author: COX, J.

text:
    Letitia HOSTON, et al., Plaintiffs-Appellants v. RICHLAND PARISH HOSPITAL SERVICE DISTRICT 1-B d/b/a Richardson Medical Center, Defendant-Appellee
    No. 51,362-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017

      OFFICE OF ANTHONY J. BRUSCA-TO, By: Anthony J. Bruscato, Counsel for Appellants
    WATSON, BLANCHE, WILSON & POSNER, By: Robert Warren Robison, Jr., Benjamin J. Boudreaux, Counsel for Appellee Richland Parish Hospital Service District 1-B
    COWAN & LEMMON, LLP, By: Thomas Clifton Cowan, Counsel for Appellee Dr. David Lifshutz
    Before GARRETT, STONE, and COX, JJ.
   COX, J.

| -| Adult children of the deceased, Cleveland Coward (“Coward”), filed suit against a hospital, Richardson Medical Center (“RMC”), and later amended to include the treating emergency room physician, Dr. David Lifshutz (“Dr. Lifshutz”), alleging negligence and medical malpractice when their father died after being treated for several blows to the head with a steel pipe received during a fight. The plaintiffs, Letitia Hoston, et al. (“Hoston”), appeal from a partial summary judgment in favor of RMC which dismissed the negligence claims against the hospital but excepted any potential vicarious liability for the actions of Dr. Lifshutz in treating Coward. Pursuant to the trial court’s judgment of August 15, 2016, the trial court granted the motion for summary judgment dismissing all claims of the plaintiffs against RMC, except as to the vicarious liability of RMC regarding the emergency room doctor, David Lifshutz, which was still pending before a medical review panel. For the following reasons, we respectfully reverse the judgment of the trial court regarding the dismissal of RMC and remand for further proceedings.

FACTS

On May 28, 2011, at 8:30 p.m., Coward, a 66-year-old man, was admitted to RMC after having been involved in a fight with another man. In the course of the fight, Coward was struck in the head with a steel pipe approximately four times. Upon arrival at RMC, Dr. Lifshutz, the attending ER physician, examined Coward and ordered a CT scan of his head. Coward was treated for a laceration to his forehead and loss of consciousness before being taken for a CT scan at 4:21 p.m. While the CT images were sent to an off-site radiologist for evaluation, Coward underwent |2an alcohol screen that showed results of greater than 300 mg/dl. At 6:15 p.m., Coward was discharged and was able to walk out of the emergency room in police custody. Dr. Lifshutz testified at his deposition that Coward would not have been discharged without his permission. RMC records show that the radiologist’s report of findings from Coward’s CT scan was transmitted to RMC at 6:38 p.m., 23 minutes after Coward was discharged.

The radiologist’s findings from the CT report state that there was soft tissue swelling with scalp sutures on the left side of the frontoparietal area and pneumoce-phalus with small collections of air along the right side of the cranial vault. The report notes that there was no evidence of acute traumatic intracranial brain injury, nor were there any visible skull fractures. The radiologist’s impression was of a normal brain with “no obvious acute intracra-nial brain injury,” although the report notes pneumocephalus with several droplets of air along the right side of the cranial vault. The report concludes with the statement “Urgent Finding: Pneumo-cephalus.”

The discharge instructions issued for Coward by RMC do not include any mention of the CT scan or follow-up procedures. They instruct Coward to follow up with his primary care physician in 7 days, to change dressings on the laceration every 24 hours, and to take Tylenol for pain as needed.

| aThe record indicates that neither Dr. Lifshutz nor any other RMC staff member communicated with Coward or the Rich-land Detention Center following receipt of the CT scan report. On June 1, 2011, police department personnel observed that Coward was “unaware of his surroundings” and “refused to walk.” He was transported to E.A. Conway Medical Center for evaluation and treatment. A CT scan performed at E.A. Conway Medical Center on June 1, 2011, showed Coward had sustained a skull fracture, subdural hematoma, and extensive pneumocephalus. By June 2, 2011, he had lapsed into a coma, and, after extensive treatment, he died on August 9, 2011. The autopsy report lists Coward’s cause of death as “Pneumonia Complicating Head Injury.”

Two separate medical malpractice panels were empanelled to render opinions on the plaintiffs’ claims. The first medical review panel rendered its opinion on May 13, 2014, and unanimously concluded that the RMC staff had met the applicable standard of care. It also found that there was a material issue as to whether RMC was vicariously liable for any wrongdoing by Dr. Lifshutz but determined not to make a finding on that issue. The second medical review panel was tasked with determining the fault of Dr. Lifshutz. That panel has, according to Hoston’s brief, returned a conclusion that Dr. Lifshutz was negligent; however that opinion is not included in the record.

At his deposition, Dr. Lifshutz testified that, at the time of the incident, he was employed by Emergency Staffing Solutions. He went from one location to another performing emergency room services at various | ¿medical centers. When rendering services at the RMC emergency room, he was the only physician there to see patients, and he was solely responsible for determining the level of care given to a patient, Dr. Lifshutz stated that he did not think he gave the discharge instructions to the police, but his consent was required to discharge Coward. He stated that the results of the CT scan at RMC were markedly different than the results of the later CT scans. He could not recall when or how (i.e. orally by phone or as a physical document) he received the report from the radiologist after the RMC CT scan, but he believed he received the information before Coward left the hospital. This conclusion was based on his statement that he “would not have discharged him, released him to police custody, without knowing the results of the CT scan.” As a result of this conclusion, Dr. Lifshutz stated that he must have received a call from the radiologist about the report because he wrote down “no acute injury” on his chart. He also stated that sometimes physicians will indicate the basis of the information they include on the chart, but he did not do so in the case of the “no acute injury” note. He stated that the fact that he wrote the note down indicates that he would have had a basis for writing it. The phrase “no acute injury” was intended to mean no intracranial bleeding had occurred, no obvious fractures, and no swelling of the brain.

When examining the CT report from the radiologist during his deposition, Dr. Lif-shutz stated that a finding of pneumoce-phalus does not solely indicate a skull fracture. Instead, pneumocephalus can occur when air comes in from the sinuses. He concluded that the pneumocephalus did not IfiOccur from a fracture based on the CT report’s statement that there was not a skull fracture. Dr. Lifshutz stated that he did not, as a matter of practice, consult with the radiologist after receiving a report unless he had a question or disagreed with the findings. He, also stated that he had no criticism of the nurses who were working at the time he treated Coward. Dr. Lifshutz elaborated that he did not think the receipt time shown on the radiologist’s report was wrong, but that it was possible he received the report before the time shown on the report.

In response to RMC’s summary judgment motion and the first medical review panel’s opinion, Hoston submitted an affidavit from Dr. Richard Sobel, a board-certified emergency physician in Atlanta. Dr. Sobel stated that he had reviewed the medical review panel’s opinion, the various “position papers,” Dr. Lifshutz’s deposition, and all of Coward’s available medical records to include those produced by RMC. Dr. Sobel’s affidavit disagrees with the first medical review panel’s conclusion that the hospital was not directly negligent. The most relevant section of the affidavit states that Dr. Sobel is of the opinion that the standard of care and reasonable medical practice was not maintained when RMC failed to maintain “an adequate x-ray discrepancy process by which ‘urgent’ or critical findings reported by tele-radiology and not addressed by the emergency department physician are identified and addressed in an expeditious manner.” The affidavit also states that RMC fell below the standard of care by failing to “inform Richland Parish Detention Center of Mr. Coward’s abnormal CT findings and the need for appropriate medical re-assessment and possible interventions.” Dr. Sobel’s affidavit also identifies eighteen other instances where he believes “Richardson Medical Center and/or its agents and/or Dr. RDavid Lifshutz” failed to meet the required standard of care. The affidavit concludes that “some or all of these deviations,.. increased Mr. Coward’s risk of harm or substantially contributed to his demise on 8/9/11 within reasonable medical certainty.”

After a hearing on RMC’s motion for summary judgment, the trial court granted partial summary judgment with respect to the direct negligence claims against RMC, but denied the motion and kept RMC in the suit with respect to any potential finding of vicarious liability for the actions of Dr. Lifshutz. The judge provided oral reasons for his ruling, stating:

Plaintiff has argued that the hospital owed a duty to the patient to review the CAT Scan and to take necessary action to get him back to the hospital. The Court disagrees and feels that the doctor is the ultimate party that can make—is the only party that can make that decision. The—the staff cannot discharge or—well, not enroll—admit any patient, only a doctor can do that. And to put that kind of burden on nurses and the EMS, EMT people, is too burdensome, you know, by extensioning the hospital. For that reason I am granting the motion for summary judgment as to Richardson Medical Center except as to the possibility of a determination that it may be vicariously liable for any negligence on the part of Dr. [Lifshutz],

Hoston appealed from the ruling only as to the partial grant of summary judgment. As such, the determination as to vicarious liability is not before us.

THE PARTIES’ POSITIONS

In their sole assignment of error, the plaintiffs urge the court erred in granting partial summary judgment, specifically in finding that RMC did not owe a duty to the patient to rbview the results of the CT scan and/or to take action to contact Rich-land Parish Detention Center about the CT scan results and the need for medical supervision. They contend that Louisiana courts have routinely found that hospitals owe a duty of care to patients that is ^independent of the duty of care owed by the treating physician. They cite to the Louisiana Supreme Court’s summary of a hospital’s duties in Sibley v. Board of Supervisors of LSU, 477 So.2d 1094 (La. 1985), for the proposition that, where there is expert testimony that hospital procedures were inadequate or that hospital staff breached a duty of care, summary judgment is improper. The plaintiffs also refer to Bossier v. DeSoto General Hospital, 442 So.2d 485, 490 (La. App. 2 Cir. 1983), writ denied, 443 So.2d 1122 (La. 1984), to assert that a hospital cannot claim to have discharged its obligation of care solely by following a treating physician’s orders; rather, a patient can expect a hospital’s staff to use its professional expertise and judgment to supplement a treating physician’s orders. As a result, strict adherence to a physician’s orders does not preclude a finding of negligence on the part of the hospital.

The plaintiffs argue that their case is analogous to Papania v. State through Board of Supervisors of LSU, 2012-0551 (La.App. 4 Cir. 1/9/13), 108 So.3d 256, in which a hospital was found to be negligent when it failed to follow up on an abnormal test result and failed to record the abnormal result in-records later reviewed by other doctors for treatment. They also cite Brown v. E.A. Conway Memorial Hospital, 588 So.2d 1295 (La. App. 2 Cir. 1991) and Hoffman v. East Jefferson General Hospital, 00-1216 (La.App. 5 Cir. 12/13/00), 778 So.2d 33, for the propositions that a physician is not solely responsible for treating a patient, and a hospital .and physician can be jointly negligent in the treatment of a patient. Plaintiffs contend that Dr. Sobel’s affidavit listed numerous breaches of the applicable standard of care for both the hospital and Dr. Lifshutz and that it was error to -grant summary I ¿judgment under the theory that Dr. Lif-shutz was solely responsible for Coward’s care.

RMC responds that , the plaintiffs’ only evidence submitted to defeat the motion for summary judgment was the “factually unsupported and conclusory affidavit of Dr. Sobel.” It asserts that Dr. -Sobéis statements on causation are conclusory and make no attempt to link the alleged breaches with the damages other than stating that “some or all of [the] deviations ... increased Mr. Coward’s risk of harm or substantially! contributed to his demise.” On a summary judgment motion in a medical malpractice case, a party must provide some evidence to establish causation, and the burden cannot be satisfied by the presentation of unsupported or conclu-sory statements in an affidavit. Lee v. McGovern, 49,953 (La.App. 2 Cir. 7/1/15), 169 So.3d 814; Foster v. Patwardhan, 48,575 (La.App. 2 Cir. 1/22/14), 132 So.3d 495, writ denied, 138 So.3d 1233 (La. 4/25/14). RMC also argues that Dr. Sobéis affidavit is contrary to the facts in the record, particularly pointing to Dr. Lifshutz’s deposition testimony as proof that he knew the CT results before discharging Coward, and stating that nothing in the record contradicts that statement. It argues that, as a result, any hospital procedures are irrelevant because the CT results were known to Dr. Lifshutz. RMC concedes that hospitals can be independently liable, but argues that they cannot be held liable for the discharge of patients.

DISCUSSION

La. Civ. Code art. 2315 provides that “every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Further, La. Civ. Code art. 2316 provides that every person is responsible not only for damages caused by his acts, but also for his ^negligence, and La. Civ. Code arts. 2317 and 2370 extend that responsibility to acts done by those for whom a person is answerable and for the acts of employees undertaken in the course of their employment.

The Louisiana Supreme Court has recognized the application of these principles in establishing duties of care for hospitals in various circumstances. In Hunt v. Bogalusa Community Medical Center, 303 So.2d 745, 747 (La. 1974), the Louisiana Supreme Court announced:

A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and the facts of that case.

It again recognized that principle along with various other duties in Sibley v. Board of Supervisors of Louisiana State University, 477 So.2d 1094, 1099 (La.1985), and explained that a breach of a duty which causes injury to a patient or other person may constitute independent negligence by a hospital’s governing board, resulting in the hospital’s liability even in the absence of any finding of negligent conduct by an employee. As a result, it is clear that, in order to establish a negligence claim against a hospital, the plaintiff must prove, by a preponderance of the evidence, (1) a duty of care owed by the defendant, (2) a breach of that duty, and (3) a causal connection between the breach and the resulting injury. Expert testimony is generally needed to establish the applicable standard of care and whether the standard was breached, except where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880; Pfiffner v. Correa, 1994-0924, 1994-0963, 1994-0992 (La. 10/17/94), 643 So.2d 1228.

A de novo standard of review is required when an appellate court considers rulings on summary judgment motions, and the appellate court must use the same criteria that governed the district court’s determination of whether summary judgment was appropriate. Bank of New York Mellon v. Smith, 15-0530 (La. 10/14/15), 180 So.3d 1238, 1243. A court must grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law, pursuant to La. C.C.P. art. 966. See Catahoula Parish Sch. Bd. v. Louisiana Machinery Rentals, LLC, 12-2504 (La. 10/15/2013), 124 So.3d 1065, 1071. To be considered, an expert’s opinion must be more than a conclusory assertion about legal issues. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La. 2/29/00), 755 So.2d 226; Dumas v. Angus Chemical Co., 31,969 (La.App. 2 Cir. 8/20/99), 742 So.2d 655, writ not cons., 751 So.2d 237 (La. 11/5/99).

The burden of proof for a summary judgment motion remains with the movant. However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment should be granted. See La. C.C.P. art. 966(D)(1).

lnOn de novo review of this record, we find that there are genuine issues of material fact that render summary judgment under La. C.C.P. art. 966 A(3) improper at this time. Although the trial court’s oral reasons for granting summary judgment appear to find that the hospital had no duty to the patient to review the CT scan, RMC’s brief concedes that it did owe a duty of some sort to Coward. In addition, the Louisiana Supreme Court’s opinions in Hunt and Sibley, supra, multiple cases from the circuit courts, and the opinion of the first medical review panel make clear that a hospital owes a duty of care to its patients. Dr. Sobel’s affidavit purports to identify the specific duty owed by the hospital to have a procedure to review the CT scan results and to inform those holding Coward in custody of the need for medical assessment and care. Dr. Sobel’s affidavit also constitutes evidence pointing to a breach of the duty owed by RMC. In contrast, the first medical review panel’s opinion found that there was no breach of the duty of care by RMC. The differing opinions in the record establish a genuine issue as to the breach of the duty of care.

RMC points to causation as the essential element of the plaintiffs’ claim that is not supported by evidence because Dr. Sobel’s affidavit is conclusory and unsupported. As an initial matter, Dr. Sobel’s affidavit identifies the numerous medical records and opinions that were reviewed before authoring his opinion. The opinion then goes on to provide a detailed summary of Coward’s treatment and Dr. So-bel’s own impression of the care rendered and the results of the CT exam. He then lists twenty alleged breaches of the standard of care and concludes that those deviations “increased Mr. Coward’s risk of harm or substantially contributed to his demise.” Although RMC claims this explanation of causation is less than | ^detailed, it should be noted that, as in Lee v. McGovern, supra, cited by RMC, the standard for causation requires either expert testimony or the relationship between the breach and the injury to be “so obvious that a lay person can infer” causation. In Lee v. McGovern, this court affirmed a grant of summary judgment because an expert affidavit merely concluded that lower digestive tract problems “caused or contributed to” the victim’s untimely death, and the connection between the digestive tract problems and the heart attack that the victim suffered was not obvious to a lay person. In contrast, in the present case, the victim’s death certificate lists the very injury he was being treated for as a complicating factor in his death, stating “Pneumonia Complicating Head Injury,” and all of the medical records for Coward’s treatment following his visit to RMC involve later effects of the injury he suffered. It is, therefore, obvious to a lay person that there may be some causal connection between Coward’s death and the treatment and care that he received from RMC and Dr. Lifshutz. Even if Dr. Sobel’s statement of causation is insufficient, his affidavit along with all of the other medical records creates a genuine issue of material fact regarding causation.

Turning to RMC’s argument that it is uncontroverted that Dr. Lifshutz knew the results of the CT scan before discharging Coward, we are unconvinced. Dr. Lifshutz’s deposition testimony that RMC points to is not based on an independent recollection of a telephone call or other mánner of receiving the test results; rather it is based on Dr. Lifshutz’s own deduction that, if he discharged Coward, he would have first known about the test results. Even if we were to accept Dr. Lifshutz’s testimony as to when the CT results were received, it is directly controverted by RMC’s medical records which show that the test results were not received until after Coward |iawas discharged. There is a very clear dispute regarding when Dr. Lifshutz knew of the results of the CT scan, and the hospital’s procedures in handling the results are certainly relevant to that dispute.

The, record in this case demonstrates that there are issues of material fact as to elements of the plaintiffs’ claim, including the issue of causation. As a result, summary judgment in this case was improper as, there are genuine issues of material fact.

CONCLUSION

For the reasons expressed, we respectfully reverse the granting of partial summary-judgment for negligence on the part of RMC, and remand to the court for further proceedings. This ruling does not affect the . trial court’s denial of the summary judgment motion as to the potential vicarious liability of Richardson Medical Center. Costs of this proceeding are- assessed to the appellee, Richardson Medical Center, in the amount of $3,140.00, in accordance with La. R.S. 13:5112.

REVERSED AND REMANDED.

      . Dr. Lifshutz testified in his deposition that a person is considered to be intoxicated at levels of 80 mg/dl and higher.

      . Coward was discharged into police custody and transported to the Richland Parish Detention Center in connection with the fight that caused his injuries.

      . Dr. Lifshutz described pneumocephalus as a condition where bubbles of air or gas are found within the cranial cavity.

      . The discharge instruction form included a blank that could be checked underneath a caption reading "Head Injury,” and followed • by instructions to report to a doctor if certain symptoms occurred. Although other blanks for wound care were checked off, the blank for head injuries was not marked.

      . It should be noted that the amended petition which added the claims against Dr. Lif-shutz was not approved by the district court until May 18, 2016.

      , The CT scan and report from E.A. Conway describe a fracture that involves the sphenoid, one of the sinuses in a person’s brain.

      . We would note that while much effort has • been expended by the parties in asserting ’ what RMC’s procedures should or should not have included, there is very little in the record that describes what the procedures actually are,


source: Caselaw Access Project

author: BROWN, C.J.

license: Public Domain

text:
    Travis EDWARDS, ON BEHALF OF and as Curator for William T. EDWARDS, Plaintiff-Appellant v. Succession of Johnny Carl PARKERSON, Fortune Drive Investments, LLC, William H. Hallack, Jr., J. Michael Rabun, Jack Fluke Realty Company, and Kalil Properties Vi, LLC, Defendants-Appellees
    No. 51,357-CA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered April 5, 2017
    Rehearing Denied May 11, 2017

      LAW OFFICES OF PIERRE F. GREMILLION, LLC, By: Pierre F. Gremillion, Counsel for Appellant
    JERALD H. WOMACK, Counsel for Appellee, Fortune Drive Investments, LLC
    ALLEN & GOOCH, By: Charles M. Kreamér, Sr., Counsel for Appellee, William H. Hallack, Jr.
    M. RANDALL DONALD, Counsel for Appellee, J. Michael Rabun
    RONALD KIP GATES, Counsel for Ap-pellee, Kalil Properties VI, LLC
    Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, C.J.

| William T. Edwards sold his property to Johnny Carl Parkerson on October 21, 2010. William H. Hallack, Jr. served as the closing attorney. Subsequently, the property was acquired by another party before finally being purchased at auction. On October 24, 2014, Travis Edwards, on behalf of and as curator for his father, William T. Edwards, filed suit against multiple defendants, including Hallack. Travis Edwards sought damages from Hallack, alleging that Hallack had committed fraud. Hallack filed exceptions of peremption and prescription and a motion for summary judgment. Plaintiff filed an opposition to the exceptions, but failed to file an opposition to defendant’s motion for summary judgment. Plaintiffs counsel failed to appear at the scheduled hearing, and the trial court granted Hallack’s motion for summary judgment. Thereafter, plaintiff appealed. We affirm.

FACTS

On October 24, 2014, Travis Edwards, on behalf of and as curator for his father, William T. Edwards, filed a petition for damages against the following defendants: the Succession of Johnny Carl Parkerson; Fortune Drive Investments, LLC; Attorney William H. Hallack, Jr.; J. Michael Rabun; Jack Fluke Realty Company; and Kalil Properties VI, LLC. In his petition, plaintiff alleged that, beginning in February 2009, William T. Edwards was formally evaluated at Touro Rehabilitation Center in New ^Orleans, Louisiana, for declining neurocognitive functioning and was diagnosed with dementia. On June 18, 2010, Ned M. Jabour, Ph.D., treating psychologist of William T. Edwards, met with Travis Edwards and defendant, attorney William H. Hallack, Jr., for two hours discussing William T. Edwards’ mental and emotional impairments before concluding that William T. Edwards was “no longer ... mentally capable to care for himself and his financial needs.” Hallack was present because Edwards had contacted him about drafting a power of attorney over his father.

Plaintiff alleged that, on August 16, 2010, he filed a petition for interdiction of William T. Edwards due to his neurocogni-tive decline and dementia, and around that date, he delivered via facsimile and U.S. mail a copy of the petition for interdiction to defendants, Johnny Carl Parkerson, Jack Fluck, J. Michael Rabun, and attorney Hallack. Travis argued that defendants had actual and/or constructive knowledge that William T. Edwards lacked the legal capacity to convey his residence.

On October 21, 2010, a sale of the property was executed between William T. Edwards as vendor and Johnny Carl Parker-son as vendee. Plaintiff asserted that this purported act of sale occurred because Johnny Carl Parkerson, Fortune Drive Investments, LLC, William H. Hallack, Jr., J. Michael Rabun, and Jack Fluck Realty Company conspired together and fraudulently executed documents to convey Edwards’ residence located at 2007 Essex Street, Monroe, Louisiana, together with all of the home’s contents. Plaintiff alleged that Hallack served as the closing attorney in this transaction.

|sOn May 5, 2011, plaintiff filed and re-, corded a notice of lis pendens in the 22nd J.D.C., Parish of St. Tammany, State of Louisiana, specifically describing the effect to render null and void any “title change of ownership” regarding the property located at 2207 Essex Street, Monroe, Louisiana. On November 23, 2011, a judgment of interdiction was granted retroactive to the filing date of August 16, 2010.

On May 16, 2014, J. Michael Rabun, as mortgagee, by writ of seizure and sale, took possession of said property from the Succession of Johnny Carl Parkerson and Fortune Investment Properties, LLC. On July 9, 2014, Kalil Properties VI, LLC, purchased the property at auction. In his petition for damages, plaintiff argued that since the original sale to Johnny Carl Par-kerson constituted fraud, Kalil Properties VI, LLC, was required to return said property to his father, William T. Edwards. Plaintiff requested that judgment be rendered in his favor and against defendants for such damages as are reasonable, together with legal interest, attorney fees, all costs of these proceedings, and for all general and equitable relief.

On December 22, 2014, Hallack filed an exception of lack of procedural capacity and vagueness. Hallack argued that plaintiff alleged fraud but failed to do so with requisite particularity. On April 28, 2015, the district court denied Hallack’s exception of lack of procedural capacity but granted his exception of vagueness and gave plaintiff 30 days to amend his petition.

On May 22, 2015, plaintiff amended his petition, wherein he alleged the following concerning the fraud:

|41. William T. Edwards was a trustee and tutor for his grandson, Alexander Hale Lashley. Alexander Hale Lashley was a victim of medical malpractice causing significant brain damage and injuries. Alexander Hale LasMe/s medical malpractice case was resolved for a significant amount of money ($500,000).
2. William T. Edwards routinely drank coffee with defendants, Johnny Carl Parkerson, Hallack and Jack Fluck. Johnny Carl Parkerson saw an opportunity to make money by getting involved in the management of Alexander Hale Lashley’s money.
3. Johnny Carl Parkerson re-activated his law license and convinced William T. Edwards to hire him to “confess his sins.”
4. Johnny Carl Parkerson fabricated legal bills and loaned money in order to gain financial leverage over Williams T. Edwards to make himself money.
5. On October 21, 2010, with the assistance of Hallack and Jack Fluck, Johnny Carl Parkerson bought William T. Edwards’ sole residence (including all of his personal belongings).
6. Hallack conspired with Johnny Carl Parkerson in order to assist his friend in making money.
7. Hallack was involved in the drafting and execution of a counter letter involved in the sale of William T. Edwards’ sole residence,

On January 11, 2016, Hallack filed exceptions of peremption and prescription and a motion for summary judgment. In support of his motion for summary judgment, defendant re-urged his exceptions of peremption and prescription and argued that the undisputed facts prove that plaintiffs claim against Hallack is untimely, and that he cannot establish genuine issues of material facts. Thus, summary judgment should be granted. In support, Hallack submitted the following documents:

1) Petition for Damages;
|¾2) First Amended and Supplemental Petition for Damages;
3) Partial Deposition of Travis Edwards;
4) Partial Deposition of Hallack;
5) Report of Curator Ad Hoc; and
6) Select Pages of Certified Copy of Interdiction Proceeding.

Thereafter, the district court picked a date that had been submitted by Hallack’s counsel, March 17, 2016, because Edwards’ counsel did not respond to voice mails and faxed letters from Hallack’s counsel asking for available dates for a hearing. Hallack’s attorney made several attempts to serve Edwards’ counsel after the matter was set for a hearing, but the service returns came back “unable to serve” because Edwards’ counsel was “not at this address.” Moreover, Edwards’ counsel refused to sign via certified mail, thus the package was returned. The attorney had moved to California.

Finally, Hallack filed into the record the affidavit of service by the private process server. In this affidavit, the private process server asserted that he personally served Travis Edwards with multiple pleadings and orders, including the motion for summary judgment and exceptions of peremption and prescription, together with supporting memorandums and exhibits.

On April 11, 2016, Edwards’ counsel fax-filed a motion, seeking a continuance of the April 14, 2016, hearing date. The reason given for the continuance request was that Edwards’ counsel was in California for medical treatment for his son through May of 2016. Hallack asserted that Edwards’ counsel agreed to a hearing date of June 22, 2016, for the motion and exceptions. Hallack contended that part of the agreement was that plaintiff would waive service of the new hearing date.

On June 8, 2016, plaintiffs attorney filed an opposition to the exceptions of peremption and prescription.

|nOn June 20, 2016, plaintiffs counsel fax-filed a motion for continuance, arguing that he had not been served and did not have a copy of Hallack’s motion for summary judgment. Counsel argued that he only agreed to a rescheduled hearing date of June 22, 20Í6, for Hallack’s exception of peremption and prescription, not the motion for summary judgment.

On June 22, 2016, the trial court held the hearing on Hallack’s motion for summary judgment and exceptions of peremption and prescription. Plaintiffs counsel was not present at this hearing. The trial court took note that plaintiff had not filed an opposition to Hallack’s motion for summary judgment. The trial court ruled in favor of Hallack, granting the motion for summary judgment, and held that Hal-lack’s exceptions of peremption and prescription were rendered moot.

A written judgment followed wherein the court dismissed all of plaintiffs claims against Hallack. Edwards has appealed from this judgment.

DISCUSSION

In his only assignment of error, plaintiff argues that the motion for summary judgment should not have been granted because it was not properly before the trial court. Specifically, plaintiff argues that service of the motion for summary judgment was never effected upon his counsel. Plaintiff asserts that “someone at district court” advised his counsel that his, motion to continue had been granted.

[7A final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction. La. C.C.P. art. 2002. An action to annul a judgment on this ground may be brought at any time. Id.

The record shows that Hallack made several unsuccessful attempts to serve plaintiffs counsel pursuant to the Louisiana Code of Civil Procedure. Hallack even tried service via certified mail, but this attempt failed when plaintiffs counsel refused to sign for the package. Thereafter, Hallack discovered that plaintiffs counsel had moved to California without providing a forwarding address. Finally, on April 3, 2016, the court appointed a private process server to personally serve plaintiff, Travis Edwards, with Hallack’s motion for summary judgment, the exceptions of prescription and peremption, and supporting mem-oranda and exhibits at plaintiffs domicile in Tallulah, Louisiana. Edwards does not dispute that he was personally served. Also, the record reflects that Edwards forwarded copies of the pleadings to his counsel.

Considering this, we find that personal service of all of Hallack’s motions upon plaintiff on April 3, 2016, complied with the service provisions of the La. C.C.P. art. 1232. Further, plaintiffs counsel agreed to the hearing date on the exceptions.

Prescription on claims for legal malpractice is governed exclusively by La. R.S. 9:5605, which provides, in pertinent part, as follows:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional . corporation, company, organization, association, enterprise,, or other- commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort1, or breach of contract, or otherwise,, arising \ ¡put of an engagement to provide legal services shall be brought unless filed in-a court of competent ■ jurisdiction : and proper venue within, one year .from the date of the alleged act, omission, or neglect, or within .one year from the date that the alleged act, omission, or neglect is discovered or should , have been discovered; however, even as to actions filed within one year from, the date of such discovery, in all events, such actions shall be filed at the latest within, three years from the date of the alleged act, omission, or neglect. (Emphasis ¡ added.) B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or' neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7,: 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of-limitation provided in Subsection A of this Section are peremptiye periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code. Article 3461, may not be renounced, interrupted, or suspended.'
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud,, as defined ,in Civil Code Article 1953. , .

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 8458. Under La. C.C. art. 1953, fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.

The title of the La. R.S. 9:5605 is “Actions for legal malpractice.” Louisiana Revised Statute 9:5605 provides that the peremptive period applies only in claims concerning legal malpractice. See also Shreveport Credit Recovery, Inc. v. Modelist, 33,369 (La.App. 2 Cir. 05/15/00), 760 So.2d 681, writ denied, 00-2159 (La. 10/27/00), 772 So.2d 125. This unambiguous interpretation is contained clearly in the statute’s language |fl“arising out of an engagement to provide legal services.” Louisiana Revised Statute 9:5605 further provides that regardless of plaintiffs allegation, if the attorney'was providing legal services when the supposed wrongdoing occurred, it falls under the statute’s purview. See also Broussard v. F.A. Richard & Associates, Inc., 98-1167 (La.App. 3 Cir. 03/17/99), 732 So.2d 578, writ denied, 99-1048 (La. 06/04/99), 744 So.2d 625; cf. Commonwealth Land Title Ins. Co. v. Jones, 06-1277 (La.App. 3 Cir. 02/07/07), 948 So.2d 1243, writ denied, 07-0515 (La. 04/27/07), 955 So.2d 693 (in which the court held that there must be at least a principal-agent relationship to fall within the purview of La. R.S. 9:5605).

In deposition, Hallack stated that he had previously been contacted by plaintiff to produce a power of attorney agreement, alhough it was never executed. Hal-lack stated that he was contacted by Johnny Carl Parkerson to assist in the purchase of Hallack’s client’s (William T. Edwards’) property. Hallack further stated that his firm produced the counter-letter for the act of sale. Therefore, when William T. Edwards purported to sell his property to Johnny Carl Parkerson on October 24, 2010, Hallack was acting in his capacity as an attorney for both Edwards and Parkerson. We find that because Hal-lack was providing legal services when the alleged wrongdoing occurred, plaintiffs claims against Hallack are within the scope of La. R.S. 9:5605.

Plaintiff stated that within a month or two of the October 21, 2010 sale, William T. Edwards told his son that “he had been lied to, not paid any money, and forced out of his house by defendant.” Plaintiff knew of Hallack’s alleged fraud no later than December 2010. He did not file suit linagainst Hallack until October 24, 2014. Therefore, his claims against Hallack have been perempeted by La. R.S. 9:5605.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against plaintiff, Travis Edwards.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, DREW, STONE, COX and BLEICH, JJ.

Rehearing denied.

      . The actual name of the realty company is Jack Fluck Realty Company; this defendant was incorrectly referred to as Jack Fluke Realty Company in plaintiff's petition. This party, who was subsequently dismissed as a defendant on January 8, 2015, via a joint motion for dismissal without prejudice, will be referred to hereinafter as Jack Fluck Realty Company.

      . The Edwardses were living in St. Tammany Parish at that time.

      . A complaint was filed with the attorney disciplinary board against Parkerson and by agreement Parkerson was permanently disbarred.

      .A memorandum in support of the exceptions of peremption and prescription was mistakenly titled "memorandum in support of summary judgment”.

      . Plaintiffs counsel did not appear at oral argument and no explanation was provided to this Court for his absence.


author: DREW, J.

text:
    Sarah SPIVEY, Plaintiff-Appellee v. Albert SPIVEY, Defendant-Appellant
    No. 51,348-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017.
    SOCKRIDER, BOLIN, ANGLIN, BATTE & HATHAWAY, By: Gregory H. Batte, Counsel for Appellant
    RONALD J. MICIOTTO, MARY T. AMARI, Counsel for Appellee
    Before DREW, MOORE, and STONE, JJ.
   DREW, J.

11 Albert Spivey appeals from a judgment finalizing the separation of community property incidental to his divorce from Sarah Spivey. We amend the judgment and, as amended, affirm.

FACTS

Sarah and Albert Spivey married in Monroe in May 1989; thereafter, they lived in Bossier Parish and had two children. They had a community property regime during the marriage. The Spiveys separated on August 3, 2007, and Sarah filed a petition for a La. C.C. art. 102 divorce on September 7, 2007. The trial court judge signed an order that same day. The order, among other things, terminated the community as of the date of filing.

Child custody issues were subsequently ■resolved, and the. divorce was finalized in 2013, leaving only a dispute about spousal support and the division of community property undecided. Sarah filed a petition to, partition the community property in March 2013.

On July 31, 2014, the parties appeared before the court to finally resolve the outstanding issues. At that hearing, Albert’s attorney explained that it was the intent of the parties to resolve:

(1) a rule for back due spousal support and a related exception;
(2). a-rule for permanent spousal support, and
(3) the community property issue.

Albert agreed to pay Sarah $23,000 at the rate of $1,000 per month as a resolution of Sarah’s claim, for past due interim spousal support.

Albert’s lawyer further clarified:
This settlement eliminates those claims forever. In addition, it also—all rights, claims and/or causes of action for permanent periodic spousal support are forever waived and extinguished 12by this settlement .... And any future rule wóúld be' considered already dismissed with prejudice. And in addition to that, with regard to the assets of the community of acquets and gains, all assets held by either party shall remain in the full ownership of either party and any claims for reimbursement, any cross-claims of any nature are forever relinquished and disposed of.

The remaining issue was the division of Albert’s railroad retirement benefits. During the marriage, Albert was employed by Kansas City Southern Railroad (“KCS”), and while so employed, he accrued retirement benefits. These annuity benefits are administered by the federal U.S. Railroad Retirement Board (the “Board”), pursuant to 45 U.S.C. §§ 231, et seq., and that agency has regulations in place relating to the partition of such annuities in property settlements incidental to divorce. See 20 C.F.R. §§ 295 et seq. An important step in the partition process is the submission of a partition order to the Board. Albert’s counsel explained that the lawyers were going to prepare a court order harmonizing the federal rules with Louisiana’s Sims v. Sims formula for the partition of assets, with Sarah’s counsel explaining:

[T]he intent is to follow whatever the Railroad Retirement Act provides in conjunction with whatever Louisiana law provides, whether it is defined benefit plan and/or the Sims formula using years of service versus years of marriage, and we’ll prepare a court order or a decree separate from the judgment for the ... qualified domestic relations order,

laCounsel further told the court that they would submit material from the Board explaining the process along with the order, and Albert’s counsel agreed to prepare the order. Albert testified that he agreed with the terms of the agreement as expressed in court and expressly agreed that “we’re settling the whole case... [y]our litigation is over with today.”

On August 22, 2014, the court signed a judgment stating, in part:

[T]he community of acquets and gains heretofore existing between the aforementioned parties is deemed resolved by:
1. Each party retaining any and all properties in their possession as their .separate property; and
2. Railroad Retirement of Albert Spi-vey being partitioned in accordance with the Railroad Retirement Act and instructional document filed of record as J-l with the parties to prepare a QDRO [Qualified Domestic Relations Order] which is to follow what the Railroad Retirement Act provides in conjunction with whatever Louisiana Law provides whether it is defined benefit plan or Sims formula using years of service/ years of marriage.

However, the record does not reflect that any such QDRO was prepared contemporaneously with this judgment.

In October 2015, Sarah filed a rulé to show cause in the 26th JDC asking the court to sign a first amended judgment of partition (essentially a QDRO) so that judgment could be sent to the Board. Sarah alleged that Albert’s counsel had been sent a copy of the proposed judgment in May 2015 but had not responded.

Albert retained new counsel, and the trial court with a new judge presiding held a hearing in January 2016. Counsel for both sides told the judge they would submit a judgment/QDRO and asked the judge to review the Utranscript of the 2014 hearing and sign the version that he felt most closely followed the parties’ agreement set out at that hearing.

Each side prepared. and submitted a proposed QDRO. Albert Spivey’s proposed judgment was considerably simpler in form than Sarah Spivey’s.

Albert’s order said, in part:
SARAH SPIVEY is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of ALBERT SPIVEY’s benefits under the Railroad Retirement Act (45 U.S.C. §§ 231-231B), which may be divided as provided by Section 14 of that Act (45 U.S.C. § 231m). SARAH SPIVEY’s share shall be computed by multiplying the divisible portion of ALBERT SPI-VEY’s monthly benefit by a fraction, the numerator of which is the number of months ALBERT SPIVEY worked for the railroad employer during, the period of the marriage, September 21, 1994, through September 7, 2007, and the denominator of which shall be ALBERT SPIVEY’s total number of months employed by a railroad employer at retirement, and then dividing the product by two (2).

Sarah’s proposed order was longer and contained several more provisions. Two different provisions specifically related to the railroad retirement:

SARAH SPIVEY is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of ALBERT SPIVEY’S benefits under the Railroad Retirement Act (45 U.S.C. §§ 231-2231(W)), which may be divided as provided by Section 14 of that Act (45 U.S.C. § 231m). SARAH SPIVEY’S share shall be computed as an amount equal to fifty-percent (50%) of ALBERT SPIVEY’S gross monthly benefits.
⅝ ⅜ ⅜
SARAH SPIVEY is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of ALBERT SPIVEY’S benefits under the Railroad Retirement Act (45 U.S.C. §§ 231-231B), which may be divided as provided by Section 14 of that Act (45 U.S.C. § 231m). SARAH SPIVEY’S share shall be computed by multiplying the divisible portion of ALBERT SPI-VEY’S monthly benefits by a fraction, the numerator of which is the number of months ALBERT SPIVEY worked for the railroad employer during the period of the marriage, September 21, 1994, through September 7, 2007, and the denominator of which shall be ALBERT SPIVEY’S total number of months employed by a railroad employer at retirement, and then dividing the product by two (2).

| ¡¡Sarah's order also contained some other provisions not related to the railroad retirement issue. Paraphrasing, these additional provisions were:

1. Both parties waived rental/reimbursement claims for community assets;
2. Both parties acknowledge that they have received property equal to that conveyed herein, in consideration of settling the dispute;
3. The parties waived any claim by their own separate estate against the community, including reimbursement for payment of community debts out of their separate property;
4. The parties agree to sign all documents necessary to effect the agreement;
5. The judgment is a complete settlement of all claims either party may have against each other;
6. The parties are precluded from asserting a lesion claim against the other with respect to the agreement.

On February 12, 2016, the judge signed Sarah’s longer judgment and refused to sign Albert’s judgment.

Albert filed a motion for new trial, urging that the judgment did not reflect the stipulations and agreements reflected by the transcript of the 2014 rule to show cause hearing. The court heard argument on the motion for new trial, but denied it, stating that it found no basis to grant a new trial. Albert now appeals.

DISCUSSION

On appeal, Albert raises three assignments of error; contending that the trial court should not have signed Sarah’s judgment because:

• It was not a QDRO as contemplated by the stipulation of the parties entered on July 31, 2014;
• The judgment contained contradictory provisions relating to the division of Albert’s railroad retirement; and
• • The judgment contained provisions that were not stipulated to by the parties at the July hearing.

IfjWe consider that the trial court’s determinations about the proper division of Albert’s retirement and the inclusion of the additional provisions were based on the trial court’s application of the law, rather than its findings of fact, so we review the trial court’s ruling de novo. Waggoner v. Am. First Ins., 42,863 (La. App. 2 Cir. 1/16/08), 975 So.2d 110.

Albert’s first and third complaints are that the judgment on appeal includes additional provisions outside of the partition of railroad retirement benefits. Specifically, he argues that the six “additional provisions” referred to above are not relevant to the railroad retirement question, should not be included in a QDRO, and are in fact an attempt by Sarah to amend the now final August 22, 2014, judgment that—in addition to its reference to the QDRO - resolved the spousal support issues.

We find none of the six additional provisions to be objectionable in light of the transcript of the July 31, 2014, hearing. At that hearing, the parties were endeavoring to put an end to their dispute which began in 2007, and Albert personally approved of the matters referred to by counsel at the hearing. That approval encompassed counsel’s assertions that the settlement would put an end to all future property disputes between the parties. We consider the six additional provisions included in the most recent judgment to be relatively standard, boilerplate matters that, if unaddressed, might potentially lead to additional litigation in the future. Because the most recent judgment was intended to be the court’s “final say” in this now 10-year-old dispute, we do not find a reason to disturb the judgment to excise them.

17Albert’s second assignment of error concerns the use of the two different paragraphs explaining how his railroad retirement should be divided.

In Sims v. Sims, supra, the Louisiana Supreme Court explained:

[Ojur courts have uniformly held that, at the dissolution of the community, the non-employed spouse is entitled to judgment recognizing that spouse’s interest in proceeds from a retirement annuity, or profit-sharing plan' or contract, if and when they become payable, with the spouse’s interest to be recognized as one-half of any payments to be made, insofar as they are attributable to the other spouse’s contributions or employment during the existence of the community.

In the “Partition of Annuities By Court Decree” document introduced into evidence in July 2014, the Board helpfully included the following language:

A model paragraph for a decree which complies with the Board’s regulations and which awards to each spouse an equal share of divisible benefits proportionate to the period of the marriage is as follows:
(Spouse’s name) is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of (Employee’s name) benefits under the Railroad Retirement Act (45 U.S.C. §§ 231, et seq.) which may be divided as-provided by section 14 of that Act (45 U.S.C. § 231m). (Spouse’s name) share shall be computed by multiplying the divisible portion of (Employee’s name) monthly benefit by a fraction the numerator of which is the number of years (Employee’s name) worked for a railroad employer during the period of the marriage (month/year through month/year), and the denominator of which shall be (Employee’s name) total number of years employed by a railroad employer at retirement, and then dividing the product by two.

CONCLUSION

Although we appreciate that the Board will ultimately review the Louisiana decree to determine whether it complies with both federal and state law, we conclude that the inclusion in the judgment of two conflicting paragraphs as to how the annuity is to be divided has the potential to cause Isconfusion and further delay. Accordingly, we opt to amend the February 12, 2016, judgment to delete the following paragraph:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the SARAH SPIVEY is awarded, and the Railroad Retirement Board is directed to pay, an interest in the portion of ALBERT SPIVEY’s benefits under the Railroad Retirement Act (45 U.S.C. §§ 231-2231(W)), which may be divided as provided by Section 14 of that Act (45 U.S.C. § 231m). SARAH SPIVEY’s share shall be computed as an amount equal to fifty-percent of ALBERT SPI-VEY’S gross monthly benefits.

The remaining paragraph is more closely aligned with the language in the Federal guidelines and, since it complies with the Sims formula, is fully sufficient to effectuate an appropriate partition of the property-

In all other respects, the judgment appealed from is affirmed. Costs of this appeal are divided equally between appellant and appellee.

DECREE

AMENDED, AND, AS AMENDED, AFFIRMED.

      . According to 20 C.F.R. § 295.4(a) Regularity. Thé General Counsel or his or her desig- nee shall review the court decree or property settlement to determine that it complies with both the law of the jurisdiction, and with Federal law and these regulations,

      . Sims v. Sims, 358 So.2d 919 (La. 1978).

      .Part of this material included a document from the Board entitled "Partition of Annuities by Court Decree,” which is available at www.rrb.gov/forms/PandS/gl77series/gl77d. asp#.


text:
    Deborah ALLEN, Plaintiff-Appellee v. Matthew HUMPHREY and Imperial Fire and Casualty Insurance Company, Defendants-Appellees
    No. 51,331-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017.

      LOUISIANA DEPT. OF JUSTICE LITIGATION DIVISION, By: E. David Gilmer, Counsel for Intervenor-Appellant, State of Louisiana, Office of Risk Management
    H. LYN LAWRENCE, JR., Counsel for Appellee, Deborah Allen
    RICHIE, RICHIE, & OBERLE, LLP, By: Byron A. Richie, Paul D. Oberle, Jr., Counsel for Defendants-Appellees, Matthew Humphrey and Imperial Fire & Casualty Iris. Co. ■
    Before BROWN, PITMAN, and STONE, JJ.
   BROWN, C.J.

I,The State of Louisiana’s Office of Risk Management appealed from.-a judgment dismissing its petition of intervention on the grounds of abandonment. For the following reasons, we affirm the trial, cpurt’s judgment.

FACTS AND PROCEDURAL HISTORY.

On February 2, 2007, plaintiff, Deborah Allen, an employee of the Louisiana Department of Social Services (“LADSS”), was riding as a passenger in-a LADSS vehicle. On that date, the LADSS vehicle was struck from behind by a vehicle driven by Matthew Humphrey. On. January 17, 2008, Ms. Allen filed a petition seeking damages for injuries sustained , in the accident from defendants, Mr. Humphrey, and his automobile insurer, Imperial. Fire, and Casualty Insurance Company.

On February 11, 2008, defendants filed an answer and jury demand. On April 14, 2008,-the State of- Louisiana, Division of Administration, Office of Risk. Management filed a. petition., of intervention claiming a subrogation interest .against defendants for past and .future workers’ compensation payments paid to, or on behalf of, Ms. Allen. Defendants and Ms. Allen each answered the petition, of intervention.

On May 9, 2008, Ms.. Allen filed an amended petition for damages and named LADSS as a defendant pursuant to an underinsured motorist claim'. The original defendants, Mr. Humphrey and Imperial, answered the amended petition. On November 12, 2008, intervenor filed a motion for summary judgment seeking to have Ms. Allen’s claims against the LADSS dismissed. They claimed that they had no uninsured motorist coverage and |¾Allen’s exclusive remedy against her employer was a claim for workers’ compensation. The trial court granted summary judgment and dismissed Ms. Allen’s claims against LADSS on January 5, 2009.

On January 12, 2012, intervenor filed a motion for a pretrial conference. At the pretrial conference, the matter was set for trial on January 28, 2013. On January 15, 2013, Ms. Allen filed a motion for a continuance to resolve her pending workers’ compensation claims. The trial court ordered the continuance. Ms. Allen’s worker’s compensation claims were resolved with a consent judgment signed by the worker’s compensation judge on August 5, 2013.

On February 8, 2013, defendants filed a motion and order to withdraw a jury bond, which the court denied. On September 18, 2014, counsel for defendants sent a letter addressed to counsel for Ms. Allen and counsel for intervenor. The letter reads:

I thought I would write once again to try to bring this matter across your desks. We would like to try to settle this case for the policy limit but [I] never received any instructions with respect to the resolution of the workers’ compensation claim. Please let me know if any progress has been made in that regard. Further, please let me know if there is anything we can do to push this matter forward.

On March 14, 2016, defendants filed a motion to dismiss the claim on the grounds of abandonment. On May 16, 2016, a hearing was held on the motion to dismiss. The trial court filed its judgment granting defendants’ motion to dismiss on May 24, 2016. Intervenor perfected the instant appeal.

DISCUSSION

Intervenor argues that the letter from defense counsel signifies an unconditional tender and thus constitutes an acknowledgment of liability by [ ^defendants, meaning defendants waived them right to assert abandonment of the claim. Defendants, in turn, argue that the letter was merely informal settlement negotiations which did not constitute a waiver of their right to assert abandonment of the suit.

Louisiana Code of Civil Procedure article 561 governs abandonment and it reads in pertinent part:

A. (1) An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding: ....
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested party by affidavit which provides that no step had been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution of defense of an action.

Article 561 has been interpreted as placing three constraints on parties to preclude abandonment: (1) a party must take some “step” toward prosecution of the lawsuit; (2) the step must be taken in the proceeding and, with the exception of formal discovery, appear on the record; and (3) the step must take place within the legislatively required three-year time period of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La. 05/15/01), 785 So.2d 779.

A “step” that will preclude abandonment is defined as taking formal action before the court which is anticipated to hasten the suit toward judgment, or taking a deposition with or without formal notice. Id. Article |4561 provides that abandonment is self-executing; it occurs automatically once three years passes and neither party has taken a step in the prosecution or defense of the case. The record shows that there was no formal action taken in this case within the three-year requisite period after defendants filed a motion and order to withdraw a jury bond on February 8, 2013. Therefore, on the face of the record, intervenor’s claims are abandoned.

Whether a step in the prosecution or defense of a case has been taken in the trial court for a period of three years is a question of fact subject to manifest error analysis. Wolf Plumbing, Inc. v. Matthews, 47,822 (La.App. 2 Cir. 09/25/13), 124 So.3d 494. "Whether a particular act, if proven, impedes abandonment is a question of law that is examined by ascertaining whether the trial court’s conclusion is legally correct. Id.

If no steps furthering the claim transpired, we look to whether one of the two jurisprudential exceptions to the abandonment rule is applicable: (1) plaintiff may show that his or her failure to prosecute the claim was caused by circumstances beyond plaintiffs control (contra non valentem); or (2) plaintiff can verify that the defendant waived his right to claim abandonment by taking actions incompatible with an intent to regard the case as abandoned, an exception based on acknowledgment. Clark, supra. Intervenor does not assert that events outside of its control transpired which prevented it from prosecuting its intervention claim. Therefore, we examine whether defendants acted in a manner inconsistent with the desire to treat the case as abandoned.

The jurisprudence has uniformly held that La. C.C.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Id. The ^Louisiana Supreme Court has ruled that extrinsic evidence may be considered by the trial court in ruling on whether defendant’s actions constituted a waiver. Id. Therefore, defense counsel’s letter to plaintiff and intervenor may be considered. The issue is whether defense counsel’s letter may be characterized as informal settlement negotiations or an acknowledgment which served to interrupt the abandonment period causing it to run anew.

In Clark, supra, the plaintiff and defendant were involved in an automobile accident. The defendant’s insurer offered the plaintiff a $3,000 draft with correspondence which read, “please accept this draft as our unconditional tender to conclude the above claim.” The plaintiff accepted the tender and cashed the draft. The plaintiff also filed a copy of the draft and correspondence into the record. The court observed, “An unconditional tender is made to a plaintiff not in settlement of the case, but to show the insurer’s good faith in the matter and to comply with the duties imposed upon them under their contract of insurance with the insured.” Clark, 785 So.2d at 791 (internal quotation marks omitted). An unconditional tender comes free of requirements, and, thus, cannot be a settlement offer. Id.

Extrajudicial efforts such as informal settlement negotiations among parties have consistently been held to be inadequate to constitute a step which interrupts abandonment. Id. The Clark court found that the effect of the unconditional tender was ‘⅛0 protect the defendant’s interests ... [in avoiding] penalties and attorney’s fees .. at the conclusion of the case,” demonstrating the defendant’s belief the case would proceed. Id,

In In Re Succession of Wright, 37,670 (La.App. 2 Cir. 9/24/03), 855 So.2d 926, this Court found that informal settlement negotiations between the parties, a deposition notice to the defendant, and the defendant’s appearance at a deposition after his motion to dismiss on grounds of abandonment was filed did not constitute a waiver of abandonment.

Conversely, this Court found that a claim was not abandoned in State, Dept. of Transportation & Development v. Cole Oil & Tire Co., 36,122 (La.App. 2 Cir. 07/17/02), 822 So.2d 229. In that case, the landowner brought an increased compensation claim for expropriated property. During the alleged three year period when no, steps were taken in the case, the landowner corresponded with opposing counsel to ascertain deposition dates, which opposing counsel asked to delay. Opposing counsel informed, the landowner that the original appraiser was unavailable and a new one was asked to’ appraise the property. Opposing counsel also corresponded with the landowner’s counsel regarding the appraiser’s access to the property. Additionally, the, landowner’s counsel requested the results of the appraiser’s inspection. Id.

This-Court in Cole Oil & Tire Co., 822 So.2d at 234, found that when looking at the totality of the circumstances, it was clear that the defense participated in the proceeding as evidenced by opposing counsels’ consistent correspondence with each other.- The Court further stated that the activity in the case would have led the landowner to believe that defendant had no intention of asserting abandonment, and the Court found that the action was not abandoned. Id.

|7The intervenor in the instant case relies solely on a letter from defense counsel to intervenor’s counsel and plaintiffs counsel. The letter does not state that defendants are making an unconditional tender, and no money changed hands between the defendants and opposing parties. Additionally, the letter itself states that “We would like to try to settle this case....” No other activity regarding the case occurs after defendants filed the motion and order to withdraw a jury bond on February 8, 2013, other than the one letter between opposing counsel. The correspondence is clearly a part of opposing counsels’ informal settlement negotiations, and is not an unconditional tender or acknowledgment of liability constituting a step in the defense of the claim constituting a waiver of abandonment.

CONCLUSION

For the reasons set forth above, the trial court’s judgment is affirmed. Costs are assessed to intervenor, the State of Louisiana, Division of Adminstration, Office of Risk Management.

AFFIRMED.


author: CARLTON, J.,

text:
    David Ray ADELE a/k/a David R. Adele a/k/a David Adele, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01726-COA
    Court of Appeals of Mississippi.
    02/28/2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.
   CARLTON, J.,

FOR THE COURT:

¶ 1. A George County jury found David Ray Adele guilty of aggravated domestic assault. The George County Circuit Court sentenced Adele as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. Adele now appeals, arguing that the trial court erred in sentencing him as a habitual offender. Adele asserts that the State failed to show evidence satisfying the requirements of the habitual-offender statute; specifically, that Adele had been sentenced to and served separate terms of one year or more on two separate convictions. See id. Finding no error, we affirm.

FACTS

¶ 2. On July 23, 2013, Adele was indicted on one count of aggravated domestic violence in violation of Mississippi Code Annotated section 97-3-7(4) (Supp. 2016). The State filed a motion to amend Adele’s indictment on September 17, 2015, seeking to charge Adele as a habitual offender pursuant to section 99-19-83 based on two separate prior convictions: (1) an April 20, 1992 conviction for unlawful restraint in St. Clair County, Illinois, wherein the trial court sentenced Adele to twelve months conditional discharge; and (2) an October 28, 1992 conviction for first-degree murder, also in St. Clair County, Illinois, wherein the trial court sentenced Adele to serve thirty years in the custody of the Illinois Department of Corrections (IDOC). After a hearing on the matter held on October 27, 2015, the trial court granted the State’s motion. The record reflects that the defense made no objection to the amendment of Adele’s indictment.

¶ 3. After a trial held October 27-28, 2015, the jury found Adele guilty of aggravated domestic violence. On October 29, 2015, the trial court sentenced Adele as a habitual offender to life in the custody of the MDOC without the possibility of parole. The record reflects that Adele filed no posttrial motions. Adele filed his appeal of his conviction and sentence on November 12, 2015.

STANDARD OF REVIEW

¶4. “A [trial] court’s decision to permit the State to amend an indictment to reflect a defendant’s habitual-offender status is an issue of law and enjoys a relatively broad standard of review.” Curry v. State, 131 So.3d 1232, 1234 (¶ 5) (Miss. Ct. App. 2013). This Court has held that “[a]s long as the trial judge applied the correct legal standards, [we] will not reverse [her] decision unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence.” Frazier v. State, 907 So.2d 985, 990 (¶ 8) (Miss. Ct. App. 2005).

DISCUSSION

¶ 5. Adele argues that the trial court improperly sentenced him as a habitual offender in violation of his fundamental right to be free from an illegal sentence. Adele claims that the State failed to prove beyond a reasonable doubt that he had been sentenced to separate terms of one year or more on two separate convictions.

¶ 6. The record before us reflects that Adele’s trial counsel failed to object to the State’s proof of Adele’s habitual-offender status at both the motion hearing and Adele’s sentencing hearing. “When an accused fails to object to the habitual[-]offender issue during the sentencing phase, he is proeedurally barred to do so the first time on appeal,” Reed v. State, 180 So.3d 755, 756 (¶ 4) (Miss. Ct. App. 2015) (quoting Heidelberg v. State, 45 So.3d 730, 732 (¶ 6) (Miss. Ct. App. 2010)); see also Vanwey v. State, 149 So.3d 1023, 1024 (¶ 3) (Miss. 2014). Adele acknowledges that his trial counsel failed to object to or challenge the sufficiency of the State’s proof of habitual status, but he asks this Court to review the issue for plain error.

¶ 7. In Conner v. State, 138 So.3d 143, 150 (¶ 19) (Miss. 2014), the Mississippi Supreme Court held that since the defendant failed to raise the issue at trial that the State failed to meet its burden of proving his habitual-offender status, his argument was therefore procedurally barred on appeal. However, the supreme court held that “[bjecause Conner argues that the State failed to submit evidence proving his habitual-offender status at the sentencing hearing, the argument is reviewable as plain error.” Id. at 150-51 (¶ 19). See also Grayer v. State, 120 So.3d 964, 969 (¶ 15) (Miss. 2013) (explaining that where the defendant failed to raise an objection at trial, the appellate court may review the issue on appeal for plain error where a fundamental right of the defendant has been impacted). The Conner court explained that when reviewing whether “plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether that error has prejudiced the outcome of the trial.” Conner, 138 So.3d at 151 (¶ 19).

¶ 8. Section 99-19-83 provides that a life sentence without parole, probation, or early release shall be imposed on:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by [sjection 97—3—2[.]

(Emphasis added).

¶ 9. Turning to review Adele’s assignment of error herein, we acknowledge that in order to sentence a defendant as a habitual offender, “[t]he State must prove [the defendant’s] habitual-offender status beyond a reasonable doubt.” Gilbert v. State, 48 So.3d 516, 524-25 (¶35) (Miss. 2010); Vince v. State, 844 So.2d 510, 517 (¶ 22) (Miss. Ct. App. 2003); URCCC 11.03. When the defendant is indicted as a habitual offender, “the circuit judge is to serve as the finder of fact in determining whether the habitual[-]offender part of the indictment is established by the requisite degree of proof.” Conner, 138 So.3d at 151 (¶ 20).

¶ 10. The record before us reflects that the State filed a motion to amend Adele’s indictment to charge him as a habitual offender under section 99-19-83. In support of its motion, the State listed two separate prior convictions: (1) an April 20, 1992 conviction for unlawful restraint in St. Glair County, Illinois, wherein the trial court sentenced Adele to twelve months conditional discharge; and (2) an October 28, 1992 conviction for first-degree murder, also in St. Clair County, Illinois, wherein the trial court sentenced Adele to serve thirty years in the custody of the IDOC. At the hearing on the motion to amend Adele’s indictment, the State provided the court with the certified pen pack and certified copies of both convictions.

¶ 11. Adele argues that no document from the IDOC appears in the pen pack to show that he served the full twelve months of the unlawful-restraint conviction. Adele further claims that a handwritten order in the pen pack indicates that his twelvemonth conditional discharge was revoked. That order, filed on February 9, 1993, states: “Defendant currently incarcerated for 30 years in St. Clair County case 92CF501. Defendant’s conditional discharge terminated unsuccessfully, remaining costs, fine and fees waived.” Despite Adele’s assertion, we cannot agree that the language “terminated unsuccessfully” reflects that his conditional discharge was not revoked. We further find no other language in this order, or any other order in the record, specifically stating that Adele’s conditional discharge was not revoked.

¶ 12. The hearing transcript also reflects that the two convictions in Illinois involved the same victim. The State explained that Adele entered a guilty plea to the charge of unlawful restraint on April 20,1992, and he committed the murder approximately three weeks later on May 8, 1992. The commitment order from the IDOC for the murder conviction indicates that the trial court sentenced Adele to serve thirty years. In the section of the order specifying whether the sentence would be served “concurrent with” or “consecutive to” another sentence, the sentencing court checked “None.” As a result, Adele submits that nothing in the murder-conviction commitment order indicates that Adele was required to serve the full twelvemonth sentence from his April 1992 unlawful-restraint conviction.

¶ 13. At the hearing on the motion to amend his indictment, Adele’s counsel stated that although she could find no evidence in the sentencing documents as to whether the sentences for the unlawful-restraint conviction and the murder conviction were to run concurrently or consecutively, she conceded that the twelve-month conditional-discharge sentence for the unlawful-restraint conviction did fall within the statutory requirements set forth by section 99-19-83. Adele’s counsel further submitted that she had no objection to amending Adele’s indictment to reflect his status as a section 99-19-83 habitual offender:

Your Honor—Judge, I did, for the record, investigate the prior instances of criminal conduct in the State of Illinois. Your Honor asked me when the motion was filed whether I had [an] objection. I asked you for an opportunity to review the information, which I did. And the one question that I did have, which has been answered for me—just for the record, Your Honor, to satisfy any questions you may have, the cases in Illinois were very close in proximity of time. The unlawful restraint, Class IV felony, being in April of [19]92, conviction date! And so I did go and research the Class IV felony, determined that the 12-month conditional discharge sentence that was given would fall within the Mississippi statute requirements.
The October of [19]92 murder conviction, Mr. Adele was actually found guilty of—he was charged with first[-]degree murder[—]he was actually found guilty of a lesser felony murder and was sentenced to thirty years in the penitentiary.
The question that I had was whether or not—first, whether the sentences for the unlawful restraint and for the October murder conviction were run concurrently or consecutively. I find no reference either way in the sentencing documents. But the other question I had was regarding whether the events were based on different sets of facts. And the felony murder conviction was actually—as I understand it, the felony in that particular instance was not the prior [unlawful restraints but one leading up to the eventual killing of this young lady.
So, I think that the requirements are met; that factual circumstances are different as to each case, even though they are so close in time. So, just for the record, Your Honor, I did want you to know that I had investigated that. And I don’t find any objection that I can make.

¶ 14. After the hearing, the trial court granted the State’s motion to amend Adele’s indictment. The trial court’s sentencing order reflecting Adele’s status as a habitual offender provides:

On April 20, 1992, .,. [Adele] was convicted of felony unlawful restraint which occurred on November 3,1991[,] ... and [he] was sentenced to twelve months with his conditional discharge terminated on February 9, 1993[,] to serve twelve months and served one year of the said sentence in the custody of the Illinois Department of Corrections.

Accordingly, it appears that the trial court, after reviewing the evidence of Adele’s prior convictions and sentences provided by the State, interpreted the documents to reflect that Adele served the twelve months on the unlawful-restraint conviction while he was serving the thirty-year sentence for murder. As stated, trial courts enjoy a relatively broad standard of review when deciding to permit the State to amend an indictment to reflect a defendant’s habitual-offender status. Curry, 131 So.3d at 1234 (¶ 5). As a result, we will not reverse a trial judge’s decision wherein she applied the correct legal standards unless her decision is manifestly wrong or contrary to the overwhelming weight of the evidence. See Frazier, 907 So.2d at 990 (¶ 8).

¶ 15. After our review of the record, we find that the record contains sufficient evidence to support the trial court’s order granting the State’s motion to amend Adele’s indictment. We therefore affirm Adele’s conviction and sentence as á habitual offender.

¶ 16. THE JUDGMENT OF, THE GEORGE COUNTY CIRCUIT COURT OF CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO GEORGE COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

      . In the case before us, the record shows that the State did submit evidence regarding Adele’s habitual-offender status; Adele’s argument is that the evidence submitted was insufficient.