author: Judge Terri F. Love LEDET, J.,

text:
    STATE of Louisiana v. Avery JULIEN
    NO. 2016-K-1223
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Parish of Orleans, Scott G. Vincent, Assistant District Attorney, Parish of Orleans, 619 S. White St., New Orleans, LA 70119, COUNSEL FOR RELATOR, STATE OF LOUISIANA
    ■ George Blair, III, P.O. Box 3637, New Orleans, LA 70119, Katherine Z. Crouch, 2372 St..Claude Avenue, Suite 224, New Orleans, LA 70117, COUNSEL FOR RESPONDENT, AVERY JULIEN
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge • Rosemary Ledet)
   Judge Terri F. Love

11 This case arises from the search of defendant’s residence in conjunction with a probation-related compliance check. Officers from three law enforcement agencies arrived at defendant’s home at 6:00 a.m. to conduct an alleged compliance check. Officers entered the residence and found defendant and defendant’s female companion sleeping. Both defendant and defendant’s female companion were immediately placed in handcuffs. None of the other five people were placed in handcuffs. After viewing a round of ammunition in plain viéw, the officers searched defendant’s én-tire residence, finding two stolen weapons. Defendant filed a motion'to suppress contending that the evidence was illegally seized. The trial court granted the motion to suppress, finding that the State used defendant’s status as a probationer as a subterfuge to circumvent the warrant requirement. After docketing the matter1 for oral argument and considering the brief filed, we find that the trial court correctly granted defendant’s motion to suppress, as the law officers at his residence were not present to conduct a compliance check, none of the officers were assigned to the defendant, and the subsequent search and seizure was unconstitutional. The writ is denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Louisiana Department of Probation and Parole Agent James Bertrand and | {Agent Jason Hardy conducted a compliance check at Avery Julien’s home at 6:00 a.m. on March 8, 2016. Neither Agent Bertrand nor Agent Hardy was assigned to monitor Mr. Julien, a probationer. Agents Betrand and Hardy were accompanied by the New Orleans Police Department (“NOPD”) and officers from the U.S. Marshals’ Gulf Coast Criminal Fugitive Task Force. After knocking on Mr. Julien’s door, Agent Bertrand allegedly observed an African-American male peer from the window located between the living room and kitchen area of the residence. When no one came to open the door, the officers continued to knock and announce their presence. Agent Bertrand observed the individual inside look out at them a second time and heard “a lot of movement ... going on inside of the house.” After someone “finally opened” the front door, the officers entered, secured the residence and were directed to Mr. Julien’s room, where Agents Bertrand and Hardy found Mr. Julien in bed with a female companion. There were seven people in the residence: defendant and a female in his bedroom; three persons in a second bedroom; and another two people in the living room. The agents handcuffed Mr. Julien and his female companion and escorted them from the room. The evidence does not reflect that the other occupants were handcuffed.

While' conducting a “protective sweep to make sure that there were no other individuals in the room,” Agent Bertrand saw a live nine-millimeter round of ammunition on the windowsill. Upon locating the ammunition, the agents deemed they possessed the requisite level of cause to conduct a search. Agent Hardy then discovered a firearm in the drawer of the nightstand next to where Mr. Julien was sleeping. The following search of the remainder of the residence yielded a second |Rflrearm and accompanying ammunition. Both weapons were checked through NCIC, which revealed they were reported stolen. Agents Bertrand and Hardy reported their discovery of the contraband to a U.S. Marshal on the scene, who then took over the investigation.

As a result, the State filed a bill of information charging Mr. Julien with possession of a firearm by a convicted felon and illegal possession of a stolen firearm. Mr. Julien pled not guilty. Mr. Julien filed Motions to Suppress and for a Preliminary Examination. Following a hearing, the trial court granted Mr. Julien’s Motions to Suppress and found no probable cause. The State noticed its intent to seek writs, and the trial court stayed the proceedings pending this Court’s decision. The State’s timely filed application for supervisory review followed.

STANDARD OF REVIEW

The Louisiana Supreme Court “restated the general rule that appellate courts review trial court rulings under a deferential standard with regard to factual and other trial determinations, while legal findings are subject to a de novo standard of review.’’ State v. Wells, 08-2262, p. 4 (La. 7/6/10), 45 So.Bd 577, 580. “When a trial court makes findings of fact based on the weight of the testimony and the credibility of the witnesses, a reviewing court owes those findings great deference, and may not overturn those findings unless there is no evidence to support those findings.” Id. “A ‘trial judge’s ruling [on a fact question], based on conclusions of credibility and weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support the ruling.’ ” Id., 08-2262, pp. 4-5, 45 So.3d at 580-81; quoting State v. Bourque, 622 So.2d 198, 222 (La. 1993).

14When reviewing the grant of a motion to suppress, appellate courts must remember that “a trial .court’s findings on a motion to suppress the evidence are entitled to great weight, considering the district court’s opportunity, to observe the witnesses and weigh the credibility of their testimony.” Wells, 08-2262, p. 5, 45 So.3d at 581. “A trial court’s decision relative to the suppression of evidence is afforded great weight and will not be set aside unless there is an abuse of that discretion.” Id.

MOTION TO SUPPRESS

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution protect people against unreasonable searches and seizures. ■ Ordinarily, when evidence is seized without a warrant, the burden is on the State to demonstrate that a search is justified by some exception to the warrant requirement. See La. C.Cr.P. Art. 703(D); State v. Bell, 09-0574, p. 4 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 506.

Individuals on probation possess a diminished expectation of privacy. State v. Malone, 403 So.2d 1234, 1239 (La. 1981); see also State v. Marino, 00-1131, p. 4 (La.App. 4 Cir. 6/27/01), 804 So.2d 47, 52. “This reduced expectation of privacy is based on a probationer’s conviction and agreement to allow a probation officer to investigate his activities in order to confirm that the probationer is in compliance with the provisions of his probation.” State v. Fields, 12-0674, p. 9 (La.App. 4 Cir. 6/19/13), 120 So.3d 309, 317. That reduced expectation of privacy authorizes “reasonable warrantless searches of their persons and residences by their probation or parole officer, even though less than probable cause may be shown.” State v. Jones, 12-0438, p. 8 (La.App. 4 Cir. 3/13/13), 119 So.3d 9, 15.

R“A probationer is not, however, subject to the unrestrained power of the authorities.” Fields, 12-0674, p. 9, 120 So.3d at 317. This Court has recognized that “a search of the probationer may.not be a subterfuge for . a police investigation.” Id. However, “a probation officer may conduct a warrantless search of a probationer’s property when .‘the. officer believes such a search is necessary in the performance of his duties, and must be reasonable in light of the total atmosphere in which it takes place.’” Id., quoting State v. Thomas, 96-2006, p. 2 (La.App. 4 Cir. 11/06/96), 683 So.2d 885, 886. “In order to determine reasonableness we must consider ‘(1) the scope of the particular intrusion, (2) the manner in which it was conducted, (3) the justification for initiating it, arid (4) the place in which it was conducted.’ ” Id.

The trial court focused largely on the absence of participation by the agent assigned to Mr. Julien and the application of La. C.Cr.P. Art 895(A)(13)(a), which requires as a condition of probation that the defendant:

Agree to searches of his person, his property, his place of residence, his vehicle, or his personal effects, or any or all of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or .-with or without a search warrant, when the probation officer or the parole officer has reasonable suspicion to believe that the person who is on probation is engaged in or has been engaged in criminal activity.

The trial court stated, “[T]he problem is that the agent specifically testified that he was not assigned to the case. If he would have said that he had been assigned to it that morning, I would agree with [the state].” The .trial court continued, “I’m saying'that as I read the statute that they can not enter the house and conduct a war-rantless search, be it walk into the house in the first place, unless it is the agent that is assigned to the case

| «La. C.Cr.P. Art. 895 outlines the conditions of probation. Subsection (A)(4) provides that the probationer shall “[p]ermit the probation officer to visit him at his home or elsewhere,” La. C.Cr.P. Art. 895(A)(13)(a) was amended to prtivide that a probationer shall:'

Agree to searches of his' person, his property, his place of residence, his vehicle, or his personal effects, or any or all ■■of them, at any time, by the probation officer or the parole officer assigned to him, with or without a warrant of arrest or with or without a search warrant, when the probation officer or the parole officer has reasonable - suspicion to believe that the person-who is on .probation is engaged in or has been engaged in criminal activity. (Emphasis added).

The Legislature specifically included “by the probation officer or the parole officer assigned to him” in the amendments. This phrase introduced a new limitation on the search «capabilities .of probation officers. The Legislature also contemplated the unavailability of the probation officer assigned to the defendant, as reflected by La. C.Cr.P. Art. 899(B), which provides that a probation officer may authorize a peace officer to arrest a probationer if an ündue risk to the public or probationer exists.

The trial court also noted the absence of evidence introduced at the suppression hearing demonstrating the presence of any cause for the search. When, ruling, the trial court stated:

Their testimony was that they went to knock on the door and that someone who they could not identify looked out and seemed unwilling to open the door to law enforcement officers. Without being able to establish that the person [sic] looked out the window was, in fact, the person on probation and that the person on probation was then somehow involved' in criminal activity. I’m not sure if that in and of itself amounts to reasonable suspicion.

| -(While any probation officer could presumably conduct a compliance check, in this case, the - agents’ conduct surpassed that contemplated by law when they entered Mr.. Julien’s bedroom and handcuffed both him and his female companion and escorted them out of the room before viewing the ammunition on the windowsill. The State did not present evidence of a tip of suspected criminal activity or other facts giving rise to reasonable suspicion prior to assembling the law enforcement team to conduct the compliance check. The presence of multiple officers from multiple law enforcement agencies for a compliance check without pre-existing reasonable suspicion differs from jurisprudential affirmations regarding denials, of motions to suppress. These factors go towards the determination of the unreasonableness of the search based on the scope of the intrusion and the manner in which it was conducted. See Malone, 403 So.2d at 1239. Likewise troubling is the suggestion that the State could make such a show of force outside the residence Land claim that the occupants’ reaction to it at 6:00 a.m. (looking outside twice and not immediately opening the door) could provide it with reasonable suspicion to conduct an otherwise illegal search. As such, the compliance check conducted on Mr. Julien served as a pretext for a warrant-less search with no reasonable suspicion that Mr. Julien was involved in criminal activity prior to knocking on the door.

Given the totality of the circumstances, the compliance check was unreasonably pretextual. Agents Bertrand and Hardy should not have been in Mr. Julien’s bedroom and thereby able to view the ammunition in plain sight. The legality of the search conducted thereafter was vitiated by the fact that neither Agent Bertrand, nor Hardy was assigned as Mr. Julien’s probation officer, which triggered La. C.Cr.P. Art. 895(13)(a). Once implicated, La. C.Cr.P. Art. 895(13)(a) requires that the warrantless search be conducted by the probation officer assigned to Mr. Ju-lien. It is undisputed that the probation officer assigned to Mr. Julien was not ■present.

, The State contends that this Court’s recent idling in State v. Brignac, 16-1160 (La.App. 4 Cir. 1/18/17), 229 So.3d 526, 2017. WL, 193157, wherein this Court upheld the warrantless search of a probationer’s residence supported by reasonable suspicion conducted by a probationer officer who was not the probation officer assigned to the defendant, is controlling. We disagree. Brignae is distinguishable in that prior to conducting the residence check on the defendant, the assigned agent received a tip that the defendant was engaged in the sale of illegal narcotics. Id. The State presented no evidence in the present matter' of any tips, positive drug tests, or anything else to establish reasonable suspicion that criminal activity was occurring prior to deciding to conduct a compliance check on | ¡¡Mr. Julien’s residence.

Additionally, the State asserts that La. C.Cr.P., Art. 703 and State v. Guidry, OS-1944 (La. 11/21/03), 862 So.2d 965, permits the inclusion of the weapons seized even if La. C.Cr.P. Art. 895 was violated. We disagree. In Guidry, the Louisiana Supreme Court found that technical violations or errors in search warrants did not automatically vitiate the constitutionality of the seized evidence. Guidry, 03-1944, 862 So.2d at 965. The present matter does not involve a search warrant. Moreover, the pretextual compliance check and the violation of La. C.Cr.P. Art. 895(13)(a), which was specifically amended by the Legislature to be more restrictive, constitutes more than a mere technicality. To regard it as such would invalidate the amendment and the safeguards in place to protect a citizen’s 4th Amendment rights. As such, the State’s argument lacks merit;

Further, the State avers that we should adopt a more nuanced approach and cites to State v. LeBlanc, 490 F.3d 361 (5th Cir. 2007), a case in which the federal appellate court found no Fourth Amendment violation followig a compliance check that yielded contraband. In LeBlanc, the court found suspicionless home visits set out by Louisiana’s statutory scheme permissible. When discussing home visits on probationers, the court stated:

Home visits, as defined under Louisiana law, as a condition of LeBlanc’s probation, and as conducted on these facts, do not constitute as invasive a burden on a probationer’s expectations of privacy as does a search. A probationer is subject to state supervision as part of the “special needs” doctrine, including verification of where he lives, and cannot expect to be free from “interpersonal contact” at his residence. Were we to impose a requirement that a probation' officer show reasonable suspicion of criminal activity before visiting a | ¡¡¡probationer at his home, supervision would become effectively impossible.

LeBlanc, 490 F.3d at 368-69. Ultimately, the court found that the officer did not cross the line into a search by asking to look around. Id., 490 F.3d at 370. Defendant opened the door to his bedroom to show the officer, wherein the weapon was seen in plain view. Id.

We find LeBlanc distinguishable. Foremost, LeBlanc was decided prior to the amendment of La. C.Cr.P. Art. 895. Further, in the instant case, the probation agents conducted something more than a “walk-through” when they executed an abrupt entry into.the bedroom where Mr. Julien and his female companion slept, handcuffed the two, and removed them from the room. Only then did the agents observe, the ammunition, which then provided them with the requisite cause to conduct a more thorough, warrantless search. However, because we found that the initial intrusion was an unreasonable subterfuge for a warrantless search, the agents should not have been in the position to view the ammunition. Therefore, the subsequent search, and seizure of the weapons was illegal. Thus, the trial court did not err or abuse its discretion by granting Mr. Julien’s Motions to Suppress. The writ is denied.

DECREE

For the above-mentioned reasons, we find that the trial court did not abuse its discretion by granting Mr. Julien’s Motions to Suppress, as the compliance check was a pretext for a warrantless search without the probation officer assigned to Mr. Julien, which invalidated the search and seizure of the weapons. The writ is denied.

WRIT DENIED

DYSART, J., CONCURS FOR THE REASONS ASSIGNED BY J. LEDET

LEDET, J., CONCURS WITH REASONS

LEDET, J.,

CONCURS WITH REASONS

[,Although I agree with the majority’s decision that the State’s writ should be denied, I write separately because I would reach that result for a different reason. I would find that the probation agents’ compliance check crossed the line to a war-rantless probation violations search. “When a search is conducted for probation violations, the State’s burden is met when it establishes that there was a reasonable suspicion that criminal activity was occurring.” State v. Ross, 13-2069 (La. 9/18/13), 127 So.3d 908 (citing State v. Marino, GO-1131, p. 5 (La. App. 4 Cir. 6/27/01), 804 So.2d 47, 52). I would find the State failed to meet its burden.

The probation agents crossed the line from a compliance check to a probation violations search when they executed an abrupt entry into the bedroom where the defendant and his girlfriend were sleeping, handcuffed them, and removed them fi-om the bedroom. Only after crossing the line did the agents observe the ammunition that could have provided them with the requisite cause to conduct a more thorough, warrantless search. The State failed to present evidence that before crossing the line the probation agents had reasonable suspicion to justify a probation violations search. Given the initial intrusion was unreasonable, I cannot conclude the district court erred in granting the defendant’s motion to suppress. For these reasons, I concur in the majority’s decision to deny the State’s writ.

      . Agent Bertrand testified that it was in conjunction with the U.S. Marshal's “Operation VR12” regarding violence reduction.

      , La. C.Cr.P. Art. 895(A)(4) does not include the phrase "assigned to him," as contained in (13)(a).

      . See Fields, 12-0674, 120 So.3d 309 (search and seizure upheld when conducted by two probation officers, including the probationer officer assigned to defendant, after defendant missed appointment with, assigned probation officer); State v. Vailes, 564 So.2d 778 (La. App. 2nd Cir. 1990) (upheld search and seizure conducted by the assigned probation officer and four other probation officers operating on a tip of criminal activity); State v. Angel, 44,924 (La.App. 2 Cir. 1/27/10), 31 So.3d 547 (search and seizure upheld conducted by assigned probation officer, two additional probation officers, and several Bossier Parish deputies following defendant's positive drug test); State v. Odom, 34,054 (La.App. 2 Cir. 11/1/00), 772 So.2d 281 (upheld search and seizure conducted by assigned probation officer, one additional probation officer, and a sergeant of the DeSoto Parish Narcotics Task Force wherein the task force provided tips of suspected criminal activity. The assigned officer stated that he normally conducts compliance checks alone); State v. Epperson, 576 So.2d 96 (La. App. 2nd Cir. 1991) (upheld search and seizure conducted by the assigned probation officer .and one additional probation officer following tips of criminal activity); State v. Drane, 36,230 (La.App. 2 Cir. 9/18/02), 828 So.2d 107 (upheld search and seizure conducted by the assigned probation officer, two additional probation officers, and an officer from the Franklin Parish Sheriff’s Department because they had an "arrest warrant for an occupant at probationer's residence, tips of criminal activity, and positive. drug test results); State v. Dimes, 16-0129 (La.App. 4 Cir, 6/22/16), 195 So.3d 1263 (search and seizure upheld conducted by two probation officers during a residence check); State v. Bolden, 09-3-3 (La.App. 5 Cir. 5/12/09), 13 So.3d 1168, 1170 (upheld search and seizure during residence check of defendant by the assigned parole officer. The court noted that ‘the search was only conducted by the" parole officer), See also State v. Shrader, 593 So.2d 457 (La. App. 2nd Cir. 1992) (noting that "it was departmental policy to have assistance when a probation officer intended to search or to effect an arrest.”).

      . See State v. Drane, 36,230, p.7 (La.App. 2 Cir. 9/18/02), 828 So.2d 107, 112.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    SUCCESSION OF Richard E. O’KREPKI Bruce A. O’Krepki, Independent Executor of the Succession of Richard E. O’Krepki v. Penelope Brodtmann O’Krepki
    NO. 17-CA-130
    17-CA-131
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      See also 193 So.3d 574.
    COUNSEL FOR PLAINTIFF/APPELLANT, BRUCE A. O’KREPKI, INDIVIDUALLY, Kevin M. Wheeler, Birmingham, Donald J. Miester, Jr., New Orleans
    COUNSEL FOR PLAINTIFF/APPELLANT, BRUCE A. -O’KREPKI, IN HIS CAPACITY AS INDEPENDENT EXECUTOR OF THE SUCCESSION OF RICHARD E. O’KREPKI, Richard C. Stanley, Kathryn W. Munson, New Orleans
    COUNSEL FOR DEFENDANT/AP-PELLEE, PENELOPE BRODTMANN O’KREPKI, Wade P. Webster, New Orleans
    Panel composed of Judges Susan M. Chehardy, Robert A. Chaisson, and Stephen J. Windhorst
   CHAISSON, J.

11 Bruce A. O’Krepki, Independent Executor of the Succession of Richard E. O’Krepki, appeals the December 15, 2016 judgment of the trial court denying Bruce O’Krepki’s dilatory exception of prematurity and ordering Penelope O’Krepki to be placed in possession of certain legacies made to her under the Last Will and Testament of Richard E. O’Krepki. For the reasons that follow, we find that the judgment on appeal is a partial judgment that has not been designated as, final pursuant to La. C.C.P. art, 1915(B), and this Court therefore currently lacks appellate jurisdiction to address the merits of the appeal. Accordingly, we dismiss this appeal without prejudice and remand the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

The facts of this succession dispute remain largely unchanged from our review of this case in O’Krepki v. O’Krepki, 16-50 (La,. App. 5 Cir. 05/26/16), 193 So.3d 574. On October 28, -2016, Mrs. O’Krepki filed a petition to be placed in possession of four usufructuary legacies left to her in Richard. O’Krepki’s will, Bruce O’Krepki filed an opposition to this petition as well as a dilatory exception of prematurity. The trial court held a hearing on the petition and the exception on November 15, 2016, and on December 15, 2016 entered a Partial Judgment of Possession overruling Bruce O’Krepki’s dilatory exception of prematurity and granting Mrs. O’Krepki’s petition to be placed in possession of the four usufruc-tuary legacies. On January 13, Bruce O’Krepki filed a motion for suspensive appeal of the partial judgment of possession which the trial court granted.

LAW AND ANALYSIS

This- Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. Jackson v. Sumlin, 16-96 (La. App. 5 Cir. 07/07/16), 196 So.3d 902, 903 (citing Input/Output Marine Sys. v. Wilson Greatbatch Techs., Inc., 10-477 (La. App. 5 Cir 10/29/10), 52 So.3d 909, 915). La. C.C.P. art. 1915(B) provides, in pertinent part:

(1) When a court renders a partial judgment ... as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay."
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to the rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Upon review of the record, we find that the judgment appealed is not a valid, final judgment and, therefore, this . Court lacks jurisdiction to consider the merits of Bruce O’Krepki’s appeal. While the December 15, 2016 judgment placed Mrs. O’Krepki in possession of the four legacies bequeathed to her in Richard O’Krepki’s testament, there remain outstanding contested issues in the Succession of Richard O’Krepki and Mrs. O’Krepki’s consolidated case against Bruce O’Krepki. Bruce O’Krepki did not request that the trial court make a determination and designation that the judgment was final for purposes of immediate appeal pursuant to La. C.C.P. art. 1915(B), arid the record does not reflect that any such determination or designation was made by the trial' court.

Since the trial court rendered a partial judgment as to less than all of the issues of the parties, and the judgment has not been designated as a final judgment by the trial court after an express determination that there is no just reason for delay, the December 15, 2016 judgment is not a final judgment under La. C.C.P. art. 1915, and is not appealable as one “... in which appeals are given by law” under La. C.C.P. art. 2083. Claiborne Medical Corp. v. Siddiqui, 12-759 (La. App. 5 Cir. 2/28/13), 113 So.3d 1109, 1112; Laviolette v. Dubose, 07-916 (La. App. 5 Cir. 3/25/08), 983 So.2d 160,162.

DECREE

Accordingly, we dismiss this appeal without prejudice and remand the matter to the trial court for further proceedings.

APPEAL DISMISSED; CASE REMANDED


author: GRAVOIS, J.

text:
    Willie EVANS v. Tarun JOLLY, M.D.
    NO. 17-CA-159
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPEL-LEE, WILLIE EVANS: Anthony'S. Taor-mina, Metairie
    COUNSEL FOR DEFENDANT/APPELLANT, TARUN JOLLY,' M.D.: C. William Bradley, Jr.,' L. David Adams, New Orleans
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson
   GRAVOIS, J.

| ¶ Defendant/appellant, Dr. Tarun Jolly, appeals a default judgment rendered against him on October 5, 2016 in favor of plaintiff/appellee,. Willie Evans. For the following reasons, we vacate .the default judgment and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

On August 6, 2015, Mr. Evans filed a petition for damages against Dr. Jolly for medical malpractice and defamation. The petition alleged that Mr. Evans was injured on or about September 25, 2011 as a result of a trip and fall accident he was involved in while working for ADM Grain Elevator (“ADM”). As a result of said injury, ADM sent Mr. Evans to Dr. Jolly for treatment and pain management. According to the petition, “[o]n February 6, 2013, Dr. Jolly alleged that [Mr.] Evans failed a drug test as being positive for cocaine in his urine.’’ The petition also alleged that Dr. Jolíy “committed medical. malpractice by failing to realize [Mr.] Evans never took said drug test as evidenced by there being no paperwork ordering a drug test at [Dr. Jolly’s clinic] that was signed by [Mr.] Evans.” The petition further alleged that “a second urine .test was taken on April 8, 2013 which [Mr.].Evans'did sign a consent form,” after which Dr. Jolly “sent falsified results of the [u]rine test-showing cocaine” to ADM, and as a result thereof, Mr. Evans was terminated .from employment by ADM on April 22, 2013. Finally, the petition alleged that Dr. Jolly is hable to Mr. Evans for slander and defamation of character for damaging his reputation and character and for causing him to lose his job.

|2On September 14,' 2016, Mr; Evans filed a motion for a preliminary default, asserting therein that Dr. Jolly had been served with a copy of the petition for damages on August 20, 2015 and had failed to file an answer thereto within the time required by law. The trial court granted the motion for a preliminary default that same day. A default confirmation hearing was held on October 5, 2016, Following the confirmation hearing, the trial court rendered judgment in favor of Mr. Evans an.d against Dr. Jolly for “mental anguish, pain and suffering in the amount of $20,000,00, together with court costs and legal interests [sic] from the date of judicial demand for the reasons given at the trial on the merits.”

On December 16, 2016, Dr. Jolly filed a motion for a new trial and to set aside the default judgment. In his motion, Dr. Jolly claimed that he was never personally served with the citation and thus all proceedings in this action were absolutely null.' He further argued that a new trial was warranted because Mr. Evans had failed to present sufficient evidence at the confirmation hearing to establish a prima facie case. A hearing was conducted on the motion on January 23, 2017; at the end of the hearing, the trial court denied the motion. A written judgment to that effect was signed on January 25, 2017. This timely appeal followed.

On appeal, Dr. Jolly argues that the default judgment was based on insufficient/inadmissible evidence and that he was never served with the petition for damages, thus rendering the default judgment absolutely null.

[«ASSIGNMENTS OF ERROR NOS, ONE, TWO, AND THREE

In his first assignment of error, Dr. Jolly argues that the evidence presented was insufficient to prove the essential elements of Mr. Evans’ alleged defamation claim, asserting that the default judgment was based solely on Mr. Evans’ uncorroborated, self-serving testimony, which was inadequate to establish a prima facie case for defamation. In his second assignment of error, Dr. Jolly argues that the only evidence offered at the confirmation hearing to prove that he made any false claims about Mr. Evans and that the claims were communicated to a third party was based on inadmissible hearsay and was not corroborated with evidence admitted on the record. Finally, in his third assignment of error, Dr. Jolly argues that Mr. Evans failed to offer any evidence of malice or fault on Dr. Jolly’s part.

Confirmation of a default judgment is similar to' a trial and requires “proof of the demand sufficient to establish a prima facie case.” Power Mktg. Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938 So.2d 662, 670; La. C.C.P. art. 1702(A). For a plaintiff to obtain a default judgment, he must establish the elements of a prima facia case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Thibodeaux v. Burton, 88-1566 (La. 1/30/89), 538 So.2d 1001, 1004 (internal citations omitted). In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Id. When a demand is based upon a delic-tual obligation, the testimony of the plaintiff with corroborating evidence, which may be by. affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. Gonzales v. Build-A-Bear Workshop, Inc., 09-368 (La. App. 5 Cir. 12/8/09), 30 So.3d 27, -29 (citing La. C.C.P. art. 1702(B)(2)). The court may, under the circumstances of the case, Lrequire additional evidence in the form of oral testimony before entering judgment. Id.

The-rules of evidence shall be applicable to the determination of questions of fact in proceedings to confirm a default judgment. La. C.E. art. 1101(A). The plaintiff must follow the rules of evidence even though there is no opponent.' “Because at a default confirmation there is no objecting party, to prevent reversal on appeal, both [the] plaintiff and the trial judge should be vigilant to assure that the judgment rests on admissible evidence” that establishes a prima facie case. George W. Pugh, Robert. Force, Gerald A. Raúlt, Jr., & Kerry Triche, Handbook on Louisiana Evidence Law, 677 (2007). Thus, inadmissible evidence, except as specifically provided fey law, may not support a default judgment even though it was not objected to because the defendant was not present. 19 Frank L. Maraist, Civil Law Treatise: Evidence and Proof, § 1.1 at 5 (2d Ed. 2007).

In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Arias v. Stolthaven New Orleans, L.L.C., 08-1111 (La. 5/5/09), 9 So.3d 815, 818. This determination is a factual one governed by the manifest error standard of review. Id.

Mr. Evans, who was the only witness to testify at the confirmation hearing in the instant case, testified that on February 6, 2013, Dr. Jolly alleged that he failed a drug test after his urine tested positive for cocaine. However,' according to Mr. Evans, he did not undergo a drug test on February 6, 2013; rather, he only got a prescription for physical therapy on that date. He stated that he returned to Dr. Jolly’s office about a month later and was told that the results of the drug test showed that he tested positive for cocaine. In response, he asked for his medical records, which he testified he had in his possession at the confirmation hearing. He testified that his medical records show “no other procedures was [sic] ordered |5on 2-8.” According to Mr. Evans, on April 8, 2013, Dr. Jolly ordered a drug test and the results of that test showed that no cocaine was found in his system. However, he testified that Dr. Jolly “falsified” the results of this urine test and sent the documents to his employer: specifically, that Dr. Jolly faxed “the paperwork” to Brian Grant, his case worker at ADM. Because of the allegation made against him by Dr. Jolly, Mr. Evans testified that he saw a psychiatrist for about a month and a half. Other than his testimony, Mr. Evans submitted no additional evidence at the confirmation hearing except for copies of two of his pay stubs to allegedly reflect his lost wages.

Defamation is an invasion of a person’s interest in his reputation and good name. Huxen v. Villasenor, 01-288 (La. App. 5 Cir. 9/25/01), 798 So.2d 209, 212 (internal citations omitted). The essential elements of a defamation action are (1) defamatory words, (2) publication or communication to a third party, (3) falsity, (4) malice (actual or implied), and (5) resulting injury. Id. If even One of the required elements of the tort of defamation is lacking, the cause of action fails. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 140 (internal citations omitted); Newcomer v. Bennett, 09-27 (La. App. 5 Cir. 10/13/09), 27 So.3d 858, 860-61.

Upon review, we find that the evidence presented by Mr. Evans at the confirmation hearing in the instant case was insufficient to establish a prima facie case to support the default judgment that’ was rendered against Dr. Jolly. Although Mr. Evans testified that Dr. Jolly “falsified” a drug test and then communicated that information to Mr. Evans’ employer, he offered no corroborating evidence to substantiate these claims. In particular, Mr. Evans introduced neither the alleged “falsified” drug test in question, nor “the paperwork” that Dr. Evans allegedly faxed to Brian Grant, his case worker at ADM. Further, no evidence of malice, actual or implied, on Dr. Jolly’s part was introduced at the confirmation hearing. |fiThus, we are constrained to find that Mr. Evans failed to establish a prima facie case on at least three of the required elements of the tort of defamation: defamatory words, publication or communication to a third party, and malice (actual or implied). Although Mr. Evans referenced medical records- during his testimony, asserting that they would prove such allegations, those records were never properly introduced into evidence. As such, we find that Mr. Evans’ testimony alone did not suffice to establish a prima facie case to. confirm the default judgment against Dr. Jolly for defamation.

Accordingly, we find that the trial court was manifestly erroneous in concluding that Mr. Evans established with competent evidence the elements of a prima facie case against Dr. Jolly for defamation. The trial court thus erred in confirming the default judgment. We accordingly vacate the default judgment and remand the matter for further proceedings.

ASSIGNMENTS OF ERROR NOS. FOUR, FIVE, AND SIX

Considering our finding above that Mr. Evans failed to establish a prima, facie case to confirm the default judgment against Dr. Jolly for defamation, we pre-termit any discussion of Dr. Jolly’s fourth, fifth, and sixth assignments of error concerning alleged lack of service of the petition for damages on Dr. Jolly. •

CONCLUSION

For the foregoing reasons, we vacate the trial court’s October 5, 2016 default judgment rendered against Dr. Jolly and remand the matter for further proceedings.

JUDGMENT VACATED; MATTER REMANDED

      . Dr. Jolly also appeals the trial court’s January 25, 2017 judgment that denied his motion for a new trial, but submits no separate argument with respect thereto in his brief.

      . The petition also asserted that a medical review panel previously "ruled” on Mr. Evans’ medical malpractice claim. The record reflects that on June 9, 2015., a medical review p'anel reviewed Mr. Evans’ medical malpractice claim and found that the evidence did not support a finding that Dr. Jolly failed to meet the applicable standard of care, specifically finding that: for a worker's compensation claim, it is mandatory for all treatment records to be shared with the employer or worker’s compensation insurance carrier/representative; Dr. Jolly appropriately shared Mr. Evans’ medical records, and urinalysis report with the representative of Mr. Evans’ employer; Mr. Evans had previously signed a chronic pain contract with Dr. Jolly, thus consenting to periodic random urine drug screenings; and there was no evidence that Dr. Jolly falsified Mr. Evans’ drug screen results.

      .In its oral reasons for judgment, the trial court stated that it was awarding Mr. Evans $5,000,00 in damages for “mental anguish as a result of the psychiatric treatment for a six-week period of time for which he testified,” and $15,000.00 in damages for the slander and defamation claim, stating that Mr. Evans "had a long-standing job'with his employer, making a nice wage and having been defamed.” 1

      , On December 27, 2016, "in an abundance of caution,” Dr. Jolly filed a motion for a devolutive appeal of the default judgment. He had previously filed his motion for a new trial on December 16,. 2016, which he asserted was timely because notice of the default judgment was never mailed to him and thus the delay for filing a motion for a new trial never began to run. He asserted that the motion for a devolutivp appeal was filed to ensure that his ¿ppeal would be timely in the event that the court ruled that the motion for a new trial was untimely.
      On February 23, 2017, Dr. Jolly filed a motion for a suspensive appeal of the default judgment and the January 25, 2017 judgment denying his motion for a new trial.

      , Although Dr, Jolly’s brief asserted six assignments of error,- we note that the first three assignments deal with the sufficiency/admissibility of the evidence presented at the confirmation hearing, and the second three assignments deal with the alleged inadequate service of the petition for damages on D,r. Jolly. We thus address each set of assignments of error separately.

      . The trial judge found during the hearing that the medical records Mr. Evans had in his possession at the confirmation hearing were not certified, and that in order for him to introduce medical records; they had to' be certified.


author: LILJEBERG, J. WICKER, J.,

text:
    IN RE: MEDICAL REVIEW PANEL PROCEEDINGS OF Ethel Mae GLOVER
    NO. 17-CA-201
    Court of Appeal of Louisiana, Fifth Circuit.
    October 25, 2017

      COUNSEL FOR PLAINTIFF/APPELLANT, BRENDA LINDSEY, . SYLVIA DAVIS, JOYCELYN , JOSEPH AND SHELIA GLOVER, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ETHEL MAE GLOVER, Sidney D. Torres, III, Roberta L. Burns, Chalmette, Beau F. Camel, New Orleans
    COUNSEL FOR DEFENDANT/AP-PELLEE, OCHSNER CLINIC FOUNDATION, DR. ERICA DIGGS, DR. SHAHRZAD TALEBI-NEJAD, DR. IFEANYI IWUKCHUKWU AND DR. JOSHUA GOLDBERG, Shelly S. Howat, William K. Wright, IV, New Orleans
    Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Hans J. Liljeberg
   LILJEBERG, J.

| tIn this medical malpractice case, plaintiffs, Brenda Lindsey, Sylvia Davis, Jocelyn Joseph, and Shelia Glover, individually and on behalf of the Estate of Ethel Mae Glover, appeal the trial court judgments granting the exceptions of prescription filed by defendants and dismissing plaintiffs’ claims against them. For the following reasons, we reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On March 9, 2015, Ethel Mae Glover was admitted to Tulane Medical Center, where she was diagnosed with having suffered a stroke. On March 17, 2015, at the request of Ms. Glover’s family, she was transferred to Ochsner Foundation Hospital (“Ochsner”) for “ongoing stroke management” and treatment. While at Ochs-ner, Dr. Iwuchukwu, who was known to the Glover family as “Dr. Obie” and/or “Dr. Arden,” was Ms. Glover’s attending physician and oversaw her treatment.

Plaintiffs contend that Ms. Glover had several issues during her treatment at Ochsner. According to plaintiffs, although Ms. Glover’s chart' indicated that she was allergic to iodine and iodide-containing products, she underwent a CT scan with iodine contrast of the abdomen and pelvis and suffered an allergic reaction. They also contend that there were problems with the proper placement of an NGT (nasogastric tube), and she also suffered a pseudomo-nas urinary tract infection (“UTI”) ultimately causing septic shock. Ms. Glover underwent surgery for placement of a PEG (percutaneous endoscopic gastronomy) tube on April 1, 2015. According to plaintiffs, they expressed concerns with their mother’s treatment to Dr. Iwuchuk-wu and he assured them that the problems were “under control.”

Ms. Glover passed away on April 12, 2015. Her death certificate listed the causes of death as follows: a) septic shock, b) UTI, c) acute respiratory failure, and I ad) CVA, Due to their concerns about Ms. Glover’s treatment while at Ochsner, the Glover family arranged for a private autopsy, which was performed on April 14, 2015. The autopsy report, which was provided to the Glover family on or about June 17, 2015, revealed that the primary cause of death was chemical peritonitis. The report further indicated that the “cerebral infarct contributed to her death secondary to the decedent requiring a gastric tube which subsequently became dislodged and contributed to” the chemical peritonitis.

On behalf of the Glover family, Brenda Lindsey, one of Ms. Glover’s daughters, filed a pro se request for a medical review panel, alleging malpractice by Ochsner and “Dr. Obie” or “Dr. Arden.” This request was dated April 8, 2016 and was sent via facsimile to the Louisiana Division of Administration (“DOA”) on April 11, 2016, which was one day before the year anniversary of Ms. Glover’s death. On April 15, 2016, the Patient’s Compensation Fund (“PCF”) sent a letter to Ms. Lindsey acknowledging receipt of the complaint requesting a medical review panel, advising that Ochsner was a qualified health care provider, indicating that she would have to provide the complete name of Dr. Obie and/or Dr. Arden within, 45 days of the postmark of, the notice, and advising that a filing fee of $100 per qualified defendant must be received by the PCF within 45 days of the postmark, “in accordance with R.S. 40:1231.8(A)(l)(c).” The letter further provided that if the PCF did not receive the filing fee within 45 days of the postmark of the letter, the request for a medical review panel would be rendered “invalid and without effect.” Because the- PCF’s letter was postmarked April 15, 2016, the 45-day period ended on May 31, 2016.

The Glover family subsequently retained counsel, and on May 27, 2016, they filed via facsimile a “First Supplemental and Amending Complaint and Request for Medical Review,” identifying “Dr. Obie” as Dr. Ifeanyi Iwuchukwu | sand naming additional health care providers as defendants, namely Dr. Erica Diggs, Dr. Joshua Goldberg, and Dr. Shahrzad Talebi-Nejad. A copy of a check for $500 was included with the facsimile. In addition, the original of the First Supplemental and Amending Complaint and the check for $500 were mailed via certified mail on May 27, 2016. The Division of Administration received the check and the original of the “First Supplemental and Amending Complaint” on June 2, 2016.

' Also on June 2, 2016, the PCF sent Ms. Lindsey a' letter stating that her April of 2016 request for a medical review panel was “invalid and without effect,” because the PCF did not receive the filing fees within the time allowed by law and plaintiffs failed to timely identify the complete name of Dr. Obie and/or Dr. Arden. Thereafter, on June 8) the PCF sent a letter to counsel for the Glovers, acknowledging that it received the May 27, 2016 request for a medical review panel and $500 in filing fees on June 3, 2016, confirming that all five defendants were qualified health care providers, and assigning a new file number to the amended complaint.

On August 24, 2016,' all of the defendants, • except Dr. Goldberg, filed a-peremptory exception of prescription in the 24th Judicial District Court, requesting that the medical review panel proceedings based on the May 27, 2016 amended complaint and all medical malpractice claims against these defendants be dismissed as untimely. They argued that the initial request for a medical review panel' filed on April 11, 2016, was rendered invalid for failure to timely pay the required filing fees and thus, it did not suspend the time within which plaintiffs had to file their complaint. They assert that without suspension of the time limitations, plaintiffs’ “supplemental” request for a medical review panel filed on March 27, L2016 was untimely. After a hearing, the trial court rendered a judgment on November 22, 2016, granting defendants’ exception of prescription.

On December 13, 2016, Dr. Goldberg filed an exception of prescription, alleging that the claims against him were untimely for the same reasons alleged by the other defendants. After a hearing, the trial court rendered a judgment on January 9, 2,017, granting the exception of prescription and dismissing the claims against Dr. Goldberg with prejudice. Plaintiffs now appeal the trial court judgments granting the exceptions. of prescription and dismissing the claims against all defendants.

LAW'AND DISCUSSION

On appeal, plaintiffs argue that the trial court erred by granting defendants’ exceptions of prescription, and they set forth several arguments in support of their position. First, plaintiffs contend that their original request for a medical review panel filed on April 11, 2016 should not have been rendered invalid and without effect, because the filing fee was timely paid by sending a check via certified mail within 46 days of the postmark of the PCF’s April 16, 2016 letter. Thus, since the April 11, 2016 request was valid, it suspended the running of prescription against all joint and solidary obligors, and the supplemental request for a medical review panel filed via facsimile and certified mail on .May 27, 2016 was timely.

Defendants respond that pursuant to the PCF’s April 15, 2016 letter and La. R.S. 40:1231,8(A)(l)(c), the filing fee of $100 per qualified. defendant must be received by the PCF within 45 days of the postmark of the PCF notice. Defendants assert that plaintiffs’ payment of the filing fees was untimely, where the check .for |Bthe fees was mailed within 45 days of date of the PCF letter, but not received until after this 45-day period.

At the time plaintiffs’ requests for a medical review panel were filed, La. R.S. 40:1231.8(A)(l)(c) provided:

A claimant shall have forty-five days from the mailing date of the confirmation of receipt of the request for review. .. to pay to the board a filing fee in the amount of one hundred dollars per named defendant qualified under this Part. (Emphasis added.)

. La. R.S. 40:1231.8(e) provided that failure to timely pay the required filing fee of $100 per qualified defendants “shall render the request for review of a malpractice claim invalid and without effect,”, and the invalid request shall not suspend the time within which the malpractice suit must be instituted.

La; R.S. 40:1231.8(A)(l)(c) did not specify whether a payment mailed by certified mail within the time limitations was sufficient to comply-with the requirement , “to pay,” or whether the payment had to be received within the 45-day period. Interpretation of the term “to pay”-is crucial to a determination of whether the filing fee was timely paid.

•The interpretation of any statutory provision starts yfith the language of the statute itself. Dejoie v. Medley, 08-2223 (La. 5/5/09), 9 So.3d 826, 829; Faget v. Faget, 10-188 (La. 11/30/10), 53 So.3d 414, 420. When the wording of a revised statute is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. C.C. art. 9; La. R.S. 1:4; Cleco Evangeline, L.L.C. v. Louisiana Tax Commission, 01-2162 (La. 4/3/02), 813 So.2d 351, 354, Words and phrases Rshall be construed according to the common and approved usage of the language. La. R.S. 1:3.

Laws of limitation, which are in derogation of the general rights of tort victims, are to be strictly construed if there are any ambiguities in the law. David v. Our Lady of the Lake Hosp. Inc., 02-2675 (La. 7/2/03), 849 So.2d 38,47. However,, the .rule of strict construction applies only when the plain language of the statute and the rules of interpretation fail to definitively illuminate the legislature’s intent. David, 849 So.2d at 47. Statutes providing for prescriptive periods are to be strictly construed in favor of maintaining a cause of action. Id. Absent clear, contrary legislative intent, prescriptive statutes, which can be given more than one reasonable interpretation, should be construed, against the party claiming prescription. Williams v. Jackson Parish Hosp., 00-3170 (La. 10/16/01), 798 So.2d 921, 930.

Defendants, in support of their exceptions of prescription, rely on this Court’s opinion in In re Benjamin, 14-192 (La. App. 5 Cir. 11/25/14), 165. So.3d 161. In that case, Mr. Benjamin filed a complaint requesting a medical review panel, and the PCF sent him a letter confirming receipt of his request .and indicating that filing fees of $100 per named defendant were due no later than 45 days from the date of that letter. Mr, ¡Benjamin mailed payment of the filing fees by certified letter , prior to the expiration' of the 45-day period, but the letter was returned because it did not have sufficient postage. Benjamin, 165 So.3d at 163. Mr. Benjamin resent the fees to the PCF, but the check was returned for insufficient funds. Mr. Benjamin sent the letter with the filing fees a third time, and it was received by the PCF well after the 45-day period. Id. The defendant filed an exception of prescription asserting that the filing fees were not timely paid, and the trial court granted the exception. On appeal, this Court affirmed, finding that the filing fees were not timely paid and that the request for a medical review 17panel was therefore, invalid and without effect. This Court stated that in order to be paid timely, the filing fees must be received within the 45-day period. Benjamin, 165 So.3d at 164.

Plaintiffs, in support of their contention that the filing fees were timely paid, rely on the Second Circuit’s decision in Davis v. State Health Scis. Ctr.-Shreveport (In re Medical Review Panel of Davis), 41,273 (La. App. 2 Cir. 8/25/06), 939 So.2d 539, unit denied, 06-2343 (La. 12/8/06), 943 So.2d 1092. In Davis, Mrs. Davis, the decedent’s wife, filed a timely request for a medical review panel. She received a letter from the PCF indicating that she was required to pay the filing fees within 45 days or her complaint would be rendered invalid and without effect. Mrs. Davis mailed the filing fees via United State Express Mail before expiration of the 45-day time period. However, it was received by the PCF after the 45-day period, and the PCF notified her that her claim was invalid and without effect. Davis, 939 So.2d at 541. Defendant filed an exception of prescription which was granted by the trial court. On appeal, the Second Circuit reversed, finding that the “mailbox rule” should apply. Id. at 543. The Court reasoned that although La. R.S. 40:1299 does not specifically state that the date of mailing is deemed to be the date of payment, the filing of the complaint and the payment of the filing fees are “inexorably joined” and the statute provides that the mailbox rule applies when filing a complaint. The Court stated that it “is logical that the same mailbox rule would apply to the 45-day .period for paying the filing fees.” Davis, 939 So.2d at 543.

The facts of the present case are distinguishable from Benjamin because, unlike Mr. Benjamin who failed to pay sufficient postage when the fees were ] ¡¡mailed within the 45-day period, the Glovers mailed the filing fees to the PCF with valid postage via certified mail. Mr. Benjamin’s second attempt to pay the filing fees was unsuccessful, where the check was returned for insufficient funds. This case is similar and more analogous to Davis, where the plaintiffs mailed the filing fees with proper postage during the 45-day period, but the fees were received after the 45-day period. Although we acknowledge that this Court stated in dicta in Benjamin that payment occurs when the filing fees are received by the PCF, that statement was not germane to the decision in that case, where the payment was not properly mailed- prior to the expiration of the 45-day period due to insufficient postage. We find that the mailbox rule applies under the circumstances herein.

At the time of plaintiffs’ request for a medical review panel, La. R.S. 40:1231.8(A)(l)(c) did not specify whether the term “to pay” required receipt of the payment or simply mailing the payment within the 45-day time period in order to be timely. Because there are two possible interpretations, we must adopt the one which favors maintaining the action as opposed to barring it.

Laws on the same subject matter must be interpreted in reference to each other. La. C.C; art. 13; Tillman ex rel. Tillman v. State, 15-1114 (La. 3/15/16), 187 So.3d 445, 451. We agree with the Second Circuit’s reasoning in Davis that the mailbox rule should apply for the payment of fees, just as it applies to the filing of a medical malpractice complaint. Thus, applying the mailbox rule herein, we find that plaintiffs timely paid the filing fees within 45 days of the April 11, 2016 request for a medical review panel.

Having found that the filing fees were paid within 45 days of the PCF’s April 15, 2016 notice, we now must address whether plaintiffs’ April 11, 2016 ^request for a medical review panel was timely filed to preserve their wrongful death and survival actions against defendants.

Although both actions arise from a common tort, wrongful death and survival actions are separate and distinct. Taylor v. Giddens, 92-3054 (La. 5/24/93), 618 So.2d 834, 840. La. C.C. art. 3492 governs the prescriptive period for wrongful death actions. Id. at 836. This article states that prescription begins on the date of injury or damage. Thus, a cause of action for wrongful death does not rise until the victim dies. Taylor, 618 So.2d at 841.

In the present case, Ms. Glover died on' April 12, 2015. The request for a medical review panel was filed within one year, on April 11, 2016. Thus wé find that plaintiffs’ complaint was timely filed within the prescriptive period for filing a wrongful death action. Accordingly, the trial court erred by granting defendants’ exceptions of prescription as to plaintiffs’ wrongful death claims, and we reverse this ruling.

A survival. action comes into existence simultaneously with the existence of the tort and is transmitted to the beneficiaries upon the victim’s death. Taylor, 618 So.2d at 840. La. R.S. 9:5628 sets forth the applicable prescriptive period for survival actions as follows:

A. No action for damages for injury or death against any physician..., whether based upon tort, or breach of contract, or otherwise, arising out of patient care'shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at thé latest within a period of three years from the date of the alleged act, omission, or neglect.

La. R.S. 9:5628 has been referred to as a “tripartite prescriptive provision,” meaning that the statute has three parts. In re: Medical Review Panel for Claim of Moses, 00-2643 (La. 5/25/01), 788 So.2d 1173. First, a one-year prescriptive! in period, which follows the same time frame as a traditional tort, is the general rule. Id. at 1178. Second, when an injury is not immediate and apparent, there is a discovery exception to the general rule, known as contra non valentum, providing that such actions prescribe one year from the date of discovery of the alleged act, omission, or' neglect. Id. Third, a peremptive period of three years has been placed on all claims, regardless of discovery. Moses, 788 So.2d at 1179.

Contra non valentum is a Louisiana jurisprudential doctrine under which prescription may be suspended. Carter v. Haygood, 04-646 (La. 1/19/05), 892 So.2d 1261, 1268. There are four instances where contra non valentum is applied to prevent the running of prescription: 1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff’s action; 2) where there is some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; 3) where' the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause, of action; and 4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Id. These categories, thus allow the courts to weigh the equitable nature of the circumstances in each individual case to determine whether prescription will be tolled. Id.

In certain circumstances, a doctor’s continuing professional relationship with his patient may give rise to the suspension or interruption of prescription. Carter, 892 So.2d at 1269; Nichols v. Patwardhan, 48,170 (La. App. 2 Cir. 6/26/13), 120 So.3d 322, 324. This interruption or suspension of prescription by the continued existence of a professional relationship is based .on the premise that, thé professional relationship is likely to hinder the patient’s inclination to sue. Carter, 892 So.2d at 1269.

JLuThe tolling of prescription that possibly arises out of the continuation of such a special relationship is based on the third category of contra non valentum, where the defendant himself has done some act effectively preventing the plaintiff from availing himself of his cause of action. M; Moses, 788 So.2d at 1180-81, It is the continuation of the special relationship that offers the possibility of correction of the injury and thus, may postpone the' running of prescription. Carter, 892 So.2d at 1269. Therefore, as long as the patient remains in the physician’s care, she could reasonably expect a correction of the tor-tious treatment. Id. This theory, as a form of contra non valentum, is known as the “continuing treatment” rule. Carter, 892 So.2d at 1270.

The continuing treatment rule requires a plaintiff to establish the existence of a continuing relationship with the physician, which is more than perfunctory, during which the physician engaged in conduct which served to prevent the patient from availing herself of her cause of action, such as attempting to rectify an alleged act of malpractice. Carter, 892 So.2d at 1271. Prescription runs against a plaintiff who has knowledge of facts that a condition may be the result of improper treatment only if there is no' effort made by the physician to mislead or cover up information available to the plaintiff through inquiry or professional ■ medical advice during the continuing treatment. Id. at 1273.

In the present case, applying the continuing treatment rule, the earliest date prescription could have started to run against the Glovers’ survival action was the date of Ms. Glover’s death. After being transferred to Ochsner on March 17, 2015, Ms. Glover allegedly had several problems. According to the Glover family, they had a meeting with Dr. Iwuchukwu near the end of March 2015 to discus's several concerns they had with Ms. Glover’s treatment. According to plaintiffs, Dr. Iwuchukwu explained away their concerns and reassured them that everything was launder control, After the March 2015 meeting, on April 1, 2015, Ms. Glover had surgery to place a PEG tube, which was used to supply nourishment. It is the PEG tube that plaintiffs contend was improperly placed and wa’s lying within the peritoneal cavity, rather than stomach, resulting in the chemical peritonitis that caused Ms. Glover’s death.

Because we find that the earliest date prescription could have started to run was the date of Ms. Glover’s death, April 12, 2015, plaintiffs’ April 11, 2016 complaint requesting a medical review panel was timely filed for purposes of preserving their survival action. Thus, the trial co.urt erred by granting defendants’ exception of prescription as to plaintiffs’ survival action.

Based on our findings that the exceptions of prescription should not have been granted and must be reversed, we preter-mit discussion of the remaining arguments set forth in plaintiffs’ appeal.

DECREE

For the foregoing reasons, we reverse the trial court judgment granting the exceptions of prescription filed by defendants, and we remand for further proceedings.

REVERSED AND REMANDED

'

WICKER, J.,

CONCURS WITH REASONS

|1SI agree with both the writer’s, well-written analysis and the outcome in this case but respectfully concur to express my opinion that, pursuant to the La. R.S. 9:5628 discovery rule, the date on which prescription began to run in this case is June 17, 2015, the date on which Ms. Glover’s family received the autopsy report. As the writer succinctly explained, Ms. Glover, a stroke victim, was transported at the request of her family to Ochsner Foundation Hospital on March 17, 2015. Thereafter, she was treated until her death by Dr. Iwuchukwu, known to the Glover family as “Dr. Obie and/or “Dr. Arden,” and other Ochsner physicians. Throughout Ms. Glover’s Ochsner hospitalization, she suffered multiple setbacks, including a reaction to CT scan with contrast, issues resulting from a clumsy nasogastric tube placement, and complications from a urinary tract infection. While Ms. Glover remained hospitalized, her family met with Dr. Obie to discuss their treatment-related concerns. Dr. Obie repeatedly, reassured the family that everything-was alright but that their mpther had suffered a significant stroke. On April 1, .2015, Ms. Glover underwent surgery for- placement of a PEG (percutaneous endoscopic gastronomy) tube. Her condition continued to deteriorate thereafter and she died on April 12, 2015.

Soon after her death, Ms. Glover’s family received her death certificate which listed the causes of her death as: a.) septic shock; b.) UTI (urinary tract infection); c.). acute, respiratory failure; d.) CAV (stroke). On June ‘ 17, 2015, ^approximately two months after Ms. Glover’s death, the Glover family received the autopsy report they had privately requested and learned that the.first cause of Ms. Glover’s death was:

1.0 Chemical peritonitis
1.1 Post percutaneous1 endoscopic gas-trostomy (PEG) tub placement with distal end within peritoneal cavity
1.2 Red, dull intestinal serosal surfaces "with exudate
1.3 Peritoneal, effusion, ,3600 ml milky lipid-rich fluid

. In my opinion, since, based upon the death certificate, the Ochsner physicians themselves did not know that improper placement or dislocation of the PEG tube into her peritoneal cavity contributed to Ms; Glover’s death, it was impossible for the Glover family' members to discover that the- improper placement of the PEG tube contributed to Ms. Glover’s death before they received the June 17, 2015 autopsy report. Thus, in my opinion, prescription did not begin - to run on either the survival or wrongful death claim until that date.

The Louisiana Supreme Court, in two opinions authored by Justice Jeanette Knoll, has opined that La. R.S. 9:5628, the Medical Malpractice prescriptive statute, sets forth a tripartite prescription provision. In Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502, and Carter v. Haygood, 04-0646 (La. 1/19/05), 892 So.2d 1261, the Louisiana Supreme Court explained that La, R.S. 9:5628 first sets forth the one year prescriptive period which parallels the general' tort prescriptive period set forth in La. Civ. Code Art. 3492. Second, in cases involving damages' that are not immediately apparent, Section 5628 codifies the contra non valentum discovery exception originally created in Louisiana Jurisprudence. See Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 10-4(b) 222 (1996). Finally, the statute sets forth a preemptive date three years from the date of the alleged act, omission or neglect. Campo v. Correa, 01-2707 (La. 06/21/02), 828 So.2d 502; Carter v. Haygood, 2004-0646 (La. 01/19/05), 892 So.2d 1261.

The discovery extension of the general tort prescriptive period addresses itself to prongs three and four of the jurisprudential contra non valentem doctrine: (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. Campo, supra, and Carter, supra.

In 2002, in Campo v. Correa, supra, the Court held that in cases involving damages that are not immediately apparent or immediately knowable, the action prescribes one year from the date of discovery of the alleged act, omission or neglect if the patient was not unreasonable in failing to discover that the treatment was the alleged cause of the condition. The discovery rule applies in this instance even if the defendant health care provider did nothing to induce the patient’s ignorance of the alleged act, failure to act, or omission. See also In re Med. Review Panel Claim of Hume, 14-0844 c/w 14-0845 (La. 4 Cir. 4/1/15), 165 So.3d 233; Fanguy v. Lexington Ins. Co., 12-136 c/w 11-1102 (La App. 5 Cir. 11/13/12), 105 So.3d 848, affirmed in part, reversed in part on other grounds, 13-0114 (La. 4/1/13), 110 So.3d 127; Ferrara v. Starmed Staffing, LP, 10-0589 (La. App. 4 Cir. 10/6/10), 50 So.3d 861. Thereafter, in 2005, in Carter v. Haygood, supra, the Louisiana Supreme Court opined that the discovery prong of Section 9:5628 also applies in instances in which the- patient alleges that defendant health care providers provided continuing treatment coupled with the defendant(s) alleged assurances to the patient that the health care provider(s) could remedy the problem, if the patient was not unreasonable in relying upon the treating health care provider’s assurances.

11fiImportantly, the Court opined that a petition should not be found prescribed on its face if brought within one year of the date of discovery and the plaintiff alleges facts in- the petition with particularity which show that the patient was unaware of the malpractice prior to the alleged date of discovery, and the delay in filing was-not due to willful, negligent or unreasonable action of the patient. The Court further held that a petition is not prescribed on its face if filed within one year of the conclusion of treatment provided by the defendant health care provider(s) and the defendant(s) continued to assure the patient that the problem could be remedied and the patient was not unreasonable in relying upon the treating health care provider’s assurances. Campo, 828 So.2d at 509. Therefore, if the plaintiff has made a prima facie showing that the action was filed within one year of the date of discovery and within three years from the date of the alleged act, omission or neglect and the patient was not unreasonable in his or her failure to discover the alleged malpractice, the burden of proof at the trial of the peremptory exception rests upon the defendant health care provider and does not shift to the plaintiff, as it would if the action was prescribed on its face. Id.

In this case, the majority found that the Glover family made a prima fade case that the defendant health care providers continued to render treatment and assure Ms. Glover and family members that their concerns were under control and, further, that the Glover family was reasonable ⅛ this reliance,' thus making April 12, 2015, the date Ms. Glover died, the first date upon which prescription could have begun to run. I am of the opinion, however, that the Glover family was reasonable in failing to discover that Ms. Glover’s death was related to | ^complications resulting from an improper placement or dislocation of the PEG tube into the peritoneal cavity until receipt of the autopsy report. Therefore, it is my opinion that prescription did not begin to run in this case until June 17, 2015, the date on which the Glover family received the private autopsy report, rendering the majority’s discussion of the assignment of error concerning the Division of Administration’s receipt of the “First Supplemental and Amending Complaint” and the accompanying June 2, 2016 check payment moot.

      . A "CVA” is commonly referred to as a stroke.

      . The check was in the amount of $500 to include the $100 filing fee due for Ochsner and a $100 filing fee for each of the other four health care providers named as defendants, though they had not yet been confirmed by the PCF as qualified health care providers.

      . On May 2,,2017, this Court noted that the November 22, 2016 judgment did not contain the, appropriate and necessary. decretal language required to invoke this Court’s appellate jurisdiction. Accordingly, this Court ordered the trial court to amend its judgment. On May 2, 2017, the trial court rendered an amended judgment, granting the exception of prescription and dismissing plaintiffs’ claims against Ochsner, Dr. Diggs, Dr. Talebi-Nejad, and Dr. Iwuchukwu, On May 18, 2017, after finding that the name of plaintiff was incorrect in the amended- judgment, this Court ordered the trial court to amend the May 2, 2017 judgment'to properly reflect the name of the parties against whom the judgment was rendered. The trial court issued an amended judgment on May 23, 2017.

      . Subsequently, La. R.S. 40:1231.8(A)(1)(c) was amended by Acts 2016, No,. 275, § 1, effective August 1, 2016, to provide that a claimant shall have 45 days from the date of receipt, by the claimant of the confirmation of receipt of1 the request for review to pay the board filing fee of one hundred dollars per named defendant.

      . At the pertinent time in Benjamin, the statutory provision at issue was set forth in La. R.S. 40:1299.47(A)(1)(c). La. R,S. 40:1299.47 was redesignated as La. R.S, 40:1231.8 by H.C.R, No. 84 of the 2015 Regular Session. At the pertinent time in the present case, the provision at issue was contained in La. R.S. 40:1231.8(A)(1)(c).

      . The Court noted that while the mailbox rule requires that the complaint be sent by certified or registered mail, in order to confirm the date of mailing and receipt, express mail also provides signed statements of the date mailed and the fact of next day delivery. Davis, 939 So.2d at 543.

      . Although the PCF’s April 15, 2016 letter indicated that the PCF had to receive the filing fees within 45 days of the postmark of the letter, we note that administrative agencies, such as the PCF, cannot adopt rules that shorten a prescriptive period. See Correro v. Ferrer, 16-861 (La. 10/28/16), 216 So.3d 794.

      . The Glover family contends that in response to their concerns about the original feeding tube being improperly placed, Dr. Iwuchuk-wu assured them that an x-ray was taken and "everything was in place.” Also, according to plaintiffs, in response to their concerns that blood a coming out of Ms. Glover’s mouth during feeding after problems with, the placement of the feeding tube, Dr. Iwuchukwu informed them that the bleeding in her stomach was caused by the stroke, not the tube.

      . Plaintiffs also maintain that the fourth category of contra non valentum applies, because a reasonable person would not have been put on notice that malpractice had occurred until the autopsy results were received on June 17, 2016. However, we need not make a determination as. to the applicability of this fourth category of contra non valentum because our application of the continuing treatment rule indicates that the date of death is the earliest date prescription could have begun, thereby preserving .plaintiffs’ survival action claims.

      . There seems to be confusion in the courts of appeal following the Campo and Correa decisions in that the courts continue to analyze cases by ^subjecting the plaintiff to the burden of proof even in the face of a prima facie showing that the discovery prong of the prescriptive statute applies. See for instance LeBouef v. O’Donnell, 12-514 (La. App. 3 Cir. 12/12/12), 106 So.3d 1160.