author: JOHNSON, J.

text:
    Michelle M. OREGAN and Christine Caminita v. Laura N. CASHIO, USAA Insurance Agency, Inc., State Farm Insurance Company, and Safeco Insurance Company
    NO. 16-CA-563
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, CHRISTINE CAMINITA, George B. Recile, Matthew A. Sherman
    COUNSEL FOR DEFENDANT/AP-PELLEE, LAURA N. CASHIO AND UNITED SERVICES AUTOMOBLE ASSOCIATION, Michael R. Sistrunk, Donna B. Wood, Lynda A Tafaro, Amanda L. Sullivan
    COUNSEL FOR DEFENDANT/AP-PELLEE, SAFECO INSURANCE COMPANY, James J. Kokemor
    Panel composed of Marc E, Johnson, ' Robert M. Murphy, and Hans J. Liljeberg
   JOHNSON, J.

[ iThis is. a personal injury case arising out of a motor vehicle accident in which Plaintiff, Christine Caminita, appeals the jury verdict awarding $3,719.20 in her favor. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

On February 13, 2012, Plaintiff was a front seat passenger in a vehicle driven by Michelle Oregan that was struck from behind by a car driven by Defendant, Laura Cashio. According to trial testimony, Plaintiffs vehicle was stopped in traffic at a red light on West Napoleon Ave. in Metairie near the intersection of Clearview Parkway when Defendant ran into the back of it. Defendant testified that she too was stopped in traffic and had waited through two light cycles. Defendant stated that the traffic started to move and she let her foot off the brake and hit the vehicle in front of her.

The police were called and an accident report was generated. An ambulance responded to the scene but was not needed. Ms. Oregan took Plaintiff to- Kenner Regional Hospital upon leaving the accident scene after stopping by her house to get Plaintiffs identification. Plaintiff testified that she immediately felt pain, in her neck and back after the accident. At the hospital, Plaintiff reported neck and back pain. She indicated to the emergency room doctor that she did not need additional pain medication because she was currently.taking pain medication for a preexisting chronic back condition.

Plaintiff, who was 31 years old at the time of the accident, was actively treating for low back pain prior to the accident. She was diagnosed with scoliosis when she was 12 years old. She had surgery in 1993, at the age of 13, to place a rod in her back. The rod later broke, requiring a second surgery in 2003 that resulted in a fusion of her back from the T12 through L3 level. Despite the |2surgery, Plaintiff continued to suffer with back pain. That same year, while Plaintiff was in a back brace, she was involved in an automobile accident where she was struck in an intersection after a car ran a red light and injured her neck. In 2008, Plaintiff had a slip and fall accident where she injured her knee and back. In 2009, a CT of her lumbar spine showed an L4-5 disc protrusion and L5-S1 disc bulge.

Plaintiff treated with various doctors in 2010 and 2011 for chronic back pain and radiating pain into her legs. A 2011 lumbar MRI showed disc abnormalities at L5-S1. Plaintiff underwent a discogram in May 2011, which indicated her L4-5 disc was symptomatic. At that time, her treating orthopedic surgeon, Dr. James Butler, recommended surgery to fuse the L4-5 level and to possibly re-attempt to fuse the Ll-2 level, but Plaintiff never had the surgery. At the time of the accident, Plaintiff was treating with a pain management specialist and was taking a significant amount of pain medication.

On March 21, 2012, one month after the February 13, 2012 accident at issue in this case, Plaintiff was involved in another motor vehicle accident in which she was again rear-ended. She subsequently treated with Dr. Rand Voorhies, a neurosurgeon, after being referred to him by her attorney for a second medical opinion. Dr. Voorhies ordered several tests, including an MRI and a SPECT scan, which is a type of bone scan that detects areas of increased metabolic activity. Dr. Voorhies interpreted the lumbar SPECT scan as abnormal, showing increased activity at L5-S1 and her sacroiliac joints (“SI joints”), mostly on the left side. He ultimately concluded that Plaintiffs main problem was her SI joints, predominantly the one on the left side. On January 29, 2013, Plaintiff underwent surgery to her left SI joint. According to Dr, Voorhies, Plaintiffs SI joint pain was caused by the February 13, 2012 accident, even though he did not examine Plaintiff until after both the February and March 2012 accidents. He explained that Rhis opinion regarding causation was based solely on Plaintiffs history and the fact she related that her SI joint pain started after the February accident. Dr. Voorhies further indicated that Plaintiff would likely require future surgery on her right SI joint.

Plaintiff filed the instant lawsuit on March 14, 2012, one month after the February accident but before the March accident against Defendant; USAA Casualty Insurance Co., as Defendant’s automobile liability insurer; State Farm Insurance Company, as the uninsured/underinsured motorist (“UM/UIM”) carrier for Ms. Ore-gan; and General Insurance Company of America, as Plaintiffs own UM/UIM carrier, seeking damages for injuries she al~ legedly sustained in the accident. After a three-day trial, a jury found that Plaintiff was injured in the February 13, 2012 accident and awarded her $2,000 for pain and suffering and $1,719.20 for past medical expenses. The trial court signed a judgment to that effect on September 18, 2014. An amended judgment was signed on March 16, 2016, adding the necessary de-cretal language identifying the defendants against whom the judgment was rendered. It is from the amended judgment that Plaintiff now appeals.

ISSUES

Plaintiff essentially raises two issues on appeal. First, she contends that the trial court erred in refusing to instruct the jury on the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La. 1991). Second, Plaintiff argues that the jury verdict is ambiguous and, therefore, an additur or new trial is required. 14Plaintiff maintains the verdict is susceptible of conflicting interpretation because it is unclear whether the jury apportioned fault between the two accidents.

LAW & ANALYSIS

Jury Charge — Housley Presumption of Causation

Plaintiff argues that the trial court erred in refusing to instruct the jury on the Housley presumption of causation. She asserts the trial court erred in concluding that she was not in good health, thereby rendering the Housley presumption inapplicable, without first submitting the factual question to the jury. Plaintiff contends the trial court impermissibly made its own credibility determinations and weighed the evidence regarding her health status instead of allowing the jury to do so. Plaintiff further maintains that despite the evidence of her preexisting chronic back pain, the trial court erred in finding she was not in good health for purposes of the Housley presumption because there was no evidence she suffered from any SI joint pain or dysfunction prior to the accident.

Louisiana Code of Civil Procedure Article 1792(B) requires that a trial judge instruct the jury on the law applicable to the case submitted to them. “The trial judge is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law it deems inappropriate.” Wooley v. Lucksinger, 09-571 (La. 4/1/11); 61 So.3d 507, 573, quoting Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08); 983 So.2d 798, 804 . Trial courts are given broad discretion in formulating jury instructions and a trial court’s judgment should not be reversed so long as the charge correctly states the substance of the law. Adams, supra.

The trial judge is under no obligation to give any specific jury instruction that may be submitted by either party; however, the judge must correctly charge the jury. Wiltz v. Bros. Petroleum, LLC, 13-332 (La.App. 5 Cir. 4/23/14); 140 So.3d 758, 777, rehearing granted in part on other grounds, 13-332 (La. App. 5 Cir. 5/21/14); 140 So.3d 758, writs denied, 14-1252 and 14-1298 (La. 10/10/14); 151 So.3d 581 and 151 So.3d 583. The question considered on review is whether the trial judge adequately instructed the jury; specifically, whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. See Adams v. Rhodia, Inc., supra.

Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. Wiltz, supra. When deficiencies in the jury instructions are raised on appeal, the appellate court must consider the instruction as a whole to determine if the jury charges adequately provided the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its deliberations. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. Id.

A de novo review- of the record is only warranted when the jury charges are so incorrect or inadequate that the jury was barred from reaching a verdict based on .the law and the facts. Otherwise, the manifest error standard of review applies to determine if the trial court erred in omitting the requested instruction. Loconte Partners, LLC v. Montgomery & Associates, 12-691 (La. App. 4 Cir. 5/15/13); 116 So.3d 904, 911.

In a personal injury suit, the plaintiff bears the burden of proving, by a preponderance of the evidence, a causal relationship between the injury sustained and the accident which caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La. 2/20/95); 650 So.2d 757, 759. In determining the causal relationship between the accident and subsequent injury, the test is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.

| ¡jin Housley v. Cerise, 579 So.2d 973, 980 (La. 1991), the Louisiana Supreme Court set forth a presumption of causation that aids a plaintiff in a personal injury case: the presumption is' that the plaintiffs injury -resulted from the accident. However, in order for a plaintiff to be entitled to the presumption of causation, he must prove three things: (1) that he was in good health prior to the accident at issue; (2) that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward; and (3) a reasonable possibility of causation between the accident and the claimed injury. Housley, supra; Gober v. Walgreen La. Co., 46,730 (La.App. 2 Cir. 11/2/11); 80 So.3d 9, 13, writ denied, 11-2837 (La. 3/2/12); 84 So.3d 531.

This presumption, known as the Housley presumption, is rebuttable. A defendant may defeat it by showing that an alleged injury could have been caused by some other particular incident rather than by the accident that the plaintiff claims was the cause of the injury. Maranto, 650 So.2d at 761.

In this case, Plaintiff requested three jury instructions relating to the Housley presumption:

PLAINTIFF’S PROPOSED JURY CHARGE NO. 6
The Housley presumption
There is a legal presumption" in personal injury actions that a medical condition producing a disability, resulted from the accident, if:
(1) the injured person was in good health prior to the accident;
(2) the disabling condition manifested itself shortly after the accident, and
(3) medical evidence indicates that there is a reasonable possibility of a causal connection -between the accident and the disabling condition.
PLAINTIFF’S PROPOSED JURY CHARGE NO. 7
Pre-existing degenerative disc disease does not prevent a person from establishing that before the accident she was in “good health” for |7the purpose of applying the Housley. presumption, if the degenerative disease was not causing problems before the accident, and became symptomatic after the accident.
PLAINTIFF’S PROPOSED JURY CHARGE NO. 8
A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
This presumption is applicable to personal injury cases in which the medical evidence shows 'there is a reasonable possibility of a causal connection between the accident and the medial condition

The trial judge declined to give any jury instruction pertaining to the Housley presumption and rejected all three proposed instructions. Plaintiff argues on appeal that the trial court erred in refusing to give the requested instructions.

Whether to give a particular jury instruction is within the - discretion of the trial court and its decision will not be disturbed absent an abuse of that discretion. Loconte, 116 So.3d at 910. Several cases have addressed the same issue of whether the trial court erred in failing to give a jury charge on the Housley presumption.

In Venissat v. St Paul Fire & Marine Ins. Co., 06-987 (La.App. 3 Cir. 8/15/07); 968 So.2d 1063, rehearing granted on other grounds, 06-987 (La. App. 3 Cir. 11/7/07), — So.2d —, 2007 La. App. LEXIS 2076, the Louisiana Third Circuit found the trial court was not manifestly erroneous in rejecting the Housley Instruction. The court explained that “[t]he facts that were presented could reasonably lead one to conclude that [the plaintiff] was not in good health before | sthe accident, a finding that is sufficient to preclude the application of the presumption in this case, and to preclude the inclusion of the charge in the jury instructions.” Id. at 1071. The court noted that the evidence showed the plaintiff suffered pre-existing degenerative changes in his cervical spine that were symptomatic time-to-time prior the accident and for which he. sought treatment several tibies in the year's preceding the accident. The plaintiffs complaints after the sued upon accident were similar to some of his pre-accident complaints of pain.

Also, in Jaramillo v. Lopes, 04-2042 (La. App. 4 Cir. 1/18/06); 925 So.2d 559, writ denied, 06-396 (La. 4/28/06); 927 So.2d 292, the Louisiana Fourth Circuit found the trial court did not err in refusing to give a jury instruction on the Housley presumption because the plaintiff failed to prove that he was in good health prior to the accident. The plaintiff testified at trial that he had problems with his neck two years prior to the accident at issue. The pain resolved itself for a period of time but returned seven months later. At the time of the accident, the plaintiff had been pain free for a year; but, after the accident, his pain recurred. The plaintiff argued that although he had been diagnosed with radi-culopathy prior to the accident, it was only after the accident that he was diagnosed with myelopathy. Nonetheless, the record showed that his pre-accident MRI was essentially the same as his post-accident MRI. The Fourth Circuit found that the Housley presumption was inapplicable under the facts of the case.

We likewise find, under the facts of this case, that the trial court was not manifestly erroneous in refusing to give a jury charge on the Housley presumption. Plaintiff had a long history of significant back pain prior to the February accident. In August 2010, she was seen in the emergency room for chronic low back/buttock pain and was having difficulty walking. In the fall of 2010, Plaintiff was getting between 270 and 380 pain pills a month, which she testified she took for her pain. She treated with Dr. Ellenberger in April 2011 for back pain that prevented her 19from caring for her son, performing household chores, and exercising. At that time, she was unable to walk more than one mile or sit or stand for more than 30 minutes without pain medication.

In May 2011, Plaintiff treated with Dr. James Butler, an orthopedic surgeon, for complaints of chronic back and leg pain that she had suffered from for years. At the time she saw Dr. Butler, she had radiating pain in both legs. In June 2011, Dr. Butler opined that Plaintiff needed a fusion of her L4-5 and possible revision fusion of her Ll-2 level; however, at the time of the February 2012 accident, she had not had the recommended surgery. Dr. Butler further testified that Plaintiff had facet arthrosis at L5-S1, which generates pain in and of itself. He explained that any fusion puts stress on the spine adjacent to the fusion. He also explained that the SI joints are close to the L5-S1 level. Dr. Butler stated that he did not run any tests on Plaintiffs SI joints because he did not think she had any symptoms from that area. Dr. Butler did not treat Plaintiff after June 2011.

Two weeks before the February accident, Plaintiff began treating with Dr. Anil Prasad. She complained to Dr. Prasad that she had increased pain with sitting, standing for long periods, bending, lifting, stooping, crawling and performing household chores, and was having difficulty sleeping because of the pain. Dr. Prasad’s medical records indicate that Plaintiff rated her pain without medication as ten out of ten on a pain scale.

Plaintiff testified that after the February accident, she had an immediate head.ache and her neck and back were sore. She stated, that her pain was localized in the center of her back before the accident, whereas after the accident her pain was off to the side, which was new to her, and she had increased radiating leg pain. However, Plaintiff admitted that she only told the emergency room personnel immediately after the accident that she had minor neck and back pain and never reported left-sided back pain. Additionally, in her regularly scheduled follow-up |1flvisit with Dr. Prasad two weeks after the February accident, she indicated that she had been in an automobile accident but did not mention any new areas of pain. In fact, Plaintiff reported to Dr. Prasad that her current pain medication was helping with her pain from the February accident. Other than the emergency room visit and one visit to Dr. Prasad, Plaintiff did not seek any other treatment between the February and March accidents.

Plaintiff next saw Dr. Prasad on March 27, 2012, one week after the March accident. His medical records indicate that Plaintiff reported an increase of pain from a three to a six on a pain scale since her last visit one month earlier, which was after the February accident. Although Plaintiff testified at trial that she only experienced a slight increase of back pain that was more like soreness after the March accident, she previously testified in her deposition that her back pain increased more after the March accident than the February accident.

Upon referral of her attorney, Plaintiff was next seen by Dr. Voorhies on March 28, 2012, which was one week after the second accident. In the paperwork Plaintiff filled out for Dr. Voorhies, she indicated that she was being seen for back and neck pain from two accidents, February 13,2012 and March 21, 2102. She testified that she told Dr. Voorhies that she had increased and more radiating pain since the two accidents, but specifically stated she did not distinguish the pain between the accidents.

Dr. Voorhies testified that Plaintiff had an aggravation to her low back condition as a result of the accidents, and specifically testified that Plaintiffs SI joint problems originated from the February accident. While he acknowledged that he had examined Plaintiff only after both accidents, he explained that his opinion | nthat the February accident caused Plaintiffs-SI joint problems was based solely on the fact Plaintiff told him her symptoms developed after the first accident.

Dr. Andrew Todd, Defendant’s expert orthopedic surgeon who examined Plaintiff, testified that Plaintiff had problems at L4-5 and her facet joints, which are on either side of the disc, prior to the February accident. He explained that the bottom of the lumbar spine connects closely to the SI joints. He affirmed Dr. Butler’s testimony that a fusion tends to cause adjacent level problems, either degenerative disc disease or arthritis, or specifically in Plaintiffs case, problems with L4-5 and L5-S1 and her facet joints at those levels. Dr. Todd explained that SI joint injury causes significant pain with weight bearing and makes walking difficult. In reviewing Plaintiffs medical records, Dr. Todd was unable to find any evidence that Plaintiff complained of any pain other than her chronic low back pain between the time, of the February and March 2012 accidents. Specifically, he could find no symptomatol-ogy during this time period that was different than what she experienced before the February accident.

Based on the evidence presented at trial, we find the trial court was not manifestly erroneous in rejecting the Housley instruction. The facts that were presented could reasonably lead one to conclude that Plaintiff was not in good health before the accident, which precludes the application of the Housley presumption and precludes the'inclusion of the charge in the jury instructions. Additionally, the record supports a conclusion that Plaintiff failed to carry her burden of proving a reasonable possibility that the accident caused her SI joint problems.

The medical evidence was contrary to Plaintiffs self-serving trial testimony'that she experienced different and new pain after the.. February . 2012 accident, 1 ^Plaintiff had a long history of radiating pain and trouble walking due to her back pain prior to the February accident. She was symptomatic and actively treating for her pain-at the time-of the accident. Nothing in the medical evidence shows the February accident caused anything more than a slight aggravation of her preexisting symptomatic back condition, for which the jury awarded her damages, before a second March accident, which caused her symptoms to again increase.

Plaintiff argues that these conclusions are factual determinations that require assessing the credibility of witnesses and weighing the evidence, which fall within the domain of the jury and not the trial court. As we noted earlier, the trial judge is responsible for reducing the possibility of confusing the jury in charging the jury. See Wooley, 61 So.3d at 573. In performing this duty, the trial judge necessarily has to assess the evidence, or make factual determinations, to determine what law is applicable to the facts. We find that the record reasonably supports the trial court’s refusal to charge the jury with the Housley presumption of causation.

Ambiguity of Jury Verdict

Plaintiff next challenges the jury verdict as ambiguous. She argues the verdict is susceptible of conflicting interpretation because the jury interrogatories simply asked whether the accident caused Plaintiffs injuries without any allocation of fault between the February and March accidents. Plaintiff contends that the jury’s response of “yes” to the question of whether the accident caused Plaintiffs injuries could mean either the February accident was singularly responsible for her injuries, which' would mean the jury award was inadequate, or that the February accident was simply a contributing factor to her injuries.

We find this issue is precluded frond' appellate review. Under La. C.C.P. art. 1793, “[a] party may not assign as error the giving or the failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which 11Rhe objects and the grounds of his objection.” In order to preserve the right to appeal a trial court’s failure to give a requested instruction or its giving of an erroneous instruction, a party must not only make a timely objection, but must state the grounds of the objection. This rule also applies to jury interrogatories. Willis v. Ochsner Clinic Foundation, 13-627 (La.App. 5 Cir. 4/23/14); 140 So.3d 338, 348-49.

Prior to trial, both parties submitted proposed jury interrogatories. Notably, Plaintiffs proposed interrogatories did not include any interrogatory regarding allocation of fault between the two accidents. Defendants objected to a portion of Plaintiffs proposed interrogatories and the trial court ruled on Defendants’ objection prior to trial. However, the record does not reflect that Plaintiff lodged any objection to Defendants’ proposed jury interrogatories or the jury interrogatories ultimately given to the jury by the trial court.

While Plaintiff objected to the trial court’s failure to instruct the jury on the Housley presumption, she failed to make any objection to the jury interrogatories. As such, she is prohibited from coming to this Court after the jury verdict has been rendered and arguing that the jury interrogatories were ambiguous. Because Plaintiff failed to contemporaneously object to the jury interrogatories at trial, we find she is precluded from challenging the interrogatories on appeal. See Willis, supra at 349.

DECREE

Based on the foregoing, we find the trial court did not abuse its discretion in refusing to give a jury charge on the Housley presumption. Accordingly, we affirm the trial court’s March 16, 2016 judgment, which made the jury verdict the judgment of the court.

AFFIRMED

      . General Ins. Co. answered the lawsuit indicating that Plaintiff had improperly identified it as Safeco Ins. Co. in the petition. The judgment at issue is rendered against General Ins. Co. as Plaintiffs UM/UIM carrier. Thus, despite the fact an appellee brief was filed on behalf of Safeco Ins. Co. rather than General Ins. Co., we will refer to Plaintiff’s UM/UIM carrier as General Ins. Co., as Safeco Ins. Co, never answered the lawsuit.

      . Ms. Oregan was also a plaintiff in this lawsuit. However, Ms. Oregan settled her claims against Defendant and USAA Casualty Ins, Co. prior to trial.

      . Plaintiff initially appealed the September 18, 2014 judgment. However, this court dismissed Plaintiff’s appeal after determining that the judgment did not contain the required decretal language in order to render the judgment final because it failed to identify the defendants against whom the judgment was rendered. This Court remanded the matter to the trial court so that a proper final judgment could be rendered. See Oregan v. Cashio, 15-612 (La.App. 5 Cir. 1/27/16); 185 So.3d 885.

      . At the conclusion of the evidence, Plaintiff requested a jury charge on the Housley presumption. The trial judge noted that he had concern With the third prong of Housley, which requires that be a reasonable possibility of a causal connection between the accident and the disabling condition before the presumption applies. He pointed to Dr, Pra-sad’s testimony, as Plaintiff's treating physician, that Plaintiff's pain increased dramatically after the second accident as opposed to the first and that Plaintiff never complained about SI joint pain or- radiating lower pain until after the second accident. The trial court took the matter under advisement, indicating he would rule the next day. The following day, Plaintiff lodged an - objection to the trial court’s decision not to include jury charges relating to the Housley presumption, The actual ruling denying the Housley charge occurred off the record:

      . In Dr. Voorhies’ initial report, he noted Plaintiff experienced an increase of neck and back pain as a result of both the February and March accidents and made no mention of any SI joint symptoms. It was only after Plaintiff's counsel requested clarification that Dr. Voor-hies issued a supplemental report that stated Plaintiff’s SI joint pain was caused by the February accident.


source: Caselaw Access Project

author: WINDHORST, J.

license: Public Domain

text:
    Patrick Kent Lindsey JONES and Jennifer Elizabeth Jones v. Allen Kent JONES; Pioneer Natural Resources, USA, Inc.; Cimarex Energy Company of Colorado; Quantum Resources Management, LLC; Breitburn Energy Partners LP; Edward Oil Co.; Milagro Exploration, LLC; White Oak Resources VI, LLC; ABC Pipeline Company
    NO. 16-CA-536
    Court of Appeal of Louisiana, Fifth Circuit.
    April 26, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, PATRICK KENT LINDSEY JONES AND JENNIFER ELIZABETH JONES, Harvey S. Bartlett, III, Catherine E. Lasky, Lindsay E. Reeves
    COUNSEL FOR DEFENDANT/AP-PELLEE, ALLEN KENT JONES, Robert L. Eddy, III
    COUNSEL FOR DEFENDANT/AP-PELLEE, PIONEER NATURAL RESOURCES USA, INC., David M. Bien-venu, Jr., John A. Viator, Lexi T. Holinga, Katie D. Chabert, Erin P. Tadie, Anthony J. Gambino, Anthony J. Lascaro
    COUNSEL FOR DEFENDANT/AP-PELLEE, CIMAREX ENERGY COMPANY OF COLORADO, David M. Cul-pepper
    COUNSEL FOR DEFENDANT/AP-PELLEE, QUANTUM RESOURCES MANAGEMENT, LLC, Paul M. Jones, Jeffery D. Lieberman
    COUNSEL FOR DEFENDANT/AP-PELLEE, WHITE OAK RESOURCES VI, LLC, Patrick S. Ottinger, William H. L. Kaufman, Benjamin D. Jones
    Panel composed of Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst
   WINDHORST, J.

| plaintiffs, Patrick Kent Lindsey Jones and Jennifer Elizabeth Jones (the Jones Children) appeal from a ruling of the trial court granting exceptions of res judicata and peremption in favor of defendant Allen Kent Jones, and defendants Quantum Resources Management, LLC, Pioneer Natural Resources USA, Inc., Cimarex Energy Company of Colorado, Edward Oil Co., and White Oak Resources VI, LLC. We affirm the ruling of the trial court.

In addition, White Oak Resources VI, LLC has filed an exception of no cause of action in this Court. Having affirmed the ruling of the trial court, which dismissed all claims in the plaintiffs’ petition with prejudice, we find that the exception filed by White Oak Resources VI, LLC is moot.

FACTS and PROCEDURAL HISTORY

In this proceeding, the Jones Children seek to nullify a judgment of possession rendered on August 27, 1999, alleging that it was obtained by fraud or ill practices, and further seek renunciation of usufructu-ary rights and return of income derived from those usufructuary rights. The relevant facts leading to this proceeding are the following.

On May 30, 1989, Elizabeth Corrine Jones, wife of Allen Kent Jones and mother of Patrick Kent Lindsey Jones, Jennifer Elizabeth Jones and Jacqueline A. L. Jones, died testate in the State of Texas. In her will, Mrs. Jones bequeathed all of her property, both community and separate, to her surviving spouse, Allen Kent Jones. At the time of her death, Mrs. Jones was the owner of property in Lafitte, which was her separate property. At this time, Louisiana law provided that all children of the deceased, regardless of age, wére forced heirs.

According to the Jones Children, Mrs. Jones’ separate property was not included in the succession proceedings in Texas. On August 27, 1999, Mr. Jones Land the three children filed a “Petition for Ancillary Probate of Foreign Testament and for Possession” in the 24th Judicial District Court, No. 543-542. The trial court rendered judgment recognizing that the Jones Children were Mrs. Jones’ forced heirs to her separate property in Louisiana. The trial court recognized that Mr. Jones was the universal legatee of Mrs. Jones and that the children were the forced heirs with the right to reduce the universal bequest made by Mrs. Jones to Mr. Jones. The court reduced the universal bequest, finding that Mr. Jones was entitled to possession of the disposable portion and to usufruct for life of the forced portion of the Mrs. Jones’ Louisiana estate. The Jones Children were placed in possession of the forced portion, subject to their father’s usufruct.

Prior to the filing of the ancillary probate proceedings, the State of Louisiana, Office of Conservation, established, CRIS 2 RA SUA Unit (the Unit). Mrs. Jones’ separate property was included within the Unit. The Unit contained two oil wells. The Mayronne No. 1 well began producing in 1996, and the Mayronne No. 2-Alt well began producing in 2000. Quantum Resources Management, LLC and Milagro Producing were the owners of several oil, gas, and mineral leases and were the operators of the Unit.

On April 29, 2010, Quantum Resources Management, LLC and Milagro Producing (referred to as “Quantum" in the prior proceedings) filed a concursus proceeding to determine the parties with ownership interests and therefore entitlement to production proceeds from the Unit, and deposited the production proceedings into the registry of the court. Mr. Jones and the Jones Children were among the defendants named in the concursus proceeding, and both Mr. Jones and the Jones Children asserted claims to a portion of the funds deposited in the registry of the court. Subsequently, Mr, Jones filed a motion for summary judgment, arguing that he was entitled as usufructuary to the proceeds attributable to the Children’s naked ownership interests. One of the Jones Children, Jennifer | sElizabeth Jones, filed a cross-motion for summary judgment alleging that the naked owners were entitled to the proceeds. On appeal, this Court found that Mr. Jones, as usufructu-ary, was entitled to the proceeds deposited in the registry of the court. Quantum Res. Mgmt., L.L.C. v. Pirate Oil Corp., 12-256, 12-338 (La. App. 5 Cir. 11/13/12), 105 So.3d 867, writ denied, 13-0084 (La. 03/08/13), 109 So.3d 361.

During the pendency of the concursus proceedings, on September 9, 2010, the Jones Children filed a “Petition for Annulment of Judgment Obtained by Fraud or Ill Practices,” seeking to annul the August 27, 1999 judgment that granted Mr. Jones usufruct over their naked ownership of their mother’s separate property, Jennifer Elizabeth Jones and Patrick Kent Jones v. Allen Kent Jones and Jacqueline A. L. Jones, 24th Judicial District Court, No. 692-379. In the petition, the Jones Children contended that they had no knowledge of the ancillary succession proceedings, that their signatures were obtained by fraud or were forged, and that it was a conflict of interest for the same attorney to represent both their father and them. They further alleged that awarding them naked ownership subject to Mr. Jones’ usufruct, rather than full ownership, impinged on their legitime. However, the Jones Children did not proceed in this matter, and the suit was dismissed as abandoned on April 25, 2016.

Plaintiffs initiated the present proceedings by the filing of a “Verified Petition” on February 11, 2016. Named as defendants were Allen Kent Jones and various entities involved in the creation of and/or operation of Mayronne No.l and May-ronne No. 2-Alt wells, including Pioneer Natural Resources USA, Inc., RCimarex Energy Company of Colorado, Quantum Management Resources, LLC, Edward Oil Company, and White Oak Resources VI, LLC. In the petition, the Jones Children sought nullification of the August 27, 1999 judgment of possession, a declaration of full ownership of the disputed property, and return of the proceeds paid to Mr. Jones as usufruct. .

Mr. Jones, Pioneer Natural Resources USA, Inc., and Quantum Resources Management, LLC, filed peremptory exceptions of peremption and res judicata. Pioneer Natural Resources USA, Inc., Cimarex Energy Company of Colorado, and White Oak Resources VI, LLC also filed exceptions of no cause of action and nonjoinder. In addition, Cimarex Energy Company of Colorado, Edward Oil Co. and White Oak Resources VI, LLC filed exceptions of vagueness, ambiguity and nonconformity of petition.

On June 3, 2016, the trial court granted the exceptions of peremption and res judi-cata, dismissing plaintiffs’ claims against all defendants. The remaining exceptions were dismissed as moot.

DISCUSSION

The Jones Children first allege that the trial court erred in granting the exception of peremption. The basis for the claims made by the Jones Children is their allegation that the judgment of possession rendered on August 27, 1999 in the ancillary probate proceedings was obtained by fraud and/or ill practices.

La. C.C.P. art. 2004 provides that a “final judgment obtained by fraud or ill practices may be annulled,” but the action to annul “must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud of ill practices.”

In Succession of Bernat, 13-277 (La. App. 3 Cir. 10/09/13), 123 So.3d 1277, 1286, the court discussed the time limitation set'forth in La. C.C.P. art. 2004:

RThe one-year limitation to file an action to annul a final judgment is a period of peremption rather than prescription. Ellison v. Ellison, 06-944 (La. App. 1 Cir. 3/23/07), 960 So.2d 155. “Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La.Civ. Code art. 3458. “Peremption may be pleaded or it may be supplied by a court on its own motion at any time prior to final judgment.” La.Civ.Code art. 3460. “Peremption may not be renounced, interrupted, or suspended.” La.Civ.Code art. 3461.
“The burden of proof to show that a nullity action was brought within one year of the discovery of the fraud or ill practice is upon the plaintiff.” Ellison, 960 So.2d at 157. For the purposes of determining when the one-year period to bring a nullity action begins to run, the date of discovery of the fraud or ill practice is the date on which a plaintiff either knew, or should have known through the exercise of reasonable diligence, of facts sufficient to excite attention and put the plaintiff on guard and call for inquiry, and such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Id.

In this case, it is clear that the Jones Children knew of facts sufficient to excite attention and place them on notice of any potential basis for a petition for nullity on September 9, 2010 when they filed their first petition of nullity which was dismissed as abandoned. This action for nullity was filed over five and one-half years later, clearly outside of the peremptive period of La. C.C.P. art. 2004.

Furthermore, the filling of the first suit did not serve to extend the time for filing of the second suit on the same grounds, since peremption cannot be renounced, interrupted or suspended. The filing of the first suit on September 9, 2010 had no effect on the timing of the filing of the second suit. “When a suit is dismissed under Article 561(A)(3) of the Louisiana Code of Civil Procedure, the dismissal is “without prejudice[.]” Walker v. Archer, 16-0171 (La.App. 4 Cir. 10/05/16), 203 So.3d 330, 334. A dismissal without prejudice, or non-suit, merely “restores matters to the status occupied before the suit and leaves the party free to again come into court with his complaint.” Id., citing Neal v. Hall, 28 So.2d 131, 133 (La. App. 2 Cir. 1946). It does not prevent the plaintiff from bringing another suit for the same cause of action; however, the timeliness of the second suit must 16be determined “as if no suit had been theretofore brought.” Id., citing Losch v. Greco, 173 La. 223, 136 So. 572, 573-574 (La. 1931). Applying these precepts, we find that the trial court did not err in finding that this suit was untimely and in granting the exceptions of peremption.

Likewise, we find no error in the trial court’s ruling granting the exceptions of res judicata. La. R.S. 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

In T. P. Homes, Inc. v. Taylor, 08-392 (La.App. 5 Cir. 10/28/08), 1 So.3d 507, 510, this court discussed the test to be applied in determining whether the doctrine of res judicata is applicable:

Based on the language of the above statute, the Supreme Court has established the following five elements that must be satisfied for a finding that a second action is precluded by res judica-ta: “(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.” Burguieres v. Pollingue, 02-1385, p. 7 (La. 2/25/03), 843 So.2d 1049, 1053. Since the 1990 amendment to the res judicata statute, the Supreme Court considers the “chief inquiry” to be “whether the second action asserts a cause of action which arises out of the transaction or occurrence that was the subject matter of the first action.” Chevron U.S.A., Inc. v. State, 07-2469 (La. 9/8/08), 993 So.2d 187 [194], 2008 La. LEXIS 1649, 2008 WL 4118906, *4 (citing Burguieres).

|7In this case, the judgment rendered in the concursus proceeding litigated the issue of whether Mr. Jones or the Jones Children would be entitled to the mineral royalties gleaned from that percentage of the Unit which represented the Children’s naked ownership of property subject to Mr. Jones’ usufruct, as established by the judgment rendered in the ancillaxy probate proceedings, and which is final and no longer subject to an action for nullity on the basis of fraud and/or ill practices. See the discussion of T. P. Homes, Inc. v. Taylor, supra. This is the same claim presented against the various defendants named by the Jones Children in the present suit.

Not all defendants in this suit raised the exception of res judicata. The parties in this suit who raised the exception are the same parties as in the prior concursus proceedings; the cause of action arose out of the same transaction or occurrence that was the subject matter of the prior proceedings; and the cause of action existed at the time of the prior proceedings.

In their appellate brief, the Jones Children assert that the prior judgment in the concursus proceeding was an interlocutory judgment, and therefore res' judicata should not be applied. However, the granting of a motion for summary judgment can be a partial final judgment. La. C.C.P. art. 1915. In this case, the summary judgment in the concursus proceedings resolved the claims to the proceeds raised by the Jones Children, and therefore constitutes a final judgment. We find no error in the ruling of the trial court granting the exceptions of res judicata.

During the pendency of this appeal, White Oak Resources VI, LLC filed an exception of no cause of action. Because the trial court did not err in dismissing plaintiffs’ claims on the basis of peremption and res judicata, this exception of no cause of action is moot..

^CONCLUSION

For the above discussed reasons, we affirm the judgment of the trial court granting the exceptions of peremption and res judicata filed by Quantum Resources Management, LLC, Allen Kent Jones, Natural Resources USA, Inc., Cimarex Energy Company of Colorado, Edward Oil Co. and White Oak VI, LLC, dismissing all claims of Plaintiffs Patrick Kent Lindsey Jones and Jennifer Elizabeth Jones, with prejudice.

In addition, we find that the exception of no cause of action filed by White Oak Resources VI, LLC is moot.

All costs are assessed against plaintiffs, Patrick Kent Lindsey Jones and Jennifer Elizabeth Jones.

AFFIRMED; EXCEPTION OF NO CAUSE OF ACTION MOOT

      . Mr. and Mrs. Jones had three' children. Their third child, Jacqueline A. Jones, is not a party in this proceeding.

      . At the time of the concursus proceeding, the pertinent provisions of the Mineral Code, provided that if there were no “open mines” on the property at the time of the creation of the usufruct, the naked owners would be entitled to the mineral proceeds. Conversely, if the “open mines” were in production at the time of the usufruct, the usufructuary would be entitled to the mineral proceeds. In this case, production began in the 1990s. Jennifer Jones contended that Mr. Jones' usufruct commenced at the time of Mrs. Jones' death in 1989, Mr. Jones contended that his usufruct began with the judgment of possession rendered in 1999. The trial court granted summary judgment in favor of Jennifer Jones. On appeal, this Court reversed, finding that Mr. Jones’ usufruct was not created until the judgment of possession in 1999.'

      . The trial court’s judgment also ruled that the exceptions of no cause of action and failure to join a party needed for just adjudication filed by Cimarex Energy Company of Colorado, Pioneer Natural Resources USA, Inc., and White Oak Resources VI, LLC, as well as the exceptions of vagueness filed by Cimarex Energy Company of Colorado, Edward Oil Co. and White Oak Resources VI were moot. This portion of the judgment was not challenged on appeal.


author: McDonald, j.

text:
    Kimberly and Todd THIBODEAUX, individually and on behalf of their minor child, Gabrielle Thibodeaux v. James F. DONNELL, M.D.
    2015 CA 0503R
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: April 27, 2017
    Ralph E. Kraft, F, Douglas Gatz, Jr., Bryan E. Lege, Lafayette, Louisiana, Attorneys for Plaintiff/Appellant Kimberly and. Todd Thibodeaux, individually and on behalf of their minor child, Gabrielle Thi-bodeaux
    Bobby Ray Malbrough, New Orleans, Louisiana, Attorney for Defendant/Appel-lee James F. Donnell, M.D.
    James F, Donnell, M.D., Houma, Louisiana, Pro Se
    BEFORE: McDONALD, McClendon, and theriot, jj. =
   McDonald, j.

I?,The Louisiana Supreme Court has remanded this case to us for a de novo determination of general damages under principles set forth in Mart v. Hill, 505 So.2d 1120 (La. 1987). The facts of this case are set forth in our original opinion, Thibodeaux v. Donnell, 15-0503 (La.App. 1 Cir. 2/24/16), 189 So.3d 469, reversed, 16-0570 (La, 1/20/17), 219 So.3d 274.

There is no mechanical rule for determining general damages de novo; the facts and circumstances of each case control. Butcher v. City of Monroe, 31,932 (La.App. 2 Cir. 5/5/99), 737. So.2d 189, 196, writ denied, 99-1608 (La. 9/17/99), 747 So.2d 566. Considering the particular facts and circumstances of this case, we award $60,000 in general damages to Kimberly Thibodeaux; $20,000 in loss of consortium damages to Todd Thibodeaux; and, $7,500 in loss of consortium damages to Gabrielle Thibodeaux.

JUDGMENT RENDERED.


author: CRAIN, J.

text:
    Lori FRANKS, Individually and as Tutrix of her Minor Children, A.F. and C.F. v. The LOUISIANA PATIENT'S COMPENSATION FUND OVERSIGHT BOARD, Charlotte A. Hollman, M.D., and Deborah Kay Gahagan
    NO. 2016 CA 0765
    Court of Appeal of Louisiana, First Circuit.
    May 03, 2017

      Robert J. David, M. Palmer Lambert, Rachel A. Sternlieb, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Lori Franks, Individually and as Tutrix of Her Minor Children, A.F. and C.F.
    David A. Wooldridge, Brent J. Bourgeois, Carlton Jones III, Baton Rouge, Louisiana, Attorneys for Defendant/Appel-lee, Louisiana Patient’s Compensation Fund Oversight Board
    Vance A. Gibbs, Deborah J. Juneau, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, Charlotte A. Hollman, M.D. and Deborah Kay Gahagan
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   CRAIN, J.

|aThe plaintiff appeals a judgment denying her petition for declaratory and mandamus relief in connection with a medical review panel proceeding. We affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

At issue in this appeal is whether the Louisiana Patient’s Compensation Fund Oversight Board (PCF) exceeded its statutory authority while processing a request for a medical review panel. The relevant facts are not in dispute. Lori Franks has twin minor sons, referred to herein as “A.F.” and “C.F.,” who received medical treatment for several years from Charlotte A. Hollman, M.D., and Deborah K. Gaha-gan, a nurse practitioner in Dr. Hollman’s office. In January of 2015, Franks mailed a single letter to the Division of Administration requesting a medical review panel be formed to review the care provided by Dr. Hollman and Gahagan to both A.F. and C.F. The pro se request included a check for $200 for payment of the filing- fee, which, under the Medical Malpractice Act, is one hundred dollars per named defendant qualified under the Act. See La. R.S. 40:1231.8A(l)(c).

The Act also provides that a request “shall contain ... [t]he name of only one patient for whom, or on whose behalf, the request for review is being filed.” See La. R.S. 40:1231.8A(1)(b)(ii). Upon receipt of Frank’s request, the PCF assigned two file numbers to the matter, one number for A.F.’s claim and a different number for C.F.’s claim, effectively splitting the request into two separate proceedings. The PCF then applied Frank’s $200 check to the filing fee for A.F.’s claim against Dr. Hollman and Gahagan, and forwarded a letter to Frank acknowledging receipt of the claim and instructing her to proceed with the appointment of an attorney chairman. In a separate letter that referenced only IsC.F.’s claim, mailed on the same date, the PCF advised Franks a filing fee of $200 was due for that claim and had to be paid within forty-five days of the date the notice was mailed pursuant to Louisiana Revised Statute 40:1231.8A(1)(c). When no additional funds were received, the PCF sent a letter to Franks informing her the delay for paying the fee had expired and C.F.’s claim was considered invalid and without effect.

Franks filed the present proceeding seeking declaratory and mandamus relief against the PCF, Dr. Hollman, and Gaha-gan. Franks alleged that the PCF exceeded its authority by sua sponte dividing her request for a medical review panel into two separate claims and then applying the $200 check “randomly in favor of one patient’s claim over another.” The check, according to Franks, should have been applied to pay the fee for both of her sons’ claims against Dr. Hollman, and the claims against Gaha-gan should be dismissed. Franks requested a judgment declaring the PCF exceeded its authority in the processing of her request and that both claims against Dr. Hollman were timely filed. Franks further requested the PCF be ordered to reinstate C.F.’s request for a medical review panel proceeding against Dr. Hollman and the claims against Gahagan be dismissed.

In response, the defendants maintained the PCF undertook reasonable measures to process a claim improperly filed on behalf of two patients. According to the defendants, when the PCF was presented with Frank’s request 'filed on behalf of A.F. and C.F., the PCF reasonably assigned separate file numbers to each 14claim, allocated the $200 check to one of the claims, and notified Franks that a $200 filing fee was due for the other claim.

After a hearing on the matter, the trial court ruled in favor of the defendants, explaining in written reasons:

The law imposes the duty upon the PCF to facilitate the medical review panel process and these duties are clerical and ministerial in nature. The Medical Malpractice Act recognizes [a] request for review by only one patient. Requests] for medical review received from patients by the PCF cannot be processed using multiple patients in a single request. The law is clear on that point. The law is likewise clear that the failure to pay the filing fee to the PCF timely renders any such request invalid and without effect. The plaintiff, who was self-represented at the time of making her request to the PCF, failed to comply with the unambiguous statutory requirements of the Louisiana Medical Malpractice Act by failing to request a review on behalf of each son separately and paying the statutor[ily] required fee for each. As such, based upon the law and evidence, the court denies the declaratory and mandamus relief sought in plaintiffs petition.

A judgment was signed in accordance with those reasons. Franks appeals and assigns as error the trial court’s finding the PCF did not exceed its authority, and the trial court’s denial of her petition for declaratory and mandamus relief.

DISCUSSION

A person is entitled to a declaratory judgment when her rights are uncertain or disputed in an immediate and genuine situation, and the declaratory judgment will remove the uncertainty or terminate the dispute. See La. Code Civ. Pro. arts. 1871, 1875; In re Succession of Beard, 13-1717 (La.App. 1 Cir. 6/6/14), 147 So,3d 753, 762. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. See La. Code Civ. Pro. arts. 3861-63; Berthelot v. Patients’ Compensation Fund Oversight Board, 07-0112 (La.App. 1 Cir. 11/2/07), 977 So.2d 967, 973 n.6, writ denied, 07-2328 (La. 2/1/08), 976 So.2d 720. In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty Rhe is charged to perform. Keating v. Van Deventer, 14-0157 (La.App. 1 Cir. 9/19/14), 153 So.3d 1200, 1205 n.6, writs denied, 142188 (La. 1/9/15), 157 So.3d 598, 599, and 1106.

In this declaratory and mandamus proceeding, the issue is the extent of the PCF’s authority to process requests for medical review panels. The resolution of that issue turns on the proper interpretation of the. Medical Malpractice Act. The starting point for interpretation of any statute is the language of the statute itself, as the text of the law is the best evidence of legislative intent. See La. R.S. 24:177 B(l); Rando v. Anco Insulations, Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065, 1075. The Medical Malpractice Act constitutes special legislation in derogation of the general rights available to tort victims and, therefore, must be strictly construed. See Dupuy v. NMC Operating Company, L.L.C., 15-1754 (La. 3/15/16), 187 So.3d 436, 439; Galloway v. Baton Rouge General Hosp., 602 So.2d 1003, 1005 (La. 1992). The interpretation of a statute is a question of law that is reviewed on appeal under the de novo standard of review. See Red Stick Studio Development, L.L.C. v. State ex rel. Department of Economic Development, 10-0193 (La. 1/19/11), 56 So.3d 181, 187.

A request for review of a medical malpractice claim involving a qualified healthcare provider is governed by Section 40:1231.8 of the Medical Malpractice Act. Subparagraph A(1)(b) of that statute addresses the required contents of a request as follows:

A request for review of a malpractice claim or a malpractice complaint shall contain, at a minimum, all of the following:
(i) A request for the formation of a medical review panel.
(ii) The name of only one patient for whom, or on whose behalf, the request for review is being filed; however, if the claim involves the care of a pregnant mother and her unborn child, then naming the mother as the patient shall be sufficient.
(in) The names of the claimants.
|fi(iv) The names of defendant health care providers.
(v) The dates of the alleged malpractice.
(vi) A brief description of the alleged malpractice as to each named defendant health care provider.
(vii) A brief description of the alleged injuries. (Emphasis added.)

While the statute mandates this information be contained in a request, the Medical Malpractice Act is silent as to the consequences, if any, of a claimant’s failure to comply with these provisions. As recognized by the court in Ward v. Vivian Healthcare and Rehabilitation Center, 47,-649 (La.App. 2 Cir. 5/15/13), 116 So.3d 870, 874:

[T]he legislature has seen fit to provide mandatory minimum ’ requirements for the information that must be contained in a request for a medical review panel. What the legislature has not provided is guidance as to the penalty or effect of the failure of a claimant to comply with all the requirements.

By comparison, if a claimant fails to timely pay the required filing fee, which is statutorily set at $100 per named defendant in Subparagraph 40:1231.8A(1)(c), the statute declares the request to be “invalid and without effect” and “shall not suspend [the] time within which suit must be instituted.” See La. R.S. 40:1231.8A(l)(e) & (2)(b); Morris v. Patient’s Compensation Fund Oversight Board, 07-2468 (La.App. 1 Cir. 5/28/08), 991 So.2d 551, 555.

Here, when presented with Franks’ request that identified two patients, the PCF unilaterally divided the request and used the enclosed check to pay the filing fee for the claim of its choosing. While the PCF ■ argues that it acted reasonably in processing the request in that manner, the issue is not whether the PCF’s actions 17were reasonable; the issue is whether those actions are legislatively authorized. We find they are not.

The PCF, ás a creature of the legislature, can have no greater authority than that given it by the legislature. See Berthelot, 977 So.2d at 974. The PCF’s authority to process a request for a medical review panel is defined in Louisiana Revised Statute 40:1231.8A, which provides as follows:

(3) It shall be the duty of the [PCF] within fifteen days of the receipt of the claim by the [PCF] to:
(a) Confirm to the claimant ... that the filing has been officially received and whether or not the named defendant or defendants have qualified under.this Part.
(b) In the confirmation to the claimant ..., notify the claimant of the amount of the filing fee due and the time frame within which such fee is due to the [PCF], and that upon failure to comply with the provisions of Subpar-agraph (l)(c) or (d) of this Subsection, the request for review of a malpractice claim is invalid and without effect and that the request shall not suspend the time within which suit must be instituted in Subparagraph (2)(a) of this Subsection.
(c) Notify all named defendants ... that a filing has been made against them and request made for the formation of a medical review panel; and forward a copy of the proposed complaint to each named defendant....
(4) The [PCF] shall notify the claimant and all named defendants by certified mail, return receipt requested, of any of the following information:
(a) The date of receipt of the filing fee.
(b) That no filing was due because the claimant timely provided the affidavit set forth in Item (1)(d)(i) of this Subsection.
(c) That the claimant has timely complied with the provisions of Item (1)(d)(ii) of this Subsection.
(d) That the required filing fee was not timely paid pursuant to Subpara-graph (1)(c) of this Subsection.
|s(5) In the event that any notification by certified mail, return receipt requested, provided for in Paragraphs (3) and (4) of this Subsection is not claimed or is returned undeliverable, the [PCF] shall provide such notification by regular first class mail, which date of mailing shall have the effect of receipt of notice by certified mail.
(6) In the event the [PCF] receives a filing fee that was not timely paid pursuant to Subparagraph (1)(c) of this Subsection, then the [PCF] shall return, or refund the amount of, the filing fee to the claimant within thirty days of the date the [PCF] receives the untimely filing fee.

Under these provisions, the PCF’s duties are limited to the following: (1) confirming receipt of the claim and the qualifications of the health care providers, (2) giving notice of filing fees within specified time frames, (3) notifying healthcare providers that a claim has been filed and that a request for the formation of a medical review panel has been made, (4) forwarding a copy of the claim to the healthcare provider, and (5) notifying all parties when the required filing fee is received by the PCF and whether the claimant has timely or' not timely paid the required filing fee. See Berthelot, 977 So.2d at 973. These duties are mandatory and clerical or ministerial in nature to facilitate the medical review process. See Bosarge v. Louisiana Patient’s Compensation Fund, 08-1923 (La.App. 1 Cir. 5/8/09), 16 So.3d 10, 15.

Fulfilling these duties is all the PCF is authorized or required to do for panel requests. Berthelot, 977 So.2d at 973. In that regard, the PCF stands in the same position as clerks of court, who are charged by the legislature with the duty to receive and process pleadings filed in judicial proceedings. See In re Elliott, 06-1440 (La.App. 3 Cir. 4/9/08), 980 So.2d 881, 890, unit denied, 08-1008 (La. 8/29/08), 989 So.2d 102.

lain Berthelot, the PCF determined, on its own accord, that the claimant’s request did not allege medical malpractice, and, for that reason, it refused to initiate the panel process. Berthelot, 977 So.2d at 968-69. Given the absence of any legislative authorization for the PCF to make that determination, this court found that the PCF exceeded its authority and assumed an adversarial role that was incompatible with its clerical duty to process the claim, explaining:

The legislature clearly did not grant the PCF the right to decline to accept a request for a medical review panel based upon its unilateral determination that the claim did not meet the definition of medical malpractice under the [Act]. Likewise, it is not the PCF’s place to assert that a claim does not fall within the scope of the medical malpractice act. It is the claimant’s choice whether to file the claim as a medical malpractice action requesting the medical review panel process or to file a lawsuit as a negligence action. Similarly, it is the healthcare provider’s choice in a lawsuit to raise the issue that the claim sounds in medical malpractice and must first be presented to a medical review panel before litigation is commenced. The adversarial parties in the panel proceedings are the claimant and the qualified health care provider, not the PCF. The PCF is simply not an interested party in these matters until there has been a settlement or judgment or for the limited purpose of litigating the qualification of a health care provider or the constitutionality of a law related to medical malpractice. The interpretation of the [Act] is purely a function of the judiciary, and the judiciary alone will determine whether claims fall within the scope of the [Act] unless the Legislature deems it appropriate to authorize some other entity to make that determination.

Berthelot, 977 So.2d at 974 (citations omitted).

Here, the PCF similarly performed acts that were adversarial or adjudicatory in nature when it reviewed Franks’ request, determined that the request did not comply with Louisiana Revised Statute 40:1231.8A(1)(b), divided the request into two separate claims, and selected which claim would receive the benefit of the check enclosed for the filing fee. Upon receipt of Franks’ request, the PCF was duty-bound to confirm receipt of the claim and the qualifications of the health care providers, calculate the filing fee, and proceed with the notifications required by the Act. See La. R.S. 40:1231.8A(3)-(6); Bosarge, 16 So.3d at 15; Berthelot, 977 So.2d at 973. That is all the PCF was authorized to do. See Berthelot, 977 So.2d at 973.

While the PCF may argue that the calculation of the filing fee required the division of the request into two separate claims, the language of the Act does not reveal any necessity for the PCF to unilaterally take that action. The calculation of the fee is controlled by Subparagraph A(1)(c), which provides that the fee is “one hundred dollars per named defendant.” La. R.S. 40:1231.8A(1)(c). Franks’ request, as presented to the PCF, was embodied in one document and named two defendants. Under a strict construction of the statutory language, the PCF was authorized to assess a filing fee for Franks’ request, as presented, of $100 per defendant, for a total of $200. Although the request admittedly includes the names of two patients, the Act does not direct the PCF to calculate the fee based upon the number of patients in the request, nor does it permit the PCF to modify a request that includes multiple patients by dividing the request into separate claims and assessing fees to each claim individually. However well intended, in processing a request, the PCF is performing a limited clerical role and cannot improvise measures not authorized by the Act.

In finding the PCF exceeded its authority herein, we recognize the requirements of Subparagraph A(1)(b) are basic and the review of a claim to determine compliance with those requirements may often be a relatively simple task. Nevertheless, regardless of how rudimentary such a review may be, this case 111 demonstrates the complexities that can arise when the PCF departs' from its administrative role and undertakes unauthorized measures that are more adversarial or adjudicatory in nature. At this stage of the proceeding, the PCF’s duties are strictly clerical and ministerial.

For these reasons, the trial court’s judgment denying Franks’ request for declaratory relief is reversed, and judgment is rendered declaring the PCF exceeded its authority by dividing Franks’ request into two separate claims and allocating Franks’ check to the claim 'of its choosing. We reverse the trial court’s'judgment in that regard and grant Franks’ petition to the extent it seeks that declaratory relief. We further issue a writ of mandamus ordering the PCF to reinstate Franks’ request, as presented and filed, by assigning a single file number to the request, confirming receipt of the $200 filing fee, and providing the notifications required by Louisiana Revised Statute 40:1231.8.

Franks additionally argues she is entitled to. judgment declaring that C.A.’s claim was timely filed. However, until her request for a medical review panel has been reconstituted and processed in its original form by the PCF, it would be premature for this court to grant any further relief at this time. Courts will not render advisory opinions. Louisiana Federation of Teachers v. State, 11-2226 (La. 7/2/12), 94 So.3d 760, 763. A court must refuse to entertain an action for a declaration. of rights if the issue presented is academic, .theoretical, or based on a contingency that may or may not arise. Louisiana Federation of Teachers, 94 So.3d at 763.

Simply stated, this case is not in a procedural posture that allows for a proper determination of any issue beyond our limited holding, which returns this proceeding to its starting point when the request was originally received by the PCF, and orders the PCF to process the request in accordance with its statutory | ^duties described herein. Until that time, any further declaratory or mandamus relief would be advisory in nature and improper. Thus, to the extent the trial court’s judgment denied all other relief to Franks, including her request that C.A.’s claim be deemed timely filed, we affirm the judgment.

CONCLUSION

The trial court’s judgment denying Franks’ request for declaratory relief is reversed, in part, and judgment is rendered declaring the PCF exceeded its authority by dividing her request for a medical review panel proceeding into two separate claims and allocating Franks’ cheek to the claim of its choosing. We further issue a writ of mandamus ordering the PCF to reinstate Franks’ request, as presented, by assigning a single file number to the request, confirming receipt of the $200 filing fee, and notifying the parties in accordance with Louisiana Revised Statute 40:1231.8, The trial court’s judgment, to the extent it denied the foregoing relief, is reversed. In all other respects, the trial court’s judgment is affirmed. Costs of this appeal in the amount of $1,030.50 are allocated one-half to Charlotte A. Hollinan, M.D., and Deborah K. Gahagan, and one-half to the Patient’s Compensation Fund Oversight Board.

JUDGMENT REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

      . Although the mailing and receipt of the notice are not at issue on appeal, we note Section 40:1231.8A(1)(c) was subsequently-amended by 2016 La. Acts, No. 275, § 1 (effective August 1, 2016), to provide the forty-five days runs from the date of receipt of the notice. All citations to the statute herein are to the version in effect at the time this claim was filed.

      . The defendants did not object to the cumu-lation of the declatory judgment and mandamus actions in he same proceeding. Although the actions employ different forms of procedure, any objection to the cumulation of the claims was waived. See La. Code Civ. Pro. arts. 463(3), 851, 926B, 1879, and 3781.

      . In Ward the defendant argued that a claim did not interrupt prescription because it did not comply with Subsection A(1)(b). Rejecting that argument, the court stated, "[T]he statute contains no penalty provision that would render the request invalid and without effect so that it does not suspend prescription.” Ward, 116 So.3d at 878.

      . Section 40:1231.8A(5) was amended by 2016 La. Acts, No. 275, § 1 (effective August 1, 2016), to clarify that the provision also applies when the PCF is unable to determine whether the notice was received.

      . We note that the PCF adopted regulations pursuant to Louisiana Revised Statute 40:1231.4D(3), which, in relevant part, largely track the language of the statute. See 37 La. Admin. Code, Pt. Ill, §§ 1401 — 05, However, the regulations do include a provision stating that if a claim fails to contain "all of the required information,” the PCF is to notify the claimant of the deficiency and provide a reasonable time for submitting the information. See 37 La. Admin, Code, Pt. Ill, § 1403. The regulation does not address the status of the claim if the claimant fails to timely provide the additional information, or whether the claim, as originally presented, is considered "filed” for purposes of suspending prescription under Section 40:1231,8A(2)(a), In any event, because the record does not indicate the PCF complied with, or otherwise relied upon, this regulatory provision in processing Franks’ request, we do not further address it in the context of this case.