author: PETTIGREW, J.

text:
    Sean C. WALKER v. Dr. Jayagopay APPURAO and his Insurer, and Dr. Hamid Hussain and his Insurer.
    No. 2009 CA 0821.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.
    Rehearing Denied Nov. 18, 2009.
    Sean Walker, Angie LA, Plaintiff Appellant Pro Se.

      James D. (Buddy) Caldwell, Attorney General, Paula Boagni-Bertuccini, Assistant Attorney General, Baton Rouge LA, for Defendants Appellees, Dr. Jayagopay Appurao and Dr. Hamid Hussain.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|2This is an appeal from the Twenty-Second Judicial District Court’s judgment granting defendant’s exception raising the objection of lack of subject matter jurisdiction and dismissing, with prejudice, plaintiffs claims. For the reasons that follow, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Sean C. Walker, a state prisoner at Washington Correctional Institution, filed a petition for damages alleging medical malpractice against Drs. Jayagopay Appurao and Hamid Hussain related to treatment he received at Bogalusa Medical Center, an outside state-operated medical facility. Prior to filing suit, Mr. Walker sought no review of his medical malpractice claim either within the prison’s administrative review process or before a state medical review panel. In response to said petition, the State of Louisiana, through Drs. Appurao and Hussain, filed an exception raising the objection of lack of subject matter jurisdiction. Following a hearing on said matter, the trial court granted the exception and dismissed, with prejudice, Mr. Walker’s claims. At the request of Mr. Walker, the trial court issued written reasons for its judgment as follows:

Pursuant to the provisions of La. R.S. 40:1299.39, et seq. (Malpractice Liability for State Services Act), defendants are state health care providers and any medical malpractice claim against them must be brought before a medical review panel, as set forth in La. R.S. 40:1299.39 E(l) before any suit may be commenced in this court. The act requires administrative review as an absolute prerequisite to the filing of suit.

This appeal by Mr. Walker followed. Citing Yen v. Avoyelles Parish Police Jury, 2003-603 (LaApp. 3 Cir. 11/5/03), 858 So.2d 786, Mr. Walker argues that pursuant to La. R.S. 40:1299.39.1(A)(l)(a), prisoners are not required to submit their medical malpractice claims to a medical review panel prior to filing suit. We disagree with the Yen court’s analysis of the provisions of the Malpractice Liability for State Services Act (“MLSSA”) and find no merit to Mr. Walker’s argument on appeal.

DISCUSSION

Where the third circuit and Mr. Walker go awry in analyzing the MLSSA is by failing to read the provisions of La. R.S. 40:1299.39.1 in pari materia with the provisions of La. [oR.S. 40:1299.39. Although the plain language of La. R.S. 40:1299.39.1(A)(l)(a) exempts prisoners with medical malpractice claims from the medical review panel process, this does not mean that prisoners are completely exempt from administrative review in the realm of medical malpractice claims. Rather, La. R.S. 40:1299.39(E)(1) clearly states that the medical malpractice claims of prisoners arising under the MLSSA “shall be submitted to correctional administrative review procedures established for administrative hearings in the correctional environment or established in accordance with express law, including R.S. 15:1171 et seq., R.S. 49:964, and the administrative rules and regulations pertaining thereto.” La. R.S. 40:1299.39(E)(1). This section of the MLSSA continues, mandating that “[a]ll other medical malpractice claims arising under this Part shall be submitted to a medical review panel in accordance with R.S. 40:1299.39.1.” The reference in La. R.S. 40:1299.39.1(A)(l)(a) to all malpractice claims against the state “other than claims wherein the patients are prisoners” being subject to review by a state medical review panel simply refers back to La. R.S. 40:1299.39(E)(1), wherein the administrative guard against frivolous medical malpractice claims by prisoners is already in place through CARP.

| CONCLUSION

Accordingly, because Mr. Walker failed to exhaust his administrative remedies pri- or to filing suit in the district court, the district court lacked subject matter jurisdiction to consider this claim. See Larrieu v. Wal-Mart Stores, Inc., 2003-0600, p. 9 (La.App. 1 Cir. 2/23/04), 872 So.2d 1157, 1162 (where the law provides for an administrative remedy, a claim must be processed through the administrative channels before a trial court will have subject matter jurisdiction to entertain the claim); Swanson v. Department of Public Safety and Corrections, 2001-1066, p. 5 (La.App. 1 Cir. 6/21/02), 837 So.2d 634, 637 (inmate’s failure to exhaust administrative remedies pursuant to CARP deprived trial court of subject matter jurisdiction over inmate’s complaint). Thus, we affirm that portion of the trial court’s judgment granting defendant’s exception raising the objection of lack of subject matter jurisdiction. However, we amend the judgment to provide for dismissal of Mr. Walker’s claims without prejudice. All costs associated with this appeal are assessed against Mr. Walker.

AFFIRMED AS AMENDED.

      . Louisiana Revised Statutes 40:1299.39.1(A)(1)(a) provides, in pertinent part, as follows:
      A. (l)(a) All malpractice claims against the state, its agencies, or other persons covered by this Part, other than claims wherein the patients are prisoners and claims compromised or settled by the claimant and the division of administration with the concurrence of designated legal counsel for the state, shall be reviewed by a state medical review panel established as provided in this Section, to be administered by the commissioner of administration, hereinafter referred to as commissioner.

      . Mr. Walker argues on appeal that pursuant to Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, original jurisdiction for prisoner suits sounding in tort lies in the district courts, rather than in the Department of Corrections’ administrative tribunal. However, this argument ignores the legislature’s subsequent amendment to the Corrections Administrative Remedy Procedure ("CARP”), La. R.S. 15:1171, et seq. In Pope, the Louisiana Supreme Court held that certain provisions of CARP were unconstitutional to the extent that they divested the district courts of original jurisdiction over tort actions filed by inmates against the Department of Public Safety and Corrections and its employees. Pope, 99-2559 at 13, 792 So.2d at 721. The unlawful provisions essentially allowed the Department of Public Safety and Corrections to adjudicate its own delictual liability in tort actions, and required the district courts to give manifest error deference to such adjudications. Id. Subsequent to Pope, the legislature amended portions of CARP by 2002 La. Acts No. 89 § 2, effective April 18, 2002. As part of the new procedure enacted, an offender is required to initiate administrative remedies for delictual actions within 90 days of the date of injury or damage. If initiation is untimely, the delictual claim is considered abandoned. La. R.S. 15:1172. Moreover, once an administrative decision regarding a delictual action is rendered, the prisoner then has the right to file his claim as an original civil action in district court. La. R.S. 15:1177(C).


source: Caselaw Access Project

author: PARRO, J.

license: Public Domain

text:
    Reynold JAMES v. A & B BUILDERS and Zurich-American Insurance Company.
    No. 2009 CA 0784.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.
    Joseph G. Albe, New Orleans, LA, for Plaintiff-Appellant Reynold James.
    Dr. Laurence M. May, Hammond, LA, Defendant-Appellee In proper person.
    Dr. Stephen G. Scully, Metairie, LA, Defendant-Appellee In proper person.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

The claimant in this workers’ compensation claim filed a disputed claim against his former employer in connection with an injury to his right knee. When the employer raised an issue as to the nature of the claimant’s treatment, the claimant amended his claim to add five of his health care providers, including Dr. Stephen G. Scully and Dr. Laurence M. May, as defendants. The Office of Workers’ Compensation Administration, on its own motion, found that the claimant had failed to state a cause of action and a right of action against Drs. Scully and May and dismissed the claimant’s claims against them. The claimant appealed.

In light of the issues raised by the claimant’s former employer in a related appeal of a separate judgment on the merits of the compensation claim and considering our ruling in that matter, this appeal is moot. See Reynold James v. A & B Buiders, 09-0781 (La.App. 1st Cir.10/23/09), 29 So.3d 541. Accordingly, this appeal is dismissed in accordance URCA Rule 2-16.2(A)(3) at the claimant’s costs.

APPEAL DISMISSED.

      . A motion to consolidate by the claimant was denied as moot.

      . An appellate court, as a matter of judicial economy, has the authority to consider, ex proprio molu, the possibility of mootness of an appeal. See Chavers v. Chavers, 411 So.2d 490, 491 (La.App. 1st Cir.1982). A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405, 406 (La.1980). Appellate courts will not render advisory opinions from which no practical results can follow. See Suire v. Lafayette City-Parish Consol. Government, 04—1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37, 55. Therefore, moot questions will not be considered on appeal. Chavers, 411 So.2d at 491; see LSA-C.C.P. art. 2164.


text:
    Reynold JAMES v. A & B BUILDERS and Zurich-American Insurance Co.
    No. 2009 CA 0783.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 23, 2009.

      Joseph G. Albe, New Orleans, LA, for Plaintiff-Appellant, Reynold James.
    Alton B. Lewis, Shaan M. Aucoin, Cashe, Lewis, Coudrain & Sandage, Hammond, LA, for Defendant-Appellee, North Oaks Medical Center.
    Vance A. Gibbs, Randal R. Cangelosi, Kean, Miller, Hawthorne, D’Armond, McCowan & Jarman, L.L.P., Baton Rouge, LA, for Defendants-Appellees, Plaza Orthopedic Clinic, Dr. John L. Fambrough, and Northshore Imaging Associates.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

The claimant in this workers’ compensation claim filed a disputed claim against his former employer in connection with an injury to his right knee. When the employer raised an issue as to the nature of the claimant’s treatment, the claimant amended his claim to add five of his health care providers, including North Oaks Medical Center (North Oaks), Northshore Imaging Associates (Northshore), and Plaza Orthopedic Clinic (Plaza), as defendants. The Office of Workers’ Compensation Administration, on its own motion, found that the claimant had failed to state a cause of action and a right of action against North Oaks, Northshore, and Plaza, and dismissed the claimant’s claims against them. The claimant appealed.

In light of the issues raised by the claimant’s former employer in a related appeal of a separate judgment on the merits of the compensation claim and considering our ruling in that matter, this appeal is moot. See Reynold James v. A & B Builders, 09-0781 (La.App. 1st Cir.10/23/09), 29 So.3d 541. Accordingly, this appeal is dismissed in accordance URCA Rule 2-16.2(A)(3) at the claimant’s costs.

APPEAL DISMISSED.

      . Northshore and Plaza had filed exceptions raising the objections of prescription and lis pendens, which were dismissed as moot following their dismissal. A motion to strike and a motion to consolidate by the claimant were also denied as moot.

      . An appellate court, as a matter of judicial economy, has the authority to consider, ex proprio moiu, the possibility of mootness of an appeal. See Chavers v. Chavers, 411 So.2d 490, 491 (La.App. 1st Cir.1982). A moot case is one which seeks a judgment or decree which, when rendered, can give no practical relief. Robin v. Concerned Citizens for Better Education in St. Bernard, Inc., 384 So.2d 405, 406 (La.1980). Appellate courts will not render advisory opinions from which no practical results can follow. See Suire v. Lafayette City-Parish Consol. Government, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37, 55. Therefore, moot questions will not be considered on appeal. Chavers, 411 So.2d at 491; see LSA-C.C.P. art. 2164.


author: DOWNING, J. McCLENDON, J.,

text:
    Ronald KINCHEN v. DEPARTMENT OF REVENUE OFFICE OF ALCOHOL AND TOBACCO CONTROL.
    No. 2009 CA 0815.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.

      Winston Decuir, Jr., Baton Rouge, LA, for Appellant, Department of Revenue Alcohol and Tobacco Control.
    Jill L. Craft, Baton Rouge, LA, for Ap-pellee, Ronald Kinchen.
    Before DOWNING, GAIDRY and McClendon, jj.
   DOWNING, J.

|gThe Louisiana Department of Revenue, Office of Alcohol and Tobacco Control (ATC), appeals a decision of the Louisiana Civil Service Commission in which the Commission reversed the discipline the ATC imposed on the appellee, Ronald Kin-chen. The opinion of the Commission’s referee, which the Commission adopted, adequately explains the facts of the case and the rationale for the decision. We find no clear wrongness as to the factual findings, and we conclude the Commission did not abuse its discretion in rendering its decision. Accordingly, we affirm the decision of the Louisiana Civil Service Commission.

In its brief, the ATC argues that the Commission misinterpreted Procedural Order No. 406. This order provides as follows, in pertinent part:

PROCEDURAL ORDER NUMBER 406 — PROCEDURES FOR ISSUANCE OF MISDEMEANOR SUMMONS AND ADMINISTRATIVE SUMMONS
1. ADMINISTRATIVE/CRIMINAL MISDEMEANOR SUMMONS
a) General
(1) The Administrative Summons is the document most used by the Agent to record administrative violations observed and subsequent actions taken. The summons is used to record violator information, cite the violator and is the data entry document for computer entry of certain data pertaining to the offense and the violator. The citation is the permanent public record of the offense. The violation book is serially numbered and issued to the Agent in bound books. The issuance of the citation book to the Agent is recorded and becomes part of the Agents [sic] inventoried property.
b) Citation Book
(1) Each serially numbered citation is comprised of three pages: White (original to prosecutor), Hard copy (Agent’s copy), Original (Incident report to Asst. C.E.O.), and a hard copy (defendant’s copy). A maximum of three violations can be entered on one citation. This citation is NCR type, printed and every effort will be made to ensure that all entries are clear, concise and legible. Every reasonable effort is used to obtain all of the information requested on the citation. All entries are to be legibly printed in black ink. The revised |astatute number should be entered for each violation when known.
c) Misdemeanor Summons
(1) Distribution of all copies will be same as stipulated above except the original must be filed with the appropriate District Attorney’s Office with a copy of Incident Report.
d) Voided Citations
(1) In order to properly account for each serially numbered citation issued to an Agent, voided citations are submitted with the bi weekly [sic] activity report clearly marked “void” across the face of the original and all copies. The reason for voiding the citation must be indicated on the citation void slip that will be submitted to the Region Supervisor for his signature prior to submission with the bi weekly [sic] activity report. The inside cover of the citation book will be used to log all violations and will be retained by each Agent for six (6) months.

The ATC seems to argue that “summonses” apply to criminal matters and that “citations” apply to administrative and other civil matters. It argues, therefore, that Procedural Order No. 406(d), entitled “Voided Citations,” is inapplicable to the misdemeanor summonses that Kinchen issued then voided. This argument is without merit.

The ATC points to La. C. Cr. P. art. 208, defining “summons” as follows:

A summons is an order in writing, issued and signed by a magistrate or a peace officer in the name of the state, stating the offense charged and the name of the alleged offender, and commanding him to appear before the court designated in the summons at the time and place stated in the summons.

It then attempts inappropriately to contrast a summons with a citation by reference to Louisiana Code of Criminal Procedure art. 210, which provides as follows: “The service of a summons is made in the same manner as a citation in a civil action.” A citation in a civil action, however, is entirely distinct from the citation addressed in Procedural Order No. 406. A citation in a civil action must be signed and issued by the clerk of court; it must be accompanied by a certified copy of the |4petition; and it must contain specific information. See Louisiana Code of Civil Procedure art. 1202.

Procedural Rule 406, in contrast, uses the terms “summons” and “citation” interchangeably. The Rule is entitled, “Procedures for Issuance of Misdemeanor Summons and Administrative Summons.” The first section addresses administrative and misdemeanor summonses. The section repeatedly uses the term “citation” when referring to the document to be issued.

Further, while testifying at the hearing, the ATC Commissioner referred to the misdemeanor summonses as “criminal citation[s]” and “eitation[s]”. He failed to explain when asked where Procedural Rule 406 distinguished between voiding procedures for civil and misdemeanor summonses. He insisted, however, that voiding a criminal summons violated the Code of Criminal Procedure; he gave no citation for this proposition, however. No particular article of the Code of Criminal Procedure is argued on appeal, and we can find no such provision. Additionally, in disciplinary correspondence, the ATC Commissioner criticizes Kinchen for failing to properly document and report the fact that he voided the summonses or citations. He does not criticize Kinchen for actually voiding them.

Black’s Law Dictionary (8th ed.2004), p. 260, provides a pertinent and consistent definition for “citation”: “[a] police-issued order to appear before a judge on a given date to defend against a stated charge, such as a traffic violation.” |.-,We observe that the ATC is entitled to establish reasonable rules and policies as it deems fit. No rule or policy, however, distinguishing between voiding of summonses/citations in criminal and in administrative matters can be gleaned from Procedural Rule 406, and no other cited source supports the proposition.

The ATC’s assignments of error are without merit.

DECREE

For the foregoing reasons, we affirm the decision of the Louisiana Civil Service Commission. Costs of this appeal are assessed to the Louisiana Department of Revenue, Office of Alcohol and Tobacco Control in the amount of $2,520.50. We issue this memorandum opinion in compliance with URCA Rule 2-16.1.B.

AFFIRMED.

McCLENDON, J. concurs and assigns reasons.

McCLENDON, J.,

concurs.

_jjl concur with the result reached by the majority.

      . This article provides as follow:
      The citation must he signed by the clerk of the court issuing it with an expression of his official capacity and under the seal of his office: must be accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof, and must contain the following:
      (1) The date of issuance;
      (2) The title of the cause;
      (3) The name of the person to whom it is addressed;
      (4) The title and location of the court issuing it and
      (5) A statement that the person cited must either comply with the demand contained in the petition or make an appearance, either by filing a pleading or otherwise, in the court issuing the citation within the delay provided in Article 1001 under penalty of default.


author: GAIDRY, J.

text:
    Richard VANEK Jr. v. Gwendolyn Weiss SEEBER, Joel Scott and Real Estate Partners Inc. d/b/a ReMax Real Estate Partners Inc.
    No. 2009 CA 0066.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.

      C. Michael Winters and David L. Haik, Metairie, LA, for Plaintiff/Appellant Richard Vanek, Jr.
    H. Bruce Shreves, M. Clame Durio, New Orleans, LA, for Defendant/Appellee Gwendolyn Weiss Seeber.
    Jack A. Ricci, Gary J. Giepert, New Orleans, LA, for Defendants/Appellees Joel Scott and Real Estate Partners, Inc. d/b/a ReMax Real Estate Partners, Inc.
    Before DOWNING GAIDRY and McClendon, jj.
   GAIDRY, J.

|2In this case, a homebuyer appeals a trial court judgment dismissing his redhi-bition suit with prejudice. We affirm.

Plaintiff, Richard Vanek, Jr., entered into an agreement to purchase a house from defendant, Gwendolyn Weiss Seeber. In this real estate transaction, Vanek was represented by his real estate agent, Lorna Evans, and Seeber was represented by her real estate agent, Joel Scott. A property disclosure form was provided by See-ber to Vanek which disclosed no defects in the roof. The purchase agreement between the parties contained the following property inspection clause:

PURCHASER ACKNOWLEDGES THAT THE PRICE OF THE PROPERTY WAS NEGOTIATED BASED UPON THE PROPERTY’S PRESENT CONDITION; ACCORDINGLY, SELLER IS NOT OBLIGATED TO MAKE REPAIRS TO THE PROPERTY, UNLESS OTHERWISE STATED HEREIN, AND PURCHASER HAS NO RIGHT TO DEMAND ANY REPAIRS, INCLUDING REPAIRS REQUIRED BY LENDER. THE SELLER IS RESPONSIBLE FOR MAINTAINING THE PROPERTY IN SUBSTANTIALLY THE SAME OR BETTER CONDITION AS IT WAS WHEN THE PURCHASE AGREEMENT WAS FULLY EXECUTED. PURCHASER shall have an inspection period of ten (10) calendar days, commencing the first day after acceptance of this agreement wherein, PURCHASER may, at his expense, have any inspections made by experts or others of his choosing. Such inspections may include, but are not limited to, inspections of or for termites and other wood destroying insects, and/or damage from same, molds, and fungi hazards, and analysis of synthetic stucco, appliances, structures, roof, heating, cooling, electrical, plumbing systems, square footage, existing leases (if applicable) and any items addressed in Seller’s Property Disclosure Document. SELLER agrees to provide the utilities for inspections. Upon completion of such inspections, PURCHASER must provide SELLER (or SELLER’S DESIGNATED AGENT) with a copy of all inspection reports which subsequently becomes the property of the seller. If PURCHASER is not satisfied with the present condition of the property as reflected in the inspection reports, PURCHASER (1) may elect, in writing, to terminate the Agreement to Purchase, or (2) must indicate in writing the deficiencies and desired remedies and SELLER will have 72 |3hours to respond in writing as to his willingness to remedy those deficiencies. Should SELLER refuse to remedy any or all of the deficiencies listed by the PURCHASER, then PURCHASER shall have 24 hours from the date of SELLER’S written response or 24 hours from the date that SELLER’S response was due, whichever is earlier, to: (1) accept SELLER’S response to PURCHASER’S written requests or (2) accept the property in its present condition, or (3) •to elect to terminate the Agreement to Purchase. PURCHASER’S response shall be in writing. Upon PURCHASER’S failure to respond by the time specified or Purchaser’s electing, in writing, to terminate the Agreement to Purchase, the Agreement shall be ipso facto Null and Void (except for return of deposit) and ALL PARTIES AGREE TO SIGN A CANCELLATION WITHIN 24 HOURS ENTITLING THE PURCHASER(S) TO THE RETURN OF HIS DEPOSIT IN FULL, AND NEITHER PARTY SHALL THEREAFTER HAVE ANY FURTHER OBLIGATION TO THE OTHER. FAILURE BY EITHER PARTY TO SIGN THIS CANCELLATION SHALL NOT PROHIBIT EITHER PARTY FROM MAKING OR ACCEPTING OFFERS FROM OTHER PARTIES. FAILURE TO MAKE INSPECTIONS OR TO GIVE WRITTEN RESPONSE TO THE SELLER (OR SELLER’S DESIGNATED AGENT) AVITHIN THE INSPECTION PERIOD SHALL BE DEEMED AS ACCEPTANCE BY PURCHASER OF THE PROPERTY’S PRESENT CONDITION. PURCHASER shall have the right to reinspect the property within five (5) days prior to the Act of Sale, or occupancy, whichever will occur first in order to determine if the property is in the same or better condition as it was at the initial inspection(s).

Vanek selected a home inspector, Paul Dileo, who was suggested to him by Evans. The Home Inspection Report provided by Dileo to Vanek states the following with regard to the roof inspection:

The roof inspection is an opinion of the general condition of the roofing material. The inspector does not offer any warranty as to whether the roof leaks or may be subject to future leakage. The only way to determine the water tightness of a roof is to observe it during a prolonged period of heavy rainfall.

Vanek did not get onto the roof with Dileo during the inspection. The inspection report contains the following findings about the roof:

The roof cover is aging. Some typical indicators of aging (such as surface cracking, loss of granulation, shingles missing, and raised seams) were visible. The wear is consistent over the entire surface.
|4[The] ventilation system appears to be marginal.
The chimney appears to be in fair condition for a home of this age. It appears to be flashed properly and is secure to the structure. The cap shows normal signs of weathering and soot.... The Chimney appears to be rusting.
Tree branches touching roof need removal.
Chimney and gas vent are rusting and needs [sic] paint.
Evidence of roof repairs.
Missing shingles.
ROOF APPEARS TO BE IN THE LAST PART OF ITS LIFE. ROOF APPEARS TO BE MARGINAL.

Dileo’s inspection of the fireplace noted signs of leaks around the chimney flashing. No obvious leaks were noted during the inspection of the attic. Dileo’s report also stated that minor indications of elevated humidity levels were found inside the residence and noted that such humidity may be trapped within the residence by inadequate ventilation, ultimately condensating and resulting in the development of molds, mildew and fungi. Dileo noted leaking window frames and “some high moisture mildew” in a few windows.

After going over the inspection report with Dileo and Evans and being informed that, under the terms of the inspection clause, he could either back out of the purchase agreement or request certain concessions from Seeber as a result of the problems found during the inspection, Va-nek filled out a Property Inspection Response form. In this response, he requested that Seeber reduce the price of the house by $4,000.00 due to the roof being in the “last stage of life.” Seeber declined to take $4,000.00 less, but instead offered to lower the price by $2,000.00. Vanek accepted this offer.

The Act of Sale signed by the parties contained the following bolded language:

|BIt is expressly agreed that the immovable property herein conveyed and all improvements and component parts, plumbing, electrical systems, mechanical equipment, heating and air conditioning systems, built-in-appliances, and all other items located hereon are conveyed by Seller and accepted by Purchase [sic] “AS IS, WHERE IS,” without any warranties of any kind whatsoever, even as to the metes and bounds, zoning, operation, or suitability of such properties for the use intended by the Purchaser, without regard to the presence of apparent or hidden defects and with the Purchaser’s full and complete waiver of any and all rights for the return of all or any part of the purchase price by reason of such defects.
Purchaser acknowledges and declares that neither the Seller nor any party, whomsoever, acting or purporting to act in any capacity whatsoever on behalf of the seller has made any direct, indirect, explicit or implied statement, representation or declaration, whether by written or oral statement or otherwise, and upon which Purchaser has relied, concerning the existence or nonexistence of any quality, characteristic or condition or the property herein conveyed. Purchaser has had full, complete and unlimited access to the property herein conveyed for all tests and inspections which Purchaser, in Purchaser’s sole discretion, deems sufficiently diligent for the protection of Purchaser’s interest.
Purchaser expressly waives the warranty of fitness and the warranty against redhibitory vices and defects, whether apparent or latent, imposed by Louisiana Civil Code Articles 2520 through 2548, inclusive, and any other applicable state or federal law and the jurisprudence thereunder.
Purchaser also waives any right Purchaser may have in redhibition or to a reduction of the purchase price pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive, in connection with the property hereby conveyed to Purchaser by Seller. By Purchaser’s signature, Purchaser expressly acknowledges all such waivers, and Purchaser’s exercise of Purchaser’s right to waive warranty pursuant to Louisiana Civil Code Articles 2520 through 2548, inclusive.
Richard Jason Vanek

After the Act of Sale, Vanek did not replace the missing shingles, remove the tree branches touching the roof, or address any other concerns raised in Dileo’s inspection report. Within a few weeks of the sale, during a rainstorm, Vanek discovered leaks in the roof. Upon further investigation, Vanek found that the leaks were running through the inside of the walls and |fihad damaged the floors and walls. He also discovered mold growing on the insulation. In addition to replacing the roof, Vanek replaced sheetrock, paneling, insulation, electrical wiring, and flooring.

Vanek filed the instant suit in redhibition against Seeber and Scott, as well as Real Estate Partners, Inc. d/b/a ReMax Real Estate Partners, Inc., seeking recission of the sale or a significant reduction of the purchase price, as well as damages, including reimbursement of personal expenses and labor, and an unspecified amount for anxiety and mental distress incurred by the required renovations. Va-nek claimed that Scott and ReMax were liable in solido with Seeber because Scott, Seeber’s sister, was aware of the roof problems and misrepresented the condition of the roof to Vanek.

A bench trial was held at which Seeber, Vanek, and Scott testified. Several of See-ber’s former neighbors and her sons also testified concerning whether or not Seeber and Scott were aware of roof problems prior to the sale. The court ultimately found that there was insufficient evidence regarding Scott’s knowledge, but that See-ber was probably aware of defects in the roof which she failed to note on the disclosure form. However, the court found that once the inspection report showed the roof system to be a problem, a reasonably prudent person under the circumstances “would have certainly made further inspections than the plaintiff did in this case.” The court found Vanek to have acted unreasonably as a purchaser when, instead of undertaking further investigation into the extent of the roof problem, he asked for a $4,000.00 reduction, accepted a $2,000.00 reduction, and signed the sale document agreeing to purchase the property “as is, where is” with a full waiver of redhibition. The court noted that under Louisiana Civil Code article 2521, a seller owes no warranty for defects that were known to the [ 7buyer at the time of the sale or that should have been discovered by a reasonably prudent buyer. In dismissing Va-nek’s petition, the trial court stated that although it appeared that Seeber knew the roof had problems and failed to disclose it on the disclosure form, “Once that inspection report showed what it did and the buyer did what he did, I don’t believe you can come in by claiming damages [based] on a disclosure form to get by what the law on redhibitory vices and [defects] states.”

Vanek appealed, assigning the following trial court errors:

1. The trial court erred in failing to find that Vanek’s consent to the waiver of redhibition was vitiated by Seeber’s fraud.
2. The trial court erred in finding that Vanek could have discovered the defects upon a simple inspection.
3. The trial court erred in failing to award damages to Vanek in redhibition where the seller had knowledge of, but failed to disclose, a hidden defect.
4. The trial court erred in failing to find fraud or negligent misrepresentation by Seeber and Scott.
5. The trial court erred in failing to award damages against Seeber and Scott for their failure to disclose.

DISCUSSION

Louisiana Civil Code article 2520 provides that a seller warrants the buyer against redhibitory defects in the thing sold. However, the seller owes no warranty for defects that were either known to the buyer at the time of the sale, or discoverable by a reasonably prudent buyer. La. C.C. art. 2521.

A seller and buyer may agree to exclude the warranty against redhibitory defects; however, the terms of the exclusion must be clear and unambiguous and must be brought to the attention of the buyer. La. C.C. art. | s2548. The bolded language contained in the Act of Sale signed by Seeber was sufficient to waive redhibition. However, Vanek alleges that his consent to this waiver was vitiated by Seeber’s fraud. 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. La. C.C. art. 1953. Fraud does not vitiate consent when the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill. La. C.C. art. 1954. The fraud alleged by Vanek was Seeber’s failure to disclose knowledge of a roof defect on the property disclosure form. However, prior to Vanek agreeing to waive redhibition, he acquired knowledge of problems with the roof through Dileo’s inspection that contradicted Seeber’s answers on the disclosure form, and rather than investigating further, used the existence of the roof problems to negotiate a decrease in the purchase price. Once he moved in and began to experience leaks, he climbed onto the roof and observed some roof defects which were easily discoverable. He also hired a second inspector to check out the roof problems more closely after the roof began leaking, and this inspector discovered more roof problems. Considering the knowledge possessed by Vanek at the time he executed the waiver of redhibition, and the fact that he could have ascertained the truth by behaving as a reasonably prudent purchaser, it is simply not plausible that he relied on Seeber’s statement on the property disclosure form that there were no roof defects in waiving redhibition. In fact, the language of the waiver explicitly stated that Vanek was not relying on any representations made by any person in waiving redhibition and purchasing the property as is. This assignment of error is without merit.

|aVanek’s next argument is that he could not have discovered the defects upon a simple inspection as the court suggested. While Vanek could not see the damage to the interior of the walls, he could certainly have discovered the defects in the house by behaving as a reasonably prudent purchaser. Vanek testified at trial that when he climbed up on the roof to investigate after the leaks started, he could see evidence of roof problems for himself. Also, Vanek stated that he noticed a hump in the flooring prior to purchasing the house, which ultimately turned out to be swollen wood from water damage. Vanek asked Dileo what the hump might be, and Dileo stated that he had no idea, and despite the fact that the inspection clause provided that Vanek had the right to conduct inspections of the structure, Vanek did not inquire further. It was only after the leaking started that he pulled back the carpet and discovered the swollen wood. Finally, armed with the knowledge concerning the roof given to him by Dileo, Vanek could have hired a second roof inspector to determine the full extent of the roof problems. As Vanek could have discovered the defects by behaving as a reasonably prudent purchaser, the defects are not redhibitory in nature. There is no merit to this assignment of error.

Likewise, Vanek’s third assignment of error, that the trial court should have awarded damages for Seeber’s failure to disclose a hidden defect must fail because, as the trial court determined, and we agree, the defect was not hidden because it could have been discovered by a reasonably prudent purchaser.

Vanek’s final arguments are that the court erred in failing to find that Seeber and Scott committed fraud or negligent misi'epresentation by failing to disclose roof problems of which they were aware and in failing to award damages for that misrepresentation. First, as noted by the trial court, the |, (¡evidence of Scott’s knowledge of roof defects was minimal. The court made a credibility call and chose to believe Scott’s testimony that she had no knowledge of the roof problems, and we find no manifest error in that finding. As for his claims against Seeber, as discussed above, Vanek was aware of problems with the roof, failed to investigate further, and expressly stated in the Act of Sale that he was not relying on any statements made by anyone in purchasing the property “as is” with a full waiver of redhibition. It is not plausible that he relied upon Seeber’s statement concerning the roofs condition in total disregard of all of the other information before him concerning the roof when purchasing the property. The trial court did not err in declining to award damages under these circumstances.

DECREE

The judgment of the trial court dismissing plaintiffs claims with prejudice is affirmed. Costs of this appeal are to be borne by plaintiff, Richard Vanek, Jr.

AFFIRMED.

      . Joel Scott is Gwendolyn Weiss Seeber's sister.

      . Included in die expenses for which Vanek sought reimbursement was the replacement of the roof.


author: McClendon, j.

text:
    PEARL RIVER BASIN LAND AND DEVELOPMENT COMPANY, L.L.C. v. STATE of Louisiana through The GOVERNOR’S OFFICE OF HOMELAND SECURITY AND EMERGENCY PREPAREDNESS, Parish of Washington, IED, Inc., IED, LLC, and Shaw Environmental.
    No. 2009 CA 0084.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.

      Ronnie G. Penton, Gair M. Oldenburg, Slidell, LA, for Plaintiff/Appellant, Pearl River Basin Land & Development.
    Henry G. Provosty, Eric R.G. Belin, Lena D. Giangrosso, New Orleans, LA, for Defendani/Appellee, State of Louisiana, Governor’s Office of Homeland Security & Emergency Preparedness.
    Sondra A. Check, New Orleans, LA, for Defendant/Appellee, Washington Parish Government.
    Amos H. Davis, Baton Rouge, LA, for Defendani/Appellee, IED, Inc.
    M. David Kurtz, Brian M. Ballay, New Orleans, LA, Sandra S. Varnado, Mande-ville, LA, for Defendant/Appellee, Shaw Environmental, Inc.
    Before DOWNING, GAIDRY and McClendon, jj.
   McClendon, j.

12PIaintiff seeks review of a district court judgment granting an exception of no cause of action that dismissed Washington Parish from plaintiffs suit. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

On September 12, 2005, Washington Parish (the Parish) issued a declaration of emergency following Hurricane Katrina. Because of the nature of the disaster, the Parish was in immediate need of debris dump sites. The Parish Council’s President, Toye Taylor, and its Director of Pub-lie Works, Troy Barber, met with representatives of Pearl River Basin Land and Development Company, L.L.C. (Pearl River) and IED, Inc. (IED) in early September to discuss five potential dump sites within the Parish.

On September 16, 2005, IED executed a Contract for Debris Management Services with the Parish for the removal of storm debris within the Parish’s jurisdiction. Pursuant to Paragraph 5.11 of the agreement, IED was required, to the extent possible, to give priority and utilize the resources of subcontractors within the Parish. IED subsequently executed contracts of lease with Pearl River for three Bogalusa disposal sites. Pearl River, which did not own the three disposal sites, sought to lease the sites from individual landowners.

On September 16, 2005, the Parish also entered into a contract with Shaw Environmental, Inc. (Shaw) regarding project management and professional services in relation to the debris removal. Pearl River asserts that Shaw’s duties under said contract included providing management support to IED and ensuring that guidelines were being followed to procure FEMA funding.

Pearl River alleges that on September 26, 2005, it “hand-delivered” a confirmation letter to Kenny Gatewood, the Parish’s Assistant District Attorney who was preparing the three leases, and to Eddie Dor-sett, a Shaw representative, for review, compliance, and approval of funding. Pearl River alleges that during the week of September 26, 2005, negotiations were conducted among the parties, including the Parish, IED, Shaw, and Pearl River, wherein an agreement was reached with regard to the amount of acreage that would be leased for each of the three sites as well as the |3term and amount paid per acre. Peaii River specifically alleges that during these negotiations, IED informed it that twenty to twenty-five acre sites were needed and that Pearl River should expect a $700.00 to $1,500.00 per acre payment for debris disposal over a term of six months. Thereafter, Pearl River contracted with the three landowners to provide the sites.

Pearl River asserts that on September 28, 2005, Dorsett contacted Ronnie G. Pen-ton, Pearl River’s sole representative, and requested that the leases be signed immediately. Because Penton was out of town, Pearl River forwarded Dorsett a blank lease which bore Pearl River’s signature. Pearl River asserts that Penton instructed Dorsett to complete the terms of the three leases in accord with the negotiations that occurred during the week of September 26, 2005. Pearl River alleges that it was assured that IED would pay the leases and that reimbursement would be sought from FEMA in accordance with FEMA guidelines. However, Pearl River asserts that Dorsett lowered the total acreage to be utilized, paid only $625.00 per acre, and reduced the six-month term to three months.

On August 28, 2007, Pearl River filed suit against the State of Louisiana through the Governor’s Office of Homeland Security and Emergency Preparedness (the State), the Parish, IED, and Shaw. Pearl River alleges that the Parish improperly monitored, selected, and screened contractors in violation of state and federal laws. Pearl River alleges that as a result of the breach of these duties, it spent thousands of dollars “out-of-pocket” and had not been properly reimbursed for the preparation of the sites, roads, and payments of said leases to the landowners for use of the land.

In response, on March 6, 2008, the Parish filed a peremptory exception raising objections of no cause of action and prescription, asserting that it had no contractual privity with Pearl River and that Pearl River’s actions were based in tort and subject to a prescriptive period of one year. On March 10, 2008, Pearl River filed a supplemental and amending petition. On July 28, 2008, the district court found that Pearl River’s action was based on contract, sustained the Parish’s exception raising the objection of no cause of action, and dismissed the Parish from the suit. Pearl River has filed the instant appeal contending that the trial court erred in sustaining the exception raising [4the objection of no cause of action. Pearl River also contends that the trial court erred in dismissing its suit without allowing it to amend its petition.

DISCUSSION

The exception of no cause of action is triable on the face of the pleadings, and for purposes of resolving the issues raised by the exception, the well-pleaded facts in the petition are accepted as true in order to determine whether the law? affords a remedy on the facts alleged in the petition. Scheffler v. Adams and Reese, LLP, 06-1774, p. 5 (La.2/22/07), 950 So.2d 641, 646. Because the exception of no cause of action raises a question of law and the trial court’s decision is based solely on the sufficiency of the petition, review of the trial court’s ruling on an exception of no cause of action is de novo. Id. The pertinent question is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action for relief. Id.

Pearl River contends that it has stated a cause of action against the Parish for breach of contract. However, no action for breach of contract may lie in the absence of privity of contract between the parties. Long v. Jeb Breithaupt Design Build Inc., 44,002, p. 19 (La.App. 2 Cir. 2/25/09), 4 So.3d 930, 941-42. Although Pearl River asserts that the Parish required its services to accomplish the debris removal, Pearl River does not allege that it had a contract with the Parish. Rather, Pearl River alleges that the Parish entered into contracts only with Shaw and IED. The fact that Pearl River may have a contract with IED and/or Shaw, who in turn, have separate contracts with the Parish, does not create a contract or privity of contract between Pearl River and the Parish. See Louisiana Paving Company, Inc. v. State Through Dept. of Highways, 372 So.2d 245, 250 (La.App. 1 Cir.1979) (Although there is contractual privity between the owner and general contractor and between the general contractor and subcontractor, “[w]e recognize and adhere to the general rule that a subcontractor having no contractual relationship with an owner has no cause of action in contract against the owner.”)

We also note that the Parish’s mere presence at the meetings between IED and Pearl River is not sufficient to make the Parish a party to any contract with Pearl River, | ^specially given that Pearl River alleges that IED informed it of the amount of acreage required, the expected amount of the payments per acre, and the expected term. Additionally, Pearl River alleges that Shaw, rather than the Parish, completed the blank leases signed by Pearl River and that IED was required to pay in accord with the terms therein and thereafter seek reimbursement from FEMA. Accordingly, Pearl River does not allege any facts to show that it had a contractual relationship with the Parish.

Pearl River asserts that even if it had no privity of contract with the Parish, it nonetheless stated a cause of action against the Parish for detrimental reliance and/or as a third party beneficiary. Pearl River contends that while the trial court found no privity between it and the Parish, it has plead that the Parish was present during the course of negotiations, set forth the requirements and conditions for the work to be performed, and advanced promises on obtaining the necessary funding in accordance with the Governor’s Office of Homeland Security and FEMA guidelines. Pearl River urges that while it can be argued that Pearl River was distanced from the FEMA funding process, the consideration Pearl River was promised was dependent upon contractual relationships amongst other parties, including, the relationship between the Parish and the State, who in compliance with the Stafford Act, would conform to the guidelines and submit funding requests to FEMA for the specific purpose of compensating Pearl River. Pearl River concludes that it has suffered damages through these contractual relationships.

Pearl River notes that a party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the prom-isee’s reliance on the promise. LSA-C.C. art. 1967. To establish a claim for detrimental reliance, a party must prove three requirements by a preponderance of the evidence: (1) a | ^presentation by conduct or word; (2) justifiable reliance; and (3) a change in position to one’s detriment because of the reliance. LSA-C.C. art. 1967; Suire v. Lafayette City-Parish Consol. Gov’t, 2004-1459, p. 31 (La.4/12/05), 907 So.2d 37, 59. Although Pearl River asserts that it should be allowed to proceed against the Parish on the basis of a detrimental reliance claim, Pearl River does not attribute any statement or action upon which it relied to the Parish. Rather, a review of the petitions reveal that the only statements upon which it allegedly relied were statements made by representatives of IED and Shaw. Accordingly, we find that Pearl River has failed to state a cause of action against the Parish for detrimental reliance.

Pearl River also contends that it has alleged facts sufficient to state a cause of action as a third party beneficiary, who has the right to demand performance from the promisor. See LSA-C.C. arts. 1978 and 1981. Under Louisiana law, a contract for the benefit of a third party is referred to as a stipulation pour autnd. Concept Design, Inc. v. J.J. Krebs & Sons, Inc., 96-1295, p. 5 (La.App. 4 Cir. 3/19/97), 692 So.2d 1203, 1205. A stipulation pour autnd is never presumed and the intent of the contracting parties to stipulate a benefit in favor of a third party must be made manifestly clear. Paul v. La. State Employees’ Group Benefit Program, 99-0897, p. 5 (La.App. 1 Cir. 5/12/00), 762 So.2d 136, 140. Moreover, the third party relationship must form the consideration for a condition of the contract, and the benefit may not be merely incidental to the contract. Paul, 99-0897 at p. 6, 762 So.2d at 140.

Although the terms of the prime contract between the Parish and IED required IED to give priority and utilize subcontractors within the Parish, such provision is not sufficient to be a clear expression of intent to benefit Pearl River. Also, Pearl River does not allege that its relationship with IED formed the consideration for a condition of the prime contract between IED and the Parish. Rather, the benefits Pearl River may have obtained were merely incidental to the prime contract, and there was no stipulation pou/r autrui benefitting Pearl River. Accord Concept Design, Inc., 96-1295, 692 So.2d 1203. Accordingly, Pearl River has failed to state a cause of action as a third party beneficiary of the Parish’s contract with either IED or Shaw.

17Pearl River also contends that it was denied an opportunity to amend its pleadings to clarify its cause of action against the Parish. When the grounds of an objection pleaded by peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, the action shall be dismissed. LSÁ-C.C.P. art. 934. The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. FIA Card Services, N.A. v. Gibson, 43,131, p. 7 (La.App. 2 Cir. 3/19/08), 978 So.2d 1230, 1235. Pearl River has failed to demonstrate that the grounds for the exception of no cause of action can be removed by a second amendment of the petition. According^, the trial court did not abuse its discretion in declining to allow amendment of the pleadings.

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed against Pearl River.

AFFIRMED.

      . The Parish contends that this court should not consider whether any other theories exist beyond the breach of contract claims insofar as Pearl River did not address these theories during the course of the trial court proceedings. However, we note that in reviewing an exception of no cause of action, this court must consider pleadings of fact in the petition and determine whether a remedy may be obtained in light of these allegations under any possible theory of recovery. See Mott v. River Parish Maintenance, Inc., 432 So.2d 827, 830 (La.1983) and Hoskin v. Plaquemines Parish Gov't, 98-1825, p. 11 (La.App. 4 Cir. 8/4/99), 743 So.2d 736, 742.


author: GAIDRY, J. DOWNING, J.,

text:
    James B. RACHAL, by and through his Duly Authorized Agent, Alice Fae REGAN, Individually, and on Behalf of all others Similarly Situated v. STATE of Louisiana, through the DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2009 CA 0786.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.
    Writ Denied March 5, 2010.

      Patrick W. Pendley, Stan P. Baudin, Plaquemine, Louisiana, and Joseph J. McKernan, Scott E. Brady, Baton Rouge, Louisiana, for Plaintiff/Appellant Alice Fae Regan, as executrix of the Succession of James B. Rachal, and on behalf of all others similarly situated.
    Neal R. Elliott, Jr., Stephen R. Russo, Michael J. Coleman, Baton Rouge, Louisiana, for Defendant/Appellee Bureau of Legal Services Department of Health and Hospitals.
    Claude F. Reynaud, Jr., Scott N. Hens-gens, Baton Rouge, Louisiana, for Defendant/Appellee Ollie Steele Burden Manor, Inc. and St. Clare Manor.
    Richard F. Zimmerman, Jr., Travis B. Wilkinson, Baton Rouge, Louisiana, for Amicus Curiae/Appellee Gulf States Association of Homes and Services for the Aging.
    Before DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

| Jfhe executrix of the succession of a nursing home patient appeals a summary judgment dismissing a claim for refund of charges billed to the patient by the nursing home to offset a daily “occupied bed fee” due from the nursing home to the Louisiana Department of Health and Hospitals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

From about December 17, 1999 until his death on November 9, 2006, the late James B. Rachal was a resident of a nursing home, Ollie Steele Burden Manor, owned and operated by Ollie Steele Burden Man- or, Inc. (OSBM). OSBM also owned and operated another nursing home, St. Clare Manor.

During the time he resided at OSBM’s nursing home, Mr. Rachal was a “private-pay” resident, meaning that his care was paid with personal funds or by private insurance, rather than through government-sponsored programs such as Medicare or Medicaid. Beginning from the time he was admitted, through sometime in the summer of 2005, Mr. Rachal was charged a daily “state provider tax” by OSBM, in addition to charges for supplies, services, and room and board. The daily “state provider tax” charged by OSBM represented the cost of an “occupied bed fee” imposed by the Louisiana Department of Health and Hospitals (the Department) pursuant to the authority of La. R.S. 46:2625. The occupied bed fee was specifically identified as a per diem charge and denominated as a “state provider tax” in Mr. Rachal’s initial admissions receipt and in later monthly invoices to him and other patients of OSBM. The itemized charge for the daily occupied bed fee represented the monthly total of the fee. At the time of Mr. Rachal’s admission, the charge for the “occupied bed fee” was $5.22 per day. |,Sometime later, it was increased by the Department to $6.27 per day. The amount was later increased in the summer of 2005 to $7.27 per day.

The charges for OSBM’s services, including the itemized occupied bed fee, were paid by Mr. Rachal’s insurer, Travelers Insurance Company, and by Mr. Rachal through January 2005, when the insurance coverage was exhausted. Thereafter, Mr. Rachal paid OSBM’s charges with his own funds.

OSBM paid the Department the total amount of the occupied bed fee due for all occupied beds in its nursing home on a quarterly basis.

On September 25, 2002, Mr. Rachal, through his authorized attorney in fact and mandatory, Alice Fae Regan (Mr. Rachal’s daughter), filed a “Class Action Petition,” purportedly on his behalf and on behalf of all other residents of OSBM, St. Clare, and other nursing homes charging residents for the occupied bed fee, naming the Department as defendant. He alleged that according to the terms of La. R.S. 46:2625, the occupied bed fee was a debt of OSBM, rather than the private-pay patients billed for the fee by OSBM. Citing La. C.C. arts. 2302 and 2303, Mr. Rachal alleged that the Department as obligee was liable to restore the payments for the fee, on the grounds that the fee constituted the debt of OSBM rather than that of the private-pay patients, including Mr. Rachal, who paid the fee in the erroneous belief that they were the obligors. Mr. Rachal also requested injunctive relief against the Department, seeking to enjoin further collection of the fee from private-pay patients or a mandatory injunction ordering the Department to hold all payments of the fee in escrow pending determination of his action.

|sOn the same day that the petition was filed, Mr. Rachal filed a motion to certify the action as a class action. No order fixing the motion to certify for hearing appears in the record, and there is no other indication that the action was ever certified as a class action.

The Department responded with a peremptory exception of no cause of action, but its exception was overruled by judgment signed on February 11, 2003. The Department answered the petition on February 12, 2003, denying its liability and also denying that any patient of a nursing home had ever paid the occupied bed fee to it directly. Although the Department admitted that La. R.S. 46:2625 did not authorize OSBM to bill and collect the occupied bed fee from a patient, it admitted that some nursing homes “passed on” the fee or increased their charges to patients to cover the fee.

On May 7, 2003, the Department filed a motion for summary judgment. The Department sought its dismissal on the grounds that the occupied bed fee was authorized by La. R.S. 46:2625, which was in turn authorized by and in compliance with federal Medicaid regulations, and that Mr. Rachal’s payment of the fee was payment of his own debt to OSBM, not payment of OSBM’s debt for the fee to the Department.

The Department’s motion for summary judgment was heard on July 7, 2003, and the trial court ruled in favor of the Department. Its judgment granting the motion and dismissing Mr. Rachal’s petition was signed on July 31, 2003. On August 8, 2003, Mr. Rachal filed a motion for new trial. That motion was heard on November 10, 2003, and the matter taken under advisement. On January 6, 2004, the trial court issued its written reasons for judgment in favor of Mr. Rachal on his motion for new trial. On February 4, 2004, the trial court signed its judgment granting the motion for new trial and vacating the summary judgment in favor of the Department. The | (Department applied for supervisory writs from that judgment, and this court denied writs on June 28, 2004.

On April 21, 2005, Mr. Rachal filed a first supplemental and amending petition, adding OSBM as a defendant in its individual capacity and as alleged representative of a defendant class of nursing homes charging the occupied bed fee to their private-pay patients. He alleged that OSBM and other members of the defendant class were also obligated to restore the fee charged to him and other members of the plaintiff class, as no statute authorized nursing homes to bill such charges to private-pay patients.

OSBM filed a declinatory exception of lack of subject matter jurisdiction, contending that the fee constituted a tax imposed by the Department, and that jurisdiction vested in the Louisiana Board of Tax Appeals. Its exception was overruled by the trial court, and supervisory writs were later denied by this court and the supreme court. OSBM and the Department each filed answers to the first supplemental and amending petition in December 2005.

Mr. Rachal died on November 9, 2006, and his daughter, Ms. Regan, as executrix of his succession, was substituted as plaintiff on October 25, 2007.

On December 5, 2007, the substituted plaintiff filed a second supplemental and amending petition, adding allegations regarding OSBM’s ownership of two nursing-homes, Ollie Steele Burden Manor and St. Clare Manor, and seeking recovery, on behalf of the plaintiff class, of all fees billed by and paid to OSBM by patients of the two nursing homes. The plaintiff also amended the petition to delete the prior alleged defendant class, thereby limiting the action to OSBM as defendant. The Department and |7OSBM each answered the second supplemental and amending petition, again denying liability to the plaintiff.

On April 10, 2008, OSBM filed a motion for summary judgment, seeking the dismissal of the plaintiffs cause of action against it. Its motion was originally fixed for hearing on June 23, 2008, but the hearing was continued several times. On May 15, 2008, the Department filed a motion for summary judgment. An amicus curiae brief was submitted on behalf of the Gulf States Association of Homes and Services for the Aging (Gulf States).

Both motions for summary judgment were eventually heard on November 17, 2008. At the conclusion of the hearing, the trial court issued oral reasons for judgment, granting both motions. Its judgment granting the motions for summary judgment and dismissing the plaintiffs cause of action against both defendants was signed on December 9, 2008.

The plaintiff now appeals, contending that the trial court erred in granting both motions for summary judgment, as there exist general issues of material fact as to the plaintiffs causes of action against all defendants, and on the grounds that the law and evidence support the plaintiffs causes of action. Gulf States has again submitted a brief as amicus curiae.

STANDARD OF REVIEW

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the tidal court’s determination of the issues. Peak Performance Physical Therapy & Fitness, LLC v. Hibernia Corp., 07-2206, p. 5 (La.App. 1st Cir.6/6/08), 992 So.2d 527, 530, writ denied, 08-1478 (La.10/3/08), 992 So.2d 1018. The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

Similarly, in a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court’s legal conclusions are not entitled to deference. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La.1/30/04), 865 So.2d 34, 43.

DISCUSSION

The Louisiana Medical Assistance Trust Fund Act, La. R.S. 46:2621, et seq., was originally enacted by Acts 1992, No. 260, § 1, effective June 10, 1992. Its purpose is “to further provide for the operation of the Medicaid program in the state and for the maintenance of health care services available under that program.” La. R.S. 46:2621. Use of the monies in the fund is expressly limited to “those programs for which federal financial participation under Title XIX of the Social Security Act is available.” La. R.S. 46:2623(E).

Louisiana Revised Statutes 46:2625(A) provides, in pertinent part:

(1) The Department of Health and Hospitals is hereby authorized to adopt and impose fees for health care services provided by the Medicaid program on every nursing facility.... The amount of any fee shall not exceed the total cost to the state of providing the health care service subject to such fee. In addition, the amount of the fees imposed under the rules and regulations adopted shall not exceed the following:
(a) Ten dollars per occupied bed per day for nursing facilities.
(2) Any fee authorized by and imposed pursuant to this Section shall be considered an allowable cost for purposes of | insurance or other third party reimbursements and shall be included in the establishment of reimbursement rates.

According to the plain language of this statute, any fee adopted and imposed by the Department is to be imposed upon all nursing facilities or nursing homes, and not upon their patients.

Louisiana Civil Code article 2302 provides:

A person who paid the debt of another person in the erroneous belief that he was himself the obligor may reclaim the payment from the obligee. The payment may not be reclaimed to the extent that the obligee, because of the payment, disposed of the instrument or released the securities relating to the claim. In such a case, the person who made the payment has a recourse against the true obligor.

Implicit in the foregoing language is the requirement that, in order to impose an obligation on the obligee to return the payment, the party paying in error must have paid or “made the payment” to the obligee. See La. C.C. art. 1857 (“Performance must be rendered to the obligee or to a person authorized by him.”).

Louisiana Civil Code article 2303 provides that “[a] person who in bad faith received a payment or a thing not owed to him is bound to restore it with its fruits and products.”

Based upon our review of the plaintiffs original and reply briefs, we summarize her contentions relating to her assignments of error as follows. The plaintiff contends that a genuine issue of material fact exists with regard to who actually paid the required occupied bed fee to the Department for purposes of La. C.C. arts. 2302 and 2303. She further contends that because of the manner in which OSBM billed the occupied bed fee to Mr. Rachal, a genuine issue of material fact exists as to whether he had the erroneous | inbelief that he, rather than OSBM, owed the fee directly to the Department and that the fee was a “tax” imposed by the legislature upon him.

OSBM and the Department, on the other hand, contend that there are no material facts in dispute, and that the plaintiff has not shown that any such facts are in dispute. We agree. Based upon our review of the record, the material facts are those we described above relating to the factual background of this case, as well as the following:

(1) There was no formal written contract setting forth the agreement between OSBM and Mr. Rachal relating to the nursing home services and care provided to Mr. Rachal as a patient.

(2) Upon his admission to OSBM’s nursing home in December 1999, Mr. Rachal was provided with an admissions receipt documenting the initial charges (based upon daily rates) and a security deposit received, and summarizing the care level and the nature of other services provided (cable television and an “activity fund.”) The initial charges included a daily “provider tax” of $5.22 for fifteen days.

(3) Following his admission, Mr. Rachal was invoiced on a monthly basis by OSBM, and each charge included the separately itemized “state provider tax.”

(4) The “state provider tax” itemized on each of OSBM’s monthly invoices for services to Mr. Rachal and other patients represented its actual cost for the “occupied bed fee” imposed by the Department pursuant to La. R.S. 46:2625(A).

(5) All charges billed by OSBM, including the separately itemized “state provider tax,” for nursing home services provided to Mr. Rachal were paid directly to OSBM by either Travelers Insurance Company or Mr. Rachal.

|n(6) Neither Mr. Rachal nor the plaintiff expressed any objection to the separately itemized “state provider tax” in OSBM’s monthly invoices from his admission in December 1999 until the filing of this action on September 25, 2002.

(7) The Department has never sent a bill for the occupied bed fee to any patient of a nursing home, including Mr. Rachal.

(8) The Department has never received, accepted, or collected any money from any patient of a nursing home, including Mr. Rachal.

A fact is material if “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 777. We cannot conclude that Mr. Rachal’s supposed subjective belief that the occupied bed fee was a “tax” rather than a “fee” is in any way a material fact bearing upon the determination of the legal issues, in light of the undisputed fact that the “state provider tax” on OSBM’s invoices in fact represented a charge for the occupied bed fee imposed by the Department under the authority of La. R.S. 46:2625. The occupied bed fee, whether legally considered a “tax” or a “fee,” was properly imposed upon nursing homes, including OSBM, by the Department under its statutory authority. The undisputed evidence shows that Mr. Rachal agreed to pay OSBM’s charges as invoiced, including the separately itemized “state provider tax” item. The questions that the plaintiff has presented for our determination are purely legal ones, rather than factual ones, and therefore particularly appropriate for determination by summary judgment “as a matter of law.” See La. C.C.P. art. 966(C)(1).

With regard to her claim against the Department, the plaintiff essentially contends that because OSBM separately itemized the occupied | iabed fee on its invoices, and for accounting purposes designated its patients’ payments of the fee as a receivable to be paid to the Department, rather than as revenue, OSBM’s debt for the occupied bed fee was in fact paid by Mr. Rachal and the other patients. This circuitous argument is unconvincing, and we conclude that it lacks merit.

As between the Department and OSBM, OSBM owed a valid debt to the Department for the occupied bed fees. OSBM, as debtor, was the party who paid that debt to the Department. Nothing in the language of La. R.S. 46:2625, the pleadings, or the evidence in the record supports a finding that OSBM was authorized by the Department to accept any payment for the occupied bed fee due from Mr. Rachal in the capacity of purported debtor of the Department. OSBM as debtor paid the debt to the Department. The source of the funds with which OSBM paid that debt is irrelevant for purposes of attempting to impose liability upon the Department under La. C.C. arts. 2302 and 2303. For the plaintiffs argument to have merit, it would have to be concluded that there was only one debt for the occupied bed fee owed as between all three parties: the Department, OSBM, and Mr. Rachal. As the Department has contended, and as the trial court held, there were in fact two separate debts or obligations: (1) OSBM’s debt to the Department for the occupied bed fee imposed by La. R.S. 46:2625; and (2) Mr. Rachal’s debt to OSBM for its charges, which included its cost associated with the occupied bed fee.

As observed by the trial court in its reasons for judgment, parties are free to contract for any object that is lawful, possible, and determined or determinable. La. C.C. art. 1971. The plaintiff, on the other hand, initially 11sargued in the trial court that the converse principle should control in this situation; that is, if not authorized by statute, OSBM may not bill a patient for the cost of the state-imposed occupied bed fee as part of its contract to provide nursing home services. Thus, the plaintiff seemed to argue that anything not expressly authorized by law is of necessity illegal. The plaintiff cited no authority for that proposition, which runs counter to the longstanding general rule in our state of freedom of contract on all matters not forbidden by law. See Travelers Ins. Co. v. Joseph, 95-0200, pp. 9-10 (La.6/30/95), 656 So.2d 1000, 1004. In short, the plaintiff simply posited that it is “improper” for OSBM to shift the financial burden of the occupied bed fee to its patients, without legal support or authority for that assumption of impropriety or illegality. At the hearing on the motions in the trial court, and in her brief on appeal, the plaintiff seems to concede that OSBM and other nursing homes may validly pass on the cost of the occupied bed fee to their patients as part of the charges for their services. But in order to maintain her cause of action against the Department on appeal, the plaintiff still argues that Mr. Rachal did not validly owe a debt to OSBM for the occupied bed fee invoiced to him, and that the debt paid by Mr. Rachal and his insurer was in fact the same debt owed by OSBM to the Department. We disagree.

As convincingly argued by OSBM, the plaintiff has failed to point to any constitutional provision, statute, or regulation prohibiting OSBM from | ^including the cost of the occupied bed fee in its charges to its patients, or from separately itemizing the charges for the occupied bed fee in its invoices. To the contrary, as emphasized by OSBM, the language of La. R.S. 46:2625, interpreted in light of the applicable federal regulations and the analogous language of former La. R.S. 47:8054, warrants the opposite conclusion.

OSBM presented the affidavit of Leon E. LeBreton, a certified public accountant and expert witness previously qualified in various courts in matters relating to Medicare, Medicaid, and other third-party medical expenses reimbursement, as well as the interrelationship between state and federal Medicaid programs, state plans for Medicaid services, and Federal Financial Participation (FFP), or federal funding for state Medicaid programs. In his affidavit, Mr. LeBreton systematically reviewed the applicable federal Medicaid and Medicare regulations, as well as Louisiana’s corresponding statutory and regulatory provisions intended to comply with the federal regulations and to implement Louisiana’s Medicaid program in order to qualify for FFP. See La. R.S. 46:2623(E). The conclusions and opinions expressed therein were obviously helpful to the trial court, and were unrebutted by the plaintiff.

In summary, Mr. LeBreton demonstrated that the occupied bed fee was in fact approved by the federal government as a “Provider Assessment Program,” and that such an approved provider fee must be imposed uniformly upon all providers within the class subject to the fee, even if the provider provides services only to private-pay patients not covered by either Medicaid or Medicare. He explained that because the occupied bed fee is by |15its nature a variable cost (because the fee applies only to those beds occupied by patients), based upon his experience in the healthcare industry, it is prudent and reasonable from a business accounting standpoint to pass on the cost of the fee to the one utilizing the provider’s services (the patient occupying the bed). Both the affidavit of Mr. LeBreton and the affidavit of Kevin C. Londeen, the Department’s expert witness in the same field, confirm that no federal or state law or regulation prohibits Louisiana nursing homes from passing on the cost of the occupied bed fee to their patients, if they choose to do so for business or economic reasons.

Louisiana Revised Statutes 46:2625(0(1) provides, in part:

The [DJepartment is hereby authorized and directed to adopt and promulgate, pursuant to the Administrative Procedure Act, such rules and regulations as are necessanj to administer the fees imposed herein, including but not limited to rules and regulations regarding the collection and payment of the fees and the records necessary to be maintained and made available by the providers on whom the fees are imposed. ...

(Emphasis added.)

A reviewing court should afford considerable weight to an administrative agency’s construction and interpretation of its rules and regulations adopted under a statutory scheme that the agency is entrusted to administer, and its construction and interpretation should control unless they are found to be arbitrary, capricious, or manifestly contrary to its rules and regulations. In The Matter of Recovery I, Inc., 93-0441, p. 11 (La.App. 1st Cir.4/8/94), 635 So.2d 690, 696, unit denied, 94-1232 (La.7/1/94), 639 So.2d 1169.

There has been no showing by the plaintiff that the Department has ever adopted any rule or regulation imposing any prohibition or restriction on nursing homes charging' their patients for the cost of the occupied bed fee. Under La. R.S. 46:2625(C)(1), the Department would clearly have the 11(idiscretionary authority to do so in order to regulate “the collection and payment of the fees,” as well as the discretionary authority to require nursing homes to maintain appropriate records documenting that the occupied bed fee was not charged to patients. To the contrary, the deposition testimony of the Department’s program manager for Medicaid long-term care, John Marchand, and the affidavits of the defendants’ experts affirmatively refute the existence of any such rule or regulation. The evidence in the record further demonstrates that the Department interpreted its rules and regulations as precluding any duty on its part to regulate the contractual relationship between nursing homes and private-pay patients, including any charges by nursing homes to patients for the occupied bed fee.

Additionally, as emphasized by OSBM, under Louisiana’s Medicaid program, the Medicaid daily reimbursable rate for each nursing home includes each such provider’s “pass-through cost component,” which in turn is defined as including “the provider fee as established by the Department.]” La. Adm.Code, Title 50, §§ 1301, 1303. Thus, a nursing home may obtain payment from the state Medicaid program for the occupied bed fee. Because federal Medicaid regulations require uniformity of application of the state “Provider Assessment Program” or provider fee regulations, the occupied bed fee may also be passed on to private insurers or private-pay patients as an allowable cost. See 42 C.F.R. § 433.68(b) and La. R.S. 46:2625(A)(2).

Former La. R.S. 47:8054 was part of the Healthcare Affordability Act enacted by Acts 2005, No. 182, § 2, effective July 1, 2007, and repealed by Acts 2006, No. 521, § 2, effective June 30, 2009. It provided, in pertinent part:

|17A. Beginning on the fee effective date, there shall be levied, and thereafter collected and paid as provided in this Chapter, by each hospital covered by this Chapter, a fee....
F. Any fee collected pursuant to this Chapter shall be considered an allowable cost for purposes of Medicare and Medicaid cost reporting and reimbursement.
G. (l)(a) No hospital shall pass on the cost of this fee or include the fee as an itemized and separately listed amount on any statement sent to any patient, responsible party, insurer, or self-insured employer programs. If such a violation occurs, it shall be considered a violation of hospital minimum standards. If any such party has reason to believe that the fee has been passed on to him, or an attempt was made to do so, he may submit in writing to the Department of Revenue a request for an investigation along with evidence that the fee has been passed on or that an attempt was made to pass on the fee. The department shall have an affirmative duty to protect the parties above against any violation of this Subsection.
(b) Any bill or statement sent to a patient, responsible party, insurer, or self-insured employer program ... shall contain a statement that “This bill does not contain any cost of the fee imposed by the Healthcare Affordability Act....”
(3) Upon any finding by the Department of Revenue of a violation of this Subsection, it shall order full restitution to the affected party, including judicial interest computed from the time that the violation occurred until payment of the restitution.

(Emphasis added.)

While the foregoing statute is not directly in pari materia with La. R.S. 46:2625, as it involves a fee imposed upon hospitals rather than nursing homes, it is unquestionably analogous to La. R.S. 46:2625 in its object: the imposition of a mandatory fee upon health care facilities, generating revenue for the state. The two statutes co-existed until La. R.S. 47:8054 was repealed, and it must be presumed that the legislature was aware of their similar objects and analogous purposes when the latter was enacted in 2005. | islt is therefore appropriate to consider the language of La. R.S. 47:8054 in interpreting the analogous language of La. R.S. 46:2625.

It is particularly significant that the legislature designated the fee assessed against hospitals under La. R.S. 47:8054 as “an allowable cost for purposes of Medicare and Medicaid cost reporting and reimbursement” only, and that it expressly prohibited any hospital from passing on the fee “as an itemized and separately listed amount on any statement” to any private-pay patient, insurer, or other private source of third-party reimbursement. That provision stands in marked contrast to La. R.S. 46:2625(A)(2)’s language, which expressly designates the occupied bed fee as “an allowable cost for purposes of insurance or other third party reimbursements.” Further, the legislature considered it necessary in La. R.S. 47:8054(G)(l)(b) to mandate an unequivocal disclaimer in each bill or statement sent by a hospital, confirming that the hospital was not passing on the costs of the statutory fee to its patients or other responsible third parties. The absence of both a parallel prohibition and a related disclaimer requirement in La. R.S. 46:2625 indirectly but strongly supports the conclusion that the legislature did not intend to prohibit nursing homes from recouping the cost of the occupied bed fee by including it in their charges for services to their patients. If the legislature’s intent was to prohibit nursing homes from passing on the cost of the occupied bed fee, it could have easily expressed such intent in the statute.

We also take note that La. R.S. 47:8054(G)(l)(a) imposed an express, affirmative duty upon the Department to protect the patients and responsible third-party payors from any violation of the statute’s prohibition against passing on the cost of the fee. The plaintiff contends that La. C.C. arts. 2302 and 2303 provide the basis for a duty on the part of the Department to ensure 119that only nursing homes are bearing the cost of the occupied bed fee and to protect patients from paying a fee they did not owe. If that contention is correct, then the duty imposed by La. R.S. 47:8054(G)(l)(a) would have clearly been unnecessary and superfluous, as the Department would have owed a similar duty relating to hospital patients under La. C.C. arts. 2302 and 2303. Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Pumphrey v. City of New Orleans, 05-979, p. 11 (La.4/4/06), 925 So.2d 1202, 1210. It is presumed that every word, sentence, or provision in the law was intended to serve some useful purpose, that some effect is to be given each such provision, and that no unnecessary words or provisions were used. Lasyone v. Phares, 01-1785, p. 4 (La.App. 1st Cir.5/22/02), 818 So.2d 1068, 1071, writ denied, 02-1711 (La.10/14/02), 827 So.2d 423.

The plaintiff argues, in effect, that because the occupied bed fee was inaccurately designated on the patient invoices as a “state provider tax ” rather than an agency fee imposed on the provider, OSBM was attempting to “pass on” a nonexistent tax, a tax never in fact levied by the legislature. Thus, it is argued, Mr. Rachal paid a debt that was not in fact due by him to either OSBM or the Department. This argument is likewise unconvincing. Although the plaintiff is correct in her observation that the occupied bed fee is not in fact a constitutionally-authorized tax, imposed directly by the legislature, such does not change the fact that the fee was legally imposed by the Department as authorized by the legislature. It is undisputed that the actual charge itemized and billed by OSBM, as part of the total charge for its services, was its actual cost of the occupied bed fee imposed by the Department pursuant to its statutory authority, and not an unauthorized tax Uncollected under false pretenses. The mere circumstance of a semantic error in the fee’s designation as a “provider tax ” in OSBM’s invoices, rather than an agency or administrative “provider fee,” cannot reasonably serve as the basis for a substantive civil cause of action for recovery of a thing not due.

In summary, we conclude that neither of the plaintiffs assignments of error have merit, and that summary judgment was appropriately rendered as a matter of law.

DECREE

The judgment of the trial court, granting the motions for summary judgment of the defendants-appellees, Ollie Steele Burden Manor, Inc., St. Clare Manor, and the State of Louisiana, through the Department of Health and Hospitals, and dismissing with prejudice the claims of the plaintiff-appellant, Alice Fae Regan, against the defendants-appellees, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

AFFIRMED.

DOWNING, J., dissents in part and agrees in part and assigns reasons.

McCLENDON, J. concurs with the result reached.

DOWNING, J.,

dissents in part and agrees in part.

Li respectfully dissent insofar as the majority affirms the grant of summary judgment in favor of Ollie Steele Burden Manor, Inc. (OSBM) and against the plaintiffs. From the evidence filed in connection with the motion for summary judgment, it is clear that OSBM was collecting from Mr. Rachal for a debt that OSBM, not Mr. Rachal, owed. OSBM is, therefore, bound to restore the money paid. La. C.C. art. 2299 provides that “[a] person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.” La. C.C. art. 2300 provides that “[a] thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist.”

Perhaps OSBM could have increased its charges to cover the cost of the occupied bed fee, but it did not. Rather, it imper-missibly and explicitly passed the fee on to its patients. As the majority notes, the fee adopted and imposed by the Louisiana Department of Health and Hospitals is to be imposed upon all nursing facilities or nursing homes, and not upon their patients.

^Accordingly, as a matter of law, OSBM was not entitled to entry of summary judgment in its favor.

I agree with the majority, however, that the Department was entitled to summary judgment in its favor, dismissing it from the litigation. The Department was paid by OSBM fees that OSBM owed to it. As the majority notes, this is not a case where the plaintiffs paid the Department directly for a debt OSBM owed, and there is no evidence that the Department acted in bad faith. The plaintiffs have no legal basis for recovery from the Department.

Accordingly, I respectfully dissent in part and agree in part.

      . By the time of the trial court's judgment appealed herein, the daily charge was $8.02.

      . OSBM also served a cross-claim against the Department for any amount for which it might be cast in judgment to Mr. Radial for reimbursement of the fee payments.

      . Subsection B of the statute was effective April 1, 1992. The statute has since been amended by Acts 1999, No. 1192, § 1 and Acts 2006, No. 163, § 3, but the amendments are not relevant to the issues presented here.

      . See also La. C.C. art. 1968 ("The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.”)

      . There is a venerable legal maxim: Tout ce que la loi ne defend pas est permis. ("Everything that the law does not forbid is permitted.”) Black's Law Dictionary 1760 (8th ed.2004). The plaintiff’s argument would in effect stand this maxim on its head, or reverse its meaning, to read: "Everything that the law does not permit is forbidden.”

      . Former La. C.C. art. 1764(A) provided that “[alll tilings that are not forbidden by law, may legally become the subject of, or the motive for contracts[.]” Although this codal article and the quoted language were repealed as part of the 1984 revision of the Civil Code, the basic legal principle remains a viable part of our law.

      .The applicable federal regulations referenced included 42 C.F.R. § 433.68(b) and (d). The applicable Louisiana regulation by which the Department initially imposed Lbe occupied bed fee is La. Reg., Vol. 18, No. 7 (July 20, 1992), "Fees for Nursing Facility Beds.”

      . In that regard, we note that the fee imposed by former La. R.S. 47:8054 was statutorily termed a "fee” rather than a “tax,” although it was imposed directly by the legislature under Title 47 of the Revised Statutes, dealing with revenue and taxation, rather than under Title 46, dealing with public welfare and assistance. See La. Const. Art. 7, § 2.1 and La. R.S. 46:2625(B). A "tax" is generally defined as "[a] monetary charge imposed by the government on persons, entities, transactions, or property to yield public revenue." Black’s Law Dictionary 1496 (8th ed.2004). See also Merriam-Webster’s Collegiate Dictionary 1280 (11th ed.2008) ("a charge usu[allyj of money imposed by authority on persons or property for public purposes"). A "fee" is generally defined as "a fixed charge” or "a sum paid or charged for a service." Id. at 459. Given the foregoing definitions, the occupied bed fee imposed by the Department to generate net revenue might reasonably be considered, in ordinary lay usage, as a "tax.”


text:
    Tina M. HEBERT v. Troy DREWITZ, M.D., Natchez Morice, M.D., and Lammico Insurance Company.
    No. 2009 CA 0798.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 27, 2009.
    Tina M. Hebert, Pierre Port, Louisiana, Plaintiff/Appellee In Proper Person.
    Marc W. Judice, Lafayette, Louisiana, for Defendant/Appellant Dr. Troy Drewitz, Dr. Natchez Morice, and Louisiana Medical Insurance Company.
    Before DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

| gin this medical malpractice case, defendants appeal the trial court’s judgment dismissing plaintiffs suit against them without prejudice, where the terms of a consent judgment between the parties provided for dismissal with prejudice. We amend, and as amended, affirm.

FACTS & PROCEDURAL HISTORY

Plaintiff, Tina M. Hebert, filed a medical malpractice action against Dr. Troy Drew-itz, Dr. Natchez Morice, and Louisiana Medical Mutual Insurance Company (LAMMICO). Prior to Hebert’s suit being filed, a medical review panel unanimously found that the evidence did not support the conclusion that the defendant health care providers had deviated from the standard of care in their treatment of Hebert. In accordance with La. R.S. 40:1299.47(I)(2)(c) , defendants requested that Hebert file a surety bond for the cost of the medical review panel. When Hebert failed to file such a bond, defendants sought to have her suit dismissed. Prior to the hearing on the motion to dismiss, a consent judgment was entered providing that Hebert would post a surety bond by July 8, 2008. The judgment further ordered that if Hebert failed to file the appropriate surety bond by July 8, 2008, Hebert’s lawsuit “shall be dismissed with prejudice.” The consent judgment was |ssigned by Hebert’s attorney as well as the court on June 6, 2008. Notice of judgment was mailed to all parties on June 12, 2008.

On September 8, 2008, defendants filed a motion to dismiss Hebert’s claims with prejudice in accordance with the consent judgment for failure to file an appropriate bond timely. After a hearing, the court dismissed Hebert’s claims against the defendants because the surety bond filed was both untimely and improper. However, the court’s dismissal of Hebert’s claims was without prejudice. Defendants appeal this judgment, alleging that the trial court erred in modifying the terms and substance of the consent judgment and dismissing defendants without prejudice contrary to the terms of the final consent judgment.

DISCUSSION

A consent judgment is a bilateral contract by which the parties adjust their differences by mutual consent, with each party balancing his hope of gain against his fear of loss. Borchardt v. Carline, 617 So.2d 970, 973 (La.App. 4 Cir.), writ denied, 620 So.2d 844 (1993). See La. C.C. art. 3071. Its binding force arises from the voluntary acquiescence of the parties, rather than the adjudication by the court. Richardson v. Richardson, 02-2415, p. 4 (La.App. 1 Cir. 7/9/03), 859 So.2d 81, 84. A consent judgment may be annulled or rescinded for an error of fact or error of the principal cause of the agreement. Borchardt, 617 So.2d at 973.

At the time the consent judgment was entered in this case, the hearing date for the defendants’ motion to dismiss was approaching. Since Hebert had not filed a bond in accordance with La. R.S. 40:1299.47(I)(2)(c), her suit was subject to dismissal. See Harrison v. Minardi, 07-514 (La.App. 3 Cir. 10/31/07), 968 So.2d 1221. The defendants agreed to forego the hearing on their motion to dismiss in exchange for an agreement from Hebert to either |4iile an appropriate bond within a specified period of time or have her suit dismissed with prejudice. Neither party-in this matter sought to have the consent judgment annulled or rescinded for error. As such, the trial court erred in dismissing Hebert’s suit without prejudice, rather than with prejudice, as ordered in the consent judgment.

DECREE

The judgment of the court dismissing Hebert’s claims against Dr. Drewitz, Dr. Morice, and LAMMICO is modified to order dismissal with prejudice and, as amended, affirmed. Costs of this appeal are cast to plaintiff, Tina M. Hebert.

AMENDED AND, AS AMENDED, AFFIRMED.

DOWNING, J., concurs and assigns reasons.

| rA consent judgment’s binding force also arises from the fact that it is a valid, enforceable judgment that must be obeyed. See Black v. Comfort, 08-239, 996 So.2d 1187, 1190 (La.App. 5 Cir. 10/28/08).

      . Louisiana Revised Statutes 40:1299.47(I)(2)(c) provides:
      In a medical malpractice suit filed by the claimant in which a unanimous opinion was rendered in favor of the defendant health care provider as provided in the expert opinion stated in Paragraph (G)(2) of this Section, the claimant who proceeds to file such a suit shall be required to post a cash or surety bond, approved by the court, in the amount of all costs of the medical review panel. Upon the conclusion of the medical malpractice suit, the court shall order that the cash or surety bond be forfeited to the defendant health care provider for reimbursement of the costs of the medical review panel, unless a final judgment is rendered finding the defendant liable to the claimant for any damages. If a final judgment is rendered finding the defendant liable to the claimant for any damages, the court shall order that the defendant health care provider reimburse the claimant an amount equal to the cost of obtaining the cash or surely bond posted by the claimant.