author: WHIPPLE, C.J. HOLDRIDGE, J., McClendon, J.,

text:
    Reginald CROCKERHAM v. WEYERHAEUSER HOLDEN WOOD PRODUCTS
    NUMBER 2016 CA 0331
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      Pete Lewis, Barry W. Sartin, Jr., Sarah Delahoussaye Call, New Orleans, LA, Counsel for Claimant/Appellee, Reginald Crockerham
    Peggy D. St, John, Kay H. Michiels, Michael J. O’Shee, Sam N. Poole, Alexandria, LA, Counsel for Defendant/Appellant, Weyerhaeuser Holden Wood Products
    BEFORE: WHIPPLE, C.J., GUIDRY, pettigrew, McClendon, and HOLDRIDGE, JJ.
   WHIPPLE, C.J.

2This matter is before us on appeal by defendanVemployer, Weyerhaeuser Holden Wood Products, from a judgment of the Office of Workers’ Compensation (“OWC”) in favor of elaimant/employee, Reginald Crockerham. For the reasons that follow, we affirm in part, vacate in part, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Claimant was employed by defendant for approximately eighteen years, primarily in the position of forklift operator. On November 25,2013, claimant filed a disputed claim for compensation contending that he suffered a lower back injury caused by driving a forklift with bad tires and a broken seat. According to claimant, in 2012 and 2013, every time he would hit a.pothole or hit the lift side to side while operating the forklift, it would “jar” his lower back and send a sharp shooting pain down his right side to his big toe. He contends that this “ongoing process” of enduring these incidents caused his preexisting degenerative' condition to worsen, resulting in his lower lumbar back injuries. After conservative treatment in the form of multiple lumbar epidural steroid injections, claimant eventually underwent a discecto-my and a two-level fusion at L4-L5 and L5-S1 on October 10, 2013.

The matter was tried before the OWC on October 12, 2015, with the parties stipulating to all issues except, primarily, whether claimant suffered a work-related accident within the course and scope of his employment with defendant. Following the filing of post-trial memoranda, the OWC rendered judgment on December 18, 2015, finding that claimant proved by a preponderance of the evidence that he suffered multiple accidents beginning in 2012, which arose out of and occurred during the course of his employment with defendant, and that, as a ^result of these accidents, claimant suffered injury to his lumbar spine. The OWC awarded claimant temporary total disability (TTD) benefits from April 2, 2013, and continuing forward, in the amount of $394.13 per week, plus legal interest; granted defendant a credit in the amount of $8,442.34 against the amount owed for TTD benefits; and awarded claimant past and future medical expenses incurred for the,lumbar spine, with interest.-

The judgment of the OWC was accompanied by written reasons for judgment, also issued on December 18, 2015. After hearing from the witnesses and considering the documentary evidence presented, the OWC issued the following findings:

The accident(s) at issue occurred when claimant was operating “forklift number One” that had “bad tires” and a “broken seat”. These two problems of that particular forklift combined with the potholes, which remained' despite claimant’s reporting to supervisors, caused excessive jarring of claimant’s body which resulted in repeated accidents to claimant’s-lumbar spine. Despite claimant’s notifications to his supervisors about these accidents, nothing was done to correct these problems and no reports were written despite claimant’s reporting, which began in 2012.
These problems of “bad tires”, “broken seat” and “pot holes” do not compromise job activities that cause a “gradual deterioration or progressive degeneration of the body” under La. R.S. 23:1021 which defines an accident. These problems were not corrected by the employer and they continued to cause accidents to claimant. Employer’s failure to recognize or acknowledge these accidents does not diminish the facts.
Claimant cannot read or write. His wife of many years testified at trial that it is she that handles all of the managerial aspects of the family. This includes almost, if not all, of medical questionnaires, etc. that claimant had to. fill out during this long process of seeking medical treatment. Claimant’s wife is a special education teacher in the Tangipahoa Parish school system.
When claimant initially sought medical treatment for his lumbar spine, he was told that he had arthritis. There was no recognition that claimant was suffering these work-related accidents and claimant’s limited educational abilities did not help clarify this to the initial physicians. Claimant’s limited mental skills should be taken into account when the facts of this case are considered. He is not being given any ^advantage but the circumstances of the reporting, forms filled out, discussions as to the events by and involving claimant were considered with his mental limitations being a part of the equation when determinihg what actually happened.
Claimant last worked for defendant on April 1, 2013 when his injuries from the repeating accidents finally resulted in his inability to perform his work duties. On April 1, 2013, claimant’s injuries had “developed” into a disability that rendered his work status as Temporarily Totally Disabled.

Defendant now appeals from the judgment of the OWC contending that the OWC erred in: (1) disregarding and/or misinterpreting applicable .statutes and controlling precedent so as to find that multiple unspecified accidents in 2012 and 2013 developed into a work-i’elhted injury, when claimant’s claim failed to meet the statutory definitions of “accident” or “developing injury,” and when the claim was otherwise excluded as an occupational disease; (2) finding claimant’s limited mental skills allowed the disregard of unrefuted evidence showing the absence of any accident; (3) denying defendant’s exception of prescription; and (4) awarding unspecified past medical expenses and future medical expenses not yet incurred.

DISCUSSION

Assignment of Error Number One

In its first assignment of error, defendant contends that the OWC erred in finding that claimant suffered “repeated accidents,” as defined by LSA-R.S. 23:1021, and that his injuries were not attributable to degenerative disc disease, which defendant contends is specifically excluded as an occupational disease pursuant to LSA-R.S. 23:1031.1.

A workers’ compensation claimant bears the initial burden of establishing by a preponderance of the evidence that an accident occurred on the job and that he sustained an injury. Magee v. Abek, Inc., 2004-2554 (La.App. 1st Cir. 4/28/06), 934 So.2d 800, 806, writ denied, 2006-1876 (La. 10/27/06), 939 So.2d 1287. “Accident”'is defined in LSA-R.S. 23:1021(1) as “an unexpected or unforeseen factual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” "Whether a claimant has carried his or her burden of proof and whether testimony is credible are questions of fact to be determined by the trier of fact. Allman v. Washington Parish Police Jury, 2004-0600 (La.App. 1st Cir. 3/24/05), 907 So.2d 86, 88.

Factual findings in a workers’ compensation case are subject to the manifest error-clearly wrong standard of review. McCray v. Delta Industries, Inc., 2000-1694 (La.App. 1st Cir. 9/28/01), 809 So.2d 265, 269. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La. 7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a workers’ compensation judge’s factual finding,, it must find from the record that a reasonable factual basis does not exist for the finding of the workers’ compensation judge and that the record establishes that the finding is clearly wrong. Dawson v. Terrebonne General Medical Center, 2010-2130 (La.App. 1st Cir. 5/19/11), 69 So.3d 622, 626.

However, the interpretation of statutes pertaining to workers’ compensation is a question of law and warrants a de novo review to determine if the ruling was legally correct. Lirette v. Patterson Services, Inc., 2005-2654 (La.App. 1st Cir. 11/17/06), 951 So.2d 223, 226. Thus, we review de novo the OWC’s statutory interpretation, while using the manifest error standard.of review for the OWC’s factual findings regarding application of the statute. See Harrelson v. Arcadia, 2010-1647 (La.App. 1st Cir. 6/10/11), 68 So.3d 663, 666, writ denied, 2011-1531 (La. 10/7/11), 71 So.3d 316.

^Defendant contends that claimant’s surgery was necessitated herein by degenerative disc disease in his lower back and not as a result of an “accident” as defined by LSA-R.S. 23:1021. Defendant further contends that while LSA-R.S. 23:1031.1 provides that an employee shall be entitled to workers’ compensation benefits for an occupational disease due to causes and conditions characteristic of a particular occupation, “degenerative disc disease” is specifically excluded from the classification of an occupational disease. Thus, defendant submits that because claimant’s injuries resulted from degenerative disc disease, claimant is not entitled to the benefits granted by the OWC for maladies that are non-compensable under the statutory scheme.

Claimant counters that the statutory law and jurisprudence do not require claimant to be able to identify the exact time, place, and location of the accident, and produce medical evidence showing that the incident produced an exact change in claimant’s condition immediately following the complained of accident, as such a burden would be impossible for most workers sustaining compensable injuries to meet. Claimant further contends that although he had experienced back pain in the ten years prior to 2012, that pain or “stiffness” always resolved. Beginning in 2012, however, claimant contends that he suffered injuries in several precipitous events, which directly caused pain that was different in nature and severity than pains previously experienced, for which he sought medical attention and reported 17to defendant. Moreover, claimant contends that strict adherence is an affront to the intended purpose of workers’ compensation law. We agree.

It is a well-settled principle that the provisions of the worker’s compensation scheme are to be liberally interpreted in favor of the worker. Scott v. Wal-Mart Stores, Inc., 2003-0858 (La.App. 1st Cir. 2/23/04), 873 So.2d 664, 668, citing Bynum v. Capital City Press, Inc., 95-1395 (La. 7/2/96), 676 So.2d 582, 586 (La. 1996). While a claimant must show that his employment somehow caused or contributed to the disability in order for the employee to recover, he need not establish the exact cause. Elswick v. Highway Transport, 96-0014 (La.App. 1st Cir. 9/27/96), 680 So.2d 1364, 1367. Moreover, claimant’s own testimony accepted by the trier of fact may be sufficient to prove causation by a preponderance of evidence, provided: (1) no other evidence discredits or casts serious doubt upon the claimant’s version of the incident, and (2) the claimant’s testimony is corroborated by circumstances surrounding the alleged incident. Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La. 1992).

In the instant case, claimant testified that he had “stiffness” in his back for ten years before the Fall of 2012 and Spring of 2013, but it had always gotten better and he was able to go back to work and perform his job. He explained that, beginning in September of 2012, however, “[e]very time [he] would hit a hole or hit the lift side to side, it would jar [his] lower back and send pain down [his] right side to [his] big toe.” Claimant took photographs of the tires on the forklift to show his wife why he was hurting so much and why he could not get out of bed in 18the morning. He also testified that he reported the problems with the forklift and resulting pain he was experiencing to his supervisor, Joe Hart. Claimant testified that he “would complain ... [a]nd after [he] complained, they’d tell [him], okay, they was going to take care of it.” Claimant stated that he would then continue to do “the best [he] can ... [to] try to do it as safe as [he] can if possible to keep going.” Claimant testified that over the last six-month period that he worked for defendant, this happened “a number of times.” He explained:

It happened with the tires. The lift would be going from side to side. It really rolled rough and then hitting the holes as well. It just—the sharp pains. Every time it would hit, the pain would shoot down my lower back down to my big toe on the right side. Mostly on— mostly the right.

When asked if this was a long, ongoing process where the pain gradually increased month by month, or day by day, or year by year, claimant answered:

The pain would occur when I hit something, a hole. And that’s when the sharp pain would hit me in the lower back, go down the right side to my toe. And that’s when I would—that’s when I would report it.

When asked whether claimant had an accident or a particular incident on a certain date, he explained:

It just—when I hit a hole or hit something and with the bad tires on the lift, with the lift going side to side, it made it bad. And when I hit a hole, it made it worse. A sharp pain would hit me in the lower back and go down to my toe. That’s when I would report it.

Moreover, claimant specifically testified reporting these incidents, which caused sharp pain in his lower back, to Supervisor Hart, as well as Human Resources Manager Charles Beene and Superintendent Leo Primm in a meeting on | ¡March 28, 2013. Claimant testified that they were required to report any injuries and that he specifically reported that when the forklift hit the holes, it would jar his back causing sharp pain in the middle part of his back down his right side to his big toe. Claimant testified that he would bring it up in the meetings to keep anyone else from having the same problem and also so that they could fix or take care of the problem.

Claimant’s testimony clearly indicates that these specific incidents worsened his condition at a specific identifiable moment and that this was not a gradual deterioration or progressive degeneration. Although defendant contends that claimant’s increase in pain is solely related to his preexisting degenerative disc disease, the OWC found that the problems with the “forklifty combined with the potholes, which remained despite claimant’s reporting to supervisors, caused excessive jarring of claimant’s body[,] which resulted in repeated accidents to claimant’s lumbar spine.”

Following an exhaustive review of the record and exhibits in this matter, which support the reasonable findings of the OWC, we are unable to say the OWC erred in determining that claimant sustained a work-related accident as defined by LSA-R.S. 23:1021. In rendering its decision, the OWC clearly found the testimony of claimant and his wife regarding the nature and onset of the pain, as well as the incidents causing his back pain, to be credible. This type of credibility determination is not to be second-guessed at the appellate level. See Pitre v. Buddy’s Seafood, 2011-0175 (La.App. 1st Cir. 8/16/12), 102 So.3d 815, 821, writ denied, 2012-2058 (La. 11/16/12), 102 So.3d 41. Accordingly, we find no merit to this assignment of error.

Assignment of Error Number Two

Defendant contends in its second assignment of error that the OWC erred in considering claimant’s limited mental skills in considering the facts of this case | inabsent any testimony, medical evidence, or employment records reflecting claimant’s “purported” illiteracy or diminished mental capacity. Defendant'contends that the OWC used this determination to disregard claimant’s medical records, which show the denial of any accident and that do not reflect any report of an on-the-job accident, and his reporting of an accident that made no mention of bad tires, broken seat, potholes or excessive jarring.

Claimant 'testified at trial that he possessed a ninth-grade education level and that he was not able to read or write very well. Claimant further testified that his wife, Sheila, handled all of the family business and that she filled out his disputed form for compensation and other forms required by his health insurer, Blue Cross Blue Shield, by asking him the questions, and then recording his answers. Sheila Crockerham testified at trial and' concurred with claimant’s testimony.

While defendant contends on appeal that the OWC erred in considering these limitations where “[tjhere is no testimony, medical evidence or employment records reflecting [claimant’s] purported illiteracy or diminished mental capacity,” we note that claimant’s testimony at trial regarding his literacy, including his ability to read, write, comprehend or communicate, was not challenged or refuted by defendant in any respect at trial. Specifically, defendant presented no evidence whatsoever at trial to contradict claimant’s testimony, or that of his wife, concerning his level of education and degree of literacy.

The OWC was able to observe claimant’s testimony and demeanor at trial. Based on these observations, the OWC found that “[claimant’s limited mental skills should be taken into account when the' facts of this case are considered.” The OWC further determined that because of these limited mental skills, “[w]hen claimant initially sought medical treatment for his lumbar spine, he was told that he had arthritis ... [and that] [t]here was no recognition that claimant was suffering |nthese work-related accidents and claimant’s limited educational abilities did not help clarify this to the initial physicians.”

It is well settled jurisprudentially that the trier of fact, actually hearing and observing witnesses give live testimony, is in a better position to evaluate credibility than a reviewing court on the intermediate level, which at best can only study the written words of a cold record. Armstrong v. Fireman’s Fund Insurance Company, 558 So.2d 646, 649-650 (La. App. 1st Cir. 2/21/90), writ denied, 560 So.2d 30 (La. 1990). Moreover, where, as here, a court’s findings are based on credibility determinations, this court has emphasized the importance of deferring to the trier of fact’s findings, as the trier.of fact is not disadvantaged by the review of a cold record, and is in a superior position to observe the nuances of demeanor evidence not revealed in a record. Purvis v. Grant Parish School Board, 2013-1424. (La. 2/14/14), 144 So.3d 922, 927.

The OWC’s conclusion that claimant'had limited mental • skills was established at trial. Moreover, we find no error in the OWC’s conclusion that these limitations should be taken into account in considering the facts of this case, given the uncontra-dicted evidence in the record. Considering the jurisprudence set forth above, on review, we decline to disturb the OWC’s finding. This assignment of error lacks merit.

Assignment of Error Number Three

In this assignment of error, defendant contends that in the event that the OWC’s finding that claimant incurred an “accident” pursuant to LSA-R.S 23:1021(1) is upheld, the OWC erred in denying its peremptory exception raising the objection of prescription.

In denying the defendant’s exception of prescription, the OWC noted:

Claimant last worked for defendant on April 1, 2013 when his injuries from the repeating accidents finally resulted in his inability to perform his work duties. On April 1, 2013, claimant’s injuries had [^“developed” into a disability that rendered his work status as Temporarily Totally Disabled.

If evidence is introduced at the hearing on the peremptory exception raising the objection of prescription, the district court’s findings of fact are reviewed under the manifest error or clearly wrong standard of review. TIG Insurance Company v. Louisiana Workers’ Compensation Corporation, 2009-0330 (La.App. 1st Cir. 9/11/09), 22 So.3d 981, 983. Louisiana Revised Statute 23:1209 governs prescriptive periods for workers’ compensation claims, and provides, in pertinent part:

A. (1) In case of personal injury, including death resulting therefrom,- all claims for payments shall be forever .barred unless within one year after the accident or death the parties- have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter.
(2) Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (4).
(3) When the injury does not result at the time of or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within three years from the date of the accident.
(4) However, in all cases described in Paragraph (3) of this Subsection, where the .proceedings have begun after two years from the date of the work accident but within three years from the date of the work accident, the employee may be entitled to temporary total disability benefits for a period not to exceed six months and the payment of such temporary total disability benefits in accordance with liathis Paragraph only shall not operate to toll or interrupt prescription as to any other benefit as provided in R.S. 23:1221.

As set forth above, LSA-R.S. 23:1209(A)(3) provides that an injury not resulting at the time of, or developing immediately after, the accident is a “developing injury.” Pitre v. Buddy’s Seafood, 102 So.3d at 822. Our courts have consistently interpreted “the time the injury develops,” as set forth in LSA-R.S. 23:1209(A), to mean “development of disability, and disability marks the time from which it is clear that the employee is no longer able to perform the duties of his employment in a satisfactory manner.” Warren v. Action Oil Recovery, 2005-1755 (La.App. 1st Cir. 9/20/06), 944 So.2d 615, 617. As the Louisiana Supreme Court explained in Sevin v. Schwegmann Giant Supermarkets, Inc., 94-1859 (La. 4/10/95), 652 So.2d 1323, 1325-1326:

Workers’ compensation laws are to be liberally interpreted in favor of protecting workers from the economic burden of work-related injuries. In furthering that policy, this court has construed La. Rev.Stat. 23:1209 A’s term “the time the injury develops” liberally in cases in which the worker attempts to continue working until no longer able to perform his or her employment duties. This court has consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disabling injury, rather than from the first appearance of symptoms or from the first date of treatment. The “time the injury develops,” as interpreted to mean the date the disability develops, is usually determined as the time when it becomes clear that the worker can no longer perform his or her employment duties in a satisfactory manner. Thus, the “developing injury” rule has been applied not only when the injury does not manifest itself immediately, but also when the employee, after an accident in which injury is immediately apparent, continues to attempt employment duties until he or she is finally disabled from doing so.
Requiring any injured employee, who is not yet disabled, to assert his or her claim within one year of the accident (or one year of the last payment of benefits) in order to preserve the cause of action would encourage needless litigation. [Citations omitted.]

| uThe underlying rationale for this interpretation is that an injured employee who continues to work, despite a work-related medical condition, which is painful but not then disabling, should not be penalized for attempting to remain in the work force in order to support his or her family or in the hope that the condition will improve. Warren v. Action Oil Recovery, 944 So.2d at 617, citing Sevin v. Schwegmann Giant Supermarkets, Inc., 652 So.2d at 1326, citing Wex A. Malone & H. Alston Johnson III, 14 Louisiana Civil Law Treatise-Workers’ Compensation § 384 (3d ed. 1994). Thus, it has been consistently held that an employee who suffers a work-related injury that immediately manifests itself, but only later develops into a disability, has a viable cause of action until one year from the development of the disability, rather than from the first appearance of symptoms or from the first date of treatment. Warren v. Action Oil Recovery, 944 So.2d at 618, citing Winford v. Conerly Corporation, 2004-1278 (La. 3/11/05), 897 So.2d 560, 564.

Defendant herein contends that if claimant suffered an “accident,” his claim would have arisen as early as 2009, when the forklift number four with transmission problems was purchased by defendant, or in June of 2011, when claimant’s medical records indicate that he began reporting back pain, rather than in April of 2013, when he became disabled and was no longer able to continue working. Defendant contends that the prescriptive period for an accidental injury was one year from the date of the accident, or, applying the pre-amended version of LSA-R.S. 23:1209, two years from the date of the accident if it qualified as a “developing injury,” and thus, that his claim had therefore prescribed at the time he filed his disputed form for compensation on January 21, 2014. We disagree.

The OWC herein found that claimant suffered “repeated accidents,” and that injuries sustained from the repeated accidents finally resulted in his inability to perform his work duties, such that, on April 1, 2013, claimant’s injuries had | ^“developed” into a disability that rendered his work status as temporarily totally disabled. Thus, applying the jurisprudence set forth above, claimant’s disputed form for compensation filed on January 21, 2014, within one year of the manifestation of claimant’s disability on April 1, 2013, was timely. We find no error in the OWC’s denial of claimant’s peremptory exception raising the objection of prescription.

This assignment of error lacks merit.

Assignment of Error Number Four

In its final assignment of error, defendant contends that the judgment is improper in that it fails to clearly identify the relief granted, inasmuch as some of the sums awarded are not specified. Moreover, defendant contends that the judgment awarded claimant future medical treatment, thereby improperly granting claimant medical expenses that have not yet been incurred. Defendant challenges the following portions of the judgment as improper:

B. Claimant is awarded:
1. All medical bills and expenses not paid by his general health insurer Blue Cross Blue Shield; and
3. All out of pocket medical expenses incurred for the lumbar spine which are part of the evidence admitted at trial for the period April 1, 2014 through date of trial; and
5. Continued medical treatment pursuant to the La. Medical Treatment Guidelines^]

Although the form and wording of judgments is not sacramental, judgments must be precise, definite and certain, and the amount of recovery should be determinable from the judgment without reference to an extrinsic source. See Vanderbrook v. Coachmen Industries, Inc., 2001-0809 (La.App. 1st Cir. 5/10/02), 818 So.2d 906, 913. Moreover, a final appeal-able judgment must contain decretal | ^language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. Jenkins v. Recovery Technology Investors, 2002-1788 (La.App. 1st Cir. 6/27/03), 858 So.2d 598, 600.

The judgment provides that claimant is awarded “[a]ll medical bills and expenses not paid by his general health insurer Blue Cross Blue Shield” but fails to set forth an amount for same. The judgment further awards claimant “[a]ll out of pocket medical expenses incurred for the lumbar spine which are part of the evidence admitted at trial for the period April 1, 2014 through date of trial” but also fails to provide an amount for same, and instead, indicates that the medical expenses incurred may be discerned from the evidence admitted at trial.

Accordingly, because these awards are uncertain and indefinite and must be determined by referencing extrinsic sources, those portions of the judgment are not proper and must be vacated. See Succession of Wagner, 2008-0212, 2008-0212 (La. App. 1st Cir. 8/8/08), 993 So.2d 709, 724. However, rather than vacate the entire judgment, we vacate only the portion of the judgment rendering it uncertain and indefinite, he., (1) the award of all medical bills and expenses not paid by his general health insurer Blue Cross Blue Shield; and (2) the award of all out. of pocket medical expenses incurred for the lumbar spine, which are part of the; evidence admitted at trial for the period April 1, 2014, through, date of trial. See Succession of Wagner, 993 So.2d at 725, citing Clark v. Diamond B. Construction, 2000-2146 (La. App. 1st Cir. 12/28/01), 803 So.2d 1113, 1117.

| ^Accordingly, this matter is remanded to the OWC for the limited purpose of allowing the OWC to enter a judgment setting; forth the particular amount of the award for all medical bills and expenses not paid by his general health insurer-Blue Cross Blue Shield and the award of all out-of-pocket medical expenses incurred for the lumbar spine, which are part of the evidence admitted at trial, for the period of April 1, 2014, through date of--trial, with certainty and precision. .

Finally, the judgment awarded claimant continued medical treatment pursuant to the Louisiana Medical Treatment' Guidelines. To the extent that defendant attempts to characterize this award as one for future medical expenses, we disagree and note that this award in no way prohibits defendant from challenging any requested future treatment as beyond the scope of the Louisiana-Medical Treatment Guidelines.

CONCLUSION

For the above and foregoing reasons, the December 18, 2015 judgment of the OWC is affirmed in part, vacated in part, and remanded with instructions. Costs of' this appeal are assessed to the defen-dantyappellant, Weyerhaeuser Holden Wood Products.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Pettigrew, J. concurs

Holdridge, J. dissents with reasons

McClendon, J. dissents and assigns reasons.

HOLDRIDGE, J.,

dissenting.

Based on Duet v. Landry, 2016-0575 (La.App. 1 Cir. 3/6/17), 2017 WL 900066 and Rosewood Enterprises, Inc. v. Rosewood Development, LLC, 2016-0352 (La. App. 1 Cir. 3/6/17), 2017 WL 900041, and the cases cited therein, the failure of the judgment in this case to state the amount of the unpaid medical bills and the amount of out-of-pocket medical expenses awarded makes the judgment indefinite and uncertain. Therefore, the judgment is not a final judgment. In accordance with prior jurisprudence of the First Circuit, for example, Costanza v. Snap-On Tools, 2013-0332 (La. App. 1 Cir. 3/5/14), 2014 WL 886021, and Gaten v. Tangipahoa Parish School System, 2011-1133 (La.App. 1 Cir. 3/23/12), 91 So.3d 1073, and jurisprudence of other circuits, (see States v. Greenwood Motor Lines, Inc., 2017-53 (La.App. 3 Cir. 3/8/17), 215 So.3d 287; Urquhart v. Spencer, 2015-1354 (La.App. 4 Cir. 12/1/16), 204 So.3d 1074, 1076; Green v. Lee, 2016-179 (La. App. 5 Cir. 12/7/16), 206 So.3d 425, 427) because the judgment in this case is not a valid final judgment, this court lacks jurisdiction to review it, and the appeal in its entirety should be dismissed. Because this court has no jurisdiction over the judgment, we have no jurisdiction to affirm part of the judgment.

McClendon, J.,

dissenting.

| iWhile I am sympathetic to Mr. Croek-erham’s condition, the record fails to establish that he sustained “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently,,.. and directly producing at the time objective findings of an injury” as defined in LSA-R.S, 23:1021. Therefore, I respectfully dissent.

      . At the conclusion of trial, defendant filed an exception of prescription, which the OWC subsequently denied.

      . Louisiana Revised Statute 23:1031.1 provides, in part:

        A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
      B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

      . Claimant testified that the forklifts that he operated were numbers one and four. He stated that he operated forklift number one for three or four years and that he operated forklift number four for "[q]uite sometime.” Claimant complained that forklift number one had worn tires and a seat with no back support. The original seat pad had ripped, and the new seat that was installed did not have the same back support that the original seat had. Claimant stated that there were about five different areas in the planning mill that had potholes. He explained that when he operated forklift number four, which had transmission problems, he would get the same sharp pain in his lower back and down his right leg. Claimant testified that after operating forklift one and four, he was so "stiff” he could hardly get out of the forklift at the end of his shift.

      . Louisiana Revised Statute 23:1209(A)(3) was amended and reenacted to extend the time limitation for reporting developmental injuries from two years after the accident to three-years frpm the date of the accident, and LSA-R.S. 23:1209(A)(4) was enacted to provide that the employee is entitled to temporary total disability benefits for up to six months in all cases described in Paragraph (3), by La, Acts 2012, No. 783, § 1, effective August 1, 2012.

      . While the judgment contains a stipulation by the parties that the amount of claimant’s out-of-pócket medical expenses from March 27, 2013 through' March 31, 2014 was $3,243.73, the judgment provides no stipulated amount for expenses from April 1, 2014, through the date of trial.

      . In vacating only the uncertain and indefinite portion of the judgment, we note that another panel of this court recently handed . down an- unpublished opinion, which dismissed the entire appeal for lack of jurisdiction where a portion of the judgment concerning interest and penalties was not definite and certain. See Duet v. Landry, 2016-0575 (La. App. 1st Cir. 3/6/17)(unpublished opinion). In . doing so, the court relied in part on Succession of Wagner, 993 So.2d 709 at 724, and Vanderbrook v. Coachmen Industries. Inc., 818 So.2d at 913, which are also cited herein. In those cases, however, like the instant case, this court elected to vacate only the uncertain and indefinite portion of the judgment and concluded that the remaining portions of the judgment were properly reviewable. (In Van-derbrook, this court affirmed the grant of summary judgment as to the finding of liability, reversed the grant of summary judgment as to the "Lemon Law” claims and damages, and remanded to the trial court for a determination of the "exact amount of damages," which were undeterminable-from the judgment, Vanderbrook v. Coachmen Industries, Inc., 818 So.2d at 913-914. In Súccession of Wagner, this court vacated the portion of the judgment awarding interest, which was uncertain and indefinite, and affirmed the judgment in all other respects, noting, "rather than vacate the entire judgment, we vacate only the portion of the judgment rendering it uncertain and indefinite, Le., the interest award.”, Succession of Wagner, 993 So.2d 709 at 724, citing Clark v. Diamond B. Construction, 803 So.2d at 1117.)


source: Caselaw Access Project

author: McClendon, j.

license: Public Domain

text:
    IT’S GOLDEN, LLC v. WATERCOLORS UNIT 6, LLC and Michael Polito
    2016 CA 1362
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 2, 2017

      Mitchell J. Hoffman, Michael R. All-weiss, New Orleans, Louisiana, Counsel for Plaintiff/Appellant, It’s Golden, LLC
    R. Loren Kleinpeter, Baton Rouge, Louisiana, Counsel for Defendants/Appellees, Watercolors Unit 6, LLC and Michael Pol-ito
    BEFORE: WHIPPLE, C.J., GUIDRY, and McClendon, jj.
   McClendon, j.

| ¡.Plaintiff, an alleged assignee of a member’s interest in a limited liability company, seeks review of the trial court judgment that granted the defendants’ exception raising the objection of prematurity. Plaintiff had petitioned the court to determine and award the fair market value of the member’s interest. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

It’s Golden, LLC (hereinafter “Golden”) filed a petition alleging that it was the assignee of the member interest of Julie U. Quinn in Watercolors Unit 6, LLC. (R. 2) Golden named Watercolors and its manager, Michael Polito, as defendants. Golden alleged that Ms. Quinn, through an e-mail sent to Mr. Polito on March 28, 2016, withdrew as a member from Watercolors effective April 29, 2016. (R. 2, 7) Golden requested the court to fix and award it the fair market value of Ms. Quinn’s interest in Watercolors. (R. 3)

In response, Watercolors and Mr. Polito (collectively “Watercolors”) filed a dilatory exception raising the objection of prematurity, asserting that the petition was premature based on Ms. Quinn’s and/or Golden’s failure, in accordance with LSA-R.S. 12:1325, to provide written notice of withdrawal to Watercolors at its registered office located at 344 Third Street in Baton Rouge, Louisiana. (R. 4)

Golden opposed Watercolors’ exception, urging that the e-mail sent to Mr. Polito’s e-mail address was sufficient to meet the requisite notice requirement.

After argument, the trial court granted Watercolors’ exception of prematurity. The trial court signed a judgment on August 25, 2016, granting the exception and dismissing Golden’s claims without prejudice.

Golden has appealed, assigning the following as error:

a. The delivery of [the] withdrawal notice requirement of La. Rev. Stat. 12:1325(B) does not apply.
b. Even if La. Rev. Stat. 12:1325(B) does apply, It’s Golden complied with the delivery obligation thereunder.,

^DISCUSSION

Louisiana Code of Civil Procedure article 926A(1) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action, rather than to defeat it. LSA-C.C.P. art. 923. An action is premature if it is brought before the right to enforce the claim sued on has accrued. See LSA-C.C.P. art. 423. The objection of prematurity raises the issue of whether the judicial right of action has yet come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, 310, writ denied, 02-2951 (La. 2/14/03), 836 So.2d 121. Prematurity is determined by the facts existing at the time suit is filed. Houghton v. Our Lady of the Lake Hosp., Inc., 03-0135 (La.App. 1 Cir. 7/16/03), 859 So.2d 103, 106. Evidence may be introduced to support or controvert the grounds of the exception. LSA-C.C.P. art. 930. If no evidence is presented at trial, then the court must render its decision based on the facts alleged in the petition, with all allegations therein being accepted as true. LaCoste v. Pendleton Methodist Hosp., L.L.C., 07-0008 (La. 9/5/07), 966 So.2d 519, 525.

Watercolors asserts that the action is premature because the requirements for a member’s withdrawal found in Louisiana Revised Statutes 12.-1325B have not been met. Louisiana Revised Statutes 12:1325B provides:

A member of a limited liability company not. entered into for a term may withdraw or resign from a limited liability company at the time or upon the happening of an event specified in a written operating agreement and in accordance with the written operating agreement. If a written operating agreement does not specify the time or the events upon the happening of which a member may withdraw or resign, a member of a limited liability company not entered into for a term may resign or withdraw upon not less than thirty days prior written notice to the limited liability company at its registered office as filed of record with the secretary of state1 and to each member and manager at each member’s and manager’s address as set forth on the records of the limited liability company.

Watercolors avers that the withdrawal provision found in the “Amended and Restated Operating Agreement” (hereinafter “Amended Operating Agreement”), which allows a member to withdraw “at any time,” did not dispense with the requirements under LSA-R.S. 12:1325B insofar as the concluding phrase in the Amended Operating Agreement provided that members could withdraw at any time “as other: wise required by law.” |4Because. Watercolors was not entered into for a term, which is undisputed, .Watercolors maintains that Ms. Quinn, in accordance with LSA-R.S. 12:1325B, was required to send written notice to Watercolors at its registered office located at 344 Third Street. Watercolors avers that an e-mail was not sufficient to meet the statutory notice requirements.

On the other hand, Golden avers that Watercolor’s Amended Operating Agreement controls. Specifically, Section 2.5 of the Amended Operating. Agreement entitled “Withdrawal” provides:

A Member has the right to withdraw from the Company as a Member at any time except as otherwise provided for in this- Agreement and except as otherwise provided for by contract, upon surrendering back to the Company of all rights hereunder to its membership interest and as otherwise required by law.

Because the Amended Operating Agreement provides that a member may withdraw “at any time,” Golden maintains that the requirements in LSA-R.S. 12:1325B do not apply and that the e-mail, which Watercolors admits receiving, was sufficient.

The clear language of . LSA-R.S. 12:1325B states that the notice requirement found in the statute does not apply when an operating agreement “specifies] the time or the events upon the happening of which a member may withdraw or resign.” Here, - the Amended Operating Agreement provides both a time, he. “at any time,” and an event, “upon surrendering back to the Company of all rights hereunder to its membership interest,” that allowed a member to withdraw. Since the Amended Operating Agreement provides a time and event for withdrawal, the requirement that “written notice to the limited liability company at its registered office as filed of record with the secretary of state” as set. forth in LSA-R.S. 12:1325B is inapplicable. Further, the parties do not dispute that the e-mail was sent to Mr. Polito at his business e-mail address and that Mr. Polito received the e-mail. Under these circumstances, we conclude that the trial court erred in granting Watercolors’ exception of prematurity.

CONCLUSION

For the foregoing reasons, the trial court’s August 25, 2016 judgment granting the exception raising the objection of prematurity is reversed. This matter is remanded Rfor further proceedings consistent with this opinion. Costs of this appeal are assessed to the appellees, Watercolors Unit 6, LLC and Michael Polito.

REVERSED AND REMANDED.

      . Golden notes that the trial court offered no reasons for granting the exception. Golden avers that the only urged rationale for granting the exception is that Ms. Quinn did not comply with the delivery provisions found in LSA-R.S. 12:1325B.


author: HIGGINBOTHAM, J.

text:
    Chantrell L. SWAN, Individually and On Behalf of her Minor Son, Kai Swan v. BAYOU PEDIATRIC ASSOCIATES, APMC
    NO. 2016 CW 0516 AND NO. 2016 CA 0755
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 02, 2017

      James C. Klick, Joseph A. Knott, New Orleans, LA, Attorneys for Plaintiff-Appellant, Chantrell L. Swan, Individually and on Behalf of Her Minor Son, Kai Swan
    Stephanie B. Laborde, Baton Rouge, LA, Attorney for Defendant-Appellee, Louisiana Patient’s Compensation Fund Oversight Board
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   HIGGINBOTHAM, J.

I ¡/This appeal arises out of a claim by Chantrell L. Swan, individually and on behalf of her minor son, Kai Swan, for future custodial medical care. Ms. Swan’s claim is related to a medical malpractice case concerning injuries sustained by her son shortly after he was born in December 2002. The Nineteenth Judicial District Court (19th JDC) issued a judgment on April 13, 2016, dismissing Ms. Swan’s claim against the Louisiana Patient’s Compensation Fund Oversight Board in its entirety, finding that the claim was perempt-ed. After the case was dismissed, Ms. Swan sought both a writ of review and an appeal regarding the 19th JDC’s judgment. Another panel of this Court denied Ms. Swan’s motion to consolidate her writ application with her appeal after the writ had already been referred to this appeal panel for consideration. Because the 19th JDC’s judgment dismissed Ms. Swan’s case in its entirety, it is a final and appeal-able judgment; therefore, we deny her writ application. We now consider the merits of Ms. Swan’s appeal.

BACKGROUND

This case has a lengthy, circuitous procedural history. In 2003, Ms. Swan filed a medical malpractice suit in the Thirty-Second Judicial District Court (32nd JDC) against several health care providers. In that lawsuit, Ms. Swan alleged that her newborn son had sustained injuries and damages due to the health care providers’ negligent treatment that resulted in her son developing a severe brain injury from complications of sepsis, meningitis, and hydrocephalus. Consequently, Ms. Swan’s son requires constant custodial care, which up until the time of trial was always provided by Ms. Swan and other family members. Ms. Swan ultimately settled with her son’s doctor and insurer for $100,000.00, and then proceeded against the Louisiana Patient’s Compensation Fund (PCF) for excess damages.

At the medical malpractice trial in May 2008, the parties stipulated that Ms. Swan’s son is a patient in need of future medical care and related benefits and that lathe damages exceeded the $500,000.00 medical malpractice limitation. On August 22, 2008, the 32nd JDC judge signed a judgment awarding $500,000.00 in damages, subject to a credit in favor of the PCF for the $100,000.00 settlement. The judgment also awarded future medical expenses and amounts incurred by Ms. Swan and her son from the date of the malpractice until the date of trial in the amount of $561,256.00. This amount included a custodial care rate of $15.00 per hour for a total of sixteen hours per day, subject to deduction for hours when Ms. Swan’s son was in day care and/or in school. The judgment also stated that the 32nd JDC retained continuing jurisdiction with respect to future medical care and related benefits needed by Ms. Swan’s son. No appeal was taken from that judgment, which is now final.

After the 32nd JDC’s judgment was rendered, the PCF assumed responsibility for the direct payment of Ms. Swan’s son’s future medical care and benefits in accordance with its medical fee schedule, at a reimbursement rate of $7.32 per hour for custodial care provided by family members. In May 2009, Ms. Swan filed a motion to compel in the 32nd JDC, requesting that the 32nd JDC assert its continuing jurisdiction and compel the PCF to pay for custodial care provided for Ms. Swan’s son at the rate of $15,00 per hour as previously awarded in the medical malpractice final judgment. After a hearing, the 32nd JDC judge denied the motion, noting that the $15.00 per hour rate applied only to future medical care that had accrued from the date the suit was filed to the date of trial* The judgment also stated that the $7.32 per hour custodial rate established by the PCF’s reimbursement schedule applied to Ms. Swan’s son’s future medical care incurred after trial, unless Ms. Swan undertook the proper procedure for requesting and receiving a waiver of the PCF’s standard custodial care rate for family members.

The 32nd JDC judge directed Ms. Swan to request an administrative hearing with the Louisiana Patient Compensation Fund Oversight Board (PCFOB) 1 ¿concerning the rate waiver. Ms. Swan proceeded as directed and the PCFOB hearing was held in May 2011. On July 14, 2011, the PCFOB issued a final decision denying Ms. Swan’s request, to waive the standard $7.32 hourly reimbursement custodial care rate for care provided by family members. Notice of the PCFOB’s final decision was transmitted to all parties on July 18,2011.

On August 15, 2011,. Ms. Swan filed a motion in the 32nd JDC medical malpractice action, appealing the final decision of the PCFOB that denied her the reimbursement rate request of $15.00 per hour for custodial- care for her son. Service of process was made on the PCF’s attorney of record in the medical malpractice proceeding on August 26, 2011, rather than on the PCFOB. Nevertheless, the PCFOB filed a declinatory exception raising the objection of improper venue in response, arguing that the proper venue for review of a final decision by the PCFOB is in the 19th JDC and not in the 32nd JDC.

Following a hearing, the 32nd JDC ruled that it' had continuing jurisdiction with "respect to future medical care and related benefits for Ms. Swan’s son, and denied PCFOB’s exception of improper venue. The PCFOB filed a writ application in this Court, seeking supervisory review of the 32nd JDC’s decision denying the exception of improper venue. On May 12, 2012, this Court granted the PCFOB’s writ, ruling .that under the operative facts, ie., the PCFOB’s decision to not waive its standard family-member custodial care rates actually occurred where the PCFOB is located in East Baton Rouge Parish. Accordingly, this Court reversed the 32nd JDC and ruled that the 19th JDC was the only parish of proper venue for judicial review of. the PCFOB’s decision. Ms. Swan sought a writ of review with the Supreme Court, but her writ application was denied. Swan v. Bayou Pediatric Associates, APMC, 2011-2171 (La. App. 1st Cir. 3/12/12) (unpublished), writ denied, 2012-0734 (La. 6/1/12), 90 So.3d 441.

|fiMany months after the Supreme Court’s writ denial on the venue issue was final, on March 26, 2013, Ms. Swan filed a' motion in the 32nd JDC to transfer her appeal/request for review of the PCFOB’s final decision to the 19th JDC. The 32nd JDC ordered the transfer of the entire medical malpractice suit record to the 19th JDC on April 3, 2013. Almost a year later, on February 20, 2014, Ms. Swan filed a motion for appeal/review of the PCFOB ⅛ final decision in the 19th JDC. The PCFOB promptly filed more exceptions, raising the objections of peremption, lack of subject matter jurisdiction, insufficient citation and service of process, and . prematurity. Ms. Swan opposed the exceptions.

After a hearing held in the 19th JDC and a two-year delay, the 19th JDC signed a judgment on April 13, 2016, sustaining the PCFOB’s exception of peremption, finding that Ms. Swan’s action for judicial review of the PCFOB’s 2011 final decision was perempted, because the review was not sought in the proper venué within thirty days of the notice transmitting the PCFOB’s final decision to all of the parties, as required by the Louisiana Administrative Procedure Act. La. R S. 49:950, et seq, The 19th JDC judgment dismissed Ms. Swan’s request for judicial review of the PCFOB’s 2011 decision in its entirety. The judgment rendered by the ■19th JDC also declared that all other exceptions raised by the PCFOB were mooted as a result of the peremption ruling.

Ms. Swan timely sought a writ of review, as well as a timely appeal of the 19th JDC’s judgment. As stated earlier, Ms. Swan’s application for a supervisory writ of review was referred to this appeal panel for consideration along with the appeal. However, because the 19th JDC’s judgment entirely dismissed Ms. Swan’s case, it is a final and appealable judgment. Therefore, |fiwe deny Ms. Swan’s writ application, but we will consider her appeal. See La. Code Civ. P. arts. 1841 and 2083. See also La. R.S. 49:965.

LAW AND ANALYSIS

When reviewing an administrative final decision in an adjudication proceeding, the district court functions as an appellate court. On review of the district court’s judgment, no deference is owed by the court of appeal to factual findings or legal conclusions of the district court, just as no deference is owed by the Louisiana Supreme Court to factual findings or legal conclusions of the court of appeal. Maraist v. Alton Ochsner Medical Foundation, 2002-2677 (La. App. 1st Cir. 5/26/04), 879 So.2d 815, 817. Consequently, this Court will conduct its own independent review of the record.

In her first assignment of error, Ms. Swan invites this Court to revisit our previous ruling regarding the proper venue for a petition for judicial review of a final decision issued by the PC-FOB. However, we apply the discretionary law of the case doctrine and refuse to reconsider this argument. Further, we are bound by Louisiana Supreme Court’s decision in Colvin v. Louisiana Patient’s Compensation Fund Oversight Bd., 2006-1104 (La. 1/17/07), 947 So.2d 15, 27, holding that the 19th JDC is the proper venue for actions seeking review of the PCFOB’s administrative decisions, which take place in East Baton Rouge Parish where the administrative decision was made and where the operative facts that support the plaintiffs potential entitlement to recovery occurred. Moreover, the law 17of the case principle reflects the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case, where the former appellate decision was not clearly erroneous or will cause manifest injustice. See East Baton Rouge Parish School Bd. v. Wilson, 2008-0536 (La. App. 1st Cir. 6/6/08), 992 So.2d 537, 543, writ denied, 2008-1479 (La. 12/12/08), 997 So.2d 560. Another panel of this Court previously considered the venue issue and found that the proper venue for review of a PCFOB final decision is in the 19th JDC. We are not convinced that our Court’s ruling is palpably erroneous or that a manifest injustice will occur in this instance. Thus, we will not consider the venue issue again.

We further find that the case cited by Ms. Swan, Watkins v. Lake Charles Memorial Hospital, 2013-1137 (La. 3/25/14), 144 So.3d 944, 953-54, has no impact on our previous venue ruling. The Watkins case held that where there is a prior district court ruling in the underlying medical malpractice case that orders the payment of specific future medical care, then the district court has continuing jurisdiction to enforce its prior ruling until the PCF files a motion to change that ruling with proper evidence. Id. In this case, however, the 32nd JDC only set a value on custodial care accrued through the date of trial, not for payment of a specific custodial care rate in the future. Thus, there is no existing district court order that the PCF has violated and which the 32nd JDC has continuing jurisdiction to enforce. In this case, there is an administrative decision by the PCFOB regarding the appropriate value for the payment of future custodial care provided by family members according to a reimbursement schedule. That issue is the subject of a petition for judicial review filed in the exclusive jurisdiction of the 19th JDC. Therefore, we find no merit to Ms. Swan’s first assignment of error.

In her second assignment of error, Ms. Swan argues that there is no applicable prescriptive period as to provisions for the payment of future medical expenses under the Louisiana Medical Malpractice Act (MMA). La. R.S. 40:1231.1, et seq. She | ^further maintains that because her medical malpractice action has already undergone a full trial on the merits, and because the 32nd JDC has already entered a final judgment finding that her son is a patient in need of future medical care at the rate of $15.00 per hour for custodial care, the 32nd JDC has sole continuing jurisdiction under the MMA to review the denial of claims by the PCFOB, pursuant to La. R.S. 40:1231.3(E)(1). We find no merit to this argument.

The Louisiana Supreme Court in Kelty v. Brumfield, 93-1142 (La. 2/25/94), 633 So.2d 1210, 1217-18, discussed the limited role given the district courts under the future medical care and related benefits provisions of the MMA, in that the district courts are not vested with original jurisdiction or decision making responsibility over future medical care claims. Id., 633 So.2d at 1218. The PCFOB is responsible for the “management, administration, operation, and defense” of the PCF. La. R.S. 40:1231.4(D)(2)(a). The PCFOB has exclusive jurisdiction over future medical care and related care claims by medical malpractice victims. Kelty, 633 So.2d at 1218. Included in the PCFOB’s exclusive jurisdiction is the authority to receive, evaluate, pay, settle, and reject claims. Louisiana Patients Compensation Fund Oversight Bd. v. Edwards, 41,-594 (La. App. 2d Cir. 12/20/06), 945 So.2d 975, 977. Additionally, the PCFOB’s authority reasonably includes the authority to set reimbursement rates for services. See Id. See also LAC 37:III:1917(B)(2) (recognizing that the PCFOB is permitted to set rates for custodial care provided by members of a patient’s family or household).

Finally, we agree with the PCFOB’s contention that Ms. Swan’s request for review is perempted; therefore, we pretermit any discussion of the merits of Ms. Swan’s petition for judicial review of the PCFOB’s final decision. The period of time fixed by the governing statute for review of the PCFOB’s decisions is per-emptive, rather than prescriptive. Labiche v. Louisiana Patients’ Compensation Fund Oversight Bd., 96-1310 (La. App. 1st Cir. 5/9/97), 699 So.2d 408, 410, reversed on other grounds, 97-2765 (La. 2/20/98), 706 So.2d 428 (per curiam). Per-emption 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 not be renounced, interrupted, or suspended. La. Civ. Code art. 3461.

Louisiana Revised Statute 49:964(B) provides that any proceeding for review of a final decision of an administrative agency (such as the PCFOB) must be initiated by “filing a petition in the district court of the parish in which the agency is located within thirty days after the transmittal of notice of the final decision.” Id. Further, the petition “shall be served upon the agency and all parties of record.” In this case, the notice of the PCFOB’s final decision was sent on July 18, 2011. Ms. Swan’s first attempt to seek judicial review was timely filed in the 32nd JDC, but it was filed in the wrong court, the PCFOB was not served, and the attorney of record for the PCF in the medical malpractice litigation was served after the thirty-day time period had expired. Ms. Swan’s second attempt to seek judicial review was eventually filed in the correct court, the 19th JDC, but not until over two years later, on February 20, 2014, which was well after the thirty-day peremptive period had lapsed, and again, service was not properly made on the PCFOB.

In order for a right that is subject to peremption to be considered exercised, an action must be commenced in a court of competent jurisdiction and venue, along with proper service within the peremptive period. Furthermore, where a lawsuit is concluded, as by final judgment or dismissal, a second lawsuit after the expiration of the peremptive period cannot be maintained, since the first suit is no longer pending and the right has expired. See Farrell v. Farrell, 555 So.2d 39, 41 (La. App. 1st Cir. 1989). Under any scenario, Ms. Swan’s right to appeal the PCFOB’s final decision is perempted. Thus, the 19th JDC properly sustained the PCFOB’s |inexception of peremption and dismissed Ms. Swan’s action in its entirety. We find no merit in Ms. Swanis third assignment of error.

CONCLUSION,

For the assigned reasons, we deny Chantrell L. Swan’s application for supervisory writ and we affirm the 19th Judicial District Court’s judgment dated April 13, 2016, sustaining the Patient Compensation Fund Oversight Board’s peremptory exception raising the objection of peremption, dismissing the case in its entirety. All costs of this appeal are assessed to Chant-rell L. Swan.

WRIT DENIED; JUDGMENT AFFIRMED.

      . Louisiana Revised Statute 49:964 provides that a person who is aggrieved by a final decision or order of an agency after an adjudication proceeding is entitled to seek judicial review by filing a petition within thirty day s after transmittal of the notice of the judgment in the district court of the parish in which the agency is located.

      . After the district court has rendered its judgment, "[a]n aggrieved party may obtain a review of any final judgment of the district court by appeal .to the appropriate circuit court.of appeal... [and] [t]he appeal shall be taken as in other civil cases.” La., R.S, 49:965.

      .Ms. Swan improperly labeled her requests and petitions for judicial- review of the PCFOB’s final decision as a motion to appeal or review; however; the improper label given to Ms. Swan’s petition for judicial review is of no import, because a pleading is construed for what it really is, pot for what it is erroneously called. The true nature of the pleading is the determinative factor. Buras v. Parish of Tangipahoa, 2008-2429 (La. App. 1st Cir. 9/23/09), 28 So.3d 1066, 1070. The motion was properly treated by the 19th JDC as a petition for judicial review of an administrative adjudication, which is begun by filing a petition for review in the appropriate district court of the parish in which the agency is located. La. R.S. 49:964(B).


author: WELCH, J.

text:
    Calvin J. HILL, Individually and as the Executor of the Succession of Elnora Johnson Hill v. TMR EXPLORATION, INC., Park Exploration, Inc., and Vitol Resources, Inc.
    NUMBER 2016 CA 0566
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: JUNE 13, 2017

      Brent K. Delee, Kirby J. Guidry, Baton Rouge, Louisiana, Attorneys for Appellants Plaintiffs—Calvin J. Hill, et al.
    Randall S. Davidson, Wm Lake Hearne, Jr., Shreveport, Louisiana and Scotty E. Chabert, Jr., Baton Rouge, Louisiana, Attorneys for Appellee Defendant—Raymond J. Lasseigne
    BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
   WELCH, J.

1 aThe plaintiffs/appellants, Calvin Hill, et al, (“plaintiffs”) appeal a trial court judg-merit denying their motion for new trial from a judgment sustaining a peremptory exception raising the objection of prescription filed by the defendant/appellee, Raymond J. Lasseigne (“Lasseigne”) and defendant, TMR Exploration, Inc. (“TMR”). The trial court’s action resulted in the dismissal of the plaintiffs’ claims against Lasseigne with prejudice. For the reasons that follow, we reverse the judgment of the trial court.

FACTUAL BACKGROUÑD

This matter involves a claim for subsurface trespass. The plaintiffs are the owners of various undivided interests in a 22.768 acre tract of immovable property more particularly'described as being located in the North 1/3 of Lot 5, Section 93, Township 7 'South, Range 10 East, Parish of West Baton Rouge (“plaintiffs’ property”). The plaintiffs all trace their ownership interests to the Successions of Peter Hill and Elnora Johnson Hill. In May of 2007, the Louisiana Commissioner of Conservation (“Commissioner”) granted TMR, a Texas corporation, a permit to drill 'for the minerals in Section 93, Township 7 South, Range 10 East. The plaintiffs alleged that TMR’s permit application erroneously identified “A. Wilbert’s Sons, LLC” as the sole owners of all property located in Section 93, Township 7 South, Range 10 East, thus, failing to acknowledge the plaintiffs’ ownership interests in the section.

|aThe plaintiffs further alleged that TMR filed an amended permit with the Commissioner in June of 2007, identifying the proposed bottom of the hole at certain proposed coordinates. On May 18, 2007, a permit to drill the well designated as the “A. Wilbert’s Sons, LLC, 93 No. 1” was issued, and the well began production in January of 2008. According to the plaintiffs, TMR intended to drill directionally to the proposed coordinates; however, ultimately the bottom of the hole of the well was completed at a location. underneath the plaintiffs’ property without their knowledge or permission.

TMR operated the well until July 1, 2010, and following the issuance of an amended permit to drill by the Commissioner, Park Exploration, Inc. (“Park”) was designated as the second operator of the well. Park, in turn, operated the well until an amended permit, effective December 1, 2012, was issued by the Commissioner designating Vitol Resources, Inc. (“Vitol”) as the third operator of the well. The plaintiffs allege that TMR and the two successor operators produced and sold the minerals drained from underneath the plaintiffs’ property from the well without the plaintiffs’ knowledge or permission. ,

The plaintiffs contend that since the bottom of the well was directionally drilled and is located approximately two miles underneath the plaintiffs’ property there is no indication of its presence from the surface of the plaintiffs’ property. The plaintiffs allege that these factors prevented them from learning of the presence of the bottom hole of the well underneath their property until December 19, 2013, when their attorney was informed of the situation by a surveyor.

LThe plaintiffs filed their original petition on February 4, 2014. TMR, Park, and Vitol were named as the sole defendants in the original petition. On July 10, 2014, the plaintiffs filed a First Supplemental and Amending Petition, which named Raymond J. Lasseigne, the president of TMR, as an individual defendant. The plaintiffs subsequently filed several supplemental and amending petitions, adding more parties, as well as modifying and amending their claims.

At issue in the instant appeal are allegations against Lasseigne in the plaintiffs’ Second Supplemental and Amending Petition filed on December 28, 2014, alleging various acts and omissions by Lasseigne. The plaintiffs alleged that Lasseigne acting within the course and scope of his employment, directed and/or coordinated the operations of TMR, including the employees of TMR, in connection with the drilling and production of the minerals from underneath plaintiffs’ property. Further, the plaintiffs alleged that Lasseigne “knew” of the plaintiffs’ ownership interests in Section 93, but made a “conscious decision” to not pursue obtaining leases from the plaintiffs after being presented with information concerning how many owners there were. The plaintiffs also contended that Lasseigne with “gross disregard” directed that the well be drilled to its final location. Finally, the plaintiffs alleged that Lasseigne “had actual, or constructive knowledge, or is presumed to know” that the bottom of the hole was located underneath their property, and that he knew or should have known that the minerals being produced were coming from underneath the plaintiffs’ property.

Two interventions were filed in the instant action by parties also claiming to be owners of various undivided interests in the property located in Section 93. The intervenors also claimed that their interests in the property at issue devolved from Uthe Successions of Peter Hill and Elnora Hill Johnson. On February 18, 2015, TMR and Lasseigne filed various exceptions to the claims against Lasseigne in plaintiffs’ Second Supplemental and Amending Petition, including peremptory exceptions raising the objections of no cause of action and prescription.

The exception of no cause of action asserted that Lasseigne, as a corporate officer, could not be sued personally by third parties for acts of negligence related to the operations of TMR. As to the exception of prescription, TMR and Lasseigne, operating off the presumption that an officer cannot be sued by third parties for negligence, argued any other tort claims, presumably intentional tort claims,'were prescribed under La. R.S. 12:1502(D)". Louisiana Revised Statutes 12:1502 addresses prescriptive periods applicable to certain claims against persons who control business organizations. TMR and Lass-eigne asserted that under La. R.S. 12:1502(D), an action for intentional tort against a corporate officer cannot .be brought “more than three years from the date of the alleged act or omission,” and the time limitations provided under the statute are not subject to suspension or interruption on any ground except by the timely filing of suit in a court of competent jurisdiction. TMR and Lasseigne’s exception concluded that |fiLasseigne’s involvement with the well terminated on June 30, 2010 when TMX ceased to be the operator of the well, thus, any cause of action against him prescribed on June 30, 2013.

Following a May 6, 2015 hearing, the trial court overruled TMR and Lasseigne’s exception of no cause of action as to the individual claims , against Lasseigne. However, at a separate hearing on June 3, 2015, the trial court sustained TMR and Lasseigne’s exception of prescription as to all of the claims against Lasseigne. At that time, the trial court adopted .the arguments advocated by TMR and Lasseigne and sustained the exception of .prescription. In a judgment signed on July 1, 2016, the trial court sustained the “peremptory exception of prescription of any , claims” against Lasseigne and dismissed with prejudice “any claims against” Lasseigne pursuant to La. R.S. 12:1501 and 12:1502. The July 1, 2015 judgment also contained the written judgment overruling the exception of no cause of action. Lasseigne has not sought review of this portion of the trial court’s judgment.

The plaintiffs filed a motion for new trial seeking only reconsideration of the trial court’s decision to sustain the exception of prescription. Following a hearing, the trial court denied the motion for new trial in a judgment signed September 17, 2015.On October 27, 2015, the plaintiffs filed the instant devolutive appeal challenging the trial court’s denial of their motion for new trial on the issue of La. R.S. 12:1502. The plaintiffs assert that the trial court erred in the following 17respects: in applying La. R.S. 12:1502 in peremptory fashion; applying the provisions of La. R.S. 12:1502 to Lasseigne, an officer of a foreign corporation; failing to apply the more specific prescriptive statute applicable to claims for damages to immovable property, La. C.C. art. 3493; and failing to recognize the applicability of the doctrine of contra non valentem under the particular facts of this case. Only Lasseigne has filed' an appellee brief in response. As set forth below, in the instant matter, we find it necessary only to address the plaintiffs’ assertion that the trial court erred in applying La. R.S. 12:1502 to the officer of a foreign corporation.

DISCUSSION

The inquiry in the instant appeal is limited to the legal question of whether the trial court erred in finding that the plaintiffs’ claims against Lasseigne, an officer of a foreign corporation authorized to do business in this state, are prescribed under La. R.S. 12:1501 and 12:1502. Accordingly, we will conduct a de novo review. See Peck v. Richmar Construction, Inc., 2013-1170 (La. App. 1st Cir. 2/26/14), 144. So.3d 1042, 1045, writ denied, 2014-0830 (La. 6/20/14), 141 So.3d 810. Further, we "note that no evidence was introduced at the hearings herein to support or controvert TMR and Lasseigne’s exception of prescription; therefore, the exception must be decided upon facts alleged in the petition with all ^allegations accepted as true. See La. C.C.P. art. 931; Cichirillo v. Avondale Industries, Inc., 2004-2894 (La. 11/29/05), 917 So.2d 424, 428.

Louisiana Revised Statutes 12:1501 and 12:1502

Louisiana Revised Statutes 12:1501 states:

The provisions of this Chapter shall be applicable to all business organizations defined in R.S. 12:1502(B).

Louisiana Revised Statute 12:1502 provides, in pertinent part, as follows:

A. The provisions of this Section shall apply to all business organizations formed under the laws of this state and shall be applicable to actions against any officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated. The provisions of this Section shall not apply to actions governed by R.S. 12:1-622, 1-833, 1-1407, or 1328(C).
B. The term “business organization” includes any entity formed under the laws of this state engaged in any trade, occupation, profession, or other commercial activity including but not limited to professions licensed by a state or other governmental agency. This Section shall apply without limitation to corporations, incorporated or unincorporated associations, partnerships, limited liability partnerships, partnerships in com-mendam, limited liability companies, or cooperative associations or other entities formed under the laws of this state.
C. No action for damages against any person described in Subsection A of this Section for an unlawful distribution, return of an unlawful distribution, or for breach of fiduciary duty, including without limitation an action for gross negligence, but excluding any action covered by the provisions of Subsection D of this Section, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act, omission, or neglect.
IflD. No action for damages against any person listed in Subsection A of this Section for intentional tortious misconduct, or for an intentional breach of a duty of loyalty, or for an intentional unlawful distribution, or for acts or omissions in bad faith, or involving fraud, or a knowing and intentional violation of law, shall be brought unless it is filed in a court of competent jurisdiction and proper venue within two years from the date of the alleged act or omission, or within two years from the date the alleged act or omission is discovered or should have been discovered, but in no event shall an action covered by the provisions of this Subsection be brought more than three years from the date of the alleged act or omission.
E. The time limitations provided in this Section shall not be subject to suspension on any grounds or interruption except by timely suit filed in a court of competent jurisdiction and proper venue.

[Emphasis added.]

Chapter 24 of Title 12 of the Louisiana Revised Statutes contains only La. R.S. 12:1501 and 12:1502. La. R.S. 12:1502 recognizes two separate time limitations applicable to suits filed against any “officer, director, shareholder, member, manager, general partner, limited partner, managing partner, or other person similarly situated” of a “business organization” “formed under the laws of this state” for specific and enumerated non-intentional and intentional tort actions. La. R.S. 12:1502(A), (C), and (D). Louisiana Revised Statutes 12:1502 has been classified as a “hybrid liberative prescriptive statute.” See Wooley v. Lucksinger, 2006-1140 (La. App. 1st Cir. 12/30/08), 14 So.3d 311, 462, rev’d on other grounds, 2009-0571 (La. 4/1/11), 61 So.3d 507. This classification recognizes that the statute has been expressly identified by the legislature as a prescriptive statute that is conditioned by certain peremptive attributes—in particular, the inability of claims asserted thereunder to be subject to interruption and suspension.

The trial court found that all of the plaintiffs’ claims against Lasseigné for his actions as the president of TMR were prescribed under La. R.S. 12:1501 and 12:1502. In its reasons for judgment, the trial court found that the application of La. R.S. 12:1502 was not limited to domestic corporations “formed under ’ the laws of this state” as stated in the statute, but also included foreign corporations |inauthorized to transact business in this state. The trial court reasoned that under La. R.S. 12:306 foreign corporations authorized to transact business in Louisiana are afforded the same “rights and privileges” and are subject to the “same duties, restrictions, penalties and liabilities” as businesses organized under Louisiana law.

As set forth below, we find that La. R.S. 12:1502 does not apply to the claims asserted against Lasseigne, because the statute unambiguously applies only to persons who control business organizations formed under the laws of this state—i.e., domestic business organizations. Thus, the trial court’s sustaining of the exception of prescription under La. R.S. 12:1501 and 12:1502 was in error.

Application of La. R.S. 12:1502 Limited to Domestic Corporations

The starting point in the interpretation of any statute is the language of the statute itself. M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007-2371 (La. 7/1/08), 998 So.2d 16, 27. The plain meaning of the legislation should be conclusive. Borel v. Young, 2007-0419 (La. 11/27/07), 989 So.2d 42, 50. The words of a law must be given their generally prevailing meaning. La. C.C. art. 11; La. R.S. 1:3. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature, nor shall the letter of the law be disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4; La. C.C.P. art. 5052. Importantly, with regard to the particular type of statute at issue here, Louisiana courts have consistently held that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, \of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So.2d 1261, 1268.

Louisiana Revised Statutes 12:1502 contains the phrase “formed under the laws of this state” in three separate places. Subsection A of La. R.S. 12:1502 states l^that the provisions of this statute “shall apply to all business organizations formed under the laws of this state.” The limitation set forth in Subsection A is reiterated in Subsection B wherein the statute defines the phrase “business organization” initially referenced in Subsection A as “any entity formed under the laws of this state.” Subsection B then concludes that “[t]his Section shall apply without limitation to corporations ... formed under the laws of this state.” Further, both Subsections C and D also refer back to Subsection A when setting forth the operation of the prescriptive periods set forth therein.

The words of a law must be given their generally prevailing meaning. La. C.C. art. 11; La. R.S. 1:3. In the context of a corporate officer, reading the plain language of La. R.S. 12:1502 establishes that the legislature intended the statute to apply to officers of domestic corporations “formed under the laws of this state.” The word “formed” is defined as follows:”... to combine to make ... to arrange in order ... come into existence.... ” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 485(1991 ed.) “Under” is defined as follows: “subject to the authority; control, guidance, or instruction of.” Id. at 1285. Thus, the generally prevailing meaning of “formed under the laws of this state” when referring to a corporation means a corporation created in accordance with Louisiana statutory requirements governing the formation or creation of a domestic corporation as set forth in the Business Corporation Act, or its predecessor, the Business Corporation Law. See La. R.S. 12:1 (repealed by 2014 La. Acts, No, 328). In contrast, a foreign corporation is an entity incorporated under a law other than this state. See La. R.S. 12:1(K) (repealed by 2014 La. Acts, No. 328); ' and La. R.S. 12:1-140(10). Notably, a foreign corporation remains classified as such even when it takes the necessary steps to become authorized to transact business in Louisiana.

Yet, Lasseigne contends, and the trial court agreed, that the scope of La. R.S. 12:1502 includes officers of foreign corporations authorized to transact business in |12Louisiana, like Lasseigne. Lasseigne points to La. R.S. 12:306, which in addition to granting foreign corporations authority to transact business in the state, provides that a certificate of authority has the effect of granting a foreign corporation the right to “[ejnjoy the same, but no greater, rights and privileges as a business or nonprofit corporation organized under the laws of this state to transact the business which such foreign corporation is authorized to transact in this state.” La. R.S. 12:306(2). La. R.S. 12:306 has been interpreted to grant to authorized corporations powers and privileges as including:

[T]he legal status to sue and be sued in the Courts of our State, continuity of business without interruption by death or dissolution, transfer of property interests by the disposition of shares of stock, advantages of business controlled and managed by corporate directors, and -the general absence of individual liability, among others.

Colonial Pipeline Co. v. Agerton, 289 So.2d 93, 100 (La. 1974), aff'd sub nom. Colonial Pipeline Co. v. Traigle, 421 U.S. 100, 111-112, 95 act. 1538, 1544-1545, 44 L.Ed.2d 1 (1975)

Louisiana Revised Statutes 12:306 is located in Chapter 3 of Title 12 entitled “Foreign Corporation Law.” Louisiana Revised Statutes 12:306 was enacted in 1969. Review of Chapter 3 evidences a focus on establishing the procedures for the issuance, effect, withdrawal, termination, and revocation of certificates of authority to foreign corporations. Lasseigne has not directed our attention to, nor |]3has our review revealed, any statutory basis to support the conclusion that the legislature considered, much less intended, the extension of the privileges afforded to authorized foreign corporations under La. R.S. 12:306 to the officers, directors, or shareholders of such corporations. Further, we note that La. R.S, 12:1502’s enactment in 2001 constitutes the latest expression of legislative intent-on this issue. See Pumphrey v. City of New Orleans, 2005-0979 (La. 4/4/06), 925 So.2d 1202, 1211.

When the law is clear and unambiguous it must be applied as written, thus, reading the phrase “formed under the laws of this state” to include officers of authorized foreign corporations reads a provision into the statute not present in the existing text. It would be more logical to conclude that had the legislature intended to include officers of authorized foreign corporations, it would have included foreign authorized corporations in the language of the statute, or would have omitted the multiple recitations of the phrase “formed under the laws of this state.”

Lasseigne makes a peripheral suggestion that a failure to find that La. R.S. 12:306 extends the “privileges” of La. R.S. 12:1502 to officers of corporations would violate the provisions of the equal protection clause of the Fourteenth Amendment of the United States Constitution. As a general rule, statutes are presumed to be constitutional. See State v. Citizen, 2004-1841 (La. 4/1/05), 898 So.2d 325, 334. Nevertheless, the question of the constitutionality of La. R.S. 12:1502 was not properly pleaded nor ruled upon by the trial court, and, thus it cannot be considered by this court. In Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94), 646 So.2d 859, 864-865, the supreme court explained the requirements for pleading the unconstitutionality of a statute in the district court:

Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the "unconstitutionality of a | uStatute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. [Citations and footnotes omitted.]

A review of the record in the instant case indicates the issue of the constitutionality of La. R.S. 12:1502’s application only to officers of domestic corporations was discussed in a-footnote in the “Supplemental Memorandum Regarding Prescription of Claims Against Raymond J. Lass-eigne” filed by TMR and Lasseigne in the trial court. As the supreme court explained in Vallo, a memorandum is not a pleading recognized under the Code of Civil Procedure and is therefore not a proper method to challenge the constitutionality of a statute. Meaux v. Galtier, 2007-2474 (La. 1/25/08), 972 So.2d 1137, 1138.

A straightforward reading of La. R.S. 12:1502 clearly demonstrates that ⅛ does not apply to the plaintiffs’ claims asserted against Lasseigne, the officer of a Texas corporation.

CONCLUSION

Based on the above, we find that the trial court erred in finding that plaintiffs’ action against Raymond J. Lasseigne was prescribed under La. R.S. 12:1501 and 12:1502. We reverse the judgment of the trial court dismissing the claims of the plaintiffs and remand this matter to the trial court for further proceedings. All costs of this appeal are to be paid by the defendant/appellee, Raymond J. Lass-eigne.

REVERSED AND REMANDED.

      . Review of the record indicates that for purposes of this appeal the parties have identified the Calvin Hill, et al. plaintiffs/appellants to include the following individuals: Calvin J, Hill, Charles Edward Hill, Marian Hill Walker, Esquemon Anthony Hill, Rhonda Foster, Dr. Russell Hill, Vincent Hill, Jeffery Hill, Shawn Hill, Mary Charles a/k/a Mary Hill, Kristina Hill (a minor represented herein by JeVaughn Hill), Kendra Hill, Bernadette Hill, Kenneth Amono, Dionne Hill, DuWana Hill, Kimsiana Hill-Lathan, Andre Hill, Napoleon Whitaker, Maty Ativie, Merion Jean Johnson,-Camesha Stanton, Annette Whitaker-Woods, Pernell Hill, Eurilee Hill, Karen Maze, Amos Lagarde, Ida Mae Hill Johnson, Shirley Lock-man, Burnett Grevious, Albert Grevious, Stal-ette Brown, Emelda Hill, Amanda Harris, Leon Whitaker, Marcus Johnson, Craig Hill, LaCora Whitaker, Lee Whitaker, Rodney Hill, Edward Hill, Jeffery Hill, Karen Maze, Terroll Sanders, and Oran Hill (or his substituted heirs).

      . A related but separate action was filed by Charles R. Salemi in connection with drilling and operations associated with A. Wilbert’s Sons, LLC, 93 No. 1 well. Salemi, who also owned property in Section 93, alleged that the bottom of the hole of the well was located within 330 feet of his properly line in violation of Statewide Order 29(E). There, Lass-eigne filed a peremptory exception of prescription raising the objection of prescription in response to Salemi’s action against Lass-eigne on the grounds of La. R.S. 12:1502. While the facts are different in the two cases, the legal issues are identical. We address the merits of the case brought by Salemi in a separate opinion being issued at the same time as the opinion in the instant matter. See Salemi v. TRM Exploration, Inc., 2016-0567 (La. App. 1st cir. 6/13/17), 224 So.3d 14, 2017 WL 2558324.

      . The First and Second Supplemental and Amending Petitions divide the plaintiffs into three groups—A, B, and C. The A group consists of plaintiffs who have never entered into a mineral lease in connection with the property. The B and C groups consist of plaintiffs who entered into mineral leases in 2012 with Park, some of which were later assigned to Vitol. The distinctions between the groups of plaintiffs do not factor in the determination of the instant matter.

      . The first intervention was filed on November 19, 2014, by a group referred to collectively as “Roosevelt Hill, et al. The Roosevelt Hill, et al. intervenors filed subsequent supplemental and amending petitions for intervention. The second intervention was filed by Felix Hill on December 16, 2014.

      .One of the exceptions filed by TMR and Lasseigne challenged the plaintiffs' and in-tervenors’ allegations that the defendants "converted” the plaintiffs’ exclusive right to explore their land for the production of minerals. A hearing on the exception was heard on May 6, 2015, and in a judgment signed May 12, 2015, the trial court sustained the exception, finding that an action for conversion involved the taking of a movable, and excluded actions related to minerals. The trial court found instead that under the holding of Nunez v. Wainoco Oil & Gas, Co., 488 So.2d 955 (La. 1986), the action asserted by the plaintiffs and intervenors was one for subsurface trespass.

      . Notably, at no point during the consideration of this issue below was the application of former La. R.S, 12:96 (repealed by La. Acts 2014, No. 328, effective January 1, 2015)' raised by the parties or considered by the trial court. As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Segura v. Frank, 93-1271 (La. 1/14/94), 630 So.2d 714, 725, cert. denied, 511 U.S. 1142, 114 S.Ct. 2165, 128 L.Ed.2d 887 (1994); Stewart v. Livingston Parish School Bd., 2007-1881 (La. App. 1st Cir. 5/2/08), 991 So.2d 469, 474.

      . We note that the counsel for the intervenors appeared at the hearing on TMR and Lass-eigne’s exception of prescription, and counsel for the Roosevelt Hill, ef al. intervenors argued in opposition to the exception. However, we make no determination as to the status of the intervenors’ claims, and note that interve-nors did not seek a new trial in connection with the trial court's July 1,. 2015 judgment sustaining the exception, of prescription, .nor have the intervenors challenged the trial court’s initial ruling on the exception with this court.

      ,The denial of a motion for new trial is an interlocutory and non-appealable judgment. However, an appeal of the denial of a motion for new trial should be considered as an appeal of the judgment on the merits when it is clear from appellants’, brief that the appeal was intended to be on the merits, See Carpenter v. Hannan, 2001-0467 (La. App. 1st Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La. 10/25/02), 827 So.2d 1153. It is clear the appellants intended to appeal the July 1, 2015 judgment dismissing their suit, so we consider the appeal as an appeal of that judgment,

      . Based on our finding that La. R.S. 12:1502 does not apply to officers of foreign' corporations, we decline to consider plaintiffs' other assignments of error regarding the application of La. R.S. 12:1502 under the facts presented herein, The jurisprudence provides that courts should not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. See St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165, 1170 (La. 1987) (on rehearing).

      . The timeline of relevant events as outlined herein is not in dispute; therefore, the doctrine of manifest error does not apply to this court’s review. Ristroph v. Louisiana Public Facilities Authority, 2006-1669 (La. App. 1st Cir. 9/14/06), 943 So.2d 492, 494.

      .We note that pursuant to La. Acts 2014, No, 328 (effective January 1, 2015) the legislature adopted the "Business Corporation Act,” which repealed and reenacted Chapter 1 of Title 12 to make Louisiana business law consistent with the Model Business Corporation Act, Louisiana Revised Statutes 12:1502 was amended by the 2014 Act to add the last sentence in' La, R.S. 12:1502(A)(“The provisions of this Section shall- riot apply to actions governed by R.S, 12:1-622, 1-833, -1-1407, or . 1328(C)”). The excluded actions relate to actions for unlawful distributions against shareholders of corporations (La. R.S. 12:1-622), directors of a corporation (La. R.S. 12:1-833), members of an LLC (La. R.S. 12:1328(0), and claims against a dissolved corporation (La. R.S. 12:1-1407),

      . At the hearing on the exception and herein, Lasseigne maintains that in Wooley this court applied the provisions of La, R.S. 12:1502 to officers of foreign corporations, In Wooley, the Louisiana Commissioner of Insurance, in his capacity as the liquidator of an insolvent insurer, filed claims agáinst the officers and directors of multiple corporate entities, both domestic (formed in Louisiana) and foreign. See Wooley, 14 So.3d at 337, 346-347. Relying on La. R.S. 12:1502, the defendants filed exceptions of prescription, which the trial court denied. In affirming that ruling, this court relied, in part, on La. R.S. 22:735(B) (see now La, R.S, 22:2008(B)), providing that the filing of a suit by the commissioner of insurance seeking an order of liquidation interrupts the running of prescription for any claim in favor of the insolvent insurer for two years, if an order of liquidation is granted. See Wooley, 14 So.3d at 463, 466-467. The effect of that interruption, together with the continuing nature of the alleged torts, were essential to this court’s conclusion that the commissioner’s claims filed on behalf of the insolvent insurer had not prescribed. See Wooley, 14 So.3d at 463, 466-467. While La. R.S, 12:1502 was also cited, the citation of that statute can be construed as pertinent only to the claims against the officers of the domestic corporation; this court never stated that La. R.S. 12:1502 applies to- actions against officers of foreign corporations. The Louisiana Supreme Court later reversed on other grounds, finding Texas’ substantive law applied to the claims of breach of fiduciary duty. We do not find Wooley controlling on this issue.