, 99-1933, p. 5 (La.App. 3 Cir. 4/19/00), 759 So.2d 257, 259).

The Appellant argues that it is highly dubious that the Appellee was acting in good faith in seeking to relocate only five (5) months after the district court entered a permanent custody order of shared and equal custody between the parties for the following reasons:

• the Appellee has consistently sought to limit his contact with the minor children, and
• the Appellee failed to immediately notify the court or himself of her impending unemployment at the trial on permanent custody, although she had more than a year’s notice of her termination.

He further asserts that the Appellee presented no evidence that she was unable to obtain other employment in the New Orleans area, or that the lives of the minor children would be enhanced by moving them to Mississippi. In terms of enhancement, he argues that at the relocation trial the Appellee did not know: where the children would live; where Pranav would be placed in school; how the children would be transported to school; nor what extracurricular activities would be available for the children. The Appellant argues that the district court failed to consider, under La.Rev.Stat. 9:355.13, the benefits the minor children “will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.” He avers that this failure is an abuse of discretion.

The record shows that the Appellee, who has a Ph.D. in cancer biology, was working at Tulane University Medical Center (“Tulane”) as an assistant professor in the Department of Pharmacology and Gene Therapy at Tulane when she | ^received notice in June 2010 that her employment would be terminated within approximately a year. She was also performing cancer and stem cell research at Tulane. It is undisputed that she did not immediately inform the Appellant or the district court of her impending termination. Although the Appel-lee attempted to remain employed at Tulane and to attain tenure, her efforts were to no avail. The Appellee had a large grant to perform stem cell research with the National Institute of Health (“NIH”); however, the grant was in jeopardy if she was not anchored at an institution.

The testimony introduced at trial from co-workers of the Appellee at Tulane demonstrated that Louisiana State University (“LSU”) was the closest university that also performed stem cell research, but LSU declined to hire her. The Appellee was later offered a job at the University of Mississippi, in Jackson, with an approximately $50,000 salary increase, on a tenure track that allowed her to keep her grant and continue to perform stem cell research. The Appellee accepted the job.

In light of all these facts, it is clear that the Appellee’s acceptance of the job at the University of Mississippi was necessary to her remaining employed at all. Additionally, her new job affords her professional development, a larger salary and allows her to retain a NIH grant and continue meaningful cancer research. The minor children would unquestionably benefit from the Appellee’s positive change in circumstances. Thus, there has been no showing that the district court erred in finding that the Appellee was operating in good faith in seeking to relocate herself and her children. This assignment of error is without merit.

Regarding whether the relocation is in the best interest of the minor children, we shall discuss the arguments raised by the Appellant in the following assignment |10of error, which deals exclusively with whether the relocation to Mississippi is in the best interest of the minor children.

The Relocation of the Minor Children is Not in Their Best Interest

Lastly, the Appellant argues that the district court abused its discretion by allowing the relocation of the minor children when the evidence supports that the relocation is not in their best interest. The Appellant argues that although the district court considered each of the twelve statutory factors under La.Rev.Stat. 9:355.12, the court misapplied the evidence presented to each factor.

La.Rev.Stat. 9:355.12 lists twelve (12) factors to be considered when determining whether allowing relocation is appropriate:

A. In reaching its decision regarding a proposed relocation, the court shall consider the following factors:
(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not |nlimited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

“This statute mandates that all of the factors set forth be considered by the court. It does not, however, direct the court to give preferential consideration to certain factors.” Curole, 02-1891, p. 6, 828 So.2d at 1097. A district court’s decision to emphasize only certain factors does not, in and of itself constitute an error. Miller v. Miller, 01-0356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Additionally, “[i]n determining the child’s best interest, the court must consider the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.” Gathen v. Gathen, 10-2312, p. 10 (La.5/10/11), 66 So.3d 1, 8.

It is undisputed that the district court considered each of the statutory factors at issue, as evidenced by the district court discussing all twelve (12) factors in its Reasons for Judgment. The district court also conducted a Watermeier hearing with the minor children to ascertain whether they wanted to relocate. Sahana informed the district court that she was content with letting the court make the | ^relocation decision for her, whereas Pranav testified that he would prefer to remain with the Appellant and see the Appellee often. Indeed, Dr. Van Beyer testified that Pranav remaining around his father was essential to his development because he needed to learn from his father how to become a young man. Moreover, the court heard testimony from various witnesses including both parties, the Appellee’s father (Venkat Pochampally), the Appellant’s wife (Nihdi Jaligam), and Dr. Ramesh Ayyala, a colleague of the Appellee who observed her go before the grievance committee at Tulane.

The crux of this matter is that the district court simply relied upon the testimony of the Appellee over the Appellant or any of witnesses whose testimony favored his position, including Dr. Van Beyer. The district court determined that the Appellee has always been the primary caretaker of the children; therefore, she provided stability in the children’s lives. This finding does not detract from the Appellant’s status as a domiciliary parent following the custody trial. The district court considered that the minor children were excellent students at Lusher Elementary, and therefore, there was no reason they would not continue to excel in schools comparable to Lusher in Jackson, Mississippi.

Moreover, the court heard conflicting testimony as to whether the Appellant physically abused the Appellee during their marriage. The district court, however, believed that the Appellant had abused the Appellee based upon her testimony and that of her father, Mr. Pochampally, and held that the Appellee’s relocation was necessary for her to separate herself from the Appellant’s controlling nature. The court further found reasonable the Appel-lee’s actions in secreting the children out of the United States and interrupting the Appellant’s visitation with the children was a natural response to the Appellant’s affair and his physical abuse.

| lsThe district court also heard testimony from the Appellee and Dr. C.V. Subra-naniam, whose wife worked with the Appellant, that Jackson has a larger Indian population and temple than New Orleans. The district court took this testimony in consideration when it concluded that the minor children will be able to continue their temple participation and that their lives would be enhanced culturally by living in Jackson. Moreover, the district court noted that Jackson is three (3) hours away from New Orleans, and that such as distance does not present a major hindrance to the Appellant preserving his relationship to the minor children.

We further note that the district court, in its Reasons for Judgment, weighed the Appellant’s estranged relationship with the child he fathered out-of-wedlock and found that the Appellant currently has to make time for his step-children. As previously stated, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Leaf, supra. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id. While another trier of fact, in the instant matter, may have determined that these findings were irrelevant to the instant relocation proceeding, we cannot say the district court did not consider all of the evidence presented in weighing whether relocation was in the best interest of the minor children.

As the First Circuit reasoned, when there are two loving, concerned and involved parents, decisions regarding the custody of the children are extremely difficult, and even more so when the relocation of one of the parents is at issue, Richardson v. Richardson (Blackmar), 01-0777, p. 16 (La.App. 1 Cir. 9/28/01), 802 So.2d 726, 735. In the matter sub judice, the district court acknowledged that it was clear that the minor children and the Appellant love each other and share a close bond. Nevertheless, in consideration of the conflicting testimony presented at trial, the district court did not abuse its discretion in finding that the relocation of the minor children with their mother was in their best interest and granting the motion for relocation.

DECREE

For the foregoing reasons, the judgment of the district court granting the Motion for Relocation of Radhika Pochampally, is affirmed.

AFFIRMED

      . At the time of the relocation trial, Pranav was eleven years old and Sahana was eight.

      . Although Judge D'Souza presided over the relocation trial, various judges of the Civil District Court presided over different stages of this matter throughout its procedural history.

      . The judgment further: 1) granted joint custody of the minor children to the parties and designated the Appellee as the domiciliary parent; 2) set forth a visitation schedule for the Appellant; 3) set forth co-parenting guidelines; and 4) detailed how the parties are to handle medical emergencies of the minor children, sharing of school and medical records, mandatory evacuation and telephone access.

      . We note that La.Rev.Stat. 9:355.8 stated "[t]he [district] court may promptly appoint an independent mental health expert to render a determination as to whether the proposed relocation is in the best interest of the child.” This statute is currently codified as La.Rev.Stat. 9:355.15.

      . This statute is currently La. Rev.Stat. 9:355.10.

      . This statute in currently La. Rev.Stat. 9:355.14.


text:
    STATE of Louisiana v. Auther WILLIAMS.
    No. 2012-KA-1092.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 24, 2013.

      Deidre K. Peterson, The Peterson Law Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

_JjThis appeal filed by counsel on behalf of the defendant, Auther Williams, is from a trial court judgment denying a motion to correct an illegal sentence. However, because a denial of a motion to correct an illegal sentence is not an appeal-able judgment, we convert the appeal to a •writ application. See State v. Hill, 2011-0683 (La.App. 4 Cir. 4/4/12), 89 So.3d 396. For the following reasons, the defendant’s application for supervisory relief is denied.

Relevant Facts and Procedural History

The defendant/relator was charged on April 7, 1998 with one count of armed robbery. He pleaded not guilty at his arraignment and, after a jury trial on May 24, 1999, was found guilty as charged. He was subsequently adjudicated a third felony offender and sentenced him to life imprisonment without benefit of parole, probation, or suspension of sentence. On appeal, his conviction and sentence were affirmed. State v. Williams, unpub. 2000-2148 (La.App. 4 Cir. 11/7/01), 800 So.2d 453, writ denied, 2002-0174 (La.2/14/03), 836 So.2d 135. The defendant/relator filed two successive applications for post-conviction relief wherein he argued that the State failed to prove the allegation in the multiple bill. The trial court denied both of these writs, and on review this court upheld these rulings. State v. Williams, unpub. 2003-2044 (La.App. 4 Cir. 12/23/03); State v. Williams, unpub. 2008-0450 (La.App. 4 Cir. 4/25/08), writ denied, State ex rel. Williams v. State, 2008-1280 (La.3/6/09), 3 So.3d 477.

On January 20, 2012, counsel for the defendant/relator filed the motion to correct an illegal sentence currently at issue. The district court heard and denied the motion on April 20, 2012. It is from this ruling that the defendant seeks relief, arguing that the ruling was in error because the State failed to prove that he was a multiple offender.

This claim is without merit. First, it is repetitive; the defendant/relator raised this issue in both of his pro se post-conviction applications and both were denied. See La.Code Crim. Proc. art. 930.4. Moreover, after the trial court granted the motion for appeal from the judgment of April 20, 2012, counsel for the defendant also filed a writ application in this court raising the same issue he sought to raise on appeal. This court denied relief. State v. Williams, unpub. 2012-0979 (La.App. 4 Cir. 7/12/12).

In addition, although the defendant/relator styled his pleading as a motion to correct an illegal sentence, the sentence he received was legal under the provisions of La.Rev.Stat. 14:64 and 15:529.1. Accordingly, this pleading can only be construed as an application for post-conviction relief, but sentencing claims, including those involving multiple bill proceedings, are procedurally barred under State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. (“La.Code [sCrim. Proc. art. 930.3, which sets out the exclusive grounds for granting post-conviction relief, provides no basis for review of claims of excessiveness or other sentencing error post-conviction:”); see also State v. Hebreard, 98-0385 (La.App. 4 Cir. 3/25/98), 708 So.2d 1291 (Melinie prohibition on raising sentencing claims includes claims concerning multiple bill adjudications and sentences, as these are a part of the sentencing procedure). Accordingly, we find no error in the trial court judgment denying the defendant/relator’s motion.

Conclusion

This appeal is converted to a writ application and, as such, supervisory relief is denied.

APPEAL CONVERTED TO WRIT; WRIT DENIED.


author: PITMAN, J.

text:
    CAPITAL ONE BANK (USA) NA, Plaintiff-Appellee v. Lynne THOMPSON, Defendant-Appellant.
    No. 47,994-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 15, 2013.

      Barham, Warner, Stroud & McKay, L.L.C., Shreveport, LA, by A.M. Stroud, III, for Appellant.
    Eaton Group Attorneys, LLC, Baton Rouge, LA, by Gregory M. Eaton, Stacey L. Greaud, Paul E. Pendley, Mia D. Eti-enne, for Appellee.
    Before BROWN, STEWART & PITMAN, JJ.
   PITMAN, J.

|! Defendant, Lynne Thompson, appeals a judgment from Shreveport City Court granting the motion for summary judgment of Plaintiff, Capital One Bank (USA) NA. For the reasons set forth below, we reverse the trial court’s judgment and remand for further proceedings.

FACTS

On March 4, 2011, Plaintiff instituted a suit against Defendant for the outstanding balance of $7,722.23, the amount due on Defendant’s MasterCard account, together with accrued interest of $627.72; additional interest from December 4, 2010, until judgment; 19.65 percent interest from date of judgment; attorney fees in the amount of 25 percent of the total of both principal and interest; and all costs of the proceedings.

On April 15, 2011, Defendant filed decli-natory and dilatory exceptions, which were later withdrawn, and an answer of general denial. Defendant alleged that Plaintiff wrongfully allowed her card to exceed the credit limit without her authority and that she never authorized anyone to charge items to her account that would exceed her credit limit.

Plaintiff filed a motion for summary judgment (“MSJ”), a supporting memorandum, supporting affidavits and a supplemental memorandum on April 2, 2012. The original affidavit that was attached to the MSJ contains the testimony of Ms. Angela Zalewski and was signed on January 19, 2011. Plaintiffs supplemental affidavit of correctness contains the testimony of Ms. Kay White, an employee of Plaintiffs attorney’s firm, not of Plaintiff. The two affidavits introduced contain different total amounts owed by Defendant. Defendant filed a reply memorandum alleging that the affidavits | ¡^presented by Plaintiff were inadmissible as hearsay and that there were no accounting documents showing the debits and credits to her account. Defendant further alleged that the original affidavit (“the Zalewski affidavit”) was stale and that the information in the supplemental affidavit (“the White affidavit”) was compiled by an individual who had no personal knowledge of the events to which she attested. Defendant submitted an affidavit from her attorney stating that he had never received a “detailed statement of the mutual demands in the nature of debits and credits between the parties” as he had requested.

The MSJ hearing was set on June 20, 2012, but was continued because Plaintiffs counsel did not receive Defendant’s opposition, which had been filed only six days prior to that hearing. Defendant’s supplemental opposition to the MSJ, including the affidavit from her attorney, was filed on August 2, 2012, only four days before an August 6, 2012 hearing.

The trial court granted Plaintiffs motion for summary judgment based on Defendant’s failure to present countervailing affidavits. The judgment was signed on August 6, 2012.

DISCUSSION

Defendant claims that the trial court erred in granting Plaintiffs motion for summary judgment, asserting that summary judgment was not proper as there are genuine issues of material fact present, including the sufficiency of the evidence introduced, the validity of the affidavits and the lack of evidence corroborating the balance on the account.

| sA motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880; Amos v. Crouch, 46,456 (La.App.2d Cir.6/29/11), 71 So.3d 1053. Appellate courts review summary judgments de novo under the same criteria that govern a lower court’s consideration of whether summary judgment is appropriate. Jenkins v. Willis Knighton Medical Center, 43,254 (La.App.2d Cir.6/4/08), 986 So.2d 247. A court must grant a motion for summary judgment “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 that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). A fact is material if its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery. Amos v. Crouch, supra.

The moving party bears the burden of proof. However, the movant is not required to negate all essential elements of the adverse party’s claim and need only point out an absence of factual support for one or more essential elements of the adverse party’s claim. If the adverse party then fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C.P. art. 966(C)(2).

A prima facie case on an open account requires proof of 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 the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. CACV of Colorado, L.L.C. v. Spiehler, 09-151 (La.App.3d Cir.6/3/09), 11 So.3d 673. In Sears v. Richardson, 32,951 (La.App.2d Cir.4/5/00), 759 So.2d 190, the plaintiff’s counsel produced an affidavit of correctness of a Sears account which was executed by an employee of the plaintiffs counsel to prove the correctness of the account and to recover additional interest. The court found that the affidavit was insufficient, stating:

Allen’s affidavit indicates that she is responsible for the file as an employee of the collection attorney, not as a representative of Sears, and her statements concerning what Sears ‘indicated’ on September 16, 1998 are hearsay that would not be admissible at a trial on the merits.

The court stated that supporting and opposing affidavits on a summary judgment motion shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matter stated therein.

In the case sub judice, the documents provided by Plaintiff identified the account holder and confirmed Defendant’s credit invitation bearing her signature and the applicable credit terms, but did not verify Defendant’s balance owed as there was no complete record of transactions and each affidavit stated a different amount owed. The Zalewski affidavit was dated January 19, 2011, and was used to certify documents and bills that were not created until several months after the signing of the affidavit. While Ms. Zalew-ski is arguably a very knowledgeable employee of Plaintiff, she |ficannot verify or attest to transactions that have not yet occurred. The question of which invoices, if any, were attached to the affidavit of correctness at the time of its signing creates an issue of material fact.

The White affidavit is inconsistent with the Zalewski affidavit and there is no explanation provided for the disparity in the amounts owed. Ms. White is not an employee of Plaintiff and, therefore, is not in a position to have actual knowledge of Plaintiff’s business practices and cannot verify whether documents or information were maintained properly in the course of business.

The trial court based its ruling on Defendant’s failure to provide countervailing affidavits. If a prima facie case had been presented by Plaintiff, that would have been a sufficient reason to grant the MSJ; but Plaintiff did not present a prima facie case and summary judgment was inappropriate as there are genuine issues of material fact to be examined. The affidavits presented by Plaintiff were unreliable and inconsistent and Plaintiff did not present evidence to show the purchases underlying the debt. A genuine issue of material fact exists in the evidentiary value of the affidavits, the correctness of the account, the accuracy of the amount claimed and the existence of a detailed statement of mutual demands.

For the foregoing reasons, we find that this assignment of error has merit, and we reverse the trial court’s judgment granting the motion for summary judgment in favor of Plaintiff.

^CONCLUSION

The judgment of the trial court in favor of Plaintiff, Capital One Bank (USA) NA, granting the motion for summary judgment is reversed and this matter is remanded for further proceedings. Costs of this appeal are assessed to Capital One Bank (USA) NA.

REVERSED AND REMANDED.